Court File and Parties

Court File No.: Brampton 616/06 Date: 2012-09-26 Ontario Court of Justice

Between: Jennifer Ruiz, Applicant

— And —

Daniel Torres, Respondent

Before: Justice J.C. Baldock

Heard on: September 12, 2012

Reasons for Judgment released on: September 26, 2012

Counsel:

• Janet P. Daby, for the applicant
• Natalie Denchik, for the respondent

Judgment

BALDOCK, J.:

Introduction

[1] This is the applicant's motion to change the order of Justice Maresca granted November 1, 2007 as it relates to child support for and access to the parties' child Alysia Jessebell Ruiz-Torres, born February 9, 2006.

[2] In his response to the motion to change, the respondent seeks relief from an alleged overpayment for daycare. He also requests joint custody, expanded access, a reduction in child support and limitation on the applicant's ability to travel with the child outside Canada.

Child Support

[3] I deal firstly with the issue of child support.

[4] The current order requires the respondent to pay $155.00 per month based on his then income of $15,000.00, and 50 percent of the cost of daycare.

[5] According to his financial material filed, the respondent's income for 2011 was $42,312.00. He claims he has been in receipt of Employment Insurance since November 2011 and his current income is $1,640.00 per month ($19,680.00 on an annual basis). I note his expenses (inclusive of his contribution to daycare costs) exceed $27,000.00 per year.

[6] For 2012 the respondent should be paying in accordance with his 2011 income, in the amount of $389.00 per month.

Daycare Costs

[7] As to the daycare costs, the applicant acknowledges that none is currently payable and the respondent's obligation was terminated by my September 12, 2012 order.

[8] The respondent argues that, notwithstanding the babysitter's signed receipt provided by the applicant, which confirms payments of $500.00 per month from 2009 to November 2011, the actual amount is much less. In support of his position he filed a transcript of his conversations with the babysitter attached to his brief. Such material is of no probative value. It is not part of a sworn affidavit and the other party does not clearly identify herself. I therefore disregard that document as being inadmissible. Even had I found it to be admissible, I find it too inconsistent to be reliable.

[9] The respondent alleges that the receipt provided is a forgery, but I question why a babysitter would acknowledge receiving more than she actually did, as to do so would create a higher tax liability.

[10] I therefore conclude that, prior to November 2011, the regular daycare payment was $500.00 per month and the respondent's contribution 50 percent.

[11] Even if I am in error in this finding, there is no prejudice to the respondent as his income for the years in question has been consistently higher than that of the applicant and arguably he should have paid more than 50 percent.

Access and Related Issues

[12] I now address access and related issues.

Elimination of Overnights

[13] In August of 2012, Alysia returned from a visit with the respondent and reported an injury to her vaginal area.

[14] The applicant took the child to the hospital where it was discovered that she had some redness in her vaginal area.

[15] The child reported that the three year old son of the respondent's girlfriend Melissa had kicked her and that this occurred while the respondent was lying on the ground lifting weights.

[16] The applicant is concerned that the respondent either did not notice or take any action as a result of this incident. Furthermore he did not mention it to the applicant on the child's return.

[17] As a result she believes that the child should not spend overnights at the respondent's residence.

[18] As concerning as this incident is, there is no evidence to suggest it was anything more than an unfortunate accident. The real issue is the respondent's failure to report it, or address it.

[19] I do not find that the child would have a greater level of safety by spending daytime only with the respondent. However, I have already cautioned the respondent about the need for supervision and vigilance and reporting of any incident even if it appears minor. I now re-emphasise that caution and incorporate those requirements as terms of today's order.

Other Access Terms

[20] The applicant set out in her brief the other terms she is seeking as items 2 to 9. The respondent has raised no issues in this regard and they too are incorporated into my order.

Travel

[21] There is some disagreement over the issue of travel. Overall, I find the position taken by the applicant mother to be reasonable, save and except that if the respondent's access is affected by any trips taken with the child it should be made up as soon as possible thereafter, and for trips of over two weeks a full itinerary should be provided.

Joint vs. Sole Custody

[22] The respondent seeks an order for joint custody. It is obvious that the parties cannot communicate effectively with respect to their child.

[23] The respondent, as evidenced by his behaviour in the courtroom, is very volatile and easily angered. This only serves to reinforce the applicant's view of him as irresponsible and unstable.

[24] The applicant has been less than candid on the issue of daycare. She could, and should have provided the respondent with monthly receipts, clearly setting out the number of hours paid for. That she has not done so only reinforces the respondent's perception of her as gouging him for money.

