Court File and Parties
Ontario Court of Justice
Date: 2014-11-25
Court File No.: Sioux Lookout, Ontario FO-11-00050-01
Between:
Amber Richele Roy Applicant
— And —
Daniel William Klapkiw Respondent
Before: Justice Peter T. Bishop
Heard on: November 25, 2014
Reasons for Judgment released on: December 23, 2014
Counsel:
- Mark Mymko – counsel for the applicant(s)
- Mark Van Walleghem – counsel for the respondent(s)
BISHOP J.:
BACKGROUND
[1] The parties are the parents of the child Tristan Daniel Roy, date of birth August 7, 2011. The matter comes before me by way of a motion to vary the Order of Justice Hoshizaki. There is also an accompanying Contempt Motion by the father against the mother for denial of access.
[2] On July 5, 2012 Justice Hoshizaki made the following Order:
(1) Amber Roy and Daniel Klapkiw shall have joint custody of the child Tristan Daniel Roy, born August 7, 2011 with the primary residence of the child being with the Applicant Amber Roy.
(2) The Respondent Daniel Klapkiw shall have access to the child Tristan Daniel Roy, born August 7, 2011 as follows:
(i) From 5:00 p.m. to 9:00 p.m. on Friday each week commencing July 6, 2012.
(ii) From 9:00 a.m. on Saturday to 4:00 p.m. on Sunday every second week commencing July 14, 2012.
(iii) Commencing August 11, 2012, bi-weekly access shall be increased to 5:00 p.m. on Friday to 4:00 p.m. on Sunday.
(iv) Reasonable access at other times upon reasonable notice.
(v) Before each access period the Respondent Daniel Klapkiw shall confirm his attendance for access on the day proceeding the start of access.
(3) The Respondent Daniel Klapkiw shall pay child support to the Applicant in the amount of $472.00 per month based on his income of $55,162.00 commencing August 1, 2012 and continuing on the first day of each month thereafter.
(4) The Respondent Daniel Klapkiw shall pay one half the child's childcare expenses which shall be paid directly to the Applicant Amber Roy.
(5) There will be no order as to costs.
(6) Unless the Support Order is withdrawn from the Director's Office, it shall be enforced by the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office, P.O. Box 2204, Station P, Toronto, ON M5S 3E9.
(7) A Support deduction Order to issue.
(8) For as long as child support is to be paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
(9) This Judgement bears interest at the rate of 3% per annum effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.
[3] On August 13, 2014 a Temporary Order was made by this court as follows:
(1) The father shall have access to the child:
(i) Commencing August 15, 2014, bi-weekly from Friday at 5:00 p.m. to Monday at 9:00 a.m. by order of the court.
(ii) The access exchange shall be facilitated by pick-up and drop off at the Sioux Mountain Day Care Centre located at 89 First Avenue Sioux Lookout, telephone number 737-2055.
(iii) The parties shall exchange valid personal telephone numbers to be used only in the case of an emergency affecting the child.
(iv) The father shall provide Revenue Canada Notice of Assessments and T4 to mother for years 2012 and 2013 forthwith.
(v) All police forces and child protection agencies shall assist in enforcing this access order. A certified copy of this endorsement or order shall be sufficient authority for police or the Children's Aid Society to act.
(2) Adjourned to October 7, 2014 at 11:00 am for Trial to continue on October 8th if necessary
[4] On September 2, 2014, the mother called the father requesting that he pick up the child which he did, and has had physical custody ever since.
ISSUES
[5] The main issue before the court is whether there has been a material change in the circumstances to change the Joint Custody Order to Sole Custody in favour of the father and whether the mother has been in contempt of Justice Hoshizaki's Order of July 5, 2012.
EVIDENCE OF DANIEL WILLIAM KLAPKIW
[6] The father is thirty-six years of age and has lived in Sioux Lookout for six or seven years. He is employed in the fire protection system industry and has been recently laid off with a downturn in winter construction.
[7] It was his evidence that he always gave notice in advance to have access pursuant to Justice Hoshizaki's order and he would often sit at the predetermined location and the mother would not show up with the child.
[8] He only had the mother's parent's phone number and he did not know where the mother lived. He was frustrated as he did not get an answering machine or any satisfaction from calls to the grandparent's home.
[9] At one time the mother was working at the Forest Inn in Sioux Lookout, Ontario and he attended there to try and arrange access at which point the mother called the police.
[10] At one time the mother stated that there would be no further overnight access. He was particularly concerned with the lack of access at Christmas 2013 as his mother and father travelled from Southern Ontario to visit the child and the mother removed the child from the area to places unknown.
[11] The mother made allegations that he hit the child and reported a bump on the child's head with a bleeding nose with blood in the nose area and on the child's clothes when he was returned.
[12] The mother accused him of being an alcoholic who worked all week and drank all weekend.
[13] He reaffirmed that he made numerous telephone calls to the grandparents as the mother would not provide him with a current phone number. There were threats that the mother would file a restraining order against him.
