Court File and Parties
Court File No.: Brampton 14-267 Date: August 15, 2017 Ontario Court of Justice
Between:
JOHN VARGA CUEVAS Applicant
— AND —
KRISTEN NERISSA ALLEN Respondent
Before: Justice A.W.J. Sullivan
Heard: Between April 24, 2017 and May 1, 2017
Reasons for Judgment released: August 15, 2017
Counsel
John Varga Cuevas — Self-Represented
Robert McQueen — Counsel for the Respondent Kristen Nerissa Allen
Table of Contents
- Introduction
- Background
- Testimony of John Cuevas
- Testimony of Christienne Cuevas
- Testimony of Kristen Nerissa Allen
- Testimony of Dr. Zachary
- Ms. Alana McNee-Trinidad, OCL, MSW, RSW, Clinical Investigator
- Testimony of Faith Buttigieg (Social Worker - Peel Children's Aid Society)
- Best Interests Principles and Discussion of Evidence
- Order Regarding Custody and Access
- Issues of Child Support and Arrears in Support Owed
- Order Regarding Child Support
INTRODUCTION
[1] John Varga Cuevas (John) and Kristen Nerissa Allen (Kristen) are the parents of Tatianna Bijou Cuevas, born August 18, 2012, who is the child that is the subject of this custody trial. The parents met through an online dating website. They did not marry and did not live together. Their relationship was between August 2011 and ending about six months after Tatianna's birth.
[2] For the first year of Tatianna's life, she lived with her mother. Since July 2nd, 2014, after a contested motion, Justice Dunn ordered that Tatianna would spend a week about residential schedule between the mother's home in Brampton and the father's home in Kitchener. This schedule has been in place since that order.
[3] In John's Application dated August 12, 2013, he seeks sole custody of Tatianna and sets out an access schedule for Kristen, which he amended at trial, and asks for the following final orders:
Alternating weekends with eight weeks' vacation time to be chosen by Kristen at any time that she wishes. In the alternative, he is equally agreeable that the access schedule that Kristen proposed for him be offered to her, if he is granted sole custody;
The assistance of the police to enforce any final order suggesting that this is required should the respondent choose to disobey the court's order;
That John be given the right to obtain his daughter's passports and that there be no obligation on his part to provide specific details to Kristen about travel arrangements, other than to have a cell phone that is operable so that Kristen may reach her daughter. Similarly the father asks that all communication between the respondent and himself regarding their daughter be made via text in order that this be more direct rather via a communication book or email;
No costs in this matter nor is he seeking child support from the respondent mother.
[4] Kristen is seeking sole custody of her daughter and the following provisions in a final order:
That John be consulted on his daughter's education and that he may choose a tutor for her when he has her;
That prior to making any decisions affecting their daughter's health, education and religious upbringing that she would first provide John 30 days' notice in order to obtain his input. She would then make the decision 30 days after this notice is given;
That in case of an emergency medical issue, it be looked after by the parent who is caring for Tatianna. If they cannot reach the other parent, they would proceed with any immediate health issue that needs to be looked after, and advise the other as soon as practicable;
Access time with John would be alternating weekend access from Friday at about 3:00 p.m. to Sunday at 6:00 p.m., with mid-week access on Tuesdays and Thursday evenings. A sharing of all holidays such as Christmas, March break, and Easter. For summer vacations she suggests that their daughter reside with John from the last day of school for two consecutive weeks in July and two consecutive weeks in August. As for Labour Day weekend leading up to school, she suggested this should alternate between each household commencing in 2017. The mother and father would have Tatianna in their care for Mother's Day and Father's Day;
That all pickups to be in Mississauga, at the commencement of access, and drop off at the end of visits be in Kitchener. For all midweek visits, John would pick up Tatianna and drop her off at Kristen's home;
Kristen requests the ability to obtain and retain the child's passport and provide the father with 14 days' notice of any travel outside of Canada, with a detailed itinerary. She asked the same from the father in terms of any travel;
Child support in the amount of $712.90 per month, on an imputed income to John of $78,500, retroactive to 2012, as well as proportionate sharing of section 7 costs. The current section 7 costs is daycare for Tatianna's before and after school care. The standard family responsibility office clauses are requested as well as annual disclosure of income;
That father maintain their daughter on any benefits or life insurance that he might have;
She also asks for police involvement.
BACKGROUND
[5] John is 38 years of age. He is married to Christienne Cuevas. They have been married since 2002. Tatianna is John's only child.
[6] John attended York University and received a Bachelor of Science Degree in Biology, following which he obtained a professional degree in optometry from the University of Waterloo. Between years 2005 and 2014, he was practicing optometry in London, Ontario.
[7] John closed his optometry practice in July 2014, and testifies that he did this in order to care for Tatianna full-time. When he was practicing, the best evidence at trial was that he netted about $78,500.00 a year after costs.
[8] John also obtained a degree in education from York University, in September 2016. He is a qualified teacher in Ontario and he currently volunteer teaches math, science and English at a local secondary school, when his daughter is not in his care.
[9] John lives in Kitchener, Ontario with his wife and his father. The home is solely owned by the paternal grandfather, Mr. Varga. John, over the past 3 years, used some RRSP funds to renovate this home. This is where Tatianna has been spending the week about schedule with her father.
[10] John is not working in order to devote all of his time caring for his daughter.
[11] Kristen is 26 years of age. She and her common law partner have one child, Lincoln, who is 4 years old. She is enrolled to commence a Bachelors program in Child and Youth counselling at Ryerson University in September 2017. She has worked and also volunteered working with youth in either closed and /or open custody within the criminal youth justice system. She has also volunteered working with autistic children in Guelph, Ontario.
[12] Kristen lives in Mississauga, Ontario and intends on remaining in that city. She was recently given a notice from her landlord that he wishes the home for self-use, requiring her to move. This is where Tatianna has spent her week about with her mother.
[13] The parties' positions and the evidence at trial require me to make a sole custody order. The evidence summarized below reveals that the parties' communication has been conflictual at times and minimal since the order of J. Dunn. The parents operate in silos. Each asks for sole custody and the facts in this case do not support a joint custody order. The geographic distance between the families is the least of the division dictating the requirement of a sole custody order in Tatianna's best interest.
TESTIMONY OF JOHN CUEVAS
[14] John testified that when Tatianna was born, it was his understanding that he and Kristen had an agreement that Tatianna would remain in Kristen's care temporarily, as her family had offered support after the birth. Also, as Tatianna was born prematurely she would require frequent follow-ups at the Brampton Civic Hospital, where she was born, which was closer to the maternal grandmother's home where Kristen was living at the time. John testified at trial that this was his understanding then and he remains firm today that this agreement existed.
[15] At Tatianna's birth John lived in the Kitchener/ Waterloo area.
