Court File and Parties

Court File: 456/10 Date: September 28, 2018 Ontario Court of Justice at Milton

Between: Ashley Margaret Koenigsberger, Applicant

and

Andrew Allan Parsons, Respondent

Before: Justice B.E. Pugsley

Heard: September 10, 2018

Released: September 28, 2018

Appearances

• Applicant and Mr. E. Chang
• Respondent and Ms. J. Krause
• Ms. M. Chamberlain for the Office of the Children's Lawyer
• Ms. L. Lysko (Parental Support Worker) for Region of Halton

Endorsement

Background and Motion Overview

[1] This is an interim motion brought by the Applicant (mother) for three heads of relief: to remove the supervision restriction on her access; to have the Respondent (father) return the child's passport to her care; and for child support.

[2] The parties had a short relationship which led to the birth of their son, J. (DOB: […]).

[3] The Applicant brought on the initial Application here in October of 2010. That Application was settled by comprehensive final Minutes of Settlement which became incorporated into the final order of Justice O'Connell on July 18, 2011. Primary residency of J. was then with the Applicant (mother) and Secondary Residency with the Respondent (father).

[4] On December 13, 2017, the Respondent (father) commenced a Motion to Change Justice O'Connell's final order. He served a package of material including a motion seeking an urgent motion date before case conference to change the residence of J. based on concerns with regard to the Applicant (mother)'s ability to parent their child.

[5] The Respondent's motion was dismissed in part by Justice Starr on January 2, 2018, however an early case conference was ordered.

[6] On January 19, 2018, the Respondent made another motion in Chambers seeking that the pleadings be noted closed and that the matter proceed as an Uncontested Trial. The time for the Applicant to file materials had passed a few days earlier. Notably, the Christmas holiday season had intervened during that time.

[7] Justice Wolder adjourned the Respondent's motion to January 24, 2018, the First Appearance date on the Motion to Change, provided that the matter could not be dealt with by another judge before that time.

[8] On January 23, 2018, Justice Wolder assisted Justice Starr's court and the matter came before him for the early case conference ordered by Justice Starr on January 2.

[9] At the case conference an interim consent was signed by the parties such that the Applicant (mother) undertake drug tests and that the local Children's Aid Society provide a summary of its involvement with the family. The parties also agreed, and the court ordered, that the Applicant (mother) "reside with Wesley Thompson for any and all parenting time with the child". The motion set for January 24, 2018, was adjourned to January 29, 2018 before Justice Wolder.

[10] The motion did not proceed in full on that date: drug screening had not been completed. The Office of the Children's Lawyer was asked to appoint counsel for J. The court directed that the motion would not proceed if the tests were negative. Otherwise the interim motion would be heard on February 14, 2018.

[11] The Applicant's Response to Motion to Change, and her claim for cross-relief, was served on January 29, 2018.

[12] On February 14, 2018, the motion was adjourned to be heard on March 7, 2018.

[13] On February 28, 2018, the Applicant served a cross-motion seeking "mirror image" relief to that of the Respondent, only reversed.

[14] The matter was fully argued on March 7, 2018, and Justice Wolder reserved his decision. He directed that the court staff make the court file available to the Halton CAS for review at their option.

[15] On April 5, 2018, the Office of the Children's Lawyer agreed to appoint counsel for J.

[16] Justice Wolder released his decision on the interim motion on May 7, 2018. Custody of J. was not changed and he remained in the care of the Applicant (mother).

[17] On May 14, 2018, the matter was spoken to before Justice Wolder. Financial disclosure was ordered and a framework for costs submissions was outlined. The parties agreed that the requirement that the mother reside with Wesley Thompson for all parenting time with J. be continued. The matter was adjourned to August 24, 2018, for case conference.

[18] On June 1, 2018, Justice Wolder reserved the costs of the March 7, 2018, motion to the successful party at trial.

[19] At the case conference a date was scheduled for a motion to address the need for the supervision of the mother by Mr. Thompson and temporary child support. That motion was argued before me on September 10, 2018. I reserved my decision and adjourned the matter for a settlement conference to November 26, 2018 at 2:00 pm.

Issue 1: Supervision Requirement

[20] I will address the issue of supervision first.