[14] During the Blueberry Festival in the summer of this year, the mother allowed the father access for two or three hours during the day only.
[15] On September 2, 2014 the mother called him and said "come and pick up your god-damned kid. I don't want him anymore and I am planning to move to Alberta or British Columbia." She also wanted nothing more to do with people in this town.
[16] The father complied and picked up the child. As he was unemployed he removed the child from daycare and provided access to the mother every second weekend from Friday at 5:00 p.m. to Monday morning. The exchange still takes place at the daycare.
[17] From his point of view the exchanges are not a pleasant occurrence, never smooth, there is always an ambush on the mothers' part and the child; unfortunately, is present.
[18] The father has a new partner and lives in a three bedroom, two bathroom house.
[19] Since the child came in to his care the relationship has been fantastic. He has never heard his son swear and has a big room of his own.
[20] He believes the mother lives with her parents and does not want to keep the child from the mother as she should have access and he will facilitate that.
EVIDENCE IN CROSS EXAMINATION
[21] He confirmed that he was laid off at Butler Construction October of 2014. The daycare was previously subsidised and he has been denied daycare because his income was too high.
[22] He is not allowed to know where the mother lived and only got the phone number on October 2, 2014 to come and pick up the child.
[23] He now knows that the mother was living across the street from the daycare but has since moved back in to her parent's home. He never did call the Children's Aid Society and is not aware of any health problems or concerns for the child.
EVIDENCE OF JANICE KAKEKAYSPAN
[24] Miss Kakekayspan is the partner of the father. They began a relationship in 2012 and have lived together for approximately for one year.
[25] Since the child came to live with them she is able to provide some childcare responsibilities as she works at Remedy's Rx, nine to six, Monday to Friday. She is there when the child goes to bed and gets up in the morning.
[26] Neither she nor the child have any health concerns and there are few friends for the child in their immediate area.
[27] She has never heard the child swear when in her company and neither she nor Mr. Klapkiw use foul language.
EVIDENCE OF LORENE ROY
[28] Ms. Roy is the grandmother of Tristan and confirmed that the mother now lives at their home. She lived with them for approximately for a year after Tristan was born. The home is about twenty four hundred square feet and their other son Luc, is also residing there and will be moving out in December of this year.
[29] She described the access and exchange visits and confirmed that usually she's pleasant and the father would call the night before and the exchange would take place the next day.
[30] They have a call display on their phone and always return phone calls. She stated in four months there were no phone calls and for two months he was away working.
[31] In August, 2013 she observed that Tristan became much more laid back and she observed some blood in his nose, seemed to be acting strange and would not come to her.
[32] In September, 2014, Tristan went to live with his dad and then started to act out. He threw a brick at her and did not want to stay at their home but wanted to go back to his dad.
[33] She confirmed that her daughter Amber called the father to come and pick Tristan up and take care of him.
[34] She observed that the child is now very good, but he is frantic when has to go back to be with his dad and tells her that hates his dad. He also told the grandmother that he wants his own clothes.
CROSS EXAMINATION
[35] She confirmed that the daughter did not have a phone in the beginning but got it much later.
[36] He would phone and want access and the child was not delivered. She estimates there was a one year gap in exercising access.
[37] A couple of times the father did not show up at the exchange point and the mother waited for him and she became concerned about a mark on the child's nose and blood in his nose and on his shirt.
[38] She recalled a time when the father came to her house three times on one day and they were not there. He was told not to come back. She felt she was being harassed and she could not recall or remember if he had access at that time. The mother and grandparents may have been in Dryden.
EVIDENCE OF AMBER ROY
[39] Ms. Roy is thirty two years of age and she has another child from a different relationship who is ten years old. She confirmed that was the primary caregiver until September of this year and has worked at various locations including Home Hardware, The Forest Inn and a law firm.
[40] The relationship with Mr. Klapkiw was frustrating for her, as she tried to arrange access several times and the father would not show up. She estimated that he did show up nine times in two years.
[41] She confirmed that on August 27, 2012, she called the police when he came to The Forest Inn to try and arrange access. She did not allow overnight access from May to August, 2014.
[42] It was her view that Mr. Klapkiw was supposed to call and he did not do that.
[43] When the child came home he told her to fuck off a couple of occasions and called her a bitch. She then called the father to come and pick him up and take care of him.
[44] She stated that there was unsupervised access even though she believed the father had hit the child in August. She believed the father struck the child but did not the Children's Aid Society.
[45] At the time of the trial the mother was laid off from the law firm and has moved back in with her parents. She has no funds and is hoping to secure a job at Days Inn.
[46] With respect to the phone, she stated that she had given her phone number to the father for approximately a year but there had been no text exchange and she was annoyed and frustrated because he didn't show up for access and notify her ahead of time.
EVIDENCE IN CROSS EXAMINATION
[47] In cross examination she confirmed that he was required to phone one day in advance and she sought advice from the local police force. She decided not to give access if it would not be in the child's best interest.