[16] John recalled that in March 2013, the parents' relationship ended and he returned to his wife, Christienne Cuevas (Christienne), whom he had been separated from for approximately 3 years. Christienne is trained as a registered nurse, working with disabled children, and holds an educational degree and is a Teacher as well. John testified that he informed her of his daughter Tatianna before her birth and Christienne met Tatianna in early 2013.
[17] At trial Christienne provided an affidavit, dated April 12, 2017, and testified which is summarized below. In her testimony she outlines the care provided to Tatianna to date and what her current plan is with John to care for Tatianna. Much of John's evidence was similar to that provided by Christienne regarding the care and plan for Tatianna in their Kitchener home.
[18] John testified that when Tatianna was released from the hospital into the mother's care, he spent his weekends at her residence, which at the time was the maternal grandmother's home, located at 7 Krakow Street in Brampton, Ontario.
[19] He recalls that around February 2013, Kristen told him that she was in a motor vehicle accident and was experiencing back pain. John testified that earlier in their relationship, Kristen reported being affected by depression in her teen years, and that she had been hospitalized for attempted suicide.
[20] John testified that he felt Kristen was impaired to act as a parent, both physically and mentally, particularly because of her depression after the birth of their daughter, as Kristen suffered from postpartum depression and was treated. The court received evidence about this course of treatment and recovery by Kristen.
[21] John further emphasized that he has always been concerned that Kristen had a poor history of managing her financial affairs, running up debt unnecessarily. He testified that he offered to help her plan and organize her financial affairs. It was clear in his evidence that John prides himself in being financially prudent and having no debt.
[22] The issue of money and John's financial support for Tatianna has also been an area of difficulty between the parents. John testified that he helped out with paying for needed items, preparing for Tatianna's birth and at one point bought about $320.00 in baby food as Kristen was in debt. John has not paid regular monthly child support for Tatianna since her birth.
[23] John's position on child support after Tatianna's birth is that Kristen was living initially at her mother's rent free. This changed and the maternal grandmother asked for rent when Kristen stayed longer than planned. John believes he did not owe support as he never agreed to this plan past the initial period after Tatianna's birth. As John states he did not acquiesce to this situation and therefore he was not obliged to assist with rent or other support past what he did initially as Kristen reneged, as he testified to, on their agreement that Tatianna would be living with him.
[24] John also testified to, and in his closing submissions stated, that he believes that Kristen likely entrapped him into having a child for financial gain.
[25] John's wife, Christienne, when asked if she felt that John had acted responsibly in not paying monthly support at any time for Tatianna answered that she did, and that John was justified in not doing so, in that this money would have gone to Kristen and not Tatianna.
[26] As a result of this poor financial management, John testified that at the birth of Tatianna, Kristen lacked permanency and stability in her housing. This caused her to live with her mother. John believed at the time, and at trial testified, that this was not a healthy environment as the maternal grandmother had been convicted and incarcerated in United States for trafficking in narcotics.
[27] John also voiced his concern about Kristen's plan for Tatianna's care during the day, which is to enroll her in daycare/ and public school, and have family also assist with her care.
[28] John states:
John was critical that Kristen has not provided any information regarding how she has enrolled Tatianna into activities other than repeating some of the same activities that he and his wife testified to a trial.
He believes Kristen's educational plan for Tatianna, which is public school, is mainly so she can "socialize" and be made to follow a strict schedule that will help her prepare to meet the demands of work later. According to John, Kristen wishes Tatianna to become a trained automaton, unquestioningly following a prescribed routine, a curriculum created on the government's dogma, and taking her cues from mainstream media. He is critical of Kristen in that she is delegating the care of Tatianna to others such as day care and school and John sees her now seeking public school as a form of child care to raise Tatianna.
He stated in his submissions that public schools are a place of common denominators, led by teachers with, on average, less education than himself or his wife and where there is no indication that his daughter's undisputed intellectual precociousness will be addressed.
[29] The father testified that his plan for Tatianna is one that is based on permanency and stability in the physical environment, emotionally, morally, financially and from a cultural and educational perspective. His support system around him consists of his wife and father, with whom he lives.
[30] John's plan is supported by his wife Christienne. When she testified, she outlined much of what John testified to in his plan of care for Tatianna, as outlined below.
TESTIMONY OF CHRISTIENNE CUEVAS
[31] Ms. Cuevas and John have been married since 2002. They currently live at 99 Ralgreen Crescent, Kitchener, Ontario with the applicant's father, Frank Varga. They met when they were studying in University.
[32] In 2005, John opened his optometry business and began practicing in London Ontario. Christienne graduated from nursing and currently holds a teachers degree, and is teaching part-time.
[33] From 2005 to 2009 she worked with John at his optometry office in London Ontario, although they were primarily living in Kitchener at the paternal grandfather's home.
[34] In 2012, she was nursing in Hamilton, Ontario, caring for infants and children and was also nursing in a public school.
[35] Christienne testified that they grew apart between 2007 and 2009, with somewhat of a permanent separation in September 2009, although they continued to have contact and financial accounts together.
[36] She became aware of Tatianna in early 2013, and had restarted her relationship with John in November 2013. They have been together since then.
[37] Shortly after June 2014, when Justice Dunn ordered that Tatianna begin spending week about between the parents' respective homes, Christienne resigned her job where she was working as a Registered Nurse in London, and John closed his optometry practice, in order for them both to spend full time with Tatianna. John also testified that although he was successful in his optometry practice, the field was saturated in the London area where he had his practice. They both decided to live initially on John's RRSP savings.
[38] John testified that currently he has zero savings and no assets, and essentially he is supported by the Christienne, who teaches. Although he also is teaching, he is a voluntary teacher, does this part time and is essentially making zero income.
[39] John testified that he is well accomplished in many fields of education and speaks Spanish, Hungarian, and English.
[40] Christienne stated that their relationship has always been good and she never noticed any health issues with John. She further stated that he has never been aggressive, either physically or psychologically, with her in any way.
[41] Although Christienne stated that at times John can be assertive, she never experienced this as being controlling.
[42] She describes John as generous, responsible and trustworthy. In addition, he has no debt and he puts Tatianna first, taking special measures to assure that her needs, financially, morally, intellectually and emotionally are met. She points to the fact that John has proven this as he closed his practice to devote his entire time to the care and education his daughter.
[43] They both share the desire to homeschool Tatianna. John testified at length about what this would look like, and in particular how this is a seamless process that occurs at all times of the day, week, month and year, whether they are at home, in the community or on vacation.
[44] This learning process is continuous during which Tatianna is encouraged to be independent, explore topics, and discover.
[45] To address the suggestion by Kristen that this would isolate Tatianna, both John and Christienne testified that there are many ways that Tatianna can have a connection with other children, through playgroups, sports activities at the Y, and community centers. In addition, groups of parents who homeschool their children have formed support groups and meet to assist each other, depending on their individual strengths, specific educational arrears and subjects.
