Court File and Parties

Ontario Court of Justice

Date: November 16, 2015

Court File No.: Toronto DFO15 12996

Between:

Jason Davie Applicant

— And —

Sheri Davie Respondent

Before: Justice E. B. Murray

Heard on: November 4, 2015

Reasons for decision released on: November 16, 2015

Counsel:

• Mr. Ed Rice, for the Applicant
• Mr. William Hutcheson, for the Respondent

Decision

MURRAY, E. B. J.:

Introduction

[1] Jason Davie and Sheri Davie are the parents of two daughters, G., born in 2010, and M., born in 2012. They separated after an incident on May 12, 2015, which resulted in Jason being charged with assault with a weapon and uttering death threats.

[2] Jason's recognizance provides that he have no contact with Sheri except through a mutually agreed third party to arrange access or pursuant to a family court order, and that he not be within 100 metres of any place that Sheri is known to be.

[3] Since the separation the children have lived with Sheri in the former matrimonial home. Pursuant to a consent without prejudice temporary order, Jason has seen the children regularly, on alternate Saturdays or Sundays from 10 a.m. to 6 p.m. and on Wednesdays for 2-2 1/2 hours; his access is supervised by a friend or family member. Sheri says that supervision is necessary to protect the children because Jason is easily angered and has difficulty controlling his anger, and because he uses marijuana to excess. Jason is insulted at Sheri's insistence that his contact with the children be supervised. He says that Sheri made allegations of domestic violence against him solely to gain an advantage in this litigation.

[4] This case is being heard in the Integrated Domestic Violence Court in Toronto.

[5] This is my decision on a motion brought by Jason and a cross-motion brought by Sheri. Jason seeks an order granting him temporary custody of the children, with a schedule which provides that the children spend 50% of their time with each parent, changing homes every Friday. Sheri asks that the children be in her temporary custody, and that the current supervised access arrangement continue until Jason is able to present evidence that he is no longer using marijuana and an assessment from a psychiatrist or psychologist indicating that he is better able to regulate his anger. Sheri also asks for a temporary order for child and spousal support, based on an income of $45,000 imputed to Jason. Jason, who is self-employed as a paralegal, says that he is willing to pay child support but not spousal support, and that child support should be based on his income, which he calculates as $14,760 annually.

[6] In considering these motions I reviewed affidavits and a financial statement filed by each party, as well affidavits from relatives of each party and affidavits from parents of G.'s friends. Police occurrence reports and records from the Children's Aid Society of Toronto (CAST) and the Catholic Children's Aid Society of Toronto (CCAS) also were part of the record considered.

Background

[7] Sheri and Jason were married on October 31, 2009. She is currently 41 years of age and he is 43 years of age.

[8] Before marriage, Jason worked at a variety of part-time jobs—as a bartender, a corporate trainer, a film production assistant, and a television actor. Shortly before the marriage, Jason suffered serious back injuries in a bike accident. He recovered, but continued to have ongoing back pain and obtained a prescription for medical marijuana. After the accident Jason continued some of the work he had done previously, and in 2013 he completed a paralegal course. In 2014 he began his own paralegal business.

[9] At the time of the marriage, Sheri was working as an office administrator earning $68,000 annually. Shortly after G. was born, Sheri's company was re-organized and her job eliminated. Thereafter, Sheri took on the role of the stay-at-home parent, doing occasional part-time work. For a few months when she was pregnant with M., Sheri worked part-time at the local church. In March of 2015, Sheri started part-time work as a lunch hour supervisor at G.'s school. This work has been only very occasional since the beginning of this school year.

[10] G. is now in senior kindergarten. M. is not in school. Sheri would like to return to work, at least part-time, and has been looking for a job. She has applied for a day care space for M., but the waiting list is long.

[11] Jason is living in an apartment owned by his mother on the Esplanade in downtown Toronto. Sheri and the children are living in the former matrimonial home, a property owned by Sheri on Carlaw Avenue in east end Toronto. Since the separation, Sheri's mother, Marion Hill, has moved into the basement of the home. Sheri says that her mother made the move to help her out financially by paying rent, as the support which Jason has been able to provide is not sufficient. Sheri is now in receipt of social assistance payments.

