ONTARIO COURT OF JUSTICE

DATE: 2013·08·27

COURT FILE No.: Owen Sound 271/06

Citation: Cashubec v. Gagne, 2013 ONCJ 469

BETWEEN:

JEREMY JAMES CASHUBEC

Applicant

— AND —

RACHELLE MARIE GAGNE

Respondent

Before Justice P.A. Hardman

Heard on June 25, 26, 27 and 28, 2013

Reasons for Judgment released on August 27, 2013

Mr. Brian Renken ............................................................................... counsel for the applicant

Ms. Jill Gamble .............................................................................. counsel for the respondent

Hardman, J.:

[1] The father brought an application seeking joint custody of a child AC born April 2005. He also sought to have the order confirm the status quo which was principal residence with the mother and liberal access to the child by him. By cross-claim in her answer, the mother sought an order of sole custody and child support.

[2] While the application was never formally amended, the father’s position changed at some point. At the time of trial, he was seeking sole custody and alternate weekend access to the mother. He did not mention any claim for support. It appears that the mother was aware of his change of position through the investigation by the Office of the Children’s lawyer (OCL).

Background:

[3] The father met the mother at a Canadian Tire store in 2002 where she was employed as a cashier when he was purchasing car parts for the dealership where he worked as a mechanic. The mother had a daughter AS born April 1998 who was almost four when the father began dating the mother. The mother and AS moved in with the father and his parents and eventually AC was born.

[4] The mother and father stayed with both children at the paternal grandparents’ home until they purchased their own home in March 2006. As a result of difficulties in their relationship, the parents separated. In February 2007 the father moved back with his parents and the children remained with the mother. About this time the father commenced an application in court for custody but it was later withdrawn as the parties had reconciled.

[5] However, the parents were still having issues so they attended some counselling which was not successful. The conflict between them continued. Therefore in October 2008 the parents made a decision to separate again. However, the home took until 2009 to sell.

[6] After their house sold, the father returned to his parents’ home and the mother to her mother’s home with the children. In April 2010, the father purchased a home a short distance from the paternal grandparents.

[7] In the beginning of their separation in 2009, the father had access every other weekend and once or twice midweek. He also paid the mother $350 as child support without any disclosure being provided or written agreement or court order.

The Father’s Evidence:

[8] The father acknowledged that when he signed his application before the court on June 1, 2011, he wanted to have joint custody and the status quo in terms of access. He explained that he started the application to have a more secure situation. He said that police could not do anything if there was not a court order.

[9] He testified that he told the assessor he wanted sole custody. He said that he told him that he thought that it would be better if the child lived with him to limit the “negative activities coming from the mother’s”.

[10] When asked what access he had proposed, he said that he at first said every other weekend but changed to Sunday to Tuesday. He suggested that the Sunday-Tuesday option for access had come from the assessor.

Conflict:

[11] The father said that half way through the pregnancy with AC the mother’s attitude changed “180 degrees” which put pressure on his parents. He said that there was conflict between the paternal grandmother and the mother so they purchased their own home and moved out.

[12] He described a number of incidents of conflict between the mother and himself.

[13] One incident was a time in 2006 when they were in the family van going to pick up the mother’s new car and they had an argument in front of AS. He said that they were going by AC’s babysitter and there was a disagreement about stopping. He said that the mother was driving and she pulled into his parents’ laneway and told him to get out. He said he did but he reached into the van and took the keys out of the ignition because it was his van. He said that the mother struck him in the face in front of AS so he called the police. As a result of the call, the mother was charged with assault and her terms of release did not allow her to reside with the father so she and the children moved in with the maternal grandmother. In February 2007, the mother’s charge was withdrawn and she entered into a peace bond. The parties then reconciled.

[14] It is concerning to note that the father in his account of the incident appeared to disregard the fact that the van was being used at the time as a family vehicle routinely driven by both parents. Further there was no explanation about what the mother and the child stranded in the vehicle in the driveway were to do. He did not seem to acknowledge that it was a good thing that one of them left the vehicle given the conflict in front of the child. Lastly, it does not appear particularly child-focussed that the father chose to stay in the home forcing the mother to move out with the children due to her terms of release.

[15] The father testified that after the first few months of reconciliation, conflict resumed between them. He said that sometimes the children were home for the conflict, either in bed or in a different room. He described the conflict as yelling and screaming. He said that he was “getting provoked by this woman” who insulted his parenting and followed him from room to room. He said that she would stand in front of the door and he would be getting “madder and madder” and that one time he went out the back way to get out of the house. He said that he acknowledged being destructive when angry but “not on a regular basis”. He said that he did not know that he had an anger management problem although he did get angry, once slamming a cupboard door and breaking it.

[16] However, in cross-examination he said that he “would slam the cupboard door and it might break”, stating the same thing about the closet door. However, he then denied breaking any cupboard doors, saying that he slammed them hard enough to break but they did not. He said that he did this less than ten times. He acknowledged breaking the closet door. He also admitted on cross-examination that he was getting angry more than he should have.

[17] He said that after the house sold in 2009 the communication between them was quite good although the paternal grandmother still would not allow her at their house. He said that the paternal grandmother felt that the mother would not take her advice or suggestions and did not respect her house rules while she lived there. The father was not able to identify what he meant by house rules.

[18] The father described another incident of conflict in June 2010. He said that he was home from work as he was not feeling well. The mother “showed up” with the two children asking for her vacuum cleaner, the child support and some pictures. He said that the child support was not due for nine days. He asked her to leave and he noted even AS wanted to leave. The mother refused, trying to get the child support.

[19] Instead of giving her the support and the vacuum which he was in a position to do, he called the police as she would not leave. The father said that he could not recall why she needed the money early but would not give it to her as the end of the month was the “status quo”. He acknowledged that she had never asked for support early before and that he could have given it to her. But he chose not to. He said that the Children’s Aid Society (the society) became involved as the children had been present.

[20] The father testified that in May 2011 the mother attended at the paternal grandparents’ house and tried to get the child to come with her. He said that she forcibly removed the sweater from the child, leaving him outdoors without one. As a result of this incident, the mother was issued a Notice under the Trespass Act telling her not to attend at the paternal grandparents’ home.

[21] The father acknowledged that the mother called the police about the number and nature of his contact with her. He said that the mother no longer responds to his emails or texts and that the comments in the journal are not regular. He also said that if he knows about a doctor or dentist appointment, he will be there. He denied ever calling the mother fat or making fun of her weight. He said that he had never called her “brain dead" in the communication book or otherwise but changed his evidence when confronted by a copy of the communication book showing the message September 2012. He denied that the mother told him that she considers him a “bully”. The father could not remember there being discussion about the mother’s fear of him and his use of alcohol at counselling.

Alcohol and drugs:

[22] The father testified that he had experimented with drugs but that his last use of marijuana was when he was 25 years of age. He denied using when the mother was pregnant with AC. He also denied growing marijuana at his mother’s house either inside or in the garden and denied telling the mother that he had.