[46] They have spent considerable amount of time researching and gathering learning materials to assist in practical skills, as well as other topics that Tatianna will need to assure her success in the future.
[47] John and Christienne described Tatianna as an even-tempered, energetic, and an inquisitive child, who loves to read. They believe her reading level is currently at grade one or above. They spend time with her outdoors, riding her bike, going swimming, as well as ice skating. At times they note that Tatianna can be shy with other children, and other times she is very social and friendly towards new people. Tatianna can have perfectionist tendencies which they both try not to encourage and encourage her to take risks and make mistakes and learn from them. They noted with pride that Tatianna is highly perceptive, intuitive, and often makes connections between empirical observations and concepts or theories that they have reviewed with Tatianna when reading and learning.
[48] John stated that for the past two years and 10 months, during which Tatianna has been with him every other week, she has thrived in his care.
[49] John testified that at his home, Tatianna calls his wife "Any", Hungarian for mom, and refers to him as "Apuci". This, they both explained and concurred, is to give Tatianna a sense that she belongs to a stable family unit that includes a mother figure.
[50] To respect the role of Kristen, as Tatianna's bio-mother, the title of "Mom" or "Mother" is used in their home by them and Tatianna.
[51] John testified to Kristen's post-partum depression. Both he and his wife testified that this was a concern of theirs and others, in how this affected the attachment between Tatianna and her mother.
[52] At trial, I did receive evidence in the form of medical records, filed by both sides. These were reports from Kristen's psychiatrist and therapist working with her that showed that Kristen's postpartum depression was properly managed through counseling which concluded successfully.
[53] In addition, Ms. Buttigieg, a social worker from Peel CAS, who worked with John and Kristen, testified about the assistance Peel CAS provided to the family, and noted that the issue regarding "attachment" between Tatianna and her mother was investigated, and at no time did this pose a protection concern. All reports also indicate that Kristen managed her health and followed the advice of the professional to the satisfaction of all.
[54] I did not receive expert evidence on this issue at trial.
[55] John described his home in Kitchener as a comfortable three-bedroom townhouse which was recently refurbished. It has a backyard. Tatianna has her own bedroom where she has her toy animals' collection and books. There is no television in the home as they prefer books and John testified that he is against commercialism found in the media.
[56] John and Christienne testified that through their homeschooling of Tatianna, she has made substantial gains and would make further gains if she was in John's care on a full-time basis. The implication is that Tatianna is not meeting her milestones while in her mother's care, and that his care over the past 2 ½ years has resulted in Tatianna's gains, and his plan will meet her best interest going forward.
[57] John testified that his homeschooling plan is customized and continuous, without the schedule or the ring of a school bell. Effectively, it is different and superior to the community/public educational system that John describes as mediocre at best and exists to produce individuals geared to a job market.
[58] Both John and Christienne listed several gains or benchmarks that Tatianna has attained at 4 years of age which they highlighted as being able to trace her name, read at a grade 1 level, being able to spell several words, gain confidence in speaking Hungarian, the paternal grandfather's native language, develop her competency in cursive and oral Chinese, numeracy and many other areas.
[59] As they are both educators with different strengths, they each cover topics such as geography, grammar, music, arts and social studies with Tatianna, as part of their home school plan.
[60] John was direct with the court that he believes the court system is somewhat biased against home schooling. He recognizes that he has gained much from his classical education. He does not deny this for his daughter and testified that if she feels at any time that she wants to attend a traditional school system that this would be available to her, including a private school that is close by him in his neighborhood that would probably be his next choice to his homeschooling.
[61] When questioned by Mr. McQueen, mother's counsel, as to whether he would be prepared to put together an educational plan for Tatianna, as required by the Ontario Ministry of Education regulations for homeschooling, John testified that he was aware that this might be a requirement but, that to the best of his understanding, the government is not enforcing this.
[62] When John was asked if the Ministry of Education insisted on the production of this written plan being produced, John answered that he would comply. However, he added that his compliance would be based on how those in authority approached him and whether they were respectful of him and his ability and their general demeanor towards him.
[63] John did not hide his reservations about government and institutions in our society that are either quasi-government or educational. As an example, he believes that the CAS, although well-meaning, have many workers that are mediocre in their approach to full and objective investigation. He was not impressed by the work of the Peel CAS and was critical of their approach to his situation believing that they listened to Kristen and her complaints, over his explanation of events and circumstances regarding the differences between them after their separation.
[64] When John questioned Ms. Buttigieg, the CAS worker, his main approach was to discredit the worker's investigation. He seemed to ignore the fact that she was clear in her statements to the court that at no time had she, or the agency in Kitchener/ Waterloo, noted any protection risks or serious deficiency in the parenting of either John or Kristen.
[65] From all accounts Peel CAS became involved, initially, because of the mother's postpartum depression, as well as difficulty and conflict between Kristen.
[66] John testified to and also questioned Ms. Buttigieg about the issue of his co- sleeping with his daughter when the week about schedule was implemented. He testified that co-sleeping was an accepted safe practice internationally and misunderstood in Canada. The father questioned Ms. Buttigieg about the insistence of the Peel CAS that he obtain a crib and/or bed for his daughter.
[67] Throughout questioning, Ms. Buttigieg was direct in her response and somewhat critical of John as she recalled that CAS was simply enforcing their Ministry standards and that at the end of the day all they were asking him to do was to obtain the proper sleeping arrangement/bed/crib for his daughter rather than engage in a polemic between them both as it appears to have developed.
TESTIMONY OF KRISTEN NERISSA ALLEN
[68] Kristen recalled meeting the father through a dating website about August 2011. It appears that at the time John did not use his proper name and gave a different age to her.
[69] Kristen recalls meeting father online. His portrait indicated that he was a 26-year-old sports manager and was single.
[70] Their relationship developed and John revealed that his true age was approximately 32. He also revealed the fact that a former girlfriend gave him herpes. The mother recalls taking steps to be treated for this.
[71] Initially their relationship was as friends but this quickly developed and she became pregnant with Tatianna in January 2012.
[72] Kristen recalled that during a vacation to Antigua when their relationship was developing that she had asked John about whether or not he was married as she suspected as such. It was on this vacation that John revealed that he was married but separated from his wife.
[73] From her perspective she recalls that, before learning of her pregnancy, they were trying to have a baby for approximately 1 ½ months before she knew she was pregnant.
[74] Kristen recalls at this time there was talk of John getting a divorce, however John testified that this was not the case as he never intended to leave his wife.
[75] Their relationship continued and they were seeing each other on weekends during which time Kristen would do cooking and laundry for John. She remembers chatting about creating a family and wanting to marry and be a young mother.