[21] The Applicant (mother) submits that there is no longer any need for her to reside at Mr. Thompson's residence when J. is in her care. She agrees that she has used marihuana in the past but submits that she has complied with the terms of the prior orders as to the timing of her use. She notes that the recreational use of marihuana will shortly be legal across Canada. She agreed to intrusive drug tests and each drug that appeared on the screens related to a drug she takes under medical supervision save and except one incident when it appears that she mistakenly took one of her son's Ritalin tablets. There is no basis to require that her former partner, Mr. Thompson, be present whenever J. is in her care, and she notes that he has a new partner and the current order is very intrusive in his and their life. On occasion J. has had to be cared for by a non-family caregiver because Mr. Thompson was unable to be present at a pre-scheduled residential time due to work commitments.

[22] The Applicant notes that the Halton CAS and the OCL counsel do not suggest that supervision is needed here. A possible regime where Mr. Thompson "pops in" on the Applicant and J. during her time caring for him was one middle ground position mentioned.

[23] Mr. Thompson swore an affidavit in support of the Applicant, stating that he has never seen her under the influence of drugs while caring for J.

[24] The Respondent (father) notes that the last drug testing hasn't been done for months. The tests showed drugs in the Applicant's body that included both marihuana and also prescription drugs which he submits have not been explained. He submits that marihuana screens show that that drug must have been used during J.'s time with the Applicant because it was still detected after the weekend. The Respondent suggests that the Applicant is still using drugs and it is unsafe to remove the safety net of Mr. Thompson's supervision. He does not trust the Halton CAS to protect J.

[25] This is essentially the same argument he made to reverse custody, an argument rejected by Justice Wolder.

[26] A similar argument was made by the Respondent in the initial litigation in 2010. The consent final order demonstrated no such concerns. The Respondent was represented by counsel and the Applicant by duty counsel in that settled proceeding.

[27] Ms. Chamberlain on behalf of J. noted that it was difficult to determine his views and preferences here on the issue of Mr. Thompson's supervision. Wesley Thompson was the Applicant's former long-time partner and is very much a father figure to J. He really enjoys being at Mr. Thompson's home in part because, I infer, he gets to see Mr. Thompson as well as his mother there. The difficulty however is that Mr. Thompson has been a substantial irritant to both parties because of the friction he causes during exchanges of residence between the parties. Perhaps a possible regime where Mr. Thompson "pops in" on the Applicant and J. during her time caring for him is a possible middle ground solution. Perhaps more urine testing would ease the Respondent's concerns. In the end the best thing the parties could do to help J. would be to settle the case.

Concerns Regarding Drug Testing Evidence

[28] It is concerning that no party seems to have considered the propriety of non-forensic hair follicle testing on the essential issue of a child's residency so recently criticized with scathing effect by the Motherisk Commission (2015). Although that Commission dealt with the scandalous misuse of hair follicle testing undertaken by one Toronto lab at a world-renowned hospital in child protection matters, a key aspect of the inquiry related to the differences between the standards applied in forensic drug testing and medical drug testing, and the risks of misstated test results when used out of context and for the wrong purpose.

[29] The tests were popular because they were easy and cheap to undertake and "proved" drug use even in the face of denials by the test subject. But the "proof" was often an illusion.

[30] The Respondents' affidavit describing the results of the hair follicle tests (Tab 18) parallels the problem that was pervasively seen in the tests reviewed by the Motherisk inquiry: seemingly damning test results sought to be used to take a child away from a caregiver which in many sad cases proved to have no real reliability at all. The Respondent's affidavit attached extracts from the internet.

[31] It is hard to avoid the conclusion that these tests must be treated with extreme care when they are said to represent "proof" of drug misuse and simply cannot be relied upon without live expert evidence interpreting them.

[32] The Respondent declined to undergo drug tests as was his right short of a court order to do so.

Quality of Affidavit Evidence

[33] As part of my preparation for this motion I reviewed the entire, bulky, four volume, Continuing Record here.

[34] The affidavit evidence is improperly replete with argument, accusatorial language, hearsay, supposition and opinion (in only one example: the Respondent helpfully states that he is "increasingly concerned about the Applicant's mental health" (Tab 30) – his inexpert opinion of the opposing party's mental health is unfounded, biased, condescending, improper, and simply put has no place in an affidavit sought to be relied on by a court). Some other examples in his most recent affidavit (Tab 34): "Ashley simply wants the court to believe", "I find it concerning", "the court should remain cautious of 'doctors notes' because [he really wouldn't know]", etc.

[35] These materials actually often disclose more about the author reading between the lines than in their content.

