Court File and Parties
Court File No.: FO-15-062 Date: 2016-11-10 Ontario Court of Justice
Between: Garnet Bjarneson
- and - Demetra Karambetsos
Before: Justice Sarah Cleghorn
Heard on: October 11, 2016
Reasons for Judgment Released Electronically
Counsel:
- Ms. Kirsi Ralko for the Applicant
- Mr. Terrence Douglas for the Respondent
CLEGHORN, J.:
Introduction
[1] This is a custody and access application concerning one child, Haedyn Alexa Karambetsos, born March 15, 2011. The father, Garnet Bjarneson, seeks joint custody with a shared residence. The mother, Demetra Karambetsos, seeks sole custody with the primary residence.
[2] The mother and father have very similar parenting abilities, support systems and living arrangements in place. It is evident that the parties are bonded to, and have deep affection for, their child. As a result, both appear equally positioned to fulfill the immense responsibility of parenting a young child.
[3] Haedyn is described as a happy, healthy, and well-adjusted little girl. Parents and extended family members who love and adore her are raising Haedyn. By all accounts she is described as flourishing.
[4] The mother is adamant that a joint custodial arrangement is unworkable and not in Haedyn's best interests as a result of the father engaging in domestic violence. In her view, the parties have a very limited ability to communicate with one another.
[5] The father categorically denies that he is abusive. He is willing to communicate with the mother either directly or indirectly, in order to address the needs of their child. As a result, the father is of the view that the parties have the ability to co-operate and communicate in an effective manner in order to support a joint custodial arrangement.
[6] At the conclusion of the trial it was agreed that child support is to be calculated based on the incomes as disclosed in each of the respective sworn financial statements filed during the trial.
Evidence at Trial
[7] I will briefly provide an overview of the history of the relationship. The parties began co-habiting in 2010. Shortly after their daughter was born, a mutual decision (based primarily on financial circumstances) was made to live with the father's parents. The couple remained in that home until they separated on June 10, 2014 (that being the date that the mother left the home with the child).
[8] Both parties gave evidence about what the expectations were when discussing employment and who would remain at home in a primary caregiver role. At trial, each testified to different understandings of what they believed they had agreed to. The father felt that the two had agreed that he would remain home as the primary caregiver given that the mother, who has a university degree, had the greater income earning potential. The mother acknowledges that the father may have expressed this view but disagrees it was ever agreed too. She maintains that it was always her intention to remain at home as the primary caregiver to their daughter.
[9] Throughout the course of the relationship the father has held various minimum wage paying positions, interrupted by periods of unemployment. Prior to Haedyn's birth, the father was employed at Canadian Tire; the mother at Starbucks. After Haedyn was born the father was not employed from mid-July, 2011 until the summer of 2013. The mother was not employed from December 2010 until April of 2013.
[10] As both parties were at home caring for their daughter, the mother testified that the verbal arguments increased over time to such an extent that the relationship soured and became abusive.
[11] During one particular argument that occurred approximately 6 months prior to separation, the mother claims that as she was walking away from the father, he slapped her in the back of the head. The father categorically denies that he ever struck the mother.
[12] The father also testified that the mother, throughout the course of the relationship, would slap him with some force. He testified that she seemed to think this was playful. He testified that at times her slaps were forceful enough to cause him some pain. The mother categorically denies that she was ever physically abusive towards the father.
[13] As the fighting continued to increase the mother made the decision to leave the father on June 10, 2014. She left with Haedyn and went to live with her father. She moved out while the father was away from home, without providing him with any prior notice of her intention to do so.
[14] Later that same evening the father, having what he described as a "sinking feeling" that the mother had left permanently with the child, attempted to call the mother. When the mother would not answer his calls he kept calling her back and did so repeatedly. Within a span of a few hours the father called the mother a total of 266 times. Eventually the maternal grandfather contacted the father and informed him that the mother had left him and that the police had been contacted. At this point the father made no further efforts to contact the mother on her cell phone.
[15] Following the events on June 10th, the mother set out the parenting times for the father. The father has sought a shared parenting schedule since the date of separation and commenced this application when the parties were at an impasse on the parenting time for their daughter.
[16] The mother has been resistant to all contact directly with the father following the date of separation. She has refused to have contact via email, telephone or in person. The father, in an attempt to keep the mother informed of what was occurring during his parenting time and to try and be informed of what was occurring with their daughter when she was in the mother's care, began a logbook in June of 2014, in which he made entries. He would send the logbook to the mother with the child. The mother viewed this as an attempt by the father to exert power and control over her. She therefore did not participate in the use of the logbook until April of 2016.