[76] This situation caused difficulty and conflict between the parties leading to their eventual separation as the father returned to his wife. John testified that it was not his intention to ever divorce his wife.
[77] From the birth of Tatianna through to Justice Dunn's order of July 2014, Kristen was the primary caregiver to her daughter.
[78] Kristen testified that contrary to John's position, there was never an agreement between the parties as to the custody of their daughter or her primary residence moving from Kristen's home in Brampton to the father's home in Kitchener as John claimed.
[79] From the mother's perspective, she lived with Tatianna in Brampton after her birth with John's consent.
[80] It was when the mother advised the father in August 2013 that she was going to attend her grandfather's funeral in Antigua and wanted to bring Tatianna with her that the father brought an emergency motion and filed an application for custody although the child had been residing with her in Brampton and the father exercising weekend access since the child's birth.
[81] The court heard that from approximately August 17, 2013 to August 30, 2013, while the mother was in Antigua attending her grandfather's funeral, Tatianna lived with John and when Kristen returned to Canada Tatianna was eventually returned by John to Kristen in August 2013.
[82] In September 2013, because of differences between the parents, Kristen did withhold access of Tatianna from John for approximately 2 months.
[83] There was conflicting evidence presented at trial that in September 2013 there was an agreement that John was to care for Tatianna during the week and she would spend weekends with Kristen and that this plan would permit the mother to pursue her schooling. John recalls this being negotiated and Kristen recalls some of this negotiation occurring around the same time period as being served with the court application commenced by John but did not end with an agreement.
[84] Kristen recalls continuous long arguments with John that would go on for hours and would continue via text messages, arguing endlessly and where John would attempt to always out argue her.
[85] In December 2013 Kristen broke off the relationship with John and began caring for Tatianna on her own. John would come over on weekends and spend time on his computer or outside at the library. Initially he was not comfortable with changing and holding the baby.
[86] It appears the paternal grandfather has never met the Kristen. It appears that the father did not inform his father of Tatianna's birth until Kristen was 7 to 8 months pregnant.
[87] Kristen was encouraging of John's time with Tatianna. She recalls John attending with her at some of the doctors' appointments, both the follow-up at the hospital and at Dr. Zachary's office.
Kristen's Plan
[88] Kristen currently lives in a semi-detached home with four bedrooms, one of which is used as an office. She lives there with her partner Stephen.
[89] She has been with him since 2013. They have a son together, Lincoln, who is now 4 years old. Kristen explained how Tatianna loves her little brother and has helped out wanting to care for him and how they are bonded.
[90] In their home, Lincoln and Tatianna have their own rooms. The neighborhood is in Mississauga, Ontario. It has parks, trails, shopping areas and churches. They have been in this residence since approximately September 2015, but are planning to move as the landlord has asked for the property for personal use.
[91] Kristen explained that she plans to enroll her daughter in public school and daycare. She offers John to participate as part of her plan in assisting with Tatianna's education given his abilities in this area. She noted in her proposed draft order that John could recommend tutoring, and of course assist with projects and other forms of education when Tatianna is with him.
[92] In her testimony, she does not equate her plan for her daughter's education as being significantly better than John's. She does note however that it is a different experience and that her daughter would have constant interaction each day with peers, teachers and different experiences. There is more structure in her view to such a plan.
[93] Kristen also recognizes that her daughter is extremely bright. Both she and John have an understanding of the need to supplement activities and educational programs for Tatianna. She foresees Tatianna participating in gym, dance and karate as some extracurricular activities. Currently, she brings Tatianna to the library and reads with her before bedtime. They take walks to the park where Tatianna helps to walk their dog.
[94] Kristen spoke of the family's daily routines and how Tatianna is assisting in certain chores around the house as well as beginning to care for her own well-being such as choosing her own clothes and keeping her room neat as well as enjoying to assist with cooking and amusing her younger brother.
TESTIMONY OF DR. ZACHARY
[95] Dr. Zachary is Tatianna's pediatrician. He has been a pediatrician since 1986, and has worked in Brampton, Ontario since approximately 1988.
[96] He remembers first visiting Tatianna at the neonatal unit at the Brampton Civic Hospital as she was a premature. At trial, he had his own chart about Tatianna, but not the hospital chart, to refresh his memory.
[97] He noted there was some concern regarding Tatianna's overall development at birth, both in terms of her weight and development including her heart. She was followed for two years after her birth, at the Neonatal Follow-Up Clinic.
[98] John questioned Dr. Zachary about whether or not the Neonatal Clinic had asked for an Electro Cardiogram (ECG) which the mother had not followed up with.
[99] Dr. Zachary recalled that in 2013, there was an incident at his office when both the parents had attended an examination of Tatianna. At this examination there was tension between the mother and the father. At the time, the maternal grandmother was also present. The police were called by his staff out of concern that the parents were arguing and the child was caught between them. The parents eventually left the office separately without the incident escalating.
[100] Dr. Zachary was questioned by John about whether he saw any difficulty with the fact that he had brought Tatianna to a different doctor in Kitchener.
[101] To this issue Dr. Zachary testified that there is always a concern if communication does not happen properly between different doctor's offices. Examples of this is a child being given contrary medication or two vaccinations. He was aware that Kristen had brought Tatianna to Dr. Wiley in Brampton for a vaccination. As a practice, he always checks the vaccination card to assure that there is no duplication.
[102] Dr. Zachary testified that this was the very issue that was raised when John brought Tatianna to Dr. Tapp in Kitchener. Dr. Zachary received a letter from Dr. Carley Tapp on July 29, 2014, to his office indicating that she had seen Tatianna as the father had brought her in. In her letter, Dr. Tapp described how the child was caught in a custody battle and had wanted to be assured that there was no conflicting treatment. This is the type of concern that Dr. Zachary wanted to avoid. When asked if Dr. Eskandar had contacted his office, he noted that in reviewing his records there is no correspondence form this doctor although recalled that he might have talked to him over the phone briefly.
MS. ALANA MCNEE-TRINIDAD, OCL, MSW, RSW, CLINICAL INVESTIGATOR
[103] Ms. McNee-Trinidad was called by the parties to review her section 112 report which was completed on December 23, 2014, and filed with the court shortly thereafter.
[104] Her report was not updated and the parties did not ask for an update. When Ms. McNee-Trinidad began her work in late August or early September 2014, the family had only started the week about rotation based on Justice Dunn's July 2014 order.
[105] Ms. McNee-Trinidad admitted in questioning that her report and recommendation, of sole custody to Kristen was weighted at the time based on the fact that the mother had been the primary care taker of Tatianna since birth, and any sudden change to the primary residence would impact on Tatianna's sense of stability and security.
[106] Given the timing when this section 112 report was completed, and no requested update, the value for this court is in relation to some of the interviews conducted with the parents. The report does highlight that both parents were engaging in conflict and that Tatianna was caught in the middle, and at times was present.