Parenting Roles Pre-Separation

[12] Sheri says that she did "95%" of the parenting of the children prior to separation. Jason says that he took "a more than equal part in parenting the girls".

[13] Jason says that he was involved in every aspect of caring for the children—preparing meals, supervising bath and bedtime, and taking the children to activities. He coached G.'s soccer games, picked the children up from ballet lessons and Spanish classes, and enrolled G. in French immersion. He cared for the children alone at regular times when Sheri went out to play baseball and swim. Jason's mother and sister Allison say that Jason was a very involved father.

[14] Sheri acknowledges that Jason had a role in the children's care; for example, he routinely read the girls a bedtime story. However, she says that most of the work—cooking, laundry, cleaning, diaper changing, trips to the doctor, and activity coordination—were left to her. She says that it is she who took the initiative to enroll G. in various programs—Spanish classes, ballet, a school literacy program—and she who took G. to these programs. Sheri acknowledges that before separation Jason did sometimes pick her and the girls up from these activities, as the family only had one car.

[15] Sheri offered other evidence indicating that she was the primary caregiver:

• Jordanna Graves and Kelly Staples (mothers of children who are friends of G.) attest that they were frequently in the Davie home, and that Sheri was the parent who was caring for the children. Kelly Staples reports that on one occasion when M. needed changing, she brought this to Jason's attention, and he said that he "didn't do diapers", that that was Sheri's job.

• Both Marion Hill and Kim Champion, Sheri's mother and cousin, say that they were around the Davie home frequently, and that it was Sheri who was the children's primary caregiver.

• Sheri says that since Jason started his paralegal business, he has been out of the house on weekdays regularly from 8:45 to approximately 6 p.m. Jason does not deny this. He was thus unavailable to care for the children during this time.

• Both G.'s ballet teacher and the teacher at Morse P.S. who runs the Family Literacy program say that both children attend, and confirm that Jason has never attended these activities with the girls and that Sheri is the only parent with whom they have had contact.

• In addition, Sheri produced documentation showing that she is the parent who has registered G. for Spanish classes or French immersion.

[16] The evidence as a whole leads to the conclusion that while Jason has been involved in the children's care, that Sheri has been their primary caregiver.

Domestic Conflict

[17] Domestic conflict between the parties has meant that police have attended at Jason and Sheri's home three times and that the Catholic Children's Aid Society has been involved with the family since late 2012. Prior to December 2012, the Children's Aid Society of Toronto (CAST) also provided service to the family because of police reports of family violence.

[18] As early as March 2012 CAST verified that the children were in need of protection because of conflict between their parents. CAST recommended that Jason get help for anger management at the John Howard Society. He did not do so.

[19] CAST transferred the file to CCAS, because the family identified as Catholic. CCAS recommended that the parties seek couples counseling and that Jason enroll in the "Being a Dad" program, a program designed to assist fathers who exposed children to abuse of their mother, to increase the physical and emotional safety of children. The parties attended two sessions of couples counseling, but did not continue. Jason refused to consider enrolling in "Being a Dad".

[20] Sheri kept a journal starting in 2012 in which she detailed numerous incidents involving Jason that alarmed her. In the journal Sheri describes incidents in which a minor issue will cause Jason to become "enraged", during which he will yell, throw things, smash household items, swear, and scream abuse. Usually these incidents take place in front of the children, leading the children to cry.

[21] Some of the reports in Sheri's journal are described below. All reports are denied by Jason, unless otherwise noted.

• In March 2012 there was an argument between Jason and Mrs. Hill at the Davie home, which Sheri describes as being about Jason's objection to Mrs. Hill giving G. a children's Tylenol some months prior. Sheri describes a scene in which Jason yelled, threw things, and chased Mrs. Hill around the house. Police were called. Jason denies much of Sheri's account. However, in his interview with CAST, Jason admitted that he acted "inappropriately", that he made verbal threats to Mrs. Hill, and that he kicked a door during the conflict, all in front of G.

• Sheri describes an incident in the summer of 2012 in which an angry Jason locked her out of the house. M. was breast-feeding at the time. For about 5 minutes, Jason stood on the other side of the door, shouting at Sheri while M. cried. Sheri says she started to try to break the door, when Jason opened it, thrust the crying baby in her arms, and rushed off, swearing.

