COURT FILE No.: FO-09-000057-01
DATE: 2014-02-03
Citation: Weare v. Naumann, 2014 ONCJ 58
ONTARIO COURT OF JUSTICE
BETWEEN:
CHELSEA MARCELLE WEARE
Applicant
— AND —
NATHAN EUGENE NAUMANN
Respondent
Before Justice P.T. Bishop
Heard on 09 December 2013 and 08 January 2014
Decision: 03 February 2014
Beth White ......................................................................................................... for the applicant(s)
Mark Van Walleghem ...................................................................................... for the respondent(s)
BISHOP J.:
BACKGROUND:
This matter comes before me by way of a Motion to Vary the Orders of Justice Hoshizaki of December 4, 2009 and October 1, 2010.
The Order of December 4, 2009 on consent is as follows:
The parties shall have joint custody of the children, REINA CHRISTIANNA NAUMANN, born May 1, 2006 and PATIENCE MARIE NAUMANN, born September 28, 2008 who shall reside in the primary care of Ms. Weare in Dryden, Ontario. The parties will consult with each other with respect to major decisions for the children, with Ms. Weare having final decision make authority.
The father, Mr. Naumann, shall have reasonable access upon notice to Ms. Weare, including but not limited to:
a) every second week from Thursday at 2:00 p.m. to Monday at 11:00 a.m. with pick up and drop off to occur at the children’s daycare in Dryden;
b) Christmas Day 2009 to New Year’s Day 2010 with pick up and drop off at 12:00 noon respectively at Ms. Weare’s residence in Dryden;
c) Alternating weeks, week on week off during July and August subject to arrangements to preserve the childrens’ daycare space;
d) Telephone access every evening at 8:30 p.m. with the children to cal their father at his residence or other designated number.
The parties will endeavour to use the children’s allowable sick days at daycarto offset the cost of absence for access where sick days cannot be used, Nathan Eugene Naumann will pay the daycare costs for missed days as a result of access.
The parties agree that in lieu of spousal support that Mr. Naumann shall assume responsibility for payment of the debts of the relationship.
Mr. Naumann shall pay child support to Ms. Weare in accordance with the child Support Guidelines for Ontario based on Mr. Naumann’s estimated 2009 income of $20,000.00 which is grossed up to $25,000.00 to account for tax purposes. The applicable table amount for support is $375.00 per month, payable to the Family Responsibility Office on the first of each month commencing January 1, 2010.
The parties will share in the payment of the children’s extraordinary expenses on a proportionate basis.
The parties will maintain extended health care benefits for the children on any such plan available through their employers.
Support Deduction Order to issue.
Unless the support order is withdrawn from the Director’s Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Payments may be made to:
Family Responsibility Office, Box 224, Station “P”, Toronto, ON M5S 3E9
- There shall be no order as to costs.
- The Order of October 1, 2010 is as follows:
ON CONSENT the order made by Honourable Madam Justice Hoshizak on December 4, 2009 shall be varied as follows:
- Paragraph 2(a) shall be deleted and the following added:
2(a) every second weekend from Friday between 3:30 p.m. and 5:00 p.m. with pick up and drop off to occur at the children’s daycare in Dryden.
- Paragraph 5 shall be deleted and the following added:
5 – Mr. Naumann shall pay child support to Ms. Weare for the children Reina Christianna Naumann born May 1, 2006 and Patience Marie Naumann born September 28, 2008 in the amount of $505.00 per month commencing November 1, 2010 and continuing on the 1st day of each month thereafter until further order of the court. Mr. Naumann’s income is $34,442.00 per annum. The child support payment for two children pursuant to the Child Support Guidelines is $505.00 per month.
5(a) – Mr. Naumann owes child support arrears to Ms. Weare in the amount of $1,000.00. Said arrears are to be paid at a rate of $100.00 per month commencing November 1, 2010 and continuing each month until the arrears are extinguished.
- No order as to costs.
On consent, a temporary order was issued on September 24, 2012 wherein the Mother agreed to return the children to Dryden on or before September 28, 2012.
A Settlement Conference was held on November 23, 2012 and the Office of the Children’s Lawyer was requested to prepare a Section 112 report on December 10, 2012.