[48] On one occasion after she physically delivered the child to the father, she observed what she thought was blood on the child's nose and on his shirt and he wasn't that way when the child left for the visit.
[49] Her position is that there should be equal time shared between both parents with this child.
REPLY EVIDENCE
[50] Mr. Klapkiw stated that when he lived with the Roy's with the mother and the child for approximately four months it was a very busy place with a great deal of cursing and swearing.
[51] He denies ever calling at 3:00 a.m. as he did not have the phone number and the mother refused to give it to him.
[52] At no time was there ever an agreement to have just daytime access.
[53] In the past when the child visited with him, he would change into clothes at his house and send the child back with the clothes that he was wearing as provided by the mother. At no time did he observe any blood in the child's nose or on the child's clothes provided by the mother.
POSITION OF THE FATHER
[54] The father seeks sole custody of the child and that the mother be found in contempt as she literally and arbitrarily decided that only one day access was to be allowed and he was not to have overnight access and denied him access when his parents were visiting.
[55] As well, after appearing in court the mother gave specific instructions to him as to what he could and could not do and began to unilaterally set the rules and did not follow the court order.
THE POSITION OF THE MOTHER
[56] The mother's position is that there was a communication problem and that the evidence does not substantiate a deliberate disobeying or willfulness to not obey the order.
DECISION
[57] Having heard all of the evidence I am finding that there has been a material change in the circumstances and it is in the best interests of this child that the father have custody of him and that the mother have access for the following reasons:
The mother has little or no understanding about following orders. There has been a deliberate denial of access with no plausible believable explanation or justification for that. It was particularly insensitive and cruel to deny the father access when his parents visited from Southern Ontario. The mother was observed in court on the Contempt Motion as well as at trial. During the contempt motion she was defiant, belligerent and adamantly refused to provide her telephone number to the father. She taunted the court to throw her in jail because she wasn't going to comply. This is not the attitude of a reasonable stable parent. Shortly thereafter she retained different counsel.
The fact that the mother in a fit of vulgar rage told the father on September 2 2014 to come and pick up the child and that she didn't want him anymore, reflects negatively on her character and her ability to properly parent this young child.
The father and his current partner have been caring for this child and he appears to be well adjusted in their home. They have heard no vulgarities uttered from his mouth.
The child is presently not in daycare because the father is laid off and has the time to care for his son.
The father has a substantial income and ability to pay for the upbringing of the child.
I am confident that with the child in the custodial care of the father, he will ensure that the mother has access to the child, will provide all medical records, reports and will ensure that the mother has meaningful access which has not been the case when she had custody.
[58] An Order will be issued granting custody of Tristan Daniel Roy, date of birth August 7, 2011 to the father with access to the mother as follows:
(i) Every second weekend commencing December 26, 2014 from 4:00 p.m. until Monday at 9:00 p.m.
(ii) Christmas Day, December 25, 2014 from 1:00 p.m. – 3:00 p.m.
(iii) Telephone access to the child not past 8:00 p.m. on any given day.
(iv) Statutory long weekends will be alternated with the mother having Easter weekend 2015 and the father having Easter weekend 2016.
(v) At least three continuous weeks in one of July or August commencing July or August of 2015 with the mother to give ninety days' notice of the dates and times of her request.
(vi) Any other time that can be agreed upon by the parties.
[59] With respect to the contempt motion I am finding that the mother has been in contempt of Justice Hoshizaki's order of July 5, 2012 on at least three occasions and will impose a fine in the amount of $500.00 for each occasion for a total of $1500.00 payable forthwith which will be set off against support payable by the father to the mother.
[60] With respect to support, the mother has an imputed income of $24,000 per annum and shall pay the father child support in the amount of $204.00 per month commencing January 1, 2015 and payable on the first day of each month thereafter.
[61] The father has been underpaying his support obligation in that he has been paying $472.00 per month but should have been paying $680.00 per month based on his income of $75,000.00 per annum.
[62] The father's arrears are fixed at $3046.00 for 2013 and $3046.00 for 2014 for a total of $6092.00.
[63] The father will be given credit for the contempt costs ($1500.00) and costs of this proceeding fixed after submissions on January 20 2015 so that the total arrears payable by the father to the mother are set today at $4592.00 which sum may be reduced further after costs are fixed in the main proceeding.
[64] The father's arrears shall be reduced by the amount of $204.00 per month being the obligation of the mother to pay child support to the father commencing January 1, 2015 until the arrears are satisfied in full at which time the child support will continue in full force or effect.
[65] A support deduction shall be issued.
[66] All support payments shall be payable to the Director who shall direct to the Family Responsibility Officer who shall pay it to the person to whom it is owed.
[67] This order bears post-judgment interest at the rate of 3.0% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
[68] Unless this order is withdrawn from the Director's Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
[69] For as long as child support is paid, the payor (and recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Released: December 23, 2014
Signed: Justice Peter T. Bishop