[36] Much of the content of each affidavit filed here does not meet the absolutely fundamental legal requirement that an affidavit be a statement of facts without argument. The reason for an affidavit is to bring helpful evidence before the court not engage in mud tossing. Much of the material is an embarrassment albeit an embarrassment becoming sadly commonplace in this court.

Parental Conduct and Impact on Child

[37] I am greatly disturbed by the level of animosity demonstrated by the parties here in their material and submissions from the start of the Motion to Change, and their apparent lack of concern about how their battle is affecting their son. From the start the parties have proceeded with entirely unnecessary aggression in their case – to the point where the Respondent, extraordinarily, tried to have the Applicant noted in default mere days after the expiry of her time to answer his claim – time mostly taking place over the Christmas holiday season. That I see as an entirely unnecessary "bully" tactic against a then self-represented party more suited to other forms of civil litigation involving mere money rather than a family law case dealing with their child.

[38] Tellingly, when the pleadings were completed and the matter placed before the court for adjudication, the Respondent's claims, which he sought to have dealt with on an uncontested basis without any role for the child's life long caregiver, have been singularly unsuccessful.

[39] The Respondent's thesis and the course of action he consistently pursued was predicated on his belief – ultimately found to be unfounded in evidence – that his child was in grave danger due to the Applicant's radical and unchecked drug abuse and her past CAS involvement. The agency's involvement was disclosed and is not the smoking gun the Respondent perhaps hoped it would be. Public agencies who by law are required to protect his son found no such child protection concerns. This is implicitly ascribed by the Respondent to their negligence. The Applicant's affidavit avers to several unsubstantiated complaints to the CAS over the years that appear to have originated with the Respondent or an ally.

[40] In my view, the Rules of the family court are designed in part to force the parties to talk before they fight. Here the parties, separated for years, seem to have decided to, or been encouraged to, re-enter the battle that they settled amicably in 2011. To what end? J., who they both say they love, has been caught between them and is being actively hurt by his parents as we speak. The court bears some small role in allowing this to happen by permitting the parties to veer way off track in the path described by the Rules to encourage parties to resolve their issues thoughtfully between themselves rather than asking a judge to tell them how to raise their son.

Decision on Supervision

[41] That said, the court exists to determine issues where the parties are not able to do so. On the evidence (not the impressions, the views or the concerns of the parties) there is simply no basis to require the Applicant's residential time with J. to be "supervised" by Mr. Thompson nor anyone else. Justice Wolder effectively determined that issue when he did not reverse eight years of status quo residency. Although he agreed with the parties consent to maintain Mr. Thompson's role here, he did not turn his mind to mandate that role – he simply accepted the agreement of the parties "on an interim, temporary basis" pending "further order of the court". This is that order.

[42] J. is not a child of tender years and the risk to him in the care of his mother is minimal. J. has his own lawyer and a good supportive adult in the form of Mr. Thompson just down the road.

[43] There are no child protection concerns apparent to the CAS, an agency bound by the law to intervene where such concerns are in existence.

[44] Mr. Thompson's supervision of the Applicant's residency with her child will no longer be required. I will address that further in my order, below.

Issue 2: Passport

[45] I next address the passport issue.

[46] In 2011 the parties agreed that the child's passport would be held by the Applicant (mother) and released as needed to the Respondent (father). The Respondent wanted to travel with the child to the USA. The mother withheld the passport. She says she wanted to make sure that J. had out of Canada medical coverage. Before the holiday the paternal grandmother stepped in and paid for the coverage and the trip took place.

[47] After the trip the Applicant wanted the passport back. Concerned that the Applicant might hold the passport hostage again the next time he wanted to travel, the Respondent refused to give it back. When it became an issue he gave it to his mother to hold. She, after all, paid for the passport.

[48] Applicant's counsel submitted that the Respondent was in "contempt" of the 2011 order. Respondent's counsel argued that the return of the passport would only empower the Applicant to hold it hostage again.

[49] The above is an example of the unnecessary and indeed childish conflict created and sustained against all logic by the parties. Adults sort out such issues without the need to have a court decide the point for them. As I stated to the parties during submissions I was reluctant to grant the parties audience on that issue. As it was embedded in the motion however I will address that issue now.

[50] J.'s passport shall be returned to the Applicant, through counsel, forthwith. The 2011 order of Justice O'Connell will govern the passport issue until that order is changed by the court, or by the written consent of the parties.

Issue 3: Child Support

[51] The final issue is in regard to temporary child support.