[23] He told the court that he drank socially but not to the point of having a problem. He said that during their relationship they each went out with their friends and drank. While he initially said that he did not consume alcohol when he had AC, he acknowledged that he had had a glass of wine. He acknowledged that the mother did describe him as an “angry alcoholic” around the time of their breakup.

[24] When asked about his “over 80” charge, the father said that he had had three drinks on May 5, 2012 at a long time friend’s campfire about ten minutes from his home. He said the officer detected alcohol on his breath at a stop at a RIDE program and gave him the roadside screening which he failed. He told the court that his intoxilizer results were “110” and “100”. He said that he lost his licence for three months and hired a lawyer. He said that he pleaded guilty on June 19, 2013. He said that he will be able to get his licence back in December 2013. He explained that his parents are prepared to drive AC to school, soccer, day camp or anywhere else he needed to go.

[25] The father acknowledged that he did not tell the mother about being charged with a drinking and driving offence. When asked how she found out, he said that he assumed that it was from the assessor’s report. While the father had initially testified that he had told the child the truth about why he was not driving as he was eight years of age and old enough to tell the difference between right and wrong, he subsequently changed that evidence. He said that there was “no point in lying”. However, in cross-examination, it became clear that he had in fact lied to the child during the three months that he had lost his licence after the arrest, telling him that the car was broken. It was not until he was going to lose it again after pleading guilty that he spoke to the child about “his mistake”.

[26] When confronted with the fact that the child had spoken about the father’s charge at the same time as telling the mother that his father had told him that the mother had a criminal record and a charge, the father denied telling the child about the mother’s involvement with the law.

Work History and Child Support:

[27] The father told the court that after graduating from Centennial College, he worked for a short period of time at a Ford dealership until he obtained his certification. He then went to work at BTI in Thornbury, about 40 minutes away. At that job, he assembled underground mining equipment. He said that he started there in 2006 or 2007. He explained that there were two shifts: two weeks of days (7am-4pm) and two weeks of nights (4pm-2am).

[28] The father said that the mother had also worked and they took turns looking after AC. He acknowledged that he did not see much of AC during the night shifts. He said that after separation he had been getting the children every other weekend and that he and the mother were communicating “all right”. He said during this time they agreed that he should pay $350/month as child support. He said that the mother was receiving $300/month from AS’ biological father. He said that he paid this until September or October of 2010. He said he did not pay any support after that as he was looking after the child more.

[29] The father testified that after separation he purchased his own home in April 2010. However, in August that same year, after receiving a temporary layoff notice from BTI he decided to try to get a job in the securities field and went through a somewhat rigorous employment program to be hired. After receiving notice that the layoff was extended to November, the father decided to apply as an armed guard in the security field. He said that when he had not heard from BTI he took a security job November 28, 2010. A week afterwards, he received a callback from BTI but turned them down. He said that the hours at the security job were more flexible and he could spend more time with the child. However, he acknowledged that he did not know his schedule until a week ahead and could be on call. Further he admitted that it was only a casual position at $18/hour with no guarantee of hours. This hourly amount increased during the time that he was at that company.

[30] He said that while he was laid off and could not pay child support, he took the children more often to reduce the daycare costs.

[31] As a result of losing his licence in May 2012, he lost the security job. He said that he started to work with his father as it was the only thing that “fit”. He worked for him from his home auto glass business. He said that he was hoping to bring automotive repair into the business and combine it with the auto glass business. He said that there were some good days and some bad. He said that he was paid $15/hour by cheque. He said that it was his father’s business but the mother did the books. He said that it was not incorporated. He said that he would like to take over ownership of the business but they had not talked about it. He said that his parents lived on the property.

[32] While he acknowledged that he could have gone back to full time work, he did not as he wanted more time with his son. He acknowledged that the child was covered under the mother’s benefits as he did not have any. Although he admitted that before he generally had had the child two evenings per week and every other weekend, he refused to consider that as generous access.

[33] The father was adamant that he works 8 am to 5 pm Monday to Friday and has never done any work that was not “on the books”. However, he acknowledged that there was no other mechanic on the premise and the mother produced a stack of invoices for car parts, some of which he identified as being for vehicles of friends known to both the mother and the father. Further, he initially said that it had been his intention to expand his father’s glass business to include mechanical work.

[34] The father said that he now has the child Tuesday to Thursday after school and the mother has the child until the following Wednesday at which time the child is returned to him until Monday. He said that the arrangement is based on the mother’s work schedule.

[35] He admitted that he had earned $44,920 in 2009 at BTI even with a three month layoff. He acknowledged $33,191 in 2011 from his “casual” security job. He admitted that he did not know if he could work at BTI with his licence suspended and had never looked into any other work.

Counselling:

[36] The father recalled little of any counselling that he attended early on in the relationship. He did not recall the marriage counsellor’s name. He did not recall if AS had been in counselling. He did believe that he and the mother and AS had attended at the same time at a counsellor but could not recall the reason for the counselling. When asked if AS had been “hurt by the separation”, he said that he thought that she was “upset” about it. He did not recall any conversation with the mother regarding counselling for AS to deal with the separation.

[37] The father testified that he completed the following at the suggestion of the society:

• Dad’s Group-ten weeks-April-June 2011-every Wednesday

• Divorce and separation-two occasions-June 9, 2012 and September 12, 2012.

[38] He said that he had recently attended a program with his girlfriend who has four children and has been in contact with the society regarding summer camp.

The Child AC:

[39] The father described AC as a “decent” student with behaviour issues. He explained that AC appears to “bug” other students although he testified that he was doing better recently. He testified that while AC does not get homework, he will give him extra work to do using a phonics book. He said that he has to work the hour and a half after AC is picked up from school but AC will either help him at the shop or watch TV at his paternal grandmother’s home. He said after work they have dinner, playtime and TV before bedtime.

[40] The father told the court that he and one of his parents drove to pick up AC at school. When asked why he went, he said that they were not that busy in the shop. However, he also testified that he was working for about one and a half hours in the shop after AC returned from school and that he often was with him playing around, sometimes while a car was on the hoist as he was changing tires. He denied that the mother had expressed concern to him about the child being in the shop.

[41] While the assessor’s evidence suggested that the father had told him that he helps the child with his homework, the father acknowledged in cross-examination that the teacher did not give AC homework and that he did extra work with AC from a workbook that he had purchased. He seemed uncertain about whether he had told the assessor that it was homework from school or not. He acknowledged that they had not done any extra schoolwork during his observed access with the assessor.

[42] When the father was asked about involving his son with weapons, he acknowledged that he had allowed AC to hold and fire a 22 calibre rifle at a target but had kept his own hand on the rifle at all times. He denied recalling the mother being concerned about this activity for their young son.

[43] The father also admitted to the court that he and his son had played video games including an army game, Call of Duty, where people shot at each other in the jungle. He said that they also had played Grand Theft Auto in which there is aggressive destruction of property. He could not explain why he was playing age-inappropriate violent videogames with the child especially when the child was struggling with issues at school. He told the court that he stopped the use of age inappropriate videogames after being cautioned by the assessor. The mother in her evidence acknowledged that the child was doing better since he stopped playing violent videogames at his father’s home.