• Sheri describes an argument on December 5, 2012, about the date for M.'s baptism. She says that Jason took a knife and held it to his neck, saying that the baptism would take place on the day Sheri wanted "over my dead body". He went on to say that "if you keep smiling like that, you won't be going to a baptism".

• Sheri describes an argument a few weeks later, when Jason tried to leave the house with M. and Sheri objected. He said "you better call the cops, cause this is not going to end good". She did, and a second referral was made to the Society.

• Sheri says that on January 18, 2013, in G.'s presence, Jason said "I'm going to jail for murdering everyone….well, not them, just you".

• 7 months later, during an argument in front of G. about what was on TV, Jason said: "You are going to disappear…. that's what's going to happen to you, and no one will ever find you". G. was crying. When CCAS interviewed the parties about this incident, Jason advised that he did "not remember" saying this, commenting that Sheri "watches a lot of TV".

[22] Jason acknowledges that there has been a high level of conflict between him and Sheri for a considerable period of time. However, he flatly denies much of what Sheri alleges, and asserts that she is "delusional" and/or exaggerating to discredit him.

[23] Despite Jason's denials, there is evidence in CCAS records and in the affidavits of relatives and the mothers of G.'s friends establishing that Sheri has complained to them for over three years of abusive and controlling behaviour by Jason, describing the incidents as set out above. A recent entry by CCAS worker Charles Dannsah-Appiah noted that "the controlling nature of the father" was the cause of the family conflict, and that most of the incidents took place in front of the children.

[24] Others outside the Davie family circle have questioned whether Jason has mental health problems.

• A psychological assessment October 2010 done after Jason's bike accident diagnosed him as suffering from an adjustment disorder with mixed anxiety and depressed mood. The psychologist recommended that Jason obtain "psychological intervention in order to prevent further deterioration".

• A former next-door neighbor of the Davies, Leisha Lewis-Wilson, reported that she and her pre-teen daughter were subjected to incidents of verbal harassment and threats from Jason that became so concerning that Ms. Lewis decided she had to sell the home, and moved. She says she did not "feel safe" living next to Jason.

• A police officer called to the Davie home in May 2012 described Jason's behavior as suggesting "mental health concerns…He was very confrontational and his mood would suddenly change". The officer said that Jason "would talk about being a good parent and husband and in the next breath he would be calling mother stupid and an idiot." The officer said that Jason appeared "to be very dominating" over Sheri, telling her not to say anything to police. The officer said: "Father's behavior is strange. He presents well at first, however the more you probe and ask relevant questions, you would see issues with him coming out".

[25] Although Jason's mother and sister both testify that he has been a caring and engaged father, neither denies the evidence indicating that he has had ongoing difficulties managing anger. Susan Gray, a sister who lives in Ohio, says only that Jason has "never been aggressive towards me", and that he shares with her parables about "letting go of negative energy".

[26] Sheri, Mrs. Hill, and Ms. Champion say that Jason is hypercritical and physically rough with G., causing the child emotional distress.

The Separation

[27] The separation occurred after an argument on May 12, 2015 about what to have for dinner. Sheri says the argument culminated in Jason grabbing a 12" screwdriver which was on the dining room table, holding it to her neck, and yelling "I should fucking kill you". He stopped when Sheri said she was going to call police. Jason denies these allegations completely, and points out that the investigating officers did not at first find that there were reasonable grounds to lay a charge.

[28] After the separation, CCAS prepared a service plan for the family which identifies three objectives.

• The parents are to prevent exposure of the children to domestic violence;
• Jason is to "get counseling/therapy for anger management and depression";
• Sheri and the children are to attend counseling to "help deal with the trauma of being victims of abuse".

[29] Jason has not taken steps to get counseling, although he said at the argument of this motion that he would attend the "Being a Dad" program if the court ordered. The evidence is that Sheri has received some counseling from the Barbara Schlifer clinic, but does not indicate that the children have received counseling.

[30] I make no finding as to whether Jason assaulted and threatened Sheri on May 12, 2015. I do find, however, that the weight of the evidence establishes that Jason has difficulties managing anger and strong emotions, and that these difficulties have led to regular scenes of domestic conflict to which the children have been exposed.