[107] She gave examples of when the child was being held by each side and there was arbitrary changes to access schedules causing some police involvement to assist with pickup and drop-off.
[108] Ms. McNee-Trinidad was able to confirm through discussions with the professionals assisting the mother at the Brampton Civic Hospital, where Kristen was referred for postpartum depression, that she had followed through primarily with most of the treatment, and had made improvements leading to the termination of services, and that in the fall of 2014, the mother had completed her work and was stable.
[109] The report notes that in her interviews with Dr. Eskander, he was not aware that the child had a doctor in Toronto. Dr. Eskander believed that the father was transferring the child's primary care to his office.
TESTIMONY OF FAITH BUTTIGIEG (SOCIAL WORKER - PEEL CHILDREN'S AID SOCIETY)
[110] Ms. Buttigieg testified that the Society became involved in the spring of 2013, after it received a referral from the social work department at Brampton Civic Hospital that Kristen had been struggling with some postpartum depression.
[111] She testified that the Society had no protection concerns regarding the care of either parent of Tatianna at any time during her work with the family.
[112] Their first involvement was through the referral by the Brampton Civic Hospital. The Society noted that the mother was open to services to assist with her newborn daughter who was premature.
[113] The Society had wanted to close its file earlier than Kristen had wanted, and then eventually the file was closed in February 2015.
[114] Initially the concerns regarding the stressors for this family revolved around the custody and access dispute between the mother and father, and lack of communication conflict that was being reported by the parents and other individuals that PCAS had talked to during the course of its work with the family.
[115] The Society had also recommended that to assist with the child's development, the child would benefit from attending day care, which would assist with socialization.
[116] When questioned about the bonding between Tatianna and her mother, Ms. Buttigieg recalls that a Society nurse was assigned to assist with the initial work with mother. The Society's nurse reported from her observations that there was no concerns. There were some speech delays with Tatianna that were noted and it was felt that socialization such as day care would be of assistance.
[117] Ms. Buttigieg did report that John was not content with their involvement and in particular when the Society had called him to request to meet. As he lived in the Kitchener/Waterloo area, a worker from an agency in that region, Ms. O'Keefe, was to meet with John. The main concern at the time was the report that the father was co-sleeping with his daughter and did not have a proper crib or bassinet. The main contention between the father and the Society revolved around this, as well as the father not being happy about not being consulted regarding Tatianna's attending day care. On this issue of Tatianna attending daycare, she was eventually withdrawn from daycare by Kristen because of the conflict this posed between the mother and the father.
[118] When Ms. Buttigieg was questioned by the father, she indicated that overall he appeared knowledgeable regarding his daughter's development and child development in general. The overall impression was that on occasion he was overly argumentative. This was in particular regarding the Society's request for him to prepare and/or arrange a crib for his daughter to sleep in. During cross-examination, Ms. Buttigieg recalled that on one occasion, because of John's argumentative behavior, she actually terminated a telephone conversation. She noted the conversation, although polite, was going in a circular fashion and would have not resolved itself at that time.
[119] When questioned at this trial by John, Ms. Buttigieg noted with some degree of surprise that this issue continues to be a theme of the father, and she indicated that all she was trying to do was to introduce minimum standards of care. She noted with some frustration that all they were asking him to do was to arrange a proper bed for his daughter and nothing more.
[120] It was agreed that the father had made the necessary arrangements and that any further or more intrusive measures were not needed as he had addressed this issue, although Ms. Buttigieg clearly indicated that the father felt pressured and that their involvement was an intrusion in his life. She further noted that overall the conversations with John were good conversations and that he was knowledgeable about the care of his daughter.
[121] At the end of the day, Ms. Buttigieg testified that the Society provided services to the family and concluded its file with no protection concerns.
Best Interests Principles and Discussion of Evidence
[122] The central issue for this court in this trial in relation to custody and access is of course Tatianna's best interests. Section 24 (2) of the Children's Law Reform Act provides direction to this court in making determinations with regards to where Tatianna will primarily reside and which of the parents should make decisions regarding her welfare both now and in the future.
Key Principles:
The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
No one factor in the statutory definition of a child's best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.
A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.
In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.
The court should consider the level of hostility and the extent to which that stability may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.
Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. See my comments in Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166.
[123] The Children's Law Reform Act ("Act") sets out the statutory provisions to be considered by a court in making decisions pertaining to custody and access. The relevant provisions follow:
The Merits of Application for Custody or Access
Section 24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best Interests of Child
(2) The court shall consider all the child's needs and circumstances, including,
(a) The love, affection and emotional ties between the child and,
(i) Each person entitled to or claiming custody of or access to the child,
(ii) Other members of the child's family who reside with the child, and
(iii) Persons involved in the child's care and upbringing;
(b) The child's views and preferences, if they can reasonably be ascertained;
(c) The length of time the child has lived in a stable home environment;
(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) The plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) The permanence and stability of the family unit with which it is proposed that the child will live;
(g) The ability of each person applying for custody of or access to the child to act as a parent; and
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past Conduct
(3) A person's past conduct shall be considered only,
(a) In accordance with subsection (4); or
(b) If the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and Abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) His or her spouse;
(b) A parent of the child to whom the application relates;
(c) A member of the person's household; or
(d) Any child. 2006, c. 1, s. 3 (1).
Best Interests – Useful Questions to Ask
[124] Some useful questions to ask are:
What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?
Is there a good temperamental match between the child and the parent?
Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?
Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?
Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?
Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?
Has the parent made changes in his or her life or behavior to meet the child's needs, or is he or she prepared to do so for the welfare of the child?
C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.)
[125] Having regard to the foregoing, and for reasons which follow, I have concluded that it is in Tatianna's best interests that final sole custody be granted to Kristen.
[126] I find that when considering the best interest considerations as set out in sections 24- 2a, 2c, 2d, 2e, 2f, and 2h in relation to the overall evidence and the parent's respective plans, that the parents are evenly match.
[127] Panebianco v. Varey, 2010 ONCJ 79 is a decision of Justice Roselyn Zisman. In that case, Justice Zisman was faced with two parents who were able to meet the "best interests" test "fairly equally" (at paragraph 29).
[128] I find on a balance of probabilities that Kristen meets the criteria of 24(2g) and is better suited to act as a parent to Tatianna. She would be more prepared, I find, for the reasons listed below, to compromise her interest and be willing to include John and his family in the care of Tatianna now and in the future.
[129] As I noted above, the report prepared by the Office of the Children's Lawyer suggested that Tatianna should remain in the sole custody of Kristen. This was primarily based on the fact that at the time of the investigation and at the time report was produced, Tatianna had spent the majority her life in her mother's care primarily.