[44] The father expressed a lot of interest in the child doing sports and feels that the mother is opposed to the involvement. However, the evidence makes it clear that the mother is supportive of sport but only if the child is interested. Further it is the mother not the father who is involved in sports herself. He complains that she has only taken him to a quarter of his games. He feels that as a result of missed practices, the child’s skill level has suffered. He said that he goes to the practices and the games even when it is not his weekend.

[45] The father feels that the child loves hockey but the mother states that is not so and that he is just doing it to please his dad. The mother testified that he told her that he wanted to quit hockey. She says however that the child loves soccer.

[46] When the mother and the father had a disagreement about the child signing up for hockey again, the father asked the society worker and for some reason she told him just sign him up.

[47] The father’s approach on the issue of the child’s involvement in sport is difficult to understand. He stated that he never played hockey and does not now; he said that he wished that his parents had signed him up when he was a child. However, he acknowledged dropping out of soccer when he was seven as he “lost interest”. He said that he wants his son to play hockey because it is important as a team sports and he envies his friends who have life-long friends from playing hockey.

[48] The father testified about an incident at hockey. It was the mother’s weekend and the mother was “attempting to introduce” the child to using a right stick after three years of using a left one. The father thought that that was “dangerous” and switched him to a left handed stick. He said that he left the right stick by the boards and pointed to it when she came near and said “there’s your stick”. The father admitted that it was not one of his access days with AC but the mother’s time.

[49] The use of a wrong-handed stick by a child at this age is not likely to be dangerous. The father interfered with the child on a day that was not his access and yet complains about the mother being upset. The mother testified that the child’s uncle had given him the stick and she wanted him to have the opportunity to try it. She acknowledged yelling at the father about the issue.

[50] The father is also concerned that the mother did not take AC out for Hallowe’en for two years in a row. He said that he wrote to her in the communication journal telling her to “make sure that he gets out”. He did not acknowledge receiving any explanation. The mother told the court that she did not take him out for Hallowe’en as he had misbehaved, frankly a strange explanation given that it happened two years in a row.

[51] The father also complained that the child is sent to school in dirty clothes. He said that the mother would take the child Thursday and the following Wednesday the child had on the same clothes, unwashed. He said that there were similar issues with the soccer uniform.

[52] When cross-examined, the father insisted that the child was returned every Wednesday since the summer of 2011 in the same clothes that he had left in and that the clothes were “filthy, filthy”. He denied that they had been washed in the mother’s care. When pressed on the issue, he told the court that he had put “wee black dots” on the clothes and that they were still there when the clothes were returned. He said that he stopped making the dots two months ago as it was too tiring.

[53] Despite this, there was no evidence that the society become involved on the issue and no other agency had expressed concern.

[54] The father’s evidence that the child went to school in dirty clothes is not borne out by the school records which indicate no concern about the appearance and cleanliness of the child. Further, the nature of the exchange for sports equipment and the child having to wear different clothes at each home complicates the situation.

[55] It was clear to the court that the father was embellishing his evidence as he testified.

[56] The father also complained about the mother’s care of the child. He said that the child has dry skin that “breaks and bleeds”. He then modified his answer saying that the skin was “pretty much bleeding”. Then he changed that and said that the skin was “pretty close to bleeding”. In the end, he said that the skin was cracked because she did not put moisturizer on the child.

[57] Once again the father’s own evidence shows that he is manipulating his testimony in order to discredit the mother’s parenting.

The Father’s relationship with child AS:

[58] The father explained that both children were coming to his home until an incident in 2011 regarding AS’ cellphone. He explained that he had rules in his home and that he did not want AS to have the phone after bedtime. He said that he and the mother had an argument and the mother refused to let AS return. He said that four months later AS asked to come but he would not let her spend the night as he thought that she might steal something from the house at the request of the mother. He said that he decided to shorten the visit and dropped her off. He said that he has seen her at school and at the odd soccer game.

[59] The father described an incident at school when he was dropping off AC and AS came around the corner of the school with two friends and called AC over. She then started to tell AC that he was a brat and a “pain in the ass”. When the father told her not to speak to him that way, AS told him not to talk to her and to shut up. He said that she told him that he had ruined her life and her mother’s. He said that he was “in awe” although he was unable to explain what he meant.

[60] When asked if he had treated AS like a daughter, the father was evasive. He said that he had treated her in the same way as he had his son except for accommodating the age difference. When asked again, he said that he did not do the discipline but made his “best efforts”. When asked if he considered himself AS’s stepfather, he categorically said “no”. When challenged with his sworn statement that he was her stepfather, the father eventually simply stated that “things had changed since then”.

[61] When asked if he wanted access with AS, the father said that he would want to see how she was. He had concerns about “name calling, lashing out and destruction of trust”. He said that he would want to know that she had “calmed down”.

[62] The father said that the last time that he had seen her was over a year ago.

The father agreed that AC and AS behaved like siblings. However, when asked if AC mentioned AS at all, he testified that AC talked to him about his sister “hitting” him, “beating” him and “bullying” him. When he was asked if AC had told him about his trip to the beach with AS and his mother, the father reluctantly admitted that AC had told him about the trip and immediately went back to AC saying that AS was “rough” with him.

[63] It is clear from the evidence that AC is not being physically beaten and hurt by his sister routinely at the mother’s house. The father is deliberately exaggerating the issues between the two children for his own purposes. He himself acknowledged that the children behaved like siblings.

The Paternal Grandmother:

[64] The paternal grandmother gave evidence during the trial. It was clear that she suffers from a significant physical disability. She explained to the court that her balance began to deteriorate in 2001 and now it is so bad that she requires two sticks or a walker to walk. Unfortunately the cause is not clear and it is continuing to deteriorate.

[65] Despite her lack of mobility, she appears to be regularly left with the responsibility of AC and his five and two and a half year old cousins. She testified that she watches them from the window or the bottom of the ramp as AC at the age of eight drives the golf cart around the property by himself with his two young cousins on board.

[66] She testified that they also swim in the small pool or watch television while she is watching them.

[67] Certainly the mother should be concerned about the activities described. The grandmother would not be in a position to intervene in an emergency. I do not know if the cousins are with her alone at the property when the grandfather drives the father to pick up AC from school but they certainly should not be. The youngest one was still in diapers!

[68] The grandmother testified that the father became involved in their business after he lost his security job. She said that with her physical issues and the concerns about the physical health of the grandfather they thought that it was a good time to retire. She said that the business is incorporated and unbeknownst to the father, he was made a shareholder. Despite the fact that she handles the day to day financial aspect of the business, she did not provide clear evidence about the circumstances of the business. She was unable to confirm if there were any dividends or how she and her husband took money out of the business other than through petty cash. The odd amount paid to the father was a number she said that the accountant provided.

[69] The grandmother said that no one else was paid from the business as an employee other than the father. She said that it was hoped that he would eventually make more money. When asked if there were any benefits provided by the business, the grandmother stated that she babysat AC for the father and did things for him. She also identified another benefit in that the father could leave the shop when he needed to.