[25] Henceforth receipts will be required for any s.7 expenses.

[26] Given the total lack of trust and the suspicions harboured by each party as to the other's agenda, a joint custody order is clearly unworkable.

Final Order

[27] For these reasons there will be a final order as follows:

1. The respondent father Daniel Torres shall have access to the child Alysia Jessebell Ruiz-Torres born February 9, 2006 as follows:

(a) On alternate weekends from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. commencing June 30, 2012.

(b) As set out in paragraphs 14 – 18 hereof, and

(c) Any other access as agreed by the parties.

2. The parties shall, except in the case of an emergency, limit their communication to

(a) text messages solely to make access arrangements and otherwise to address any issues concerning the said child; and

(b) written communications to comply with the ongoing disclosure requirements of this order.

3. The Respondent father shall not expose the said child to any form of conflict whatsoever and shall not say or imply anything derogatory or negative about the Applicant mother Jennifer Ruiz or her family, or permit others to do so in the child's presence.

4. The Applicant mother has the right to communicate directly with the said child by telephone at least once during each access visit and the Respondent father shall ensure that the child has an opportunity to speak with the Applicant mother.

5. The said child shall, unless otherwise agreed, be transferred between the parties' residences by the Respondent father's mother, Martha Allendes, or his girlfriend, Melissa Hilton.

6. The Respondent father shall not be present for any access transfer.

7. For any travel with the said child outside Ontario for a period of five (5) or more days, the Applicant mother shall provide the Respondent father with advance notice and a complete itinerary. Any access missed as a result shall be made up as soon as possible thereafter.

8. When the Respondent father is exercising access in accordance with the current order he shall at all times be the primary caregiver and shall not delegate care for any period beyond two hours to any other party.

9. If the Respondent father is unable to provide care for the child he shall contact the Applicant mother and arrange for the child's return.

10. The Respondent father shall report to the Applicant mother with respect to any issues which may arise pertaining to the child during access visits, including any injuries, even if minor, and any health concerns.

11. The Applicant mother shall forthwith provide the Respondent father with a copy of any medical report or records, diagnosis or prescriptions related to the child's attendance at the doctor/hospital on August 26, 2012 and any other or follow up attendances.

12. The Respondent father is no longer obligated to make any contribution to the cost of daycare/babysitting. The Respondent's obligation, pursuant to paragraph 4(b) of the order of Justice Maresca, granted November 1, 2007, is limited to 50 percent of other special and extraordinary expenses that may be incurred.

13. The Applicant mother shall provide the Respondent father with proof of any expense for which a contribution is claimed and the Respondent father shall reimburse the Applicant his 50 percent share within 45 days thereof.

14. The Respondent father shall have the child on Father's Day from 10:00 a.m. until 6:00 p.m. if not on his access weekend.

15. The Applicant mother shall have the child on Mother's Day from 10:00 a.m. if on the Respondent father's access weekend.

16. The Applicant mother shall have a three week uninterrupted vacation period with the child and the three weeks can be taken consecutively if the child is travelling to Columbia otherwise only two weeks may be taken consecutively. The Respondent father's access during this time will be suspended, but shall be made up as soon as possible thereafter in accordance with paragraph 7 above.

17. The Applicant mother shall have the child on each and every December 24th and the Respondent father's access to the child shall be on December 25th from 10:00 a.m. until 8:00 p.m. each year.

18. The Respondent father shall not use the child to communicate with the Applicant mother about additional access or changes in access.

19. The Applicant mother may remove the child from the Province of Ontario for vacation purposes or short daytrips without the necessity of obtaining a Statutory Declaration from the Respondent father. Canada Border Services and other immigration authorities shall accept this order as their authorization. If for any reason notarized travel consent is required, the Respondent shall provide the Applicant with the notarized letter within two weeks of her request and the Applicant shall pay the cost of having the letter notarized.

20. The Applicant mother may obtain a passport for the child including any renewals and the Respondent father's consent to the issuing of the passport is not required.

21. The child's passport and any other documents shall remain and be held by the Applicant mother at all times.

22. The Respondent father shall pay for the support of one child the sum of $389.00 per month effective January 1, 2012.

23. Commencing January 1, 2013, the Respondent father shall pay the sum of $170.00 per month, based on his Employment Insurance income of approximately $19,700.00.

24. The Respondent father shall immediately notify the Applicant mother in writing upon obtaining employment and provide full details of same.

25. The remaining claims made by either party are hereby dismissed.

Costs

[28] Counsel may make very brief written submissions with respect to costs within 30 days.

Released: September 26, 2012

Justice J.C. Baldock