[130] There was no updating section 112 report after the week about Order of Justice Dunn in July of 2014 and for me the evidence from after July 2014 weighed more in my decision than earlier evidence of events and descriptions of the parties' relationship or the OCL report.
[131] Much time was spent in the early part of both parents testimony talking about how they met and whether or not they were both frank and open with each other on several fronts. Both parents had information that they kept from each other, which to some extent is not unusual and does not weigh too much in terms of this court's decision. I did hear of events that over time created differences that cause the parties to proceed to court and probably at the time were significant to each of them.
[132] These were around Kristen's request to travel to Antigua with their daughter to attend her grandfather's funeral, and whether there was, as John believes, an agreement that after Kristen's initial care for Tatianna, their daughter would move and live with him and that therefore at no time did he acquiesce to their daughter living full time with her mother.
[133] The conflict that did impact Tatianna, such as both parents withholding Tatianna from the other, as reported by the OCL, and not denied by the parents, is concerning to the court. Reports of the conflict between the parents at the hospital, such as the September 2013 incident and conflict at Dr. Zachary's office could not continue and would have involved further court intervention as these actions have an emotional impact on any child who is a witness to parental conflict.
[134] From the evidence it is clear to the court that this case is not appropriate for joint custody. I recognize that the parties have not requested this, however, it is always a possibility and an option in these matters.
[135] Since the order of Justice Dunn's week about parenting schedule, I heard evidence that the parents have effectively been working quite separately with minimal communication.
[136] There was a communication book that was to travel between each household. I heard that after Justice Dunn's order of July 2, 2014 that this was put in place. The parents were to inform each other of significant events pertaining to their daughter's development. Kristen testified that she did record items such as what their daughter was eating, doctor's appointments and what Tatianna had learned while in her care. Kristen claims that not much info has come from John, except for recordings of a couple of dental appointments. Kristen noted that she had inquired about speech therapists and John informed Kristen that he had attended with their daughter. Kristen indicated that she does not know the optometrist or dentist that John has brought Tatianna to see.
[137] Kristen indicated that she has learned that John had attempted to renew their daughter's OHIP health card or obtain a different one without her prior knowledge. Kristen also noted that she learned indirectly that their daughter was being brought to other doctors.
[138] At trial John was asked if he could produce the communication books as they were with him. It was suggested that these should contain the information from each parent to the other, prior to and after professional appointments. John said he would bring these to the trial. They were not produced.
[139] Kristen testified that she just met John's wife, Christienne, for the first time while attending this trial.
[140] Kristen indicated that she had asked John just after Tatianna's birth that she and John sit down and meet together both his wife and his father, as they were caring for their daughter. This never occurred. This request she recalls was made about 6 to 7 months after Tatianna's birth about the time when John had decided to introduce his daughter to his father.
[141] In John's questioning of Kristen she was conciliatory with John in wanting to continue to see what could be done to co-parent their daughter with him. Kristen testified in questioning by John that she would be open to counseling between them both, which could eventually include his wife and family members in order for everybody to work cooperatively for their daughter's immediate and future welfare.
[142] This is a significant difference for me between John and Kristen as parents and their ability to act as a parent to Tatianna and one that I find squarely puts Tatianna's best interest first.
[143] Kristen, as noted earlier, has also suggested that John should play the role in assisting to decide elements of their daughter's education.
[144] John did not present evidence, nor did he make submissions, about wanting to meet as a family for counseling or otherwise with Kristen.
[145] John did not bring to the court, as he said he would, the communication books that have existed between the parties for several years.
[146] He further argued that Kristen should not have available to her the details of where he might travel with his daughter internationally. John indicated that he enjoys travelling and that a part of his plan in life is to travel with his daughter but did not want Kristen to know the specific details other than to have a telephone number on an active cell phone to reach their daughter. He argued that Kristen has been difficult with his family members and as such this has caused disruption and inconvenience. He appears to continue to hold many of the same positions in regards to Kristen that were present at the initiating stages of this litigation which is of a concern to this court.
[147] Although Kristen offers John a role in their daughter's education, it is not certain how this could unfold, save and except for John altering his firmly developed opinions on several fronts going forward. He has a clear and definitive opinion about the public school system making it difficult for the parties to make joint decisions as proposed by Kristen.
[148] If I felt there was some common ground, this would be a helpful area in which joint decision-making could be put in place as John has definite strengths in his plan regarding his daughter's education.
[149] I find that John's homeschooling plan meets and could actually surpass in many areas the needs of his daughter. This aspect of John's plan is not the concern of this court. My main concern is John's righteousness in the face of differences with Kristen and others in parenting Tatianna.
[150] I agree with John that he has not been rude, abrasive or overtly confrontational however, there was evidence from Kristen and Ms. Buttigieg, about how John operates at a low level of debate and polemics which was described as exhausting and never-ending. This feature of John's behavior also extended to professionals assisting Tatianna when he questioned Doctor's advice in the aftercare meetings that he attended with Kristen, describing the doctors as old and decrepit.
[151] John recognized that he did at times criticize these doctors and felt that he had the ability to do so, given his own training and that this was his right to do so.
[152] I find that in listening to John's overall evidence and demeanor that John believes that he knows better when he testified about the doctor's work with his premature daughter, or the CAS requirements around safe sleeping, and Tatianna's education and growth. It is one thing for a parent to ask questions or seek a second opinion, I find however, from the evidence that John routinely did more than this. What unfolded through the testimony was a pattern of competition between his world outlook and the opinion of others working or caring for his daughter.
[153] It is not as if John does not have a valid point on a particular issue in dispute, but rather, it is John's way of going about resolving issues, when there is a difference of opinion, that is my concern. He does not recognize that his approach historically has impacted Tatianna, and could affect her in the future. From my listening to the evidence and evaluating the demeanor of different witnesses, in particular Kristen and John, I find that John's single mindedness to make a point, to be cast in a good light, or be vindicated was all that mattered at times. John does not recognize that the strength of his intellect can at times, overshadow the events in question, losing sight of Tatianna's best interest.
[154] Kristen indicated that John would debate with her over small matters for hours then continue via text and/or email always needing to have the last word.
[155] The court heard from Ms. Buttigieg, the social worker from the CAS, that at least on one occasion she was required to hang up the phone on John, when it was clear that the discussion was not going to end regarding their request for John to purchase and/or arrange a proper crib or bassinet for Tatianna to sleep in. At trial when questioning Ms. Buttigieg, this continued to be a theme for John. This worker voiced surprise over this, given the fact that they were simply asking that Tatianna have a proper bed to sleep in, which turned into a needlessly prolonged polemic.
[156] Further there was evidence that when John feels he is right, he is prepared to take unilateral action despite how this might impact on his daughter. Examples of this are as follows:
When Kristen was caring for his daughter on a full-time basis he did not pay support.