[70] When asked about the others in the shop, she immediately identified their friend C now 82 years of age as the person doing a lot of mechanical work. She testified that he was in the shop every day keeping her husband company. She said that they chat, hang out and sometimes work. She noted that C tinkers on his son-in-law’s van.

[71] Unfortunately it was obvious that she had known ahead of time about the issue raised in court the previous day about the invoices regarding car parts ordered through the shop. She acknowledged that the father had told her about the invoices in the car on the way home from court. Despite admitting that neither her husband nor C were mechanics, she tried to suggest that the parts were all ordered for C’s work.

[72] Given the number of invoices, it is unlikely that C “tinkers” at the age of 82 to that extent.

[73] The paternal grandmother also confirmed that the mother had pulled into her laneway and roughly removed the hoodie that AC was wearing. She said that while it was zippered, it was not done up at the time.

[74] The paternal grandmother told the court that she had never seen the father consume any alcohol when AC was in his care. She also denied that there had been any marijuana plants in her home or garden.

The Paternal Aunt:

[75] The paternal aunt confirmed that she was married to the father’s brother and had two children aged 5 and 2 that she leaves at the paternal grandmother’s home. She said that she had no concerns with AC driving the children on the golf cart as he slowed down on the corners. She also said that while she acknowledged that the paternal grandmother was unsteady and could not walk unassisted, she had no difficulty in her supervision of the children on the cart or in the pool. She said that the pool was only half of a foot deep.

[76] She also testified that she had not seen the father consume any alcohol when AC was in his care.

The Mother’s Evidence:

[77] The mother has had a fairly solid work record. She worked for Garage Clothing and Canadian Tire before taking a job at the Royal Bank. She testified that she intends to take some management courses so that she can be ready when an opportunity arises in the future.

[78] She confirmed that she and the father dated in March 2003 and as it appeared to be a solid relationship, she and AS then four years of age moved in with the father and his parents in December. She said that she waited until December so that AS could change schools for the Christmas break. They decided to have a child together. She said that after the child was born, she had disagreements with the paternal grandmother about raising the child and so they moved out.

[79] While the paternal grandmother seemed unaware of the issues, the mother agreed with the father that the two of them had a number of disagreements. The mother testified that the father treated her badly when she was pregnant, calling her names and being rude to her. She told the court that he went out drinking a great deal with his “buddies” and she was left with the care of the child. The mother told the court that while she had told the assessor that the father was physically and mentally abusive of her in the relationship, she never provided the details of any incidents. She told the court that he had pushed her during the relationship and pulled a computer out of the wall.

[80] She acknowledged having followed him around the home trying to speak to him and one incident where she tried to stop him from leaving. She said the conflict was stressful.

[81] The mother told the court that she organized and took care of everything for the child. She said that everything that the father did was “all about him” and not about the family.

[82] The mother explained that she was tired of the fighting and moved out of the home with the children in September 2009. Although the closing was not until November, she left early to allow the children to be enrolled and ready for school in their new home.

[83] She told the court that she and the father continued dating for a few months. She said that while the father wanted to start “fresh and new”, she terminated the relationship in February 2010. She acknowledged in cross-examination that they had all gone to Florida together in April 2010 but it had been as friends.

[84] The mother explained to the court that it was AS’ decision to stop access with the father in 2011, the year that she turned thirteen. She acknowledged telling the school that the father was not authorized to pick her up as AS was concerned about the father making her go with him.

[85] The mother told the court that the father had told her that he had previously raised marijuana in one of the bedrooms in his parents’ house and put other plants in the garden. The mother said that the father told her that the paternal grandmother watered the plants but did not use the marijuana. She noted that he also said that although the paternal grandmother knew about the plants the paternal grandfather did not. The mother said that the father told her that he and the grandmother often kept secrets from the paternal grandfather.

[86] The father denied telling her this or growing marijuana at his parents’ home. The paternal grandmother also denied the presence of any plants. While the mother’s evidence was detailed about the specifics of what the father had told her and had the ring of truth, it should be noted that even a finding that the father told her this story does not necessarily mean that it happened. Further, there is no evidence of the father’s ongoing use of drugs despite the mother’s concerns about his drug use with his friends earlier in the relationship.

[87] The mother testified that she has ongoing concern about the father’s drinking. She told the court that during their relationship he had a few drinks every night. She said that she was very concerned about the father drinking and driving given his charge in 2012.

[88] The mother also told the court that the child had indicated that they had been in a minor car accident in a parking lot on the way to the barbeque held on the September long weekend in 2012. He told her that he had seen the father and his friend “wasted” at the event. This issue was not put to the father in cross-examination and not addressed in reply as he chose not to retake the stand.

[89] The mother acknowledged that she had called the police in January 2012 to complain about the number and nature of the texts received from the father. The court was provided an example of the sometime rude messages that the mother received from the father. The partial message filed reflected the mother’s concerns about the father’s “aggressive and controlling” behaviour. It supported the mother’s view that he was “not nice” in their communication. The mother said that when she does not attend something such as AC’s sports practice, she feels “panicked” about the fact that the father will be pestering her with texts about her absence and wanting to know where she was.

[90] The mother is also concerned that the father is not being child-focussed in the manner in which he introduces AC to his girlfriends and children without stabilizing the relationship first. She said that AC asked her what happened to one girlfriend and her children when they suddenly disappeared from the scene. She said that AC still struggles with the termination of his parents’ breakup and it is hard on him to go through it again when the father terminates a relationship. The mother testified that AC wrongly believes that all the issues between his parents would stop if they got back together.

[91] The mother testified that she was concerned about the child driving the golf cart at the grandparents’ house and the lack of supervision during access. She said that she did not want the child being in the shop when there was work going on. She also said that she did not want the grandmother given her physical limitations looking after the child. She noted that if the father was not available, she would rather have the child.

[92] Another issue that suggests that the father is not very child-focussed is the allegation that when the father told the child about his drinking and driving offence, he also told him about the mother’s assault. The child told the mother that the father told him about the drinking and driving and then added to the mother: “you have a criminal record because you punched him in the face”.

[93] While the father denied this, frankly I am prepared to assume that he in fact did so given the lack of reliance I am prepared to put on the father’s evidence.

[94] There are several concerns about the mother’s behaviour as well.

[95] The mother admitted that she had removed the sweater from the child in the paternal grandparents’ driveway and had been angry because she had been asking the father for the sweater for a long time. She also admitted having words with the grandparents as she was concerned about the amount of time that the child was spending at their home.

[96] The mother should not have behaved in the manner she has acknowledged. She should not have dealt with the child roughly and should certainly have not engaged in conflict in front of the child. This is not the only time that she has failed to avoid conflict when the children were present. She should not have argued over the child support at the father’s house nor should she have yelled at the father or coach over the hockey stick.

[97] There is also the incident in the van on the way to buy the new car. While the mother explained that she pushed at the father with her clenched hand as the father was hurting her as he tried to remove the van keys from her hand, nevertheless both parties should have worked harder at avoiding the conflict.

