ONTARIO COURT OF JUSTICE DATE: 2021 02 25 COURT FILE No.: Sudbury D127-19
BETWEEN:
Megan Leanne Crowell Applicant
— AND —
Zachary Ryan Joseph Delisle Respondent
Trial
Before: Justice H-A Mendes
Heard on: January 18, 19, 20, 21, 22, 25 and 26, 2021 Reasons for Judgment released on: February 25, 2021
Counsel: Nicola S. Munro, for the applicant mother Darren L. M. Berlinguette, for the respondent father
Mendes J.:
Overview
[1] The Applicant, Megan Leanne Crowell and the Respondent, Zachary Ryan Joseph Delisle had a relationship and resided together from December 2015 through to November 2018. The parties are the parents of the child Grayson Robert Michael Delisle born […], 2016 (“Grayson”).
[2] The Applicant mother has another child from a previous relationship, namely Desmond Dallas Davis born […], 2010 (“Desmond”). The father of the child Desmond has primary residence of him, and the Applicant mother has reasonable and generous parenting time as agreed to between the parties pursuant to a court order made in the Provincial Court of Alberta on September 18, 2012.
[3] The Applicant mother commenced this Application in or about April 2019 seeking custody of the parties’ child Grayson; child support payable by the Respondent father; spousal support payable by the Respondent father; guardianship over child’s property and costs. The Applicant amended her Application in July 2020 seeking that she be permitted to relocate with the child to Nova Scotia.
[4] The Respondent filed his Answer to the Application in June 2019 and sought an order for joint custody of the child with the child’s primary residence to be with him; in the alternative, shared custody of the child and in the further alternative, specified access for him to the child in accordance with his work schedule. Further, if the Respondent father is out of town for work, that the paternal grandmother have access to the child. The Respondent father also sought an order that restricted the Applicant from moving the child’s residence from the District of Sudbury without agreement in writing or court order as well as costs.
[5] On June 6, 2019, the parties consented to an interim order, on a without prejudice basis, which provided that the Applicant mother have custody of the child and that the Respondent father have access with the child on alternate weekends from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. and alternate Wednesdays overnight to Thursday at 6:00 p.m.
[6] On October 24, 2019, the parties agreed to another interim order, on a without prejudice basis, which provided that the Respondent father pay to the Applicant mother child support in the sum of $336 per month commencing October 1, 2019 based on the Respondent father’s claim that he earns $21.00/hour and works an average of 35 hours a week for projected annual income of $38,100.
[7] On March 16, 2020, the regular operations of the court were suspended due to the COVID-19 global pandemic. In April 2020, the Applicant took the child to Shelburne, Nova Scotia without the consent of the Respondent father.
[8] On June 17, 2020, the Applicant was ordered by the court, to return with the child to Sudbury by July 16, 2020. The Applicant complied with the order, however she left again with the child for Nova Scotia in August 2020, without the consent of the Respondent and contrary to the order of the court.
[9] On October 14, 2020, after argument of the Respondent father’s motion to have the child returned to Sudbury, the Applicant was granted permission to remain in Shelburne, Nova Scotia with the child on an interim basis and pending the trial of the matter which was set for three days commencing January 18, 2021.
[10] The trial in this matter was heard over 7 days through a hybrid of in-person and Zoom on January 18, 19, 20, 21, 22, 25 and 26, 2021.
[11] There were four witnesses called at trial. Three witnesses were called by the Applicant, namely Officer Steve Huard of the Espanola OPP; the Applicant mother and the maternal grandmother, Charlotte Lorna Savory. The Respondent father testified in support of his case.
Order Sought at Trial
[12] The Applicant mother seeks a final order from the court as follows:
- The Applicant, Megan Leanne Crowell shall have sole custody of the child Grayson Robert Michael Delisle born […], 2016.
- The Applicant, Megan Leanne Crowell shall be entitled to change the child Grayson’s ordinary residence from Sudbury, Ontario to Shelburne, Nova Scotia.
- The Respondent, Zachary Ryan Joseph Delisle shall have access with the child Grayson via facetime between four to seven times a week.
- The Respondent, Zachary Ryan Joseph Delisle shall have access with the child Grayson during school holidays in Ontario which the Applicant will help facilitate and the Respondent shall have access to the child if he attends in Nova Scotia.
- The Respondent, Zachary Delisle shall pay retroactive child support for the child Grayson from November 1, 2018 to September 30, 2019.
- The Respondent, Zachary Delisle shall pay child support for the child Grayson based on his 2019 income of $43,429 as of October 1, 2019.
- Commencing January 1, 2021, the Respondent, Zachary Delisle shall pay child support for the child Grayson based on a imputed income of $45,000.
- If the Applicant is permitted to change the child’s ordinary residence to Nova Scotia, there shall be a credit towards the Respondent’s child support obligations.
- The Respondent shall pay to the Applicant spousal support in the sum of $600 per month for a total of 18 months to be fixed in the sum of $10,800
[13] The Respondent father seeks a final order from the court as follows:
- The child Grayson Robert Michael Delisle’s ordinary residence be the District of Sudbury.
- The parties shall have joint custody of the child Grayson with the child’s primary residence to be with the Applicant mother.
- The Respondent, Zachary Delisle shall have access with the child Grayson on alternate weekends from Thursday to Sunday and in the further alternate week Wednesday to Thursday as well as a sharing of holiday time.
- The Respondent, Zachary Delisle shall pay to the Applicant, Megan Crowell, child support for the child Grayson in accordance with his income which is presently Ontario Works.
- If the Applicant decides not to return to Ontario and the child’s ordinary residence is determined to be Ontario, then the Respondent shall have primary residence of the child the Applicant shall have holiday time with the child.
- If the child’s ordinary residence is to be Shelburne, Nova Scotia, the Respondent is seeking access with the child in the summers as well as Christmas commencing in 2021 and on alternate years thereafter with the Applicant to bring the child to Ontario.
- There shall be no spousal support payable by the Respondent father given that his income is Ontario Works.
Law & Analysis
Issue #1 Custody
[14] The current governing test that the court must apply in this case when considering the appropriate custody and access regime for the children is pursuant to Part III of the Children’s Law Reform Act (“CLRA”) and specifically section 24, Best interests of the child.
[15] As of March 1, 2021, Bill 207, Moving Ontario Family Law Forward Act, amends Part III of the CLRA and the operative language with respect to order regarding children. This application and answer were brought prior to the amendments to the CLRA and the trial was conducted and concluded also before the new legislation coming in to force, as such, the applicable CLRA provisions for the Court to consider in this matter are under section 24 of the CLRA as follows:
Merits of application for custody or access
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).
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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.
[16] The parties met in Alberta and commenced their relationship there. Shortly thereafter they moved to Webbwood, Ontario where the Respondent father is from originally. The child Grayson was born in Ontario and the parties resided together in Webbwood at the home owned by the paternal grandmother, where the Respondent father continues to reside.
[17] The parties separated after the police were called by the Respondent father on November 7, 2018 during a domestic incident which resulted in the Respondent father being charged with assault and choking the Applicant mother. These charges were ultimately withdrawn by the court on July 15, 2019. However, the Respondent father was also charged with failure to comply with an undertaking on November 15, 2018 and was found guilty of this offence on July 15, 2019 and sentenced to probation for 12 months. The probation order included a provision that the Respondent father was not to communicate with the Applicant mother except:
(i) Pursuant to a family court order made after today’s date, or for the purpose of conducting or defending family court proceedings
(ii) In the presence of or through legal counsel
(iii) For purposes of attending family mediation with an accredited family mediator or professional mediator service provider
(iv) For purposes of making contact arrangements for, or having contact with, your child(ren) through a mutually agreed upon third party
[18] It is not disputed by either party that the Applicant mother was the primary care giver for the child Grayson both during the relationship and upon the parties’ separation.
[19] During the relationship the Respondent father was employed in the logging industry as a processor and so he would leave the home sometimes as early as 5:00 a.m. and return sometimes as late as 7:00 p.m. all the while the Applicant mother would care for the child.
[20] Upon separation the Applicant mother initially remained in the parties’ residence, but she then moved with the child to Sudbury, Ontario which is about an hour drive away. While the Respondent father at trial raised an issue with the Applicant mother’s move from Webbwood to Sudbury, I note that the Respondent father did not commence an application to address the issue.
[21] The Respondent father in his evidence at trial made some reference to wanting to commence an Application but that he decided not to because there was an agreement made with the Applicant mother. This information was not borne out in the evidence at trial.
[22] After the Application was commenced, the parties agreed to an interim order, on consent, on a without prejudice basis, at the first conference date on June 6, 2019. The order provided the Applicant mother with custody of the child and access to the Respondent father on alternate weekends from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. and alternate Wednesdays overnight to Thursday at 6:00 p.m.
[23] While this order was made on a without prejudice basis, the court finds that this order reflected the parenting arrangement during the relationship and it was not varied by any interim motion. As such, the court is of the view that the without prejudice order in fact became prejudicial as there was no attempt to change the status quo for nine months before the COVID-19 global pandemic affected the regular operations of the court as of March 16, 2020.
[24] The Respondent father in his evidence claims that he had concerns about the child in the Applicant mother’s care as he would come home and find her drunk and that she was doing drugs, but these concerns appear to never have been expressed to a child protection agency; the Respondent father did not commence an application in the six months prior to the Applicant mother doing so; the Respondent father did not raise these issues in his reply materials until he brought a motion for the Espanola hospital records regarding an emergency room (“ER”) admission of the Applicant mother in January 2020 and the Respondent father consented to an interim without prejudice order granting the Applicant mother custody of the child in June 2019.
[25] The Applicant mother was cross examined about her alcohol consumption. Specifically in relation to the September 18, 2012 Provincial Court of Alberta order which contained a condition of the Applicant mother’s access to the child Desmond was that she shall not consume any alcohol 24 hours prior and/or during contact with the child and regarding an ER hospital visit on January 22, 2020 wherein the Applicant mother was intoxicated and brought to the hospital by her ex-partner and the attending doctor’s notes state “long discussion with patient regarding getting help for mood issues and alcohol use but is not interested”.
[26] In her evidence the Applicant acknowledged that in the past she had issues with alcohol, but it is not an issue presently. The Applicant mother’s evidence regarding the January 2020 ER visit was that she had separated from her boyfriend, he was packing up and it was a stressful time, her anxiety got the better of her and she consumed three tall boy beers which affected her as she had not had anything to drink in a month and she had not eaten anything that day. The child was not in her care the day of this event.
[27] In reply to the note from the ER doctor about seeking help, the Applicant mother states that she reconsidered the opinion of the ER doctor regarding her anxiety and alcohol use and she engaged in counselling with a Children’s Aid Society worker who attended at her home on three occasions.
[28] The court did not receive the notes and records of the Children’s Aid Society and so it is not clear as to what the Society’s involvement was with this family. That being said, there was no Child Protection Application commenced. The court does not believe that the Applicant mother engaged in counselling with a Society worker to address any anxiety or alcohol issues as alleged and this was more likely an investigation that the Society was completing in relation to a report that was made to them concerning the Applicant mother’s alcohol misuse and likely the ER visit.
[29] While the court in Alberta may have had concerns about the Applicant mother’s alcohol use in a caregiving role to her child Desmond, this issue was never put to this court as a concern by the Respondent father when the application was commenced in April 2019 or when the interim without prejudice custody order was made on consent in June 2019.
[30] The court finds that the incident involving the ER visit in January 2020 appears to be a one-time occurrence which stems from a situational event as the Applicant mother was in the process of separating from her boyfriend and the child was not in her care at the time this occurred.
[31] It does not appear to be disputed that it is the Applicant mother who has made all of the decisions regarding the child’s education and health. The Applicant mother has enrolled the child in pre-kindergarten at Hillcrest Academy.
[32] The Applicant mother has also arranged medical appointments for the child which includes arranging a medical appointment in Nova Scotia to follow up with the child’s lazy eye as the appointment in March 2020 in Espanola was cancelled due to the COVID-19 global pandemic. The appointment resulted in the child being directed to wear a patch and prescribed glasses which the mother relayed to the Respondent father and sought financial assistance from him regarding the cost of the glasses, to which the Respondent father complied.
[33] It appears that the Respondent father has not actively participated in the day to day decision making for the child. The Respondent father in his evidence complained that after the Applicant mother moved with the child to Sudbury after separation, the Applicant mother enrolled the child in daycare, and he did not know about it until after the fact.
[34] While the Respondent father’s concern is raised in the form of a complaint, the court notes that the Respondent father would have been bound by a non-communication order with the Applicant mother due to the criminal charges and the Respondent did not commence any court application to address the issues regarding the child or his contact with the child. As such, if the Applicant mother had found a job and required childcare while working, what option would she have but to enroll the child in daycare.
[35] In evaluating the Respondent father as a primary custodial parent, the court again notes that the Respondent is only seeking to be the primary custodial parent if the child is not returned to the District of Sudbury. That being said, in evaluating the Respondent father as the primary custodial parent the court has a number of concerns regarding the Respondent father.
[36] Primarily, at the time the parties separated the Respondent was charged with assault and choking the Applicant mother. A few days later the Respondent father was charged with fail to comply with undertaking. While the assault and choking charges were withdrawn by the court on June 15, 2019, the Respondent father did plead guilty to the fail to comply with undertaking on June 15, 2019 and was sentenced to 12 months’ probation which set out terms regarding non-communication with the Applicant mother.
[37] The Respondent father in his evidence minimized his involvement with the event at the time of separation on November 7, 2018 and indicated that it was he who called the police for assistance and ended up charged. The Respondent father indicated that the fail to comply with undertaking was also not his fault because it was a misunderstanding but yet he pled guilty to this charge and agreed to certain facts that led to him being found guilty of this charge.
[38] When cross examined about his criminal record, again the Respondent father attempted to minimize the convictions stating that the convictions were not his fault, he was convicted of having a prescription pill bottle that belonged to his friend and not him and that the conviction for assault was because he was defending the Applicant mother who was elbowed by some guy. The court found the Respondent father’s excuses clearly showed a lack of insight regarding the impact of his criminal history when determining the issue of custody. I note that the convictions were dated, but the fact that the Respondent father has taken no responsibility for his actions and blames others for same is highly concerning when evaluating each parent and having to determine who will be the custodial parent of a young child.
[39] In addition, since the Application was commenced in April 2019 the Respondent father has three further criminal charges that are still pending before the court. The first being a mischief charge arising some time in February 2020; the second being impaired driving charges arising in March 2020 and the third being prohibited weapons charges arising in November 2020. While the Respondent is innocent until proven guilty in these matters, the fact that outstanding criminal charges remain unresolved when consider the custody of a very young child is again highly concerning for the court.
[40] Also related, although to a lesser degree, is the fact that the Respondent father has, as of December 2020 and January 2021, further Highway Traffic Act charges resulting in tickets for driving with no insurance and failing to produce a valid insurance slip, these tickets too are still before the provincial offences courts. When cross examined about these tickets the Respondent father again had excuses as to why he did not have the documents on him. The Respondent father’s ongoing excuses and implausible explanations demonstrate to this court that the Respondent father simply skirts around rules and has the attitude of “catch me if you can” which the court does not condone.
[41] The Respondent father also appears to be associating with a negative peer group which is concerning to the court. While the incidents involving the Respondent father’s peer group did not occur while the child was present or even with the Respondent father is present, there appears to be a lot of chaos and turmoil surrounding the father’s life and those individuals with whom he associates.
[42] The concerning incidents for the court are the occasion in which an acquaintance of the Respondent father overdosed on his property and the Respondent father’s then girlfriend had to administer naloxone to this individual. While the Respondent father claims he does not know the individual who overdosed well and the Respondent father was not present when the incident occurred, the court did note in the Respondent father’s bank records that there are e-transfer to this individual on a number of occasions in the past year which leads the court to believe that the Respondent father is minimizing his involvement with this individual.
[43] There are also other individuals to whom the Respondent father has sold items and has electronic transfers (“etransfers”) to and from who are presently charged with possession of controlled substances. In addition, during the trial of this matter there was an incident in Espanola on January 21, 2021 that involved an individual being shot whom the Respondent father was also acquainted. Further, the home at which the shooting occurred involved another individual who is a friend of the Respondent father.
[44] Although just touched on in this section and as will be fully explored below in the child support section, there appears to be a very significant amount of unexplained monetary activity in the Respondent father’s bank account such that over the course of 6 months between July 2020 and January 2021 the Respondent father has various e-transfer in and out of his bank account totaling over $9,000 and sometimes up to $12,000 each month. As the Respondent father stated in his evidence, “there is nothing criminal about it”, it certainly has raised a number of unanswered questions for the court and is very concerning in terms of the activities that the Respondent father is participating in which could impact the safety, wellbeing and best interests of the child.
[45] Given the above, I find that it is appropriate that the Applicant mother have primary residence of the child. I am not prepared to grant the Respondent father primary residence of the child given the aforementioned concerns with respect to the Respondent father and given the status quo both during the relationship and since separation.
[46] However, conversely, while the Applicant mother has made all of the decision for the child regarding his health and education, I am also not prepared to grant her sole custody of the child given her unilateral and surreptitious removal of the child from the District of Sudbury to Nova Scotia on not one but two occasions without the consent of the Respondent father with the approval of the court and in direct contravention of a court order.
Issue #2 Mobility
[47] The factors relevant to the issue of mobility are set out in the Supreme Court of Canada decision of Gordon v. Goertz, [1996] 2 S.C.R. 27 and are summarized as follows:
(a) No legal presumption in favour of the de facto custodial parent.
(b) The focus is on the best interests of the child and the wishes of the parent.
(c) The court should consider the existing parenting arrangement.
(d) The desirability of maximizing contact with both parents.
(e) The views of the child.
(f) The custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children.
(g) Disruption to the child by change in school, community and family they have come to know.
[48] The decision of Gordon v Goertz was a variation proceeding and not an originating application as is the case in this matter, but it has been consistently held by many other courts and it is submitted by the parties that the factors set out in Gordon v Goertz are applicable.
[49] The amendments to the CLRA coming in to force on March 1, 2021 set out a new regime regarding relocation at sections 39.1, 39.2, 39.3 and 39.4. These sections and factors for the court to consider are not applicable in this case given that this application was commenced prior to the amendments being made and the trial concluded also prior to the amendments coming in to force.
[50] When the Applicant mother commenced this proceeding in April 2019, she did not raise the claim of mobility. That being said, the Respondent father in his answer filed in June 2019 did specifically seek an order preventing the Applicant mother from moving the child’s residence from the District of Sudbury without his writing agreement or court order.
[51] On March 19, 2020, after the regular operations of the Court were suspended, the Applicant mother filed a motion returnable on April 7, 2020, seeking among other relief, an order permitting her to relocate to Shelburne, Nova Scotia with the child Grayson subject to terms that the court deems appropriate. This motion was not heard by the court as it was subject to the presumptive adjournment as directed by the Ontario Court of Justice Chief Justice’s Office.
[52] On April 14, 2020 the Applicant brought an urgent motion in accordance with the COVID-19 Urgent Motions Directive and sought a finding of contempt against the Respondent for failing to return the child Grayson to her care on April 14, 2020.
[53] The urgent motion further sought relief that permitted her to relocate with the child to Shelburne, Nova Scotia; that the Respondent file an updated affidavit 35.1 with the required attachments; that the Respondent file an updated sworn financial statement; a variation to the current access provisions so that the Respondent’s access was supervised and that the Respondent comply with the provisions of an existing order, that of October 24, 2019 which required him to provide employment details to the Family Responsibility Office.
[54] The matter was addressed in chambers by a judicial officer on April 15, 2020 and the only issue that was deemed to be urgent and set for an urgent motion hearing was whether the Respondent was improperly withholding the child. A date for argument was set by the court, however the motion did not proceed as the Respondent father returned the child to the Applicant mother’s care on April 15, 2020.
[55] On April 29, 2020, the Respondent father brought an urgent motion, in accordance with the COVID-19 urgent motion directive, which sought that the Applicant mother return the child Grayson, to the District of Sudbury by May 15, 2020; police enforcement of the Respondent father access order made on June 6, 2019; that the Respondent father have interim custody of the child and that the Applicant mother have supervised access to the child Grayson.
[56] The matter was addressed in chambers by a judicial officer on April 30, 2020. It was determined that while the Applicant’s conduct was precipitous, it has not created an emergency. As such, the mobility matter remains before the court and will have to be dealt with, but not on an emergency motion basis. The existing interim order is to continue until the matter is schedule for a hearing in accordance with the directives of the court.
[57] A further urgent motion was brought by the Respondent father on May 13, 2020 seeking an Order for the return of the child by the Applicant in order for access to occur as per the interim order of June 6, 2019 and an order for police enforcement of the access order. The motion was addressed in chambers by a judicial officer on May 14, 2020 and the motion was deemed urgent and set for argument for one hour.
[58] The motion was heard on June 3, 2020 and an interim without prejudice order was made that the Respondent father would have virtual access with the child twice a day with the Respondent father to initiate the morning call at 8:30 a.m. EST and the Applicant mother to initiate the afternoon call at 5:30 p.m. EST.
[59] The motion was adjourned to June 17, 2020 so that better evidence could be filed. In addition, the Applicant mother was to set out her plan to return to the District of Sudbury with the child in order to facilitate the Respondent father’s existing alternate weekend access.
[60] By June 17, 2020, the Applicant mother’s position was that her situation remained fluid and that she could not properly put forward a plan regarding a return to Sudbury, Ontario but that the child was doing well in Shelburne, Nova Scotia as they were residing with the maternal grandmother. Notwithstanding the child doing well, given the uncertainty of the Applicant mother’s plans, the court determined that it was in the best interests of the child that he have contact with both parents and ordered the return of the child by July 16, 2020.
[61] The Virtual access ordered for the Respondent father twice a day did not occur on a regular basis. It was the Applicant’s evidence that the Respondent father sometimes called but that the paternal grandmother would call regularly. It was the Respondent father’s evidence that he at first was not aware of the order that he was to call in the mornings and that the Applicant mother was to call in the evenings.
[62] Once the Respondent father was made aware of the order that he was to call at 8:30 a.m. EST he could not always call as he had other commitments. Initially the Respondent father was camping for 6 weeks at Gordon Chutes near West Bay from June 2020 to July 14, 2020 and there is no cell reception at the camp site. The father also had other commitments, such as helping his girlfriend move or assisting a friend redo a roof and build a wheelchair ramp and so again on these occasions, he could not make the call for his daily access.
[63] Eventually, the Applicant mother and the Respondent father agreed amongst themselves to not follow the court ordered times for the virtual calls so that the Respondent father would just call when he was available to speak to the child. The Respondent father’s evidence was that the telephone or virtual calls were not going well in his opinion as it was like he had to “relearn” the child and get to know him again each time he called.
[64] Call logs were not produced at trial by either party regarding the history of the phone calls from April 2020 to present. The Applicant’s evidence was that in the month of January 2021 the paternal grandmother called to video chat with the child on four or five occasions as of January 18, 2021 and that the Respondent father was only present for one of these calls. Further, the Applicant mother reaches out via text and asks the Respondent father to video call with the child, but he barely responds or calls. This evidence was undisputed by the Respondent father.
[65] The Applicant mother returned to the District of Sudbury with the child on July 15, 2020 and the Respondent father resumed his alternate weekend access with the child. When the Applicant mother returned, she and the child resided with the paternal grandfather in a trailer.
[66] The Respondent father’s evidence is that his relationship with his father, the paternal grandfather is strained and so despite the Applicant mother and the child residing with his father, he did not have any additional visits with the child by virtue of the Respondent father’s contact with the paternal grandfather.
[67] The Applicant mother and the child continued to reside with the paternal grandfather until some time in August 2020 when the Applicant mother unilaterally left again. The Applicant mother made no efforts to secure a residence in the District of Sudbury other than the application she made for subsidized housing two years ago. The Applicant mother did not look for any new accommodations nor did she follow up with the status of her subsidized housing application.
[68] The Respondent father filed a further third urgent motion seeking the return of the child to the District of Sudbury given that the Applicant again without consent or court order left for Nova Scotia with the child.
[69] The motion was argued on October 14, 2020 and the Applicant mother was granted permission to remain in Nova Scotia with the child pending the trial of this matter. At the trial in this matter the Applicant’s evidence was not clear as to what her plan was regarding the issue of mobility.
[70] It was the Applicant’s evidence that when she left for Nova Scotia in April 2020 it was for a visit to see her family and her older child Desmond, however she did not have a projected return date or a return flight booked.
[71] Regarding the mother’s other child Desmond, the Provincial Court of Alberta made an order on September 18, 2012 that the father shall have primary residence and the Applicant mother have reasonable and generous parenting time as agreed to between the parties. After the Alberta order was made, the father and the child Desmond moved to Nova Scotia where the father and the Applicant mother are from originally.
[72] At trial the Applicant mother maintained the same position that she is presently visiting Nova Scotia to visit her family and that she does not have a planned return date to Ontario but she would like to stay in Nova Scotia if permitted by the court. The Applicant mother does not have a return plane ticket booked; the Applicant mother has not made any efforts to locate housing in Sudbury other than being on the subsidized housing list and she does not have a job to return to or pending in the District of Sudbury.
[73] The Applicant mother has enrolled the child Grayson in school in Nova Scotia, namely Hillcrest Academy, however as the child is only enrolled in a preschool program which is not mandatory in either Ontario or Nova Scotia, this is just something for the child to do to keep busy and socialize. Hillcrest Academy is the same school as the child’s older sibling Desmond attends, and they ride the bus together daily. The child Desmond also spends time at the maternal grandmother’s home before and after school as well as on the weekends.
[74] Since returning to Shelburne, the Applicant mother has obtained employment working as a cook at the Seadog Saloon which is a restaurant that is owned by a family friend. The Applicant mother has a standing offer to work at the restaurant.
[75] The Applicant and the child are presently staying at the maternal grandmother home in Shelburne. The maternal grandmother, Charlotte Lorna Savory testified in the trial of this matter. Although the maternal grandmother only visited the Applicant mother and the child Grayson once in Ontario in or about March 2017, and that the Applicant mother and the child Grayson never came to visit them in Shelburne until April 2020, they have a very close relationship as she and the Applicant mother talk on the phone or have virtual calls on a daily basis, sometimes multiple times a day.
[76] The maternal grandmother gave evidence that the child Grayson is a joy and a very happy boy who loves going to school and being with other children his own age. The maternal grandmother testified that she has a 4½ bedroom home with a living room, porch, dining room, playroom and a huge yard with a playhouse that backs on to the Islands Provincial Park and connects to the paths to the waterfront.
[77] The maternal grandmother’s evidence was similar to the Applicant mother’s in that the Applicant mother was only there for a visit, unless she was granted permission to stay in Shelburne and that the Applicant mother did not have a ticket to return to Ontario or a specific date in mind when the Applicant mother would be returning. The maternal grandmother confirmed that the Applicant mother and the child Grayson are welcome to stay at her home for as long as they would like.
[78] When I look at the best interests of the child in terms of the relocation and how the parties ended up in this situation, it is clear that the Applicant mother, without any notice to the Respondent father, simply took matters in to her own hands on two occasions and removed the child from the jurisdiction with no foresight or thought as to the impact on the child and the child’s relationship with the Respondent father.
[79] Further there was clearly a court order in place which provided for the child to have regular contact with the Respondent father and the Applicant mother made no attempt to offer any alternative plan to the Respondent father for access while she went to Nova Scotia for a visit.
[80] The Applicant mother advanced the argument that she could not remain in the District of Sudbury as she was losing her apartment as she could not afford it after she and her boyfriend separated in January 2020. It is not clear to the Court where the Applicant mother was in fact residing at the time of her separation from her boyfriend. The Applicant mother was residing in Sudbury at the time she commenced the Application but it appears that she moved to Espanola at some point in 2019, some 45 minutes outside of Sudbury and closer to Webbwood, although this was not clearly established in the evidence.
[81] At the time the Applicant mother left for Nova Scotia in April 2020, her bank records produced at trial demonstrated that she had funds of at least $5,780 available to her from the payment of the Canada Emergency Response Benefit (“CERB”) of $2,000/month for March and April; $1,000 received from the Respondent father; $680 from the child tax benefit and $100 from the Ontario Trillium fund, to pay towards her rent.
[82] I find that the Applicant mother’s visit to Nova Scotia was opportunistic. She could have better addressed the situation on both occasions that she left with some form of notice to the Respondent father through counsel or negotiation regarding parenting time or by bringing a further motion in court.
[83] Notwithstanding the manner in which we arrive at the situation we are at today, the court must consider the plans that the parties have put before the court for consideration regarding mobility in the best interests of the child Grayson.
[84] Neither parent’s plan put before the court is ideal and that is why mobility cases are amongst the most difficult cases for the Court to decide. There is little doubt that the distance between Webbwood, Ontario and Shelburne, Nova Scotia is of such significance that it will impact one of the parent’s relationship with the child.
[85] The pre-pandemic world we lived in did make travel across the country easier and more affordable. Further, the world we now live in has such extensive and developed technology available that virtual visits make it possible to maintain the connection between a parent and the child on a regular and frequent basis and at an affordable cost.
[86] When I look at the best interests of Grayson, I find that it is in his best interests to remain in the primary care of the Applicant mother. The Applicant mother has always been the child’s primary caregiver and he has flourished in her care. This fact is not disputed by the Respondent father, although he attempted to raise an issue regarding the mother’s alcohol consumption which I have addressed.
[87] The parties agreed to an interim without prejudice order that provided the Applicant mother with custody of the child which was never challenged or argued further. Moreover, at trial, it is the Respondent father’s position that the Applicant mother should have primary residence of the child but that she and the child should reside in the District of Sudbury.
[88] The child Grayson clearly has ties to the District of Sudbury, however in his short life he has resided in Webbwood, Sudbury and Espanola and these communities are all at least 30 minutes apart. The child does have a relationship with the paternal family which includes the paternal grandmother, whom the mother believes was exercising the majority of the Respondent father’s access, as well as the paternal grandfather, with whom she and the child resided with from July 2020 to August 2020.
[89] The Applicant mother does not have any support system in the District of Sudbury as she is originally from Shelburne, Nova Scotia. Conversely the Applicant mother has a strong support system of family and friends in Nova Scotia which includes the maternal grandmother, her sister as well as family friends, one of whom has currently provided her with employment.
[90] The Respondent father and his family are from the District of Sudbury, but the Respondent father’s support system is questionable given that the Respondent father has a strained relationship with his own father. While the paternal grandmother appears to have a relationship with the child and is a support for the Respondent father, there was no evidence put to the court from the paternal grandmother at trial about her level of support to the Respondent father and in turn the child and her ability to assist the Respondent father with the care of the child.
[91] The Applicant mother in her evidence confirmed that she did not look for accommodations in Ontario when she returned in July 2020 as her mobility motion was before the court. I do not agree with the Applicant mother’s failure to look for accommodations.
[92] The Applicant mother has struggled with obtaining employment in and around Webbwood both before she went to Nova Scotia and upon her return in July 2020, but her evidence was that she did make inquiries regarding employment at local grocery stores in Espanola and nothing more became of the inquiries.
[93] The Respondent father is presently not working and he claims that he has made efforts to find a job, however it is the Respondent father’s evidence that he has had issues with the various employers that he previously worked for over the years and he does not want to work for certain people. Just this past summer, while this court case was under way, the Respondent father took 6 weeks to go camping at a remote location from June 2020 to July 14, 2020 rather than look for work.
[94] Even if the Respondent father had dropped off resumes or applied for jobs, the location he was camping at had no cellular service and so he would not have known if he received a call for an interview or if he was hired until he came in to town for supplies and to possibly check messages. The issue of the Respondent father’s employment will be addressed below in the child support section.
[95] What is clear to the court from both parties evidence, is that it is difficult to locate employment in the District of Sudbury, whereas in Shelburne, the Applicant mother has a standing offer of employment to work for a family friend at a local restaurant, which is quite busy during tourist season and where she has worked over the past two months.
[96] The child Grayson has also commenced school in Nova Scotia, while pre-kindergarten is not mandatory, the child was enrolled and is attending the same school as his sibling Desmond with whom he takes the bus to and from school.
[97] Conversely, the Respondent father’s plan for the child to attend school was to not enroll the child for the 2020/2021 school year as the child is a December baby and so the Respondent father felt that the child would be better suited to attend daycare for another year and be enrolled for the 2021/2022 school year. The Respondent father’s evidence is that he wanted to enroll the child in French school, however he did not know if the child would be attending school in Espanola or Massey which left the court with the impression that he has not given the issue much thought.
[98] Despite the position of the Respondent father that the child should not attend school this year, the Applicant mother and the maternal grandmother’s evidence is that the child Grayson is doing well in school and enjoying the experience. The Respondent father in his evidence confirmed that he has not contacted the school to speak to anyone in the administration or the teacher to see how the child is progressing.
[99] As I have found regarding custody, that the Applicant mother has been the primary caregiver of the child since birth, I find that the Applicant mother is more in tune with the needs of the child and she has addressed same in Shelburne, Nova Scotia from enrolling the child in school as well as arranging medical specialists for the child and she has kept the Respondent father advised of the status of these issues.
[100] Further, the Applicant mother has attempted to encourage the child’s relationship with the Respondent father by pursuing the Respondent father to virtually call the child but the Respondent father does not call on a consistent or regular basis despite there being an order that he is entitled to virtual calls twice per day. The Applicant mother has also maintained the paternal grandmother’s contact with the child and ensures that the child communicates with her when she does call. There was no evidence presented that the Applicant mother is in any way denying the paternal grandmother an opportunity to maintain her relationship with the child.
[101] Despite the mother’s other actions and unilateral relocations, her care of the child and ability to address and meet his needs gives the court confidence that the Applicant mother has and will continue to meet the needs of the child in his best interests which will include encouraging and maintaining a strong relationship with the Respondent father and the paternal family as the Applicant mother has done with the paternal grandmother, notably, without any court direction or order.
[102] The court was not provided with a full plan from the Respondent father if the child’s ordinary residence was to be the District of Sudbury and the Applicant mother remained in Nova Scotia. This in large part has to do with the fact that the paternal grandmother, with whom the Respondent father is presently residing, and he indicated he had support from did not testify. Furthermore, the court is highly concerned with the Respondent father’s activities, including his three outstanding criminal charges before the court incurred from February 2020 to November 2020 and his cavalier attitude regarding same. As such, the court cannot support the Respondent father as the primary custodial parent of the child.
[103] When considering all of the above, for those reasons provided, I find that the child’s primary residence shall be with the Applicant mother and she shall be permitted to change the child’s ordinary residence to Shelburne, Nova Scotia.
Issue #3 Access
[104] The factors that the court must consider with respect to the issue of access are again set out in Part III of the Children’s Law Reform Act (“CLRA”) and specifically section 24, Best interests of the child as detailed above.
[105] The Respondent father was granted access to the child pursuant to the order made on June 6, 2019 on alternate weekends from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. as well as alternate Wednesdays overnight to Thursdays at 6:00 p.m. If the child was to be ordinarily resident in the District of Sudbury, he would have liked this to continue. Given my findings above and granting the relocation of the child to Shelburne, Nova Scotia this is no longer practical.
[106] After the Applicant mother relocated to Nova Scotia with the child, the Respondent father was granted daily virtual access with the child pursuant to an order made on June 3, 2020, on an interim without prejudice basis, with the Respondent father to initiate the morning call at 8:30 a.m. EST and the Applicant mother to initiate the afternoon at 5:30 p.m. EST.
[107] Through both parties’ evidence they confirmed that the virtual calls ordered on June 3, 2020 were not being followed and at the Respondent father’s request he will call when he is able to communicate with the child. The Applicant mother’s evidence is that the Respondent father does not call regularly and so she reaches out to the Respondent father via text to try and encourage him to call.
[108] Both parents agreed that if the child’s ordinary residence was to be in Nova Scotia, the access times that would be available for the child to spend with the other parent would be March Break; Summer Holidays and the Christmas Break.
[109] The parties both confirmed in their evidence that the Applicant mother offered the Respondent father an opportunity to see the child over the Christmas Break in 2020, however the Respondent father indicated that the cost was not feasible. The court accepts that cost of exercising a visit with the child in Nova Scotia over the holidays at this time would be exorbitant when considering the cost of the flight; the cost of accommodations and that the visit would have to be at least 14 days in length before contact with the child could occur given the requirements with respect to quarantining for 14 days in the East Coast provinces due to the COVID-19 global pandemic.
[110] A copy of the Hillcrest Academy school calendar was provided in closing submissions and it confirmed that the school year follows a similar structure to the Ontario school year.
[111] I find that an access schedule for the Respondent father to the child is in the child’s best interests given their existing relationship and the child’s bond with the Respondent father and paternal family.
[112] The access schedule for the Respondent father shall include reasonable virtual calls to the child at a minimum of twice per week with the Respondent father to initiate the calls. The parties are to agree upon a fixed time for the Respondent’s calls taking in to consideration the child’s daily routine. The Respondent father shall be entitled to reasonable access to the child upon reasonable notice to the Applicant mother if the Respondent is within the province of Nova Scotia.
[113] The Respondent father shall also be entitled to access with the child in Ontario during the March Break commencing in 2022; Christmas Holidays commencing in 2021 and 5 weeks of the summer holiday break over July and August commencing in 2021. The parties are to agree upon the specific times for the holiday access periods at least 60 days in advance so that the appropriate travel arrangements may be made with the Respondent to initiate the communication regarding the holiday access periods and his proposal for the specific dates and times.
Issue #4 Child Support
[114] The child support issues in this case are:
(a) What is the father’s income for child support purposes and whether there should be income imputed to him for the purposes of paying child support?
(b) What is the proper start date for child support and are there any arrears of child support?
(c) Should the father receive a credit for travel expenses associated with exercising access to the child given that the child’s ordinary residence is changed to Shelburne, Nova Scotia?
What is the father’s income for child support purposes and whether there should be income imputed to him for the purposes of paying child support?
[115] Section 19(1) of the Child Support Guidelines (Ontario) (“Guidelines”) addresses imputing income:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(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 a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
[116] The Guidelines stipulate that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The court may impute income to ensure appropriate financial support for the children and to give effect to the joint and ongoing obligation of parents to support their children. A parent must earn what he or she is capable of earning and there is a duty on parents to seek employment where a parent is healthy and capable of doing so. [2]
[117] 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 that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income. [3]
[118] The Respondent father worked as a processor for a logging company when the parties returned to Ontario in 2015. The Respondent has worked for a number of different logging companies over the years and at varying points in time. In 2017 the Respondent father’s gross annual income was $53,834 and in 2018 his gross annual income was $52,292 as confirmed by his income tax returns.
[119] In 2019 the Respondent father’s gross annual income was $43,428 but the source of his income varied as he was working for multiple employers and at various points in time, he was receiving income from Employment Insurance (“EI”) as well as social assistance. It also appears as though the Respondent father received Workers Compensation Income Benefits which may result in a gross-up of this income as it is typically not taxable, however this was not raised at the trial.
[120] In 2019 there was an overpayment to the Respondent father from social assistance when he received both EI and social assistance and so the Respondent father had to repay the funds to social assistance, although it is not clear if this was repaid by the Respondent father’s ongoing social assistance being deducted or through a garnishment of his income tax return.
[121] The Respondent father’s employment history in and around the Webbwood area and the logging industry has been very volatile. The Respondent father in his evidence indicated that he quit working for one employer because the employer was arrogant, rude and an inconsiderate boss and he personally did not think he, referring to the employer, should own a business. Despite these remarks about the employer, the Respondent father worked for this employer in 2017, 2018 and part of 2019.
[122] In 2019 the Respondent father was in receipt of social assistance for a period while he appealed his EI as he was fired from his employment after accusations were made against him but there was some confusion between whether he quit or was fired and so the Respondent had to appeal his EI and he was successful.
[123] Also in 2019 while working for a third employer the Respondent father was fired again as accusations were made about him which the Respondent father states he proved were false and so he was able to go back and work for this company again.
[124] The Respondent father claims that he is no longer able to work as a processor in the logging industry as he did previously because of the Applicant mother. When asked to clarify this statement the Respondent father stated that he now has trust issues resulting from the Applicant mother allegedly having an affair while he was at work. The court notes that despite the Respondent father claiming to have trust issues he has had multiple relationships since his relationship with the Applicant mother ended.
[125] The Respondent father has continued to apply for jobs in the logging industry in various positions and he has not had any success. The Respondent father could not present a clear picture of which employers he has applied to work for, what positions or even when he applied.
[126] As of March 2020, when the CERB was rolled out, the Respondent father applied for same and it was granted. Despite the Respondent father being granted the CERB, he failed to notify social assistance and so he has received both the CERB and social assistance. This will likely result in an overpayment to the Respondent father of social assistance which he will have to pay back. When questioned about same, the Respondent father’s response was simply that he knows but that he has worked all his life and he is entitled to claim these funds.
[127] The Respondent father produced his bank records from the Credit Union from October 2019 to January 2021, however only the full records were produced for October 2019 to March 2020 and May 2020 to October 2020. In reviewing the Respondent father’s bank records from May 2020 to October 2020 of note to the court is that there were hundreds of etransfers and bank or ATM withdrawals in and out of the Respondent father’s account such that the money moving in to the Respondent father’s account each month is summarized below as per the full records provided from the credit union.
| Month | Amount |
|---|---|
| May 2020 | $4,239.75 |
| June 2020 | $4,275.75 |
| July 2020 | $8,396.75 |
| August 2020 | $9,206.19 |
| September 2020 | $12,435.75 |
| October 2020 | $9,114.75 |
[128] The court notes that from May 2020 to October 2020 the Respondent father was in receipt of CERB as well as social assistance, however this would only account for approximately $3,000 each month of the money deposited in to the Respondent father’s account leaving thousands of dollars unexplained.
[129] The Respondent father was thoroughly cross examined about the etransfers in and out of his account, the multiple transfers back and forth between the same individuals, his relation to these individuals and for what purpose the monies were being transferred. The court found that the Respondent father’s evidence was vague, incredible and unbelievable.
[130] In addition, some of the names that appear on the Respondent father’s bank account are that of individuals who are presently facing criminal charges before the court for drug trafficking and other offences and an individual who has overdosed at the Respondent father’s property whom the Respondent father claims is only an acquaintance.
[131] Some of the Respondent father’s explanations for the significant number of etransfers is that he is selling items; he is depositing money in to his account for a person who does not have a bank account or cannot get a bank account; it was repayment of a debt owed to him when he loaned money out in Alberta (pre-2015); repayment for loaning money to a friend to buy a hairless cat for her child; the paternal grandfather, whom he has a strained relationship with and does not see often gave him a garage full of stuff that he is selling; he fixes snow machines and ATVs.
[132] The court notes that the Respondent father did not indicate any of these assets, loans or monies owed to him on his financial statement nor that he buys, sells and trades items that have value or that he gets paid to fix snow machines or ATVs.
[133] When the Court reviewed the December 2020 transaction history that was provided at trial which was not a bank statement easily reviewable like the aforementioned statements provided, a quick calculation of the bank withdrawals and ATM withdrawals from the Respondent father’s account indicate that in addition to the payroll deposit on November 30, 2020 of $935.75 which likely would be the Respondent father’s social assistance for December 2020, the Respondent father continued to receive etransfers funds in to his account such that he was able to withdraw $2,764 from ATM and/or bank withdrawals and still maintain a positive balance of $1,024.61 at the end of the month.
[134] The Respondent in his evidence stated that there is nothing illegal about the etransfers in and out of his account and that one can clearly see that there is no money left in his account at the end of the month. While the Respondent father’s assertions are true, the fact remains that these transactions are very suspicious and no plausible reason for them has been provided which leads the court to believe that something nefarious is occurring that the Respondent father is not being forthcoming or forthright about.
[135] I find that the Respondent father is the author of his own misfortunes. The Respondent father appears to have ongoing issues and conflicts at work with employers or co-workers which results in him either being fired or leaving positions. The Respondent father then receives income from different sources of income funded through the provincial or federal government and when double dipping from these sources he has an arrogant attitude that he has paid in to these sources and so he is entitled to claim and receive both of them.
[136] Despite having an obligation to support his child and look for gainful employment in order to support his child, the Respondent father’s attitude is that he cannot go back to his previous type of employment because of the Applicant mother and trust issues.
[137] In determining what the Respondent father’s income should be, I believe that it is appropriate to impute income to him given his lack of effort to find employment and based on his financial activities that result in thousands of dollars being deposited in to his account and withdrawn with no credible explanation.
[138] In the circumstances, I find that it is appropriate to impute income to the Respondent father based on his 2019 income of $43,428. As such, commencing January 1, 2021, the Respondent father, shall pay to the Applicant mother, child support for the child Grayson, in the monthly sum of $399 based on imputed income of $43,428 and the Child Support Guidelines.
What is the proper start date for child support and are there any arrears of child support?
[139] The parties separated on or about November 7, 2018 and the Applicant mother commenced her application on April 12, 2019. In her Application, the Applicant mother sought child support payable by the Respondent father to her for the child Grayson. The Applicant mother did not specify any details of the order she sought in her Application but rather simply checked off the box “support for child(ren) – table amount”.
[140] The Applicant mother amended her Application on July 21, 2020 and at that time she did not make any specific amendment to the claims she was advancing regarding child support.
[141] As such, I find that the Applicant did not advance a claim for retroactive child support payable to her by the Respondent father for the child, and so the date for which child support is considered to be sought is as of the date of the Application, that being April 2019.
[142] The parties agreed to an interim order on consent at the second conference in the matter on October 24, 2019 which provided that the Respondent father was to pay to the Applicant mother child support for the child Grayson in the sum of $336 per month commencing October 1, 2019 based on expected earnings for 2019 of $38,100.
[143] The Respondent father was not diligent with complying with the balance of the order made on October 24, 2019. The order stated that the Respondent was to provide to the Applicant’s counsel a pay statement from his employment. This issue remained outstanding at the time of the third conference held on January 17, 2020. As such, an endorsement was made by the Court that if the Respondent father failed to comply with the up to date financial disclosure by March 31, 2020, serious consideration was to be given to striking the Respondent father’s pleadings.
[144] In cross examination the Respondent father claims that he complied with the requirement for disclosure, however he could not substantiate this claim with any documentation or correspondence confirming that the disclosure was provided.
[145] As such, I find that it is appropriate that child support payable by the Respondent father to the Applicant mother shall commence as of April 1, 2019 and same shall be paid at the monthly rate of $399 based on the Respondent father’s confirmed 2019 income of $43,428 and the child support guidelines.
[146] Regarding arrears of child support accrued in the monthly sum of $339 commencing October 1, 2019, at trial, both parties agreed that any child support payments were made directly to the Applicant mother and not through the Family Responsibility Office (“FRO”). However, the order was not withdrawn from the FRO for enforcement.
[147] It is the Applicant mother’s evidence that she received the sum of $1,000 from the Respondent father in April for support and that he paid her the support for May to December but at the time of trial he had not paid the support owing for January 2021. The Applicant further stated that she did not receive a package from the FRO to register the order or enforce the arrears of support for non-payment by the Respondent father.
[148] It is the Respondent father’s evidence that he paid some child support directly to the Applicant mother by way of cash and that he received receipts from the Applicant mother for same, however, these receipts were never produced at trial.
[149] The Respondent father further stated in his evidence that the FRO garnished his income tax return for arrears of child support, however no statement of arrears was provided and it does not appear the child support order was being enforced by the FRO. It appears more likely that the Respondent father’s income tax return was garnished to address the overpayment of social assistance.
[150] As such the court finds that the arrears of child support owed by the Respondent father to the Applicant mother for the child Grayson for the period of April 1, 2019 to December 31, 2020 is calculated as follows:
| Month | Final Support Ordered at Trial | Interim Support Ordered | Support Paid | Credit/Debit |
|---|---|---|---|---|
| April 2019 | $399 | n/a | $0.00 | $399 |
| May 2019 | $399 | n/a | $0.00 | $399 |
| June 2019 | $399 | n/a | $0.00 | $399 |
| July 2019 | $399 | n/a | $0.00 | $399 |
| August 2019 | $399 | n/a | $0.00 | $399 |
| September 2019 | $399 | n/a | $0.00 | $399 |
| October 2019 | $399 | $339 | $0.00 | $399 |
| November 2019 | $399 | $339 | $0.00 | $399 |
| December 2019 | $399 | $339 | $0.00 | $399 |
| January 2020 | $399 | $339 | $0.00 | $399 |
| February 2020 | $399 | $339 | $0.00 | $399 |
| March 2020 | $399 | $339 | $0.00 | $399 |
| April 2020 | $399 | $339 | $1,000.00 | ($601) |
| May 2020 | $399 | $339 | $339 | $60 |
| June 2020 | $399 | $339 | $339 | $60 |
| July 2020 | $399 | $339 | $339 | $60 |
| August 2020 | $399 | $339 | $339 | $60 |
| September 2020 | $399 | $339 | $339 | $60 |
| October 2020 | $399 | $339 | $339 | $60 |
| November 2020 | $399 | $339 | $339 | $60 |
| December 2020 | $399 | $339 | $339 | $60 |
| Total | $4,667 |
[151] Based on the above calculations, the child support arrears from April 1, 2019 to December 31, 2020 are fixed in the sum of $4,667 and repaid at the monthly rate of $200 commencing March 1, 2020 until repaid in full.
Should the father receive a credit for travel expenses associated with exercising access to the child given that the child’s ordinary residence is changed to Shelburne, Nova Scotia?
[152] There is no existing legislation which provides that a parent is entitled to reduced child support in order to offset the cost of exercising access to a child. As of March 1, 2021, the amending provisions to the CLRA regarding relocation at 39.4(9) states:
If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating child.
[153] While the above was not specifically referred to by either party, there appears to be a consensus that the court should determine the appropriate cost sharing of travel if the relocation of the child was granted.
[154] It is the Applicant’s evidence that she is prepared to assist the Respondent father with exercising access to the child Grayson if she is granted permission to change the child’s ordinary residence to Shelburne, Nova Scotia and she is agreeable to a travel credit by way of reducing child support provided if the Respondent father exercising the access.
[155] Conversely the Respondent father is seeking that it be the Applicant mother’s responsibility to deliver the child to and from Ontario as she is the one who wishes to change the child’s ordinary residence of the child.
[156] While the court acknowledges that it is very costly for the child to travel between Ontario and Nova Scotia to exercise access, neither party provided actual cost estimates for same. That being said, both parties acknowledge that given the child’s age, a parent will have to travel with the child the entire trip between Ontario and Nova Scotia.
[157] It is difficult to determine what access the Respondent father intends to exercise to the child given his present employment circumstances and pending criminal charges. As such, the court is not prepared to implement a monthly reduction in child support to set off any potential travel expenses the father may or may not exercise. The most appropriate solution is that the parties shall share the cost of transportation for the child on an alternate round-trip basis.
[158] That is, the parties are responsible to pay for their own travel expenses and the parties shall alternate paying for the child’s travel expenses every other trip with the Applicant mother to be responsible to pay for the child for the first trip given her unilateral removal of the child from the District of Sudbury on two occasions without consent of the Respondent father or court order and in direct contravention of an existing court order.
[159] The Court has found that it is reasonable for the Respondent father to have access to the child over the school holidays of March Break, Summer and Christmas. This schedule will result in an adult travelling 6 round trips and the child travelling 3 round trips per years to and from Ontario.
[160] I find that it is appropriate for the Respondent father to travel from Ontario to Nova Scotia for the purposes of commencing access and the Applicant mother to travel from Nova Scotia to Ontario for the purpose of retrieving the child at the conclusion of access. I also find that it is appropriate for the child to be exchanged in Toronto, Ontario and Halifax, Nova Scotia for the purposes of facilitating the Respondent father’s access with the child and that the cost of the child’s travel expense shall be shared on an alternate round-trip basis between the parents.
Issue #5 Spousal Support
[161] Section 30 of the Family Law Act (“FLA”) states:
Obligation of Spouses For Support Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[162] Section 33 of the FLA states the following:
Order for support
33 (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
Applicants
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent.
Same
(3) An application for an order for the support of a dependant who is the respondent’s spouse or child may also be made by one of the following agencies,
(a) the Ministry of Community and Social Services in the name of the Minister;
(b) a municipality, excluding a lower-tier municipality in a regional municipality;
(c) a district social services administration board under the District Social Services Administration Boards Act;
(d) Repealed
(e) a delivery agent under the Ontario Works Act, 1997,
if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant’s support, or if an application for such a benefit or assistance has been made to the agency by or on behalf of the dependant.
Purposes of order for support of spouse (8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
Determination of amount for support of spouses, parents (9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
Conduct
(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
[163] During the relationship, after the parties moved to Ontario, the Applicant mother worked a few shifts at a motel in Webbwood. The Applicant mother became pregnant shortly after the parties started dating and moved to Ontario and so she left her job at the motel and did not work for the majority of the relationship, leaving the Respondent father to be the primary income earner and financial provider for her and the child.
[164] Based on the circumstances of the parties’ relationship in that the parties moved from Alberta to Webbwood, Ontario where the Respondent father is from originally and his family resides; the Applicant mother became pregnant with the parties child shortly after the parties commenced residing together in Webbwood, Ontario; the Applicant mother was the child’s primary caregiver after his birth as she was the parent who stayed at home and tended to all of the child’s needs and that the Respondent father was the primary income earner working long hours, I find that there is an entitlement to spousal support in favour of the Applicant mother.
[165] However, the Applicant mother’s need for support and entitlement are not established in his claim or supported by the evidence. The Applicant mother commenced the Application five months after separation.
[166] The Applicant mother’s evidence at trial was that after separation she moved from Webbwood to Sudbury with the child and obtained employment working at the Dollarama.
[167] When the Applicant mother commenced the Application in April 2019 she was in receipt of social assistance and it is unclear if she was residing with her boyfriend as he was not listed as someone she was living with on her financial statement or in the affidavit 35.1.
[168] At some point after the Application was commenced, the Applicant mother left Sudbury and moved with her boyfriend to Espanola. The Applicant mother also stopped working at the Dollarama. The dates of when these events occurred are not known. The Applicant mother never filed an updated financial statement regarding the change in her financial circumstances or an updated affidavit 35.1 regarding her new living arrangements.
[169] The Applicant mother’s evidence was that after moving to Espanola she applied for jobs but did not secure employment. The Applicant mother confirmed that she was hired by the McDonald’s in Espanola but she failed to attend the orientation. The Applicant mother did not attend for orientation as she heard that one of the Respondent father’s family members, who is a manager at McDonald’s, was speaking negatively about her to other employees and she did not want to work in that environment.
[170] The Applicant mother is only seeking spousal support for 18 months that being November 2018 to April 2020 when she took the child to Nova Scotia. As I have found above, given that the Applicant mother did not claim a commencement date for support payable by the Respondent father and the originating Application and subsequent amended Application did not seek retroactive support, the appropriate commencement date for support is as at the date of the Application, that being April 1, 2019. So, the period of time that the court could consider for the spousal support claim is the period of April 2019 to April 2020.
[171] The Applicant mother has never filed any financial information regarding her boyfriend’s income nor clarified the period of time in which they resided together. However, the evidence at trial was that she and her boyfriend broke up sometime in January 2020 and as a result of them no longer living together she could not afford her apartment and this precipitated her vacating her apartment in April 2020 and going to Shelburne, Nova Scotia with the child to stay with her family. That being said, at the time the Applicant mother left for Nova Scotia, she had in her bank account over $5,000.
[172] The Applicant mother is presently working at a restaurant in Shelburne, Nova Scotia as a cook. The Applicant has been working for the past two months at the time of trial and her evidence is that she works 4 to 5 hours a day earning $13.55 an hour.
[173] The Applicant mother’s position regarding spousal support at trial is that the Respondent father pay to her a lump sum payment of support in the amount of $10,800 which represents the mid-range of support at $600 per month for 18 months based on her income of social assistance and the Respondent father’s 2018 employment income. The Applicant mother is not seeking spousal support on an ongoing basis.
[174] I have imputed income to the Respondent father commensurate to his 2019 income as indicated above. However, I am not able to properly consider the Applicant mother’s claim for support as she has failed to provide sufficient detail in her evidence regarding her efforts to obtain employment, why she left her employment and provide financial disclosure to evaluate her circumstances and need for support for the period of April 2019 to April 2020.
[175] I find that the proposal for a lump sum spousal support payment of $10,800 for 18 months at the mid-point range of $600 is not justified and cannot be properly considered for the reasons stated above. Further, the proposed lump sum spousal support payment does not address the tax implications that would be foregone to either party if same were to be considered by the court.
[176] Despite my findings with respect to entitlement and the Respondent father’s income above, I am not prepared to order any spousal support payable by the Respondent father to the Applicant mother as the Applicant mother has failed to establish her claim for same, as such, the claim for spousal support by the Applicant mother is dismissed.
Final Order
[177] Based on the above, the following Final Order shall be made in this matter as follows:
- The parties, Megan Leanne Crowell and Zachary Ryan Joseph Delisle shall have joint custody of the child Grayson Robert Michael Delisle born […], 2016 with the child to primarily reside with the Applicant, Megan Leanne Crowell.
- The Applicant, Megan Leanne Crowell shall meaningfully consult with the Respondent, Zachary Ryan Joseph Delisle regarding all major decisions affecting the child Grayson’s health, education, culture, language, religions, spirituality and significant extra-curricular activities at least 30 days prior to any such decision must be made.
- In the event that the parties cannot agree upon a major decision for the child Grayson, the Applicant, Megan Leanne Crowell shall be entitled to make the final decision, however the Respondent, Zachary Ryan Joseph Delisle shall have the right to bring the matter to a Court having jurisdiction of the matter for determination of the issue provided that same is done within 60 days of the final decision being made.
- Both parties shall be entitled to obtain information from and consult with third parties involved with the child Grayson, including but not limited to doctors, nurses, dentists, teachers, principals, coaches and counsellors and the parties shall keep each other advised in writing of which third parties are involved with the child and provide contact information for same.
- The Applicant, Megan Leanne Crowell shall be entitled to change the child Grayson’s ordinary residence from the District of Sudbury to Shelbourne, Nova Scotia. However, the Applicant, Megan Crowell shall not change the child Grayson’s ordinary residence from Shelbourne, Nova Scotia without the express written consent of the Respondent, Zachary Ryan Joseph Delisle or by further Court Order.
- The Respondent, Zachary Ryan Joseph Delisle shall be entitled to access with the child Grayson as follow: (i) Reasonable virtual calls to the child at a minimum of twice per week with the Respondent Zachary Ryan Joseph Delisle to initiate the calls. The parties are to agree upon a fixed time for the Respondent father’s calls, taking in to consideration the child’s daily routine. (ii) Reasonable access to the child upon reasonable notice to the Applicant mother if the Respondent Zachary Ryan Joseph Delisle is within the province of Nova Scotia. (iii) Access with the child in Ontario during the March Break commencing in 2022; (iv) Access with the child in Ontario during the Christmas Holidays commencing in 2021; (v) Access with the child in Ontario for 5 weeks of the summer holiday break over July and August commencing in 2021. The parties are to agree upon the specific times for the holiday access periods at least 60 days in advance so that the appropriate travel arrangements may be made for the child with the Respondent Zachary Ryan Joseph Delisle to initiate the communication regarding the holiday access periods and his proposal for the specific dates and times.
- The parties shall maintain a flexible and reasonable approach in scheduling the Respondent Zachary Ryan Joseph Delisle’s access in order to accommodate holidays, birthdays and special events.
- The Respondent Zachary Ryan Joseph Delisle shall travel from Ontario to Nova Scotia for the purposes of commencing access with the child Grayson and the Applicant Megan Leanne Crowell shall travel from Nova Scotia to Ontario for the purpose of retrieving the child at the conclusion of access with the child to be exchanged in Toronto, Ontario and Halifax, Nova Scotia, less agreed to otherwise by the parties in writing.
- The parties shall alternate paying the cost of the child’s travel expense to facilitate access on