A Settlement Conference was held on August 19, 2013 and the trial was scheduled for December 2nd and December 9th, 2013 and concluded on January 11, 2014.
RELIEF SOUGHT:
The Father is seeking sole custody of the children, Reina Christianna Naumann, date of birth, May 1, 2006 and Patience Marie Naumann, date of birth, September 28, 2008.
The Mother is also seeking sole custody of the children with the Respondent paying child support and specified access to the Father.
EVIDENCE OF NATHAN NAUMANN:
Mr. Naumann is the father of the children and lives in Ignace with his fiancé, Pamela Parker.
He described his efforts to upgrade his schooling and attended Confederation College in Thunder Bay for three years studying environmental technology.
He states that he never missed one weekend to have access to the girls and there was never an issue picking up the girls. The real issue became dropping them off as there needed to be a public place to deal with the children’s mother, who was very confrontational. He stated that the mother would regularly not show up on time and it made it difficult for him when traveling from Ignace. She would usually appear upset and gave snarly looks when the exchange took place.
Eventually it was agreed that the children would be exchanged at Firefly and he was quite happy with that arrangement.
There were issues with him attending ringette tournaments and police were consulted and both were advised to follow the existing order.
Ms. Weare cohabited with Steven Gardner for approximately three years and they were married about a year and there was difficulty communicating with the father by email or telephone.
Mr. Gardner is disabled and uses a wheelchair but made efforts to insure that access took place.
Litigation commenced when the Mother separated from Mr. Gardner and planned to move with the children to Kenora as she became involved with a long time friend, Mr. Andre Laveille. Mr. Naumann was of the view that the existing order required the children to reside in Dryden and he did not consent to their move to Kenora, approximately a three hour drive from Ignace.
Mr. Naumann described the children as “amazing” and they are very polite and well brought up. He never had any discipline problems with them.
He was aware of their health requirements and was impressed with Mr. Gardner acting as a step-father and insuring that the transition between the houses took place smoothly.
Mr. Naumann co-operated fully with the Children’s Lawyer and met with Ms. Matheson, the clinical investigator, and was open to the children being engaged in counselling.
Mr. Naumann stated that he was not actively involved in extracurricular activities as he would often get very short notice and was one hour and twenty minutes away from Dryden.
He attempted to complete his training and obtain employment but there were no jobs in his specialty in Ignace.
At the time of trial he had employment with Ignace Airways, which is seasonal, thirty to thirty-six hours per week, ending in October of 2013. He was hoping to have a job at Bending Lake Iron in the near future.
Mr. Naumann’s Notice of Assessments and Income are as follows:
2010 - $37,299.00
2011 - $47,865.00
2012 - $33,211.00
He has not yet received his final pay stubs for 2013 but they will produced.
Mr. Naumann would like to see both children move to Ignace and be enrolled in the Ignace School.
He wishes to be more involved with the children and make major decisions as he feels he is being excluded by the Mother.
He and the childrens’ Mother cannot communicate in a civil way and the mother wants to cancel the Firefly exchanged access visits as it is too difficult for her.
CROSS-EXAMINATION:
In cross-examination Mr. Naumann was of the view that supervised access cutdown on the conflicts.
He stated that he did had not paid for the extracurricular activities because he didn’t agree to them and he had difficulty affording extra payments. Further, he was not told of the schedule and sometimes the extracurricular activities conflicted with his access visits.
He was aware that both girls had bladder infections and he agreed not to bathe them but to have them shower. He also knew that Reina was allergic to penicillin.
EVIDENCE OF PAMELA LEIGH PARKER:
Ms. Parker is Mr. Naumann’s fiancé. She is employed as a subway artist in Ignace.
She enjoys the children’s visitation and takes care of them when the father is working.
She has found Ms. Weare confrontational and she has called her vulgar names and made obscene gestures to her.
There is one particular incident in January of 2012 where the exchange was to take place at Walmart and Ms. Weare was late and she and the father decided to do some shopping with the children. Ms. Weare entered the Walmart and began screaming at them and grabbed one child and told her to follow the other child.
Ms. Weare raised her hand and swung at her but did not hit her at the checkout. The girls started to cry.
EVIDENCE OF CHELSEA MARCELLE WEARE:
The Mother is thirty years of age and a long time resident of Dryden. She has two jobs at Timbermax and Ristorante Pizzeria.