[98] By behaving in this manner, the mother has modelled behaviour that unfortunately appears to have been emulated by AS in the incident in the school yard with the father and AC. Further, the mother told the court that she did not have a problem with stress, failing to make the link between her inappropriate behaviour when faced with difficult interaction with the father. The mother must find ways to change her response to future conflict with the father. Both children need to be protected from the anxiety that the parents’ behaviour creates.

[99] While the mother has assured the court that she does not go to the father’s home to fight but usually for a purpose, she should not expose the children to any interaction between herself and the father until both are able to be civil and respectful.

[100] The mother denied that she has avoided or cancelled counselling. She said that she welcomed the society’s involvement until they changed workers for the fourth time; she then asked them to close the file. She said that it was not fair to the children and she did ask them to reopen when the worker came back from leave. Further, she said that she never dealt with the teacher when there was concern at school about suicidal ideation, only Mr. M. She also noted that one counsellor had indicated that AS was not truly suicidal but was just having difficulty expressing her anger.

[101] The mother recalled the counselling attended with C at the time of their initial separation. She said that it started with AS who was very angry about the separation. She testified that AS was too angry for a nine year old and that it was “scaring” her. Then she and the father attended and then she continued for one appointment on her own. The counselling stopped because the counsellor moved. She said that the counsellor helped AS realize that the separation was not her fault.

[102] The mother has taken steps to start to deal with her issues and those of AS. She told the court that she listened to the assessor and has attended counselling and tried to seek more assistance for her daughter AS as well.

[103] She testified that she attended:

• two classes on Parenting through Separation: one on one sessions with KG regarding strategies to deal with children

• a two hour three part behaviour management at Keystone

• twelve sessions with SJ through work examining her family lifestyle and stress management.

[104] She also explained that she organized counselling for AS through work as well. She said that AS attended five sessions but was then referred by the counsellor to the hospital due to suicidal ideation. She said that, as she remembers it, the hospital referred AS to a paediatrician, Dr. K., who is able to make referrals that a family doctor cannot. She said that AS had seen Dr. K in January but had to reschedule the June appointment. The mother said that getting AS in counselling at Keystone is difficult as they ask the child if the child wants the counselling.

[105] It is hard to understand the mother’s approach to the issues facing AS. It is clear that she has not focused on ensuring that her daughter receives help in a timely manner. Counselling and medical intervention are not optional. She as the parent must ensure that there is follow-through.

[106] The mother’s relationship with AS appears to lack some of the kind of structure and expectation that AS needs. A parent who knows that being tired is interfering with her daughter’s ability to function at school must ensure that there are rules about bedtime and evening activities that interfere with getting enough sleep.

[107] If there are games or movies that a child should not have, they should be placed where they cannot be accessed.

[108] The mother testified that AC is smart and a very loving child. She described how he cheers his sister on when she is doing a sporting event. She said that AC is very demonstrative with hugs and snuggling. She noted that he is prepared to help the children around him when they need it. She identified that he is much improved in his social skills since the elimination of the violent videogames.

[109] She told the court that AS and AC are very close and support each other. She said that the three of them often snuggle together. The mother said that AC always wants his “big sister” to help him and she does. The mother described activities shared as a family such as the beach, crafts, movies and sports.

[110] The mother said that people love AS. She has a kind heart and always goes above and beyond what needs to be done. She worries about people. The mother acknowledged that she struggles somewhat in school. She said that while she was initially reluctant, AS now is having some contact with her biological father and his family.

REPORT OF THE OFFICE OF THE CHILDREN’S LAWYER:

[111] A report was prepared pursuant to a court order under section 112 of the Courts of Justice Act (R.S.O. 1990, c. C. 43, as am.) A dispute of that report was filed by the mother and the assessor WP testified at trial. He told the court that he interviewed the parents twice, once at the beginning and again after speaking to all the collaterals. He also observed the parents on separate occasions with the child AC. He also interviewed both of the children separately.

[112] In his report dated October 2, 2012, WP identified concerns that needed to be addressed. He noted at page 10 that “parental conflict can greatly inhibit a parent’s ability to care for and nurture his or her children, as well as seriously undermine a child’s sense of safety and security”. He stated that

• the mother and the father have had difficulty resolving conflicts both before and after separating;

• the father needs more adaptive strategies to manage anger and to ensure that it is not displayed before the child AC;

• the mother should get professional help to address the issues from her childhood of being exposed to domestic violence and to help her gain understanding about how her past experiences have “prejudiced her conduct and relationships with others”; and

• the parents appear unable to stay child-focused by avoiding conflict-they have not been mature role models.

[113] Given this review, the assessor concluded that there was “no sound basis for recommending a joint custody arrangement” as “the current parenting arrangement is not addressing their need for security and safety”.

[114] In his evidence, the assessor reiterated that both parents were responsible for the difficulties between them. However, he stated that he held the mother particularly accountable for bringing the children to confrontation and exposing them to the conflict.

[115] A review of his recommendations appears based in part on two issues: the mother’s historic and current refusal to obtain counselling for herself and the children as well as the potential for emotional and physical harm to AC at the hands of his half-sister AS.

[116] The assessor relied on a number of information sources for his conclusion that the mother was adverse to seeking help. First he noted that the mother had told him that when she was raped at the age of fourteen she had refused counselling. Then he quoted a summary from the children’s aid society (the society) which identified the father as being interested in attending programs when the mother was not. Further there was a school teacher’s remark about the mother adamantly being opposed to counselling.

[117] In my view, a person’s refusal at the age of fourteen to speak to a counsellor cannot be seen to be representative of a person’s adult view.

[118] The information from the society is somewhat problematic. It is unclear about the actual source of the conclusion that the mother refused programming. Who asked the mother to attend? When? Is the information that the mother would not cooperate from a worker or the father? Also it appears the direction of the society was probably to attend parenting programs, not counselling.

[119] To be fair, WP did not have the full OCL file with him to explain the sources of his information. For some reason, the file couriered to him from head office due to the short notice about the trial date was not complete.

[120] The society’s remarks quoted by WP were in part attributed to a summary created around April 2010, a document that identified risk to the children. Within five months, another report was created that said that there was no risk.

[121] While I am not being critical of WP reviewing these documents, the fact that the specifics are vague makes it difficult for the court to attribute much weight to the information.

[122] Further, the assessor relied on information provided by the child presumably to a worker although the circumstances are unknown. Once again I am not critical of the assessor relying in part on that material but point out that the court needs to be careful in the consideration of this evidence as it is vaguely sourced hearsay on hearsay.

[123] However, it is not necessary or advisable for the court to insist that the society workers, all four workers and their supervisors, attend to give evidence in order to clarify the circumstances of the society’s position simply because it is part of the material considered by the assessor. It is sufficient in my view to simply be mindful of any potential impact of the frailties of the evidence on the assessment.

[124] The greater concerns for the court regarding the assessment are the conclusions that are drawn by the assessor based on the information he obtained.

[125] It appears that the assessor may have been limited in his ability to comment positively on the mother’s follow through in part because the mother does not appear to volunteer explanation when confronted with a concern. Even in court, she would answer the question specifically without explanation regarding the circumstances. While I do not know what exactly the assessor put to the mother in the follow-up meeting, it is possible that she did not respond to the criticisms made by collaterals and provide details of what she had done to address the issues.