[52] The Applicant seeks to address child support based on the Respondent's last disclosed income (in this case for the calendar year 2017). The Respondent has in the past worked as a tower rigger – most recently in the USA, and being paid well in US$.

[53] The 2011 litigation ended with the Respondent's income being stated as $18,647.92 for 2010. The final order was for $161.00 per month pursuant to the Child Support Guidelines. Between separation and July of 2011 arrears of child support had already arisen in the sum of $809.00. The Respondent was ordered to pay off those arrears at the rate of $40.00 per month, as long as the order did not fall into arrears. Payments were directed through the Family Responsibility Office.

[54] Paragraph 12 of the final order required annual disclosure by the Respondent of his income from the prior year, and Paragraph 14 stipulated comprehensive, named, mandatory sources of disclosure, including an annual sworn financial statement.

[55] The Respondent never provided such disclosure although his income has skyrocketed.

[56] The Respondent still has arrears of child support, including arrears owed to Ontario Works when the child was being supported on public assistance.

[57] The Respondent's attempt to address his child support history in his affidavit material at Tab 34 is, frankly, unconvincing. He does not come before the court with clean hands on the child support issue.

Respondent's Work History and Income

[58] During the time since the 2011 order the Applicant states (Tab 16) that the Respondent has worked out of province in Alberta and for three years in the USA. The Respondent, in a single paragraph, seems to agree to this in part (Tab 34 para 11) but then deny it largely (para 80). He notes (para 69) that he agreed to pay full CSG support in 2011 "despite the fact that we were sharing parenting time". This I suppose is meant to be an indication that he was paying more than he really ought to have paid. As already noted however, by the time of the settlement he was already months in child support arrears. Further, the parties did not "share" parenting time as contemplated by sections 8 and 9 of the Guidelines. As already noted by Justice Wolder, the actual pattern of residency paralleled a custody to mom access to dad style of arrangement. Further, as he notes earlier in his affidavit, he was absent in the USA working from September 2016 to December of 2017 (para 80). During that time his parents, not the Respondent, visited J. on "his" access days. That is in no way "shared" parenting – that is absent parenting with a surrogate assisting in keeping the family ties in existence. This is not to criticize the grandparents seeing J., nor to discount the efforts the Respondent made to see his son from time to time, but rather to point out that the Respondent cannot exercise access through the medium of another person and still have it called access. On that basis the claimed "40% rule" under section 9 of the Guidelines which I am asked to apply is obviously not applicable to that recent past.

[59] The tone of the Respondent's material on support implies that he has regularly paid via the Family Responsibility Office. A closer reading is more illuminating: FRO has garnished what they could, when they could. He is thousands of dollars in arrears. His financial statement (the only one filed in the Continuing Record at Tab 4) shows no expense for child support, nor indeed any debt for the arrears he accepts as accurate. At no time does the Respondent state the obvious: it appears that he never voluntarily paid regular child support, even when earning a very large income in US$. At paragraph 70 he speaks to the fact that FRO "has continued garnishments on my income tax return, taxable benefits, etc.". He was working in the USA, beyond the scheme of the FRO Support Deduction Order made in July of 2011, and appears to have decided to let them chase him for J.'s support.

[60] The Respondent states that he no longer works in the USA and that jobs of his kind (high tower work) are scarce in Canada. He stated via submission that he returned home for his children, suggesting that his lucrative US income is still available to him. He states that although he made $57,187.00 (Cdn) in calendar year 2017, his income will be much less this year. His estimate is that he is on line to make $30,000.00 – half of what he has made in the recent past. That is the amount that he submits should be used for temporary child support. His Records of employment early in his employment history state "general labourer" and "construction crew". This grew to an apparently skilled job held by the Respondent in the US, but left behind on his return to Canada. I observe that an entry level factory job at $16 per hour could generate in excess of $33,000.00 per year.

[61] The Respondent states as well that since the child is with him at least 40% of the time and he should be entitled to pay less support for him pursuant to section 9 and that the net effect given that the parties are equally caring for the child would be a "net" payment by the father to the mother of $18.00 per month.

[62] The Respondent states that he is also responsible for supporting two other children. The status and amount of that support is not disclosed save for a reference in the Respondent's only filed financial statement dated November 27, 2017 (Tab 4) that he pays "$300.00 per month" for other children. No debt for child support is set out in that statement, but this cannot lead the court to conclude that there are no arrears of that other support since none of the substantial arrears of support for J. is listed either.