[17] It was necessary for the paternal grandparents and the maternal grandfather to facilitate the exchanges between the parties. There have not been any issues of significance that have occurred with the exchanges to date.
Analysis
[18] Section 24 of the Children's Law Reform Act provides the analytical framework that must be followed when determining an application for custody and access. I am very much aware of the governing criteria as set out in section 24(2). The guiding principle is always the child's best interests.
[19] Although the parties may have held different views of what was agreed upon regarding who would remain in a primary caregiver role after the birth of their daughter, this is of little assistance in deciding the issues currently before me. Critical to determining the issue of custody is to analyse what in fact did occur prior to separation in terms of the parties' abilities to parent their child and communicate with one another. After Haedyn was born on March 15, 2011, the mother remained at home with her until she returned to work in April of 2013. The father remained at home during the timeframe of mid July 2011, until the summer of 2013. As a result, Haedyn had the benefit of being cared for by both parties for a significant period of time.
[20] After carefully listening to both of the parties I am satisfied that they each possess the requisite skill and ability required to meet the day-to-day needs of their child. In fact, neither party is alleging that the other is an unfit parent or that either home environment is one that is not child focused or child appropriate. By all accounts both of the parties describe their daughter as happy, well adjusted, and bonded to each of them and their extended family.
[21] The primary issue that must be determined on this application is whether the father has engaged in domestic violence against the mother. The mother testified that she feels controlled by the father and his attempts to have contact with her. The mother has therefore had very limited contact with the father, either directly or indirectly, since the date of separation. The mother testified that this is the principal reason why she cannot communicate with the father in any meaningful fashion. She cites this as reason why a joint custodial arrangement is simply not feasible.
[22] Based on the evidence at trial, I cannot make a determination of what actually occurred approximately 6 months prior to the separation. On the mother's account, the father physically assaulted her on one occasion. On the father's account, he has never physically assaulted the mother.
[23] Leading up to the separation it is evident that there was an increase in the frequency and intensity of the couple's verbal arguments. The impact, as purported by the mother, is that she felt belittled and degraded.
[24] It is clear to me that the parents' verbal arguments increased in nature as they reached the point of separation. Having heard from both the mother and the father, I find that they were both active participants in the verbal arguments that occurred.
[25] Beyond the verbal arguments, the mother has felt harassed by the father over the events that unfolded on the date of separation (June 10, 2014). It is less than clear from the evidence at trial whether the mother in fact informed the father of her intention to separate from the father. It would appear that the mother made a unilateral decision to leave permanently with the child without clearly expressing what she was doing to the father. As a result, the father panicked in response to the unknown.
[26] Without question the father called the mother an excessive number of times. However, I must balance the father's actions with what occurred; the mother left with their child and refused to provide any information whatsoever to the father. In this situation, bearing in mind that the mother acknowledged the father had never engaged in this sort of contact with her before or after this date, I cannot find his behaviour anything other than arising out of fear and panic for his child. Had the mother simply answered the father's initial telephone call or informed him of her decision to separate than the excessive phone calls to her likely would have been avoided. The father should not have telephoned the mother as many times as he did. That said, the mother should not have taken the child without providing any notice of her intention to do so. Based on the evidence presented by the mother and the father, I find that this was an isolated and situational occurrence.
[27] The mother contacted the police as a result of the number of telephone calls. Unfortunately it would appear that the events of June 10, 2014 set the stage for how the parties would communicate post-separation. It is abundantly clear that the mother would prefer the father exercise his access time with the child with the least amount of communication between the two of them. On her view, "her time is her time" with the child just as "his time is his time" with the child. The mother is not interested in speaking with the father.
[28] I have reviewed portions of the logbook that have been filed as an exhibit in this trial. The father's entries are child focused and completely appropriate. I struggle to understand why the mother would not be interested in knowing what was occurring with her child during the child's formative years while she was in the care of the father. It is rather concerning that the mother, who has had de facto custody since the date of separation, feels it is of limited importance to keep the father informed of how their child is doing. The least effort required on the mother's part is to simply make short entries into a parenting logbook. The mother is opposed to this as she feels this is an attempt by the father to be controlling of her. If this is truly what she believes, then, in my view, in all of the circumstances, her belief is simply unreasonable and not supported by the evidence.