Marijuana Use by Jason

[31] Jason does not deny that, at least until recently, he has regularly used marijuana. He says that he used it sparingly for pain control. Sheri says that he smoked daily and heavily, often with friends across the street or in a shed behind the house, and that he also grew marijuana. She says that she fears that Jason's excessive use of the drug impairs his judgment, and that this is another factor stoking her concerns about the children having unsupervised time with him.

[32] Kelly Staples deposes that she ultimately stopped letting her daughter attend play dates at the Davie home because she worried about Jason's use of marijuana. Ms. Staples says that Jason regularly smelled of the drug and left his supply of "weed" out in the open in the home, that G. referred to this casually as "Daddy's weed", and that Jason joked about G. teaching her daughter to use the drug. Jordanna Graves reported a similar concern about Jason's open use of the drug. Kim Champion says that she was at the Davie home frequently, and that she has never seen Jason when he was not smoking marijuana or smelled of smoking it. She says that she does not think that he could safely care for young children when he is high.

[33] Although Sheri says that Jason's use of marijuana concerns her, she also says that he is more likely to go into "a rage" from frustration when he has not enjoyed his regular intake of marijuana.

[34] Jason says that his use of marijuana was strictly medicinal, but that in order to allay any fears, he has stopped smoking marijuana, and is using only ibuprofen for pain control. He attaches as proof a record of urinalysis for one day, showing no cannabis was detected in his system. His lawyer acknowledged that regular urine tests at 2-3 day intervals or perhaps a tightly regulated hair test would be required to reliably monitor for marijuana use; Jason indicated a willingness to undergo such testing.

[35] The evidence raised some concern for me that heavy use of marijuana by Jason, who is living alone, would impair his ability to care for the children. However, I am satisfied that his commitment to forgo marijuana use and to participate in a regime of reliable testing is a sufficient answer to those concerns.

Risk to the Children in Sheri's Care

[36] Jason says he is concerned about Sheri's mental health. Although Jason recently told a CCAS worker that he had no concerns about the children's safety in Sheri's care, the next day he told the worker that "she is nuts, and the kids are not safe". He complained to the worker that Sheri's family "all have mental health issues", and that they are "white trash from Newfoundland". He is concerned that Mrs. Hill is living in the home, and says she has a drug problem. He believes that Sheri's brother Matthew, who has a criminal record for robbery, is also living there, and worries that he is around the children.

[37] Jason's mother and sister do not express safety concerns about Sheri's care of the children, but say that Sheri is moody and controlling and criticize her for being too lenient with G.

[38] Sheri replies that the charge that her mother has mental health or drug problems is ridiculous and unsupported. She acknowledges that Matthew has a criminal record and "personal problems", but says that he does not live with her and has no unsupervised contact with the girls.

[39] The evidence does not raise a concern for me that the girls will be at risk in Sheri's care. Jason's allegations with respect to her mental health are inconsistent and unsupported. Society workers who have monitored the family say that the children, except for their exposure to domestic conflict, have been well cared for. Parents of G.'s friends as well as a teacher from G.'s school speak highly of Sheri's parenting.

Parenting Order

[40] The claims in this case are made pursuant to the Children's Law Reform Act. A court making a decision about temporary parenting arrangements for children must be guided by section 24 of the Act, which directs that the decision must be made considering the children's best interests. S. 24(1) sets out a non-inclusive list of the factors to be considered in determining best interests. S. 24(3) provides that parental conduct is to be considered only insofar as it is relevant to parenting ability. S. 24(4) is the legislature's recognition that the fact that an individual has committed violence or abuse against a partner or child is a negative factor in the assessment of parenting ability.

[41] The Divorce Act provides that "the court shall give effect to the principle that a child of the marriage shall have as much contact with each spouse as is consistent with the best interests of the child". Caselaw has recognized that although the CLRA does not contain this provision, that the same principle, often referred to as the "maximum contact" principle, should apply in decisions made under that Act.

[42] Jason's lawyer argues that this principle creates a presumption that children of separated parents should spend equal time with each of their parents, and that the onus is on the parent who objects to such a schedule to lead evidence to rebut the presumption.