Retroactive Support for 2017

[63] The Applicant submits that the Respondent consistently underpaid child support since 2011, and that even on the basis of his very low existing order fell into substantial arrears of support, including money owed to the Region when the child was forced onto welfare by his failure to pay. The last best proof of his income, if not his current income earning ability, is his 2017 income. The Applicant seeks to have the child support adjusted accordingly retroactive to January 1, 2017.

[64] In my view courts should be reluctant to make findings with regard to retroactivity of support at the interim motion stage when a full evidentiary picture is absent. Such is not however the case here. The Respondent agrees that from the fall of 2016 until part way into December 2017 he was working in the USA and was making a good wage. A reasonable exchange rate places that income at $57,000.00 Cdn.

[65] For 2017 the amount that should have been payable by the Respondent to the Applicant as child support for one child would be $517.00 pursuant to the Child Support Guidelines (Ontario) (the "CSG"). The Respondent by his own evidence demonstrates that there is no basis for a section 9 CSG claim for that year – he resided in the USA. His parent's "use" of his access time is no more relevant than a claim would be against them for child support.

[66] Retroactively for 2017 the Respondent shall pay child support to the Applicant mother the sum of $517.00 per month commencing on January 1, 2017, and ending on December 31, 2017, payable on the first of the month.

Prospective Support for 2018

[67] The real issue for the parties today is not what the Respondent made last year but rather whether that level of pay ought to continue into 2018 for Child Support Guidelines (Ontario) purposes. The Applicant states that the last, best evidence of the Respondent's income is that 2017 income. I do not agree. Both parties agree that the Respondent returned from the US in December of 2017, breaking the continuity of that job market. On an interim basis on the scanty evidence before me on the issue of imputing income, I am extremely reluctant to find that the Respondent should be compelled to either return to the USA or be tied to an imputed income based on that US job. I do not say that on a full evidentiary picture such a finding could not be made – just that that decision cannot follow on this evidence. Having once had a well-paid job, the Respondent would bear the burden of convincing a trial judge that it was reasonable to leave his high income for half that amount, and that his job skills only support a minimum wage labourer style job.

[68] Further, the Respondent has not satisfied me that section 9 of the CSG applies here on an interim basis, particularly in light of my order made today. The evidence for such an interim finding is slim and hides behind the overall deficiencies of the Respondent's affidavit material already referenced. Such an argument will have to abide a better evidentiary record.

[69] There is no sufficient evidence upon which I can apply the Respondent's argument that he is paying support for other children to this interim motion. He may be required to pay such support but the record here suggests that it is questionable that he has actually paid pursuant to any such obligation.

[70] Ex gratia gifts and payments in kind (or by his parents) for items or services for the use or benefit of the child are irrelevant to the CSG basic child support calculation.

Costs

[71] Unless the parties are able to reach an arrangement on the issue of costs they may make submissions in writing to me through the judicial secretary at the courthouse in Orangeville, upon the following schedule: the Applicant within two weeks of the release of this endorsement; the Respondent within ten days after receiving the Applicant's submissions; any reply by the Applicant within seven days of receiving the Respondent's submissions. Submissions shall be no more than two A2 size pages, double spaced, exclusive of bill of costs and offers to settle. Any offers to settle that are relevant should be attached. I presume that neither the Region nor the Office of the Children's Lawyer will seek costs herein.

Order

[72] I therefore make the following temporary order (not on consent):

1. Commencing on October 1, 2018, the Applicant (mother) may exercise her residential care of the child of the parties, J. (DOB: […]) on her usual schedule without being supervised.

2. The Respondent (father) shall cause the child's passport to be returned to the Applicant (mother) via counsel, forthwith.

3. Commencing on January 1, 2017, and on the first day of each month for the period ending December 31, 2017, the Respondent shall pay to the Applicant for the support of the said child the monthly sum of $517.00 based upon the application of the Child Support Guidelines (Ontario) for one child and an annual income of $57,000.00 for 2017.

4. Commencing on January 1, 2018, the Respondent shall pay to the Applicant for the support of the said child the monthly sum of $245.00 based upon the application of the Child Support Guidelines (Ontario) for one child and an annual estimated income of $30,000.00.

5. Support Deduction Order to issue.

6. Costs reserved pending receipt of submissions if any.

7. Adjourned to settlement conference as already endorsed.

Justice B.E. Pugsley