[126] The assessor found that the mother had difficulty managing conflict and responding in a constructive and respectful manner towards the father, AC’s teachers and society workers. While it is true that neither parent appears capable of dealing with each other civilly, there seems little basis for such a sweeping condemnation the mother’s relationships with others involved with her children. There is no explanation of what the school may have asked the mother to do that she refused and it is noted that she attended school meetings. In her evidence, the mother stated that her confrontation with Mr. G, AS’s grade 8 teacher, over his calling her daughter anorexic in front of other students several times and reporting him for that behaviour happened before the concern at the school about AS’s “suicidal thoughts” near the end of school in 2012. She stated that she did not speak to Mr. G about that later concern but was contacted by the principal. She also noted that she had set up some counselling for AS later that year. She could not explain why Mr. G would state that she was “dead-set against” her daughter having counselling as she had not spoken to him.

[127] The information regarding why anyone from the society may have found the mother disrespectful or uncooperative is not clear. While she may have not taken courses recommended to her, there is little other evidence. Unfortunately neither the mother nor father appears to have been given anything in writing from the society about their concerns or recommendations, something that would assist parents in being able to follow through.

[128] The assessor also found that the mother was not willing to improve on her understanding of childhood development and parenting practices (page 12). However, it was the father who chose to allow the child access to inappropriate video games and books, not the mother. There was no particular complaint about the mother’s need to improve in parenting. Rather it was as I understood it an issue of counselling to deal with her exposure to domestic violence in an effort to change her interactions with others.

[129] The conclusion that the mother is opposed to counselling has not been borne out by the evidence:

• In 2007, she took AS to counselling with JC after the parents’ separation to deal with her anger; she and the father then attended together with AS and afterward the mother had an appointment alone; counselling stopped because JC moved. The mother said that the counselling helped AS understand that the separation was not her fault.

• In July 2011, she tried to follow through with the counselling at Keystone that the father had initiated but they would not deal with the children as they became aware of the litigation just commenced by the father and had privacy concerns about any disclosures that the children might make. The position of Keystone at that time was disclosed in their correspondence attached to the mother’s answer and available to the assessor.

• In the fall of 2012, the mother booked the appointments for AS with Keystone. She said that she booked two but had not followed up with more. She said that they are resistant to counselling a child who does not want to attend.

[130] After receiving the recommendations of the assessor, the mother arranged counselling for AS with GR through her benefits at work. She said that she attended five sessions but stopped in January 2013 as the counsellor was concerned about her thoughts of self-harm so the mother took AS to the hospital. At the hospital the doctor recommended that AS see a pediatrician Dr. K. The mother said that AS has seen this doctor once but that they had to reschedule the appointment set for this week. She said that she was hopeful that Dr. K will be able to refer AS to other services as needed.

[131] Also as a result of the OCL recommendations, the mother attended counselling for herself with SJ through her employment and has been able to attend for twelve sessions. She also met with KG at Keystone to learn about parenting strategies in a one on one session to cover the curriculum of the Parenting through Separation. When asked, she said that one thing she had learned was not to tell a child that he will be missed while he is away at access as it may make a child feel guilty for going.

[132] It also appears that the mother attended a three part session on behaviour management at Keystone.

[133] Given the efforts at counselling even before the recommendations by the OCL, it is difficult to suggest that there has been a refusal of the mother to seek services needed by AS. Since the recommendations, she has tried to follow through with all of his suggestions.

[134] There are other concerns about the report.

[135] Despite having received information from the older child about the property destruction caused by the father that frightened her, the assessor acknowledged that he did not speak about that disclosure with the father. His explanation for disregarding this behaviour by the father that caused one child to fear him was that it was in the past and that there was no evidence that it had happened with AC.

[136] Certainly the incidents referred to were in the past but it was when both children were residing with the parents. AC was potentially exposed to the same angry behaviour as AS during this time. Yet, despite testifying that he was concerned about AC’s anxieties as noted by the school, the assessor did not address this aspect of the father’s behaviour in his report. Given the impact of the father’s behaviour on the older child, the omission is in my view is inexplicable and significant.

[137] Further the assessor acknowledged the risk to a child of being exposed to violent behaviour. In this case he knew that AC had been

• Exposed to verbal conflict between his parents;

• Exposed to a physical confrontation between his parents;

• Exposed to the father’s out of control destruction of property, behaviour that was still a source of fear for the older child; and

• Playing inappropriate video games in his father’s home that focused on shooting people and the violent destruction of property.

[138] Still for some reason, the assessor appears to minimize the responsibility of the father or the need to address his issues. Instead he appears impressed by the father’s agreement to attend parenting programs, programs which clearly did not influence the father in terms of his parental choices around age appropriate videos.

[139] Further, WP made no comment about the amount of time the child spent on video games in the father’s observed visit in his report although on the stand he acknowledged that it was for most of the visit.

[140] It is interesting to note that WP appears to absolve the father of responsibility for conflict happening in the presence of the children. He noted that the mother “repeatedly exposed the children to her anger and aggression as noted in the police occurrence reports and child welfare records”. I am not clear as to what exactly he is referring to. I assume that he is speaking in part about the mother’s attendance to try and get early child support and what occurred in the car. It is true that the mother should have known that the father would not be cooperative about the child support and should not have brought the children. However, the father’s behaviour in both incidents is not above reproach. There is no evidence that the father tried to minimize the conflict. By his own admission, he could have at least helped the mother out financially (she had never asked for early support before) and returned the vacuum. Instead he called the police. The scene in the car was also one where the father could have by his own actions reduced the conflict but he chose not to.

[141] However, the most significant problem in my view with the report are the conclusions drawn about the relationship of AS and AC and the impact on AC of contact with AS.

[142] The report addresses the issue of AS in two ways: first there is the concern one would expect from the OCL about the impact of the behaviour of parents on a child who is not the main focus of this litigation. Then there is a shift to AS as the problem without any consideration of the impact of the proposed solution on AS.

[143] The father told WP that AS lashed out physically and verbally against the father and AC during exchanges. He also said that AC said that “similar incidents” occurred at home. Other than the one incident at the school where AS came around the corner of the school and inappropriately berated AC and his father, there was no evidence regarding AS interfering with exchanges.

[144] The mother told WP that AS has been disappointed in her relationships with her biological father and her stepfather before the court. She explained how AS felt to blame for the separation and rejected by her stepfather.

[145] WP heard from AC that he felt loved by “all his family” but was unhappy when his sister “beats” him when he goes into her room without permission.

[146] WP heard from AS that she does not see the father because of a “falling out” between them and because she feels that he and his family treat her differently from AC. He commented that she presented as a “sad and lonely 14 year-old”.

[147] Then WP concludes that similar to the parents, AS and AC have difficulties getting along “that go beyond typical sibling rivalry”. He notes that physical aggression, disrespect, bullying and public displays of aggression against any family member does not suggest a healthy adjustment.

[148] While I would not have difficulty in concluding that AS has struggled over the last few years and acted out inappropriately, there is no evidence to suggest that the relationship between AS and AC is not typical of siblings.