[43] This is not a correct statement of the law. Justice H.A. Vogelsgang addressed such a submission in Foster v. Foster:

The annotation of Philip Epstein Q.C. to Cavanaugh v. Balkaron, 2008 ABQB 151, 53 R.F.L. (6th) 295 (Alta. Q.B.) is instructive. Conceding that the Divorce Act promotes maximum contact, Mr. Epstein observes that the statute does not create a presumption of shared parenting and that no onus is placed, in this case on Ms. Foster, to prove that shared parenting should not be ordered. That, I think, correctly states the law. While spending more time with the children would be in the best interests of Mr. Foster, it does not necessarily follow that it would be in the best interests of Olivia and Gavin: Coulson v. Farmer, 50 R.F.L. (4th) 345. Where "maximum contact" is raised, it is important to remember that "quality parenting time is not measured by days and hours alone - those are a measure of quantity ..." in the words of Sandomirsky J. in Milleker v. Milleker, 2005 SKQB 455, 21 R.F.L. (6th) 381 (Sask. Q.B.)

[44] In this case, the order that best meets the needs of G. and M. is not one that splits their time equally between their parents. The actual separation was difficult for the children—a chaotic scene which involved police coming to the house and questioning them. This is not the first such scene the children have witnessed. Children's Aid workers have been coming to the house periodically over the past three years—for the last year, on a monthly basis—and CCAS has found that they are in need of protection because of exposure to domestic conflict. G. and M. need calm, child-centered care, in an environment which allows them to maintain a relationship with each parent.

[45] Jason and Sheri love their daughters, and their daughters love them. It is clear, however, that an order placing the children in Sheri's custody and primary care is the order that meets their best interests on a temporary basis. I say this for the following reasons.

• Placement with Sheri provides continuity of care. It is Sheri who has been the children's primary caregiver during their lives. The evidence indicates that she has provided good care.

• Sheri is residing in the matrimonial home, the home in which the children have grown up. Living with Sheri will allow the children to maintain friendship networks, and allow G. to continue to attend Morse St. P.S.

• Although Sheri has sometimes engaged in arguments with Jason in front of the children, she appears to be the parent who has the best regulation over her emotions at this time, and the parent who is best able to focus on the children, as opposed to the conflict with Jason. Sheri appears to be able to give the children positive messages about Jason.

[46] I accept that Jason has been regularly involved in caring for G. and M. However, there are problems with his plan to care for them on his own 50% of the time.

• To propose that a child of three like M. should spend 7 days without seeing the other parent suggests that Jason is not entirely sensitive to the children's developmental needs.

• Jason's plan seems to ignore the fact that M. is not in school or daycare, and does not involve any consideration of how the child would be cared for while he is at work. Simply saying that his work is "flexible" does not eliminate the need for childcare for some period of time.

• Despite the urging of CAST and CCAS over the past three years, Jason does not recognize that he should address problems with his behaviour which were an important cause of the domestic conflict. He appears not to understand the impact which this conflict has had on the children; he advised one worker in 2013 that he thought this type of conflict was "normal".

I do not view Jason's difficulties in regulating his emotions as a problem related only to his relationship with Sheri. It is a problem which would affect his parenting of the girls and the environment which he provides for them.

• Jason makes negative comments about Sheri to the children on visits, involving them rather than shielding them from parental conflict.

[47] In my view, Jason must enroll in and complete the "Being a Dad" program recommended to him by CCAS (or a similar program, such as "Mindful Fathering" provided by Yorktown Child and Family Centre), in order to better meet the children's needs. Until Jason completes this program, the children's time with him should be limited to relatively short daytime periods.

[48] My order is that the children continue to see their father on the current schedule, that is, alternate Saturdays and Sundays from 10 a.m. to 6 p.m. and Wednesdays from 4 p.m. to 6 p.m., extended to 6:30 p.m. if Jason is going to give the children a meal.

[49] With respect to Christmas holidays, in addition to the regular schedule, the children shall spend December 25 from 12 noon to 7 p.m. with Jason.

[50] Sheri shall facilitate a telephone call by the children to Jason on Monday and Tuesday at 6:30 p.m. and on Thursday and Friday at 5 p.m. She shall allow the children to talk to their father as long as they wish.

[51] Transfers of the children shall be done by a mutually agreed third party.

[52] Jason shall not consume marijuana. He shall participate in a regular and reliable testing program to confirm he is not consuming the drug.

[53] Neither party shall speak negatively about the other parent to the children or in the presence of the children.