After she separated from Mr. Naumann she began a relationship with Steven Gardner in 2009 and they were married on July 30, 2011. The marriage lasted for one year and they separated. Mr. Gardner is paralyzed from the neck down, although he does have upper arm movement.
She purchased a house for Mr. Gardner and herself and renovated it to be handicap accessible. Mr. Gardner remains in the home.
In the summer of 2012, she met an old friend, Andre Leveille and planned to move to Kenora with him as he had a home there. Mr. Leveille worked in the mining industry and was often overseas, including Jakarta.
Her idea was to move to Kenora, start a new life, make new friends and stay at home and look after the girls. Mr. Leveille had a big house on the lake.
Ms. Weare made arrangements to register the girls in a Kenora school and she offered to do all the driving to come back for the girls to have visits with their Father.
She stated that since she had the final decision making authority, she thought she was in her rights to move the girls to Kenora, notwithstanding the Father did not consent.
After the court order of September 24, 2013, she moved back to Dryden and resides in a duplex.
There were some issues with the youngest child having a bladder infection and also with her being returned to her care from a visit with her Father with pink-eye.
Steven Gardner’s parents have been a big help in assisting for the exchange and caring for the children when she is at work.
Ms. Weare described the efforts she made to enroll the children in French Immersion and the Father was not in favour of that plan.
She stated that the supervised access program worked well for Mr. Naumann but she found it difficult with the time frame being fifteen minutes early and sometimes that visits had to be rearranged.
She described her move to Kenora as a mistake and that Mr. Leveille did not want to get involved in a custody dispute and they never were a long lasting couple.
She stated that Steven Gardner still acts like a step-father to the girls and that his parents are of great assistance in that regard.
The term of having telephone access at 8:30 every evening was too onerous and she decided that she would not follow that order, notwithstanding that she consented to that.
She described how she looked after the girls’ physical and medical needs and was concerned about their allergy to penicillin and the bladder infections, particularly with the child Patience.
She and Mr. Naumann had a difference of opinion on how that should be treated as she did not want the girls to wear pull-up diapers.
With respect to the Walmart incident, she admits that she was late and when she went into Walmart they were shopping, which was difficult to accept. She stated that she raised her palm at Ms. Parker and told her “shut your mouth”.
Mr. Naumann and Ms. Parker followed her to the vehicle and she considered that being badgered.
She was concerned that the Father did not contribute to the ringette or t-ball activities.
Counselling was recommended by the Office of the Children’s Lawyer investigator and Mr. Naumann was ambivalent or did not seem to appreciate that need.
On Professional Development days, if she took a day off Mr. Naumann did not exercise access, she would lose the income from two employers, not just one.
She felt that Mr. Naumann treated Reina as his princess and that Patience was treated as well as her older sibling.
In her view Steven Gardner could do the exchanges and they would not have to deal with the supervised access program.
CROSS-EXAMINATION:
She stated there often would be arguments with the Father and that they communicated by emails and the girls should not get a phone call every evening at 8:30 p.m. because that wasn’t warranted.
She confirms that she was argumentative with the investigator from the Office of the Children’s Lawyer, Ms. Matheson, and became quite confrontational with Mr. Van Walleghem, counsel for Mr. Naumann.
It was her position that Mr. Naumann wanted to stay in Ignace and did not want to come to Dryden to see the girls or to look after their needs and that fell primarily to her.
She described the incident at Walmart as her being upset and they followed her out and they barked at her.
She was also concerned that all of the ringette tournaments fell on his weekend and he insisted on having access on those weekends then, the girls would not have many tournaments.
She felt that the father put Reina on a pedestal and she never gets disciplined whereas Patience was treated differently. She was quite sarcastic with Mr. Van Walleghem on more than one occasion to the extent of even grabbing a paper from Mr. Van Walleghem’s hand and raising her voice.
Her conclusion was that the exchanges at Firefly were just inconvenient and it suited Mr. Naumann and not her. Her proposal was to have the children exchanged at Steven Gardner’s house or at his mother’s place.
She asserted that she was mature enough to stay in her house if the exchange took place at her house and expressed displeasure at Firefly because they did not communicate with her and she didn’t like the people working there.