[149] As I understand the evidence, AC’s complaint about AS “beating him” was not a recurring one. One would not expect it to be if he was “beat” once for going in his sister’s room. All the evidence suggests that AC is a smart child and he was the one who focussed on why it happened. Further, there was no suggestion that AC was injured during the physical contact.

[150] Surely it is not uncommon for a sibling to hit another one or for that matter yell at them in public. I cannot see any evidence that would lead to that conclusion.

[151] Further there is a great deal of evidence about a positive sibling bond. The assessor himself witnessed the bond amongst members of this family. He saw no signs of AC being afraid in any way of AS. The mother and other witnesses talked about the care and rapport between the two children.

[152] The assessor not only appears to draw conclusions that are not supported by the evidence, but he also ignores the impact of his recommendations on AS. To suggest that it would be better for AS to be alone with the mother in the proposed arrangement makes no sense. He notes on page 12 that it would be beneficial for AS as the mother would have time to devote to her.

[153] There has been no suggestion that AS has been concerned about the mother spending too much time with AC. Instead the evidence suggests that from the age of nine AS has been concerned that she has caused all the problems in the family. Removing AC from the mother’s care because of AS would only confirm her sense of blame.

[154] Further, AS’ sense of being treated differently from AC can only be accentuated if AC spends more time with the father who no longer plays a role in her life. Surely more time with the siblings together would be the answer to solidifying their attachment to each other.

[155] In reviewing the evidence, the assessor’s reliance on some of the complaints of AS as exceptional and concerning seems unwarranted. AS is 14 with change raging around her and in her. She must know that court is happening and no doubt feels powerless. While there are issues of concern, the evidence suggests that the family unit of mother and AS and AC is strong and moving forward.

[156] The assessor told the court that it was better to have the children together wherever possible. When asked, he acknowledged that if the court did not find that AC was at risk in the mother’s care from physical and emotional harm, then the court should consider keeping the children together.

[157] In his recommendations, the assessor stated on page 13 that the mother should have access alternate weeks from Sunday 10 am to Tuesday morning at school. His proposal would limit the contact of the siblings to one non-school day and one evening after school every two week period. This limitation of contact is not based on the evidence or in any way advancing the best interests of either of these children.

[158] The assessor makes no mention that he has taken into account the potential impact on a child of being removed from the parent that he has acknowledged to be the primary care-giver. Further he does not deal with the impact on AC of changing schools, something that would happen if custody was transferred to the father. Surely these are considerations that should have formed part of his decision.

[159] It must be acknowledged that the assessor himself expressed the opinion that the access proposed should be “on a limited basis” until “it can be ascertained” that the mother and AS are receiving professional help and that the mother “can manage the children’s behaviour and ensure that there is no violence between them” (page 12).

[160] The evidence is clear that the mother took the assessor’s recommendations from the disclosure meeting in August 2012 and the report in October 2012 seriously as both the mother and AS are receiving help and there is no evidence that the mother is unable to manage the behaviour of the children or protect AC physically and emotionally.

CONCLUSION:

[161] I have already alluded to some of the concerns I had regarding the father’s evidence. He was often evasive in his answers, being unwilling to respond directly. He looked for opportunities to exaggerate his evidence in order to better criticize the mother as a parent. He avoided acknowledging responsibility for his own conduct while attempting at every turn to say negative things about the mother. On occasion he denied some alleged conduct only to have to change his evidence when proof was provided.

[162] Certainly his evidence is therefore difficult to rely on and often both unreliable and not credible. It is very likely in my view that there has been drinking at access as suggested by the hearsay evidence of the child.

[163] I have concerns about the veracity of the paternal grandmother’s evidence as well. While the father admitted drinking a glass of wine at special occasions with the child present, she denied having seen him consume any alcohol while the child was in his care. Further, despite her responsibility for the day to day operation of the garage, she testified as if she did not know about the money earned officially and unofficially by the business. Further, after some unfortunate prior discussion with the father, she tried to attribute all the mechanical work in the garage to an 82 year old friend of her husband who comes to the garage to chat and sometimes tinker on old cars.

[164] The evidence about the father’s employment situation was completely suspect. He went there to expand the glass replacement business to include mechanical work on cars but, when confronted by the stack of invoices, the father and the grandmother insisted that that work was not the father’s. He either has a lot of undeclared income or he is significantly under-employed.

[165] The criticisms about the father’s parenting are significant:

• The concern about his use of alcohol with and without the child

• His decision to play violent videogames with the child despite their ratings and his prior attendance at parenting programs

• His decision to allow the child to shoot a gun: it is my understanding that a child should be 12 to be even considered eligible to possess a weapon under the Firearms legislation

• The presence of a child of this age in a garage where work is being done

• His use of the paternal grandmother as a supervisor when she clearly would not be able to intervene to assist the child: while the pool may only be 6 inches deep, the paternal grandmother who needs to balance on two “sticks” would have difficulty balancing and rescuing a child from the water

• His failure to address the issue of his child being the driver of a golf cart with two very small children and a supervisor incapable of physically assisting in an accident

• His telling the child that his mother had a criminal record for punching him

[166] His focus in these choices does not appear to be on the best interests of the child but instead on what benefits him.

[167] Given his own evidence, I find it difficult to believe that he treated AS the same way as he did his son AC. He spoke about AS in a very critical tone showing no caring for the child or her situation. It was all about whether she was up to his standards to qualify for reengaging in access.

[168] Indeed it was the same way that he spoke about the mother. Despite taking the position in June 2011 that AC should remain in the primary care of the mother, he took every opportunity to suggest that she was a completely inadequate parent. He appeared to ignore the fact that AC has always been in her primary care. When she was forced to leave the home due to the assault, both children came with her. When she left him for good, both children went with her. He has characterized AC’s sister as dangerous and overwhelming for the mother in order to negate the bond between AC and AS.

[169] His attitude expressed in court mirrors his attitude in his communication with the mother by text. He is clearly controlling and derogatory toward the mother. If he had custody, I would be concerned that he would denigrate the mother and AS to AC, further eroding AC’s relationship with both of them. It is also not likely that he would be co-operative and flexible in access arrangements.

[170] The mother has made mistakes as well. Some of her evidence was vague and unclear. However, she did not exaggerate the father’s shortcomings and indeed reiterated how important it was to AC to have his father in his life.

[171] However, she needs to be more accountable for her method of dealing with conflict. She also needs to work on her ability to communicate her position with those around her. It was clear from both the assessment and her testimony at trial that she does not explain herself very well.

[172] The mother must also actively focus on timely intervention for herself and AS. While she may love her children, they need her to be responsible for ensuring that both she and AS get the help and support that they need.

Custody:

[173] This is an application for custody and access pursuant to section 21 of the Children’s Law Reform Act (R.S.O. 1990,c. C. 12, as am.)(CLRA). One of the purposes of this part of the CLRA is to ensure that any application or access claim will be determined on the basis of best interests. In determining the merits of any application the court needs to consider all the child’s needs and circumstances including those identified in subsection 24(2) of the act.