He walked away from "an access agreement" made between himself and Mr. McQueen, Kristen's lawyer, which John negotiated with the assistance of duty counsel at the court house in Kitchener, after that court ruled in 2014 that it had no jurisdiction to deal with an Application for custody and access that John commenced in that city, as Tatianna had lived in Brampton all of her life.
John brought his daughter to doctors in Kitchener and gave those doctors the impression that he was placing her medical care with them.
When John summarized Dr. Zachary's testimony at trial, about whether the doctor was concerned about John bringing Tatianna to other doctors, John glossed over Dr. Zachary's testimony that this could cause problems and mix ups in the treatment of a patient which raises a concern for the court. Dr. Zachary testified that he received a letter from one of the doctors that Tatianna had seen in Kitchener who was also concerned about this very issue.
[157] It is also relevant to this court that John testified, when questioned by Mr. McQueen, that if he was ordered to pay regular child support he might have to move either within Ontario or leave the province to find work as an Optometrist. Such a position seems to reveal John's all or nothing approach to matters in this case and would impact on his daughter if he was not available to exercise regular access.
ORDER REGARDING CUSTODY AND ACCESS
1. The Respondent mother, Kristen Allen, shall have custody of Tatianna Bijou Cuevas, born August 18, 2012 (hereinafter "the child").
DECISIONS REGARDING THE CHILD
2. The Applicant shall have final authority to determine the child's optical needs.
3. The Applicant shall have authority to enroll with a tutor or tutor the child himself when in his care.
4. Prior to making any decision affecting the child inclusive of, but not limited to, decisions with respect to the child's health, education and religious upbringing, the Respondent mother shall first provide the Applicant father with 30 days' notice of her decision so as to solicit and consider any input that the Applicant may have to that decision. The Respondent shall make the decision after the 30 day notice and her decision shall be final, subject to the provision that the Applicant may challenge the decision on the basis of "best interests of the child" only by Application to the court.
5. If the child requires emergency medical attention while in the care of the other parent, that parent shall first attempt to contact, advise and consult with the other parent if at all possible, failing which, the parent in whose care the child is in at that time of the emergency shall authorize such medical attention to address the child's immediate health concerns and thereafter:
i. shall contact and fully advise the other parent of the details of the emergency and the details of any diagnosis and treatment;
ii. shall consult with the other parent for further input, advice and guidance as to any additional care to be provided; and
iii. shall provide the name and address of any attending physician or emergency care-giver/facility as well as the telephone number for contact should such number be provided by the physician or emergency care-giver.
ACCESS
6. The Applicant father shall have alternating weekend access to the child on Fridays from 3:00 p.m. to Sunday at 6:00 p.m.
7. The Applicant shall have access to the child from 3:00 p.m. until 7:00 p.m. on Tuesday and Thursday during the week immediately following his access weekend and from 3:00 p.m. to 7:00 p.m. on the Wednesday before his access weekend with the child.
8. The Applicant shall pick up the child in Mississauga at the commencement of his access weekend and the Respondent shall pick up the child in Kitchener at the termination of the Applicant's access weekend.
9. The Applicant shall be responsible for picking up and dropping the child off at the Respondent's home during his mid-week access.
HOLIDAYS
Christmas
10. The child shall reside with the Respondent mother from 4:00 p.m. on the last day of school of the Christmas school holiday break until noon on the eighth (8) day of the Christmas school holiday commencing December, 2017 and then the child will be with the Applicant father for the balance of this holiday until 8 p.m. on the day before school recommences. This schedule will then alternate each year thereafter.
March Break
11. The child shall reside with one of the parties for the entire March Break in alternating years.
12. The child shall reside with the Respondent for the entire March Break in 2018.
Easter
13. The child shall reside with one of the parties for the entire Easter week-end in alternating years from the Thursday of the Easter weekend at 4:00 p.m. until the Monday of the Easter weekend at 8:00 p.m.
14. The child shall reside with the applicant, father, for the Easter weekend in 2018.
Summer Vacation
15. The child shall reside with the Applicant from the last day of school at 4:00 p.m. for two (2) consecutive weeks in July and 2 consecutive weeks in August of the school summer break commencing in 2018.
16. Commencing 2019 the Respondent shall have the first opportunity to select the 2 week period in July and the 2 week period in August that the child is in her care. Thereafter the parties shall alternate the first opportunity to make the school summer vacation selection yearly with the Applicant choosing first in 2020. The party making the first choice of summer access time with the child shall make his or her choice no later than May 15 of each year.
Labour Day Weekend
17. The child shall reside with the Applicant on alternating Labour Day weekends of each year commencing 2017.
Birthdays
18. The child shall celebrate her actual birthday with the parent with whom she is residing according to the above schedule.
Mother's Day and Father's Day
19. The child shall reside with the Respondent on Mother's Day and the Applicant on Father's Day irrespective of the above schedule.
TRAVEL
20. The Respondent shall obtain a Passport for the child. The Applicant shall sign the Passport Application. The Respondent shall keep the Passport in her possession, but shall provide the Applicant with the Passport when needed to travel with the child outside of the jurisdiction, in accordance with an access Order or agreement between the parties. Both the Applicant and the Respondent may travel outside of Canada for vacation purposes, which travel will not require the consent of the other parent. However, such parent must provide the other parent with at least 14 days' notice of the vacation, with detailed itinerary including dates of departure and return, transportation particulars and accommodation information including the address and telephone number where the child can be reached by the other parent. Furthermore, the travel shall be in accordance with the access schedule as set out in an Order, or in accordance with an agreement between the parties.
ISSUES OF CHILD SUPPORT AND ARREARS IN SUPPORT OWED
[158] I heard evidence that from the birth of Tatianna through to Justice Dunn's July second 2014 order, she was primarily in the care of Kristen. During this period of time John did not pay monthly child support to Kristen. He did provide some preliminary supplies for the preparation of his daughter's care such as assisting with a crib and some food supplies.
[159] John closed his optometry practice in July of 2014. The best evidence presented at trial, which was agreed to, was that he was capable of earning between $78,000 to $79,000, which was the net after his expenses.
[160] Based on the child support guidelines, this would place his monthly child support at $712.90 a month.
[161] Kristen is seeking retroactive child support from the date of the commencement of the Application up to the date of Justice Dunn's order of July 2, 2014, and then a set off amount from that date to the date of this trial, as their daughter has been in each household equally over this period of time. Full support thereafter.
[162] John testified that currently he has zero income and zero assets. He testified that he essentially is supported by his wife.
[163] His principal reason for closing his practice was to care for his daughter.
[164] No specific evidence was presented of any unique or special medical or emotional needs that Tatianna has that would require a parent to be a full-time caregiver to her.