It is her view that Mr. Naumann and her partner always tried to portray her as a liar. She denies swearing at Ms. Parker at the end of the court session on December 2, 2013.
In re-examination she really didn’t want to have to see either Mr. Naumann or Ms. Parker’s face at the exchanges.
EIVDNECE OF STEVEN ANDREW GARDNER:
Mr. Gardner is thirty two years of age and is paralyzed from the neck down. He returned to the Dryden area in August, 2008 and got together with Ms. Weare in September, 2009.
He lived with the Mother and the children for four years and were married on June 30, 2011 and separated in May of 2012.
He described himself as step-father to the children and sees the girls everyday. His parents are referred to as “Nana” and “Poppa” by the girls.
He stated that Mr. Naumann did not sometimes return emails in a timely manner but generally Mr. Naumann was good and he had no problems with him.
He stated that the mother works night and day for the girls and that the plan to have them in ringette was his idea and he helped pay for the registration costs.
He was concerned that if a ringette tournament fell on Mr. Naumann’s access weekend the girls would not be able to go and one side would not give to the other. This reflected badly on Mr. Naumann and illustrates the parents’ inability to communicate.
He viewed Mr. Naumann’s emails to the Mother as negative, repetitive and demeaning as it appeared that Mr. Naumann thought the mother could do nothing right.
In cross-examination, he felt that he was put in the middle on a few arguments and he knew in mid-August that the Mother had entered into a new relationship and was moving to Kenora.
His feeling was that Ms. Weare was mad at him as she had a new partner and she would get mad easily.
It was his conclusion that Mr. Naumann triggers the anger in Ms. Weare and she also gets angry at him and described their initial relationship as formidable but he was able to chill and deal with Ms. Weare’s outbursts.
EVIDENCE OF MARJORIE MATHESON:
Ms. Matheson is a clinical investigator with the Office of the Children’s Lawyer and her report which was filed with the Court.
She described the Mother as being distressed and had difficulty focusing on being a co-parent. The Mother was worried that the children were going to be taken away from her. She describes the Mother’s voice as raw and distressed and thought that she was being criticized by Ms. Matheson. Initially, she was angry, rude and irritable with the investigator.
Inquiries were made with health professionals as the father thought the mother had a mental health issue. It was confirmed by Ms. Matheson that her breakdowns were described as “situational breakdowns”.
Ms. Matheson observed the Father in the presence of the children and observed that the Father was engaged in a project making a spaceship for Reina and he somewhat disregarded Patience as she was more engaged with Ms. Parker. This took place on one occasion.
In Ignace, Ms. Parker provides the day-to-day care for the children when the Father is working.
It was her view that telephone access every night was particularly onerous for children of this age.
She interviewed Mr. Steven Gardner and observed that the children interacted well with him and that the Father had a very stable relationship with Mr. Gardner.
It was Ms. Matheson’s recommendation that the Mother have sole custody and that the Father have complete access to all health, education, religious and travel documentation.
Her conclusion was that the Father was not aware of how his actions affected the Mother.
There was a recommendation that the children receive counselling and that both parents were quite capable of parenting the children.
It was also suggested that supervised access continue for another year or two, until the girls became older and the situation normalized.
She observed the Mother reprimanding the children in an irritable way and that the Mother’s anger relates back to her relationship with Mr. Naumann.
REPLY EVIDENCE OF NATHAN NAUMANN:
Mr. Naumann was told by the Mother that Mr. Laveille was verbally and physically abusive towards her.
He estimated the phone calls would be twenty to twenty-five minutes and the agenda was set by the girls as to how long they would talk.
He stated that if he had the children for more than two days, the Mother would be upset, notify the police and make numerous telephone calls.
He was aware of the allergy to penicillin and on one occasion the Mother brought penicillin to Ignace because the health centre in Ignace would be closed by the time he got there. He appreciated the Mother’s effort and asked to return because he thought that she was still in Ignace but she had returned to Dryden.
The Mother did not consult him with the extra-curricular activities and he has not been provided with a list for re-imbursement.
After court on December 9, 2013 there was discussion to offer more access to the Mother during the Christmas break. The Mother became very upset and said it wouldn’t work for her and told Ms. Parker to shut her mouth as she had no say in this. When leaving the court room after court was finished the Mother screamed a vulgarity and paperwork went flying.