[29] I have concluded that the mother's decision not to engage in meaningful communication with the father post-separation is not the result of any past domestic violence. Rather, I find that she has chosen this course of action in order to strengthen her position for sole custody. The mother only recently and reluctantly started to write a response in the logbook as the trial date approached.
[30] I do not believe that there is a power imbalance between the parties. It is the mother who has effectively limited the father's ability to both spend time with the child, form a part of the decisions concerning the child, and to be informed of what is occurring with the child.
[31] One parent cannot put obstacles in place and disengage from attempting any meaningful effort to communicate with another parent and then expect to gain sole custody alleging an inability to communicate.
[32] What is clear to me is that both the mother and the father have the necessary maturity to speak to one another if required to do so. There is no indication that the father has any intention of misusing a joint custodial arrangement to interfere with the mother's personal life or to control her. To the contrary, the logbook and other evidence at trial support a finding that the father is able to maintain the boundaries the mother has put in place. The father has been able to restrict his comments to the wellbeing of the child. Although the mother would like the father to essentially have no contact with her whatsoever, this is simply not possible. After all, they share a child together. Given the age of the child the mother must find a way to put her personal views of the father to the side and find an effective way to communicate with him. The father has demonstrated that he has already acquired the necessary skills and has the ability to communicate with the mother in a child focused way. It is the mother who must find a way to communicate with the father in an effective manner for the best interests of their daughter.
[33] The mother has had the child in her primary care as a result of her unilateral decision to leave with the child and only allow specified access to the father. The father, to his credit, took the appropriate route of addressing the issue through a court process rather than engaging in inappropriate conduct by trying to keep the child. The fact that the child has remained with the mother since separation as a result of her actions does not strengthen her claim for sole custody and primary residence. All of the factors in determining the best interests of a child as set out in the legislation must be weighed and balanced.
[34] In terms of child support, both of the parties are gainfully employed. The father works at Wal-Mart. The mother is employed at TD Canada Trust Bank. Based on the sworn financial statements filed during the trial, the father's projected annual income is $21,576.00. The mother's projected annual income is $22,968.00. (The Notice of Assessments is of limited use given the employment history of both of the parties).
Decision
[35] Based on the above the following order shall issue:
a) Joint custody awarded to both parents with shared residence on a week-about basis. Exchanges shall occur on Mondays after school or 4:00 p.m. on holidays. The child shall be in the care of Garnet Bjarneson commencing on Monday November 21, 2016 and every alternate week thereafter.
b) The parties shall discuss and agree on extra-curricular activities that Haedyn is to be enrolled in.
c) In even numbered years Garnet Bjarneson shall have Haedyn in his care from 4:00 p.m. on December 24th until 2:00 p.m. on December 25th. Demetra Karambetsos shall have Haedyn in her care on December 25th from 2:00 p.m. until December 26th at 4:00 p.m. after which the regular parenting schedule shall resume. In odd numbered years Demetra Karambetsos shall have Haedyn in her care from 4:00 p.m. on December 24th until 2:00 p.m. on December 25th. Garnet Bjarneson shall have Haedyn in his care on December 25th from 2:00 p.m. until December 26th at 4:00 p.m. after which the regular parenting schedule shall resume.
d) Demetra Karambetsos shall have Haedyn on Mother's Day (if otherwise not on her regular parenting time) from 9:00 a.m. until 7:00 p.m.
e) Garnet Bjarneson shall have Haedyn on Father's Day (if otherwise not on his regular parenting time) from 9:00 a.m. until 7:00 p.m.
f) Demetra Karambetsos shall pay child support to Garnet Bjarneson for the child Haedyn Alexa Karambetsos, born on March 15, 2011 in the amount of $11.00 per month, in accordance with the Tables under the child support guidelines based on Demetra Karambetsos annual income of $22,968.00 and Garnet Bjarneson annual income of $21,576.00, (taking into account the shared residence of the child) commencing December 1, 2016 and continuing on the first day of each month that follows until further Order of the court.
g) The parties shall pay proportionate to their respective incomes towards the section 7 expenses as set out in the Federal Child Support Guidelines.
[36] In the event that costs are an issue, Garnet Bjarneson shall file written submissions within thirty days of the release of the decision. Demetra Karambetsos shall file written submissions within forty-five days from the release of the decision.
Released: November 10, 2016
Justice Sarah Cleghorn