[54] The parties may communicate with each other by email about issues directly related to the care and welfare of the children—e.g., a child's illness.

[55] Although I have found that Jason needs assistance in order to be able to be a more effective parent to G. and M., I am not of the view that his time with the children must be supervised by a third party. Although CCAS found that the children were at risk of emotional harm because of exposure to conflict largely attributable to Jason's actions, Mr. Dannsah-Appiah, the CCAS worker who has been meeting regularly with the family, does not believe that supervision is necessary to insure their physical safety. Right up to the time of separation Sheri left the children in Jason's care for periods of several hours when she was out of the home. I do not believe that she would have done this if she thought that the children were at risk in his care unsupervised.

Support

[56] The parties disagree as to Jason's income.

[57] Jason finished his paralegal training in September 2013, and received his Law Society certification in April 2014. In his 2014 tax return, Jason declared gross income of $12,000; he deducted expenses of $6,283, almost all of which were related to his auto expense. He estimated that 85% of his auto use was related to his business.

[58] Jason swore in his financial statement that his current annual income from his paralegal business is $14,760 with a gross income of $30,890. He says that he calculated his net income by tallying his bank deposits for 18 months, and estimating that expenses were the same proportion as that of his expenses to his gross income in his 2014 return (i.e., 52%). He provided no specifics as to what those expenses currently are.

[59] Jason recently bought a new car, a 2015 Hyundai. On the application for the car loan he stated that his annual income was $60,000. Jason says that he knew that he had to exaggerate his income to get the financing necessary for the car.

[60] Jason explains his modest income by saying that his business is still in a start-up phase.

[61] Sheri does not believe Jason's statements about his income. She says that by and large she has been out of the workforce since the children were born, and that it is Jason who has been paying the household bills. Acknowledging that she and Jason accumulated considerable debt during the marriage, she insists that he must be earning far more than he claims to have supported two children and maintain mortgage and tax payments on a house and a car.

[62] Sheri suggests that Jason has not declared all his income. She says that since Jason started his paralegal business, he often flashed roles of cash which he said were payments from clients, and complained that he was so busy that he needed help to cope with all the business he had. He told a CCAS worker that he was "a very successful and busy in his paralegal practice".

[63] Sheri provided information from a database of unknown reliability suggesting that the average income for a paralegal of 2.5 years' experience is between $45,000-50,000. She asks that I impute annual income to Jason of $45,000.

[64] Jason's lawyer acknowledged that the court might not find the evidence about Jason's income satisfactory, and submitted that it would not be unreasonable to base a child support order on an annual income of $25,000 or perhaps even $35,000.

[65] I do not find it reasonable to impute annual income to Jason in the amount of $45,000.

• I do not have evidence about the expenses of the Davie household before separation and about how much of those expenses were financed by debt. Given that, I am unwilling to assume that, based on the fact that Jason was the primary financial support of the family prior to separation, his income is as high as Sheri suggests.

• I am also unwilling to assume that the database provided by Sheri is a reliable indicator of what Jason is or could earn. As Jason's lawyer pointed out, there is a wide range of income which can be earned by a paralegal; for instance, a paralegal employed by a government agency is likely to earn an income in excess of that earned by a sole practitioner with little experience like Jason.

[66] I do not, however, accept the figures provided by Jason as an accurate indication of his Guideline income. When reviewed, the bank records available for the past 12 months indicate deposits of $36,398. The most reliable information available as to Jason's expenses is set out in the statement of business activities for his 2014 tax return, $6,283.

[67] I base the temporary support order on annualized income of $30,115 ($36,398 - $6,283), and order that Jason pay child support of $438 monthly commencing November 1, 2015.

[68] With respect to the claim for temporary spousal support, I accept that Sheri has a potential entitlement to spousal support. However, given the income I have found for Jason for the purpose of this motion, the Spousal Support Advisory Guidelines do not indicate that any spousal support is payable. I see no reason to order an amount different than that suggested by the SSAG.

[69] Without a consideration of any offers to settle which may have been exchanged, it appears to me that success on the motions is evenly divided. However, if either party wishes to claim costs, he or she shall serve and file written submissions of no more than 10 pages on or before November 25, 2015; a response of no more than 10 pages shall be served and filed on or before December 4, 2015.

Released: November 16, 2015

Signed: "Justice E.B. Murray"