He stated that the Mother only had five days visitation during Christmas of 2013 as she would not discuss changing the schedule to give her more visitation.
REPLY EVIDENCE OF PAMELA PARKER:
After court on December 9, 2013, there was contact with the Mother outside where she called her a “fucking c**t” and told her not to talk to her.
When discussing more access, the Mother told Ms. Parker to “shut up”. She also saw the papers fly around the courtroom as the Mother left the court on December 9, 2013.
DECISION:
Having heard all of the evidence I am finding that it is in the best interest of these children that the Father have sole custody of them for the following reasons:
This is a high conflict case which has been marked by bitter, ongoing conflicts since separation.
The Mother has demonstrated an inability to be reasonable when it comes to custody and access and the incidents there to.
She has difficulty obeying court orders and was described by her lawyer as being “prickly”.
Initially the clinical investigator from the Children’s Lawyer described her as being angry, rude and irritable.
The Mother demonstrated those traits during the presentation of evidence in court. She was visibly angry and on more than one occasion, in a stage whisper, uttered “liar” and “not true”. She would glare at Mr. Naumann and his partner and stabbed the paper that she was writing notes on so forcibly that the pen penetrated the paper.
The Mother has no concept of reasonableness and decided on her own initiative that she would move to Kenora with the girls without giving Mr. Naumann an opportunity to respond. She described this later as a mistake but clearly it was not in the best interests of the children to up-root them when a regime had been set up for a considerable period of time. She described that decision as her interpretation of the Order which clearly stated that the children would reside with the Mother in Dryden and since she was the custodial parent, she thought she had every right to move and make that decision unilaterally.
She made an impulsive decision to move in with Mr. Laveille and as soon as it became apparent that there was going to be protracted litigation, she separated from Mr. Laveille and moved back to Dryden. This was a poor decision and unrealistic to live a fairy tale life in a big house on the lake with her children. It was irresponsible.
Ms. Weare’s relationship with Mr. Gardner terminated after cohabiting for several years then one year of marriage. Mr. Gardner had a calming effect on her but described her as getting mad at him, particularly after she started her new relationship with Mr. Laveille and described his relationship with her as formidable. This is consistent with the relationship that she had with Mr. Naumann although Mr. Garnder has acted as a step-parent together with his own parents. Mr. Gardner’s involvement was a very positive aspect of this high conflict case.
Ms. Weare continues to have disrespect for court Orders and notwithstanding that she consented to the girls having telephone access in the Order of December 4, 2009 every night at 8:30 p.m., she decided on her own initiative to not allow that and to unilaterally decide she would determine when the telephone access would take place. The proper way to deal with this would be to bring an Application to vary, which did not happen.
Another example of the Mother’s unreasonableness occurred when she decided to deny the Father’s summer access on June 29th as she interpreted the Orders as that being the beginning of the summer. This was totally unreasonable and unacceptable.
The Mother has engaged in violence towards Mr. Naumann and his partner, which was illustrated by the raising of the hand at the Walmart exchange. This meets the legal definition of assault and was minimized by the Mother who thought she was the one who was being harassed. The assault incident took place in the presence of the girls, which caused stress to them and is unfortunate, and is another illustration of Ms. Weare’s inability to deal with reality and act in a responsible parenting manner, which is safe to the children.
I reject Ms. Matheson’s conclusion that sole custody should go to the Mother for the following reasons:
i) She did not have the opportunity to view both parents and the witnesses in court. The Mother presented in a very aggressive, demeaning way and feels she was always right.
ii) She did not want to continue to have the supervised access as the exchanges did not meet her schedule and it was more convenient to have the exchange take place at Steven Gardner’s place.
iii) She was of the view that she would be able to stay in the background and not present any difficulty when the exchanges took place. That evidence is rejected totally as she demonstrated time and time again with respect to all of the Orders that she can’t follow them.
iv) In court she presented a very volatile, outrageous demeanour with respect to the whole process.