[165] A decision by a parent who has been successful, such as John in his field of endeavor, to stop work completely has to be balanced with a parents' obligation to pay child support when separated from the other parent. The obligation for support is still present in the situation created by Justice Dunn's Order where their daughter was spending equal time between each household, considering the respective incomes and/or ability to earn income of each parent.
[166] Kristen has asked the court to impute an income to John at the level of his highest earnings reported to date as noted above for the period of time in question.
[167] Subsection 19 (1) of the Ontario Child Support Guidelines (the guidelines) reads as follows:
Imputing Income
19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) The parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
[168] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed or unemployed. Clause 19(1) (a) of the guidelines is perceived as being a test of reasonableness. See: Dryagla v. Pauli, [2002] O.J. No. 3731 (Ont.CA).
[169] The court in Drygala sets out a three-part test to determine if income should be imputed. The first part of the test is to ask if the payor is intentionally under-employed or unemployed. The court stated that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than they are capable of earning. The court must look at whether the act is voluntary and reasonable.
[170] The onus is on the applicant to establish that the respondent is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322. Absence of a reasonable job search list will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417 (Ont. S.C.).
[171] Separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453 (Ont. Fam. Ct.).
[172] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, at paragraph 19.
[173] The second part of the test in Drygala v. Pauli, supra, is: "If the payor is intentionally unemployed or under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs"? The onus to establish the reasonableness of the excuse is on the payor.
[174] The third part of the Drygala test is: "If there is no reasonable excuse for the payor's unemployment or under-employment, what income should properly be imputed in the circumstances"? The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.
[175] In Thompson, supra, the court found that it was appropriate to impute to the payor the income that he would have earned if he hadn't quit his job. The court writes at paragraphs 37-39:
The Court of Appeal in Drygala v. Pauli, supra noted at para. 44:
Section 19 of the Guidelines is not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.
[176] The result is that the Court has little more than his past earning history to consider. I find, as Judges in other cases have, that his previous income is a rational basis on which to impute income, as it is the amount that John would have continued to earn but for his decision to end his Optometry practice: Olah v. Olah, (2000), 7 R.F.L. (5th) 173 (Ont. S.C.); Vitagliano v. Di Stavolo, (2001), 17 R.F.L. (5th) 194 (Ont.S.C.); Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.
PART SEVEN – RETROACTIVE CHILD SUPPORT
The Law
[177] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in determining retroactive support applications. Briefly, there are four points that the court raised:
Reasonable excuse for why support not considered earlier.
Conduct of the payor parent.
Circumstances of the child.
Hardship occasioned by the retroactive order.
[178] Where ordered, a retroactive award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5). However, where one party engages in blameworthy conduct, it may be appropriate for the court to make a retroactive order prior to that date.
[179] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[180] Applying the above law to John and Kristen's circumstances I find the following:
[181] John does not deny that he voluntarily left his practice of optometry where he was able to earn approximately $78,000 to $79,000 per year.
[182] Kristen is seeking support from the date of John's application. The application is dated August 12, 2013 and was answered by Kristen on September 24, 2013.
[183] There was no evidence led that John left his practice for reasons of his own health or to re-educate. His own evidence was that he ran a successful practice although there was a lot of competition from other optometrists in the London, Kitchener, and Waterloo area.
[184] There was no evidence presented that John gave up his practice to care for any special needs of his daughter such as health or other social needs.
[185] John is highly educated and a young person with no health issues. He has the support of his wife and evidence was presented that he lives with his father. John's latest financial statement of February 16, 2017 indicates that he has no income and no assets. He testified to this as well. In reviewing his expenses he has none whatsoever.
[186] The best evidence presented to me went unopposed which is that John was able to earn an income of $78,500. Given the factors above, I impute this as John's annual income for the purposes of child support.
[187] When considering the factors set out above for ordering retroactive support I note that Kristen sought support in her Answer filed in September 2013.
[188] Prior to this, evidence was presented that John did assist surrounding the birth of his daughter in preparing for her needs.
[189] There was no specific evidence presented regarding Tatianna's needs other than the fact that while in Kristen's care she had wanted to place her in daycare. This was opposed by John for a number of reasons. John did present evidence that Kristen had difficulty with her financial affairs.
[190] Kristen's financial statement of February 14, 2017 indicates that her income in 2016 was $5,237. In 2017 her income was approximately $31,420. This was a combination of employment, employment insurance benefits and child tax benefits. Prior to this Kristen's income was $4,791 in 2013, $5,288 in 2014 and $30,633 in 2015.
[191] It is based on these figures that I have consider the calculations of arrears in child support owed by John to Kristen. John will owe arrears as follows. In 2013, 3 months commencing October 1st. In 2014, 12 months, in 2015, a set off for 12 months at $455.90, in 2016, 12 months, and in 2017, a set off 8 months at $455.90. The years noted above in which there is no set off, Kristen earned an income below the table amount of $10,820.00 to commence a support calculation. The parties did not provide evidence on the other two factors set out in section 9 (b) and (c) of the Ontario Child Support Guidelines that I should consider when a child lives between the parents' homes as in this case up to this decision.
[192] There is no doubt that an order for retroactive support will create some financial hardship on John, as he will have arrears in support owing that he need to consider in his budget. He did testify that he generally was good at arranging his financial affairs as he did not live lavishly and was good at arranging his financial affairs because he had no debts.
ORDER REGARDING CHILD SUPPORT
[193] Considering the factors above, I make the following final orders regarding child support:
21. For the purposes of child support, I impute an income of $78,500 annually to John Varga Cuevas from the commencement of this Application, August 12, 2013.
22. John Varga Cuevas shall pay child support to Kristen Allen for the child, Tatianna Bijou Cuevas, born August 18, 2012, in the amount of $712.90 per month, commencing September 1, 2017.
23. John Cuevas owes arrears in child support to Kristen Allen, in the amount of $23,807.30, and shall pay on the 1st of each month commencing September 1, 2017, the amount of $200.00, until paid down fully.
24. The Parties shall be responsible for the child's day care expenses proportionate to their respective incomes. Thereafter, the party enrolling the child in a special or extra-ordinary expense shall be solely responsible for bearing the cost of the said expense.
25. Neither party shall enroll the child into a special or extra-ordinary expense activity that interferes with the Respondent's and/or the Applicant's time with the child without the prior written consent of the other party. Both parties shall advise each other of any special expense activity that the child has been enrolled in.
26. A Support Deduction Order to issue.
27. Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility 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 party to whom they are owed.
28. If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office, a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.
29. The Order bears interest at the rate of 3% per annum, 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.
30. 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.
[194] On the issue of cost in this trial, if this is to be requested, the parties should exchange and file by October 1st, 2017, two page submissions, signed offers, bill of costs, and case law to be brought to my attention for a decision.
Released: August 15, 2017
Justice A.W.J. Sullivan