[174] Stability, family connection and emotional ties are all part of these considerations.

[175] In the matter before the court, neither parent seeks joint custody, a position supported by the evidence including the OCL assessment.

[176] The mother has had the child in her primary care most of his life. The evidence seems clear that there is a bond between the mother and the child. The child will be able to maintain and improve his relationship with his sister if he remains in the mother’s care. The child is more likely to have better access to the other parent if the mother is the custodial parent.

[177] I have already set out my concerns with the assessment. The facts do not support the conclusion of the assessor. However, the assessor did acknowledge in his evidence that the child should stay with the mother if the court is satisfied that the child is not at risk in the same household as his sister. Indeed that is the conclusion of the court based on the evidence.

[178] Therefore the mother should have sole custody of the child.

Child Support:

[179] A parent is obligated to support dependent children under section 31 of the Family Law Act (R.S.O. 1990, c. F.3, as am.)(FLA) The mother indicated that she has always sought child support from the father and never had any financial disclosure from him. She acknowledged that she has been receiving child support for AS from her biological father, again without any formal disclosure.

[180] While the father was paying the sum of $350/month, she never made a request from him for disclosure and allowed him to purchase clothing and spend on the child in other ways.

[181] The father and mother agree that there was a splitting of the costs of the two sports between them. The mother appeared content with the $350 paid to her monthly until he stopped paying in August 2010 when the father moved into a shared parenting regime when he had the temporary layoff from his job at BTI.

[182] In my view given all the facts, the father should not at this point have an obligation to pay support for both children. While there may be argument that he functioned in loco parentis to AS, given the mother’s receipt of child support from AS’ biological father the court is not prepared to make an order of support. Further I do not think it appropriate to retroactively vary the father’s child support responsibility to include the time while he was paying according to their verbal agreement despite the lack of financial disclosure and his significant underpayment of support.

[183] However, the court needs to consider his obligation to pay any child support in the balance of 2010, after he stopped paying child support, and from 2011 to the date of trial if indeed the court is satisfied that there is a wage differential during the time period of shared custody.

[184] The following is clear from the evidence:

• The father was temporarily laid off in June 2010 but was called back to work at the end of November 2010 and did not return.

• He had had a similar period of layoff in other years and still earned significant income.

• He chose instead to stay with his lesser paying casual job in security, one where there was no guarantee of hours.

• He lost that job as a result of being charged with drinking and driving and immediately losing his driver’s licence for three months.

• After losing the job, he did not try to get employment with BTI or anywhere else.

• Instead he decided to work at his parents’ home auto glass shop for $15.00 per hour.

• Despite the intention of expanding the business to include a garage business as he was a licensed mechanic and despite the invoices produced for parts, he took the extraordinary position at trial that he earned nothing except the hourly amount.

• The mother’s evidence was that the father had earned extra money during layoffs in other years by working on various people’s cars.

• The disclosure regarding the financial operation of the grandparents’ business was incomplete and vague.

[185] Obviously the court cannot be satisfied that the father is working in such a way as to provide child support to the “extent that he is able”. The father decided he would like the flexibility and so abandoned his obligation under the act. In fact, it is the court’s view that he continues to make more income than he discloses.

[186] Under subsection 19 of the Child Support Guidelines (Ontario) (O. Reg. 391/97, as am.), the court is empowered to “impute such income as it considers appropriate in the circumstances” including where the parent is deliberately under-employed (19(1)(a)). The father was not required to reduce his employment to accommodate the needs of the child or reasonable health or educational needs of the parent.

[187] In this matter, the father was aware in July 2011 that the mother was seeking child support. He had deliberately reduced his income by not returning to BTI in November 2010. However, I am prepared to limit the imputation of income to the year 2012 forward as the father did have some employment in 2011. However, in 2012 the court is prepared to recognize that he was underemployed and/or earning significant undeclared income. Therefore commencing in 2012, I am prepared to impute income to him for the purpose of establishing child support.

[188] The most logical method in my view is to take his three years at BTI (or at least part of the year) and average them. So by adding $56,229 (2008), $44,920 (2009), and $54,776(2010), the court finds the average to be $51,975 or about $52,000/year.

[189] The following represents the set offs in support for the years in question (*means previous guidelines ending December 31, 2011):

year

father’s income

Guideline support

mother’s income

Guideline support

Total owed

2010 (4 months)

$54,776

$508*

$23,056

$196*

4 x $312 =$1,248

2011

$37,053

$342*

$30,755

$279*

12 x $63 =$756

2012 –AUGUST 2013

$52,000 imputed

$469

$30,755

$254

20 X $215 =$4300

TOTAL $6,304

ORDER:

1. The mother is to have sole custody of the child.

2. The father is to have access as follows:

(a) alternate weekend access from Friday to Sunday as agreed by the parties to include the Monday where it is a statutory holiday;

(b) one evening visit midweek from school to 7:30pm;

(c) two weeks during the summer as agreed by the parties;

(d) a share of the Christmas school break as agreed by the parties;

(e) March breaks in the even-numbered years while mother has March breaks in the odd-numbered years;

(f) Every Father’s Day from 9 am to 7:30 pm while the mother has every Mother’s Day from 9 am to 7:30 pm;

(g) October 31 from 5:00 p.m. to 8:00 p.m. in even numbered years;

(h) Such other access as agreed by the parties.

3. The father is not to consume or use any alcohol or illegal drugs 24 hours prior to or during any access.

4. The father is to ensure that the child is properly supervised at all times.

5. The father is not to allow the child in the shop while there are vehicles being worked on in the shop.

6. The mother and the father are to ensure that the child is not exposed to any negative remarks regarding the other parent or his or her family.

7. The mother and the father will only communicate as necessary and will do so in a respectful manner.

8. The father is not to attend at any activity during the mother’s time with the child unless she has given him specific permission in writing.

9. The father is to pay arrears of child support fixed in the amount of $6,304. These arrears shall be repaid at $150/month commencing January 1, 2014 until paid in full. Should the father fail to make a payment or payments on time, the balance owing becomes immediately due and payable at the discretion of the mother.

10. Commencing September 1, 2013, the father is to pay child support of $469/month to the mother based on an imputed income of $52,000/year.

11. The father is to pay his proportionate share of reasonable special expenses each year. In 2014, his share will be 62% based on his imputed income of $52,000 and the mother’s income of $30,755.

12. The mother shall notify the father in writing of any special expenses and provide independent confirmation of the same at his request.

13. The mother and the father shall notify each other in writing 30 days prior to any change of address.

14. The father shall notify the mother in writing within seven days of any change in his employment or income together with particulars of such change.

15. The father and mother shall provide the other a copy of their income tax return and notice of assessment by June 1 each year for the previous year and their proportionate share of expenses may be adjusted accordingly.

16. Any party seeking his or her costs shall serve and file written submissions including a detailed Bill of Costs on or before September 20, 2013. Anyone wishing to respond to submissions seeking costs shall serve and file responding submissions on or before October 4, 2013. Any reply to the response must be filed by October 11, 2013.

Released: August 27, 2013

Signed: “Justice P.A. Hardman”