v) It is also problematic that the Mother did not call her current partner, Somner Semeniuk, to give evidence with respect to his parenting ability and his contribution to the needs and best interests of these young children. He also works at Ristorante Pizzeria and is approximately ten years younger than Ms. Weare. This is a red flag and the Court is concerned about the stability of that relationship. Ms. Weare uses partners then disgards them when it doesn’t work out as in the case of Mr. Gardner, Mr. Leveille and I suspect Mr. Semeniuk will meet the same fate.
vi) There is a litigation history where the mother consents to access to the father then does not follow the consent orders. The Father has to bring applications to gain access because he was being denied and the exchanges that took place outside of the supervised program did not go well.
vii) Mr. Naumann and Ms. Paker presented as very reasonable individuals in their position at court. I totally reject that Mr. Naumann’s presentation in court was an attempt to intimidate the Mother or cause grief or upset to her. This reflects badly on the Mother and causes concern about the Mother’s ability to face reality. Mr. Naumann and his fiancé acted perfectly reasonably in court.
viii) I accept Ms. Matheson’s conclusion that both parents had the equal ability to parent. In that regard Mr. Naumann and Ms. Paker will provide the stability that is needed for these children to proceed and grow in the absence of the volatile, aggressive nature of the Mother so that they can become well-adjusted adolescents then adults. The supervised access exchange must take place as that provides an independent observer to insure that no breaches of the peace occur.
ix) I am also satisfied that the education and health needs of the girls can be achieved in the Father’s care in Ignace as he is well aware of their physical, emotional and medical needs and along with the assistance of Ms. Parker will provide the stability needed to raise these children properly.
In the circumstances, I am granting sole custody of the children to the Father with the exchange to take at Firefly on February 7, 2014 at 4:00 p.m. with the Mother having access as follows:
There has to be a period of stabilization and there shall be no physical access to the children except by telephone access three times per week of fifteen minutes duration each from 6:30 p.m. to 7:00 p.m. until the beginning of the 2014 March school break.
March school break commencing March 7, 2014 after school until March 16, 2014 at 3:00 p.m. The Father shall transport the children from Ignace to the supervised access program on March 7, 2014 and the Mother shall deliver them at 3:00 p.m. on March 16, 2014.
Every second weekend from Friday on March 28, 2014 at 3:30 p.m. until Sunday at 4:00 p.m. and thereafter;
The children shall be exchanged at the Firefly supervised access program with Mr. Naumann to provide transportation from Ignace and the Mother shall provide costs relating to gasoline and time for return transportation to Ignace fixed at $100.00 per visit.
A non-harassment order shall issue with respect to both parents and the children.
The Mother shall have two continuous weeks in July and two continuous weeks in August with the Mother to give notice of the desired weeks to the Father on or before May 31st of each year.
Based on the evidence, I am finding the Mother in contempt of the Orders of December 4, 2009 and October 1, 2010 by denying telephone access, moving the children to Kenora without the consent of the Father and not providing access on June 29, 2013. I decline to make any further order relating to contempt as costs will be dealt with on an all-inclusive basis upon receiving a bill of costs and argument.
The children shall not be moved outside the Dryden/Ignace area without the consent of the parties or a court Order.
Mr. Naumann shall arrange for mental health assessments for the girls at Firefly or any other facility specifically with respect to self-esteem issues with Reina and personal boundaries with respect to Patience.
Ms. Weare shall be entitled to receive copies of all medical, mental health, counselling and assessment reports as well as school report cards as provided.
SUPPORT
i) The Mother has obtained employment at Timbermax and Ristorante Pizzeria and contributes to the financial needs of the children.
ii) The Mother shall pay child support to the Father in the amount of $521.00 per month commencing April 1, 2014 and payable on the first day of each month thereafter. I have granted a two month hiatus in support payments to compensate for the any non-contribution by the Father for extraordinary expenses. The Mother has not filed a Financial Statement, T-4 or Notice of Assessment nor a statement of her tips at the restaurant and I impute income at $25,000.00 and the table amount for two children is $521.00. All support payments shall be payable to the Director of the Family Responsibility Office who shall pay them to the person to whom they are owed.
iii) A support deduction order shall issue.
iv) There shall be a post-judgement interest clause.
- As the Father has been successful he is entitled to costs in the Application and I will receive submissions relating there to.
Released: 03 February 2014
Signed: “Justice P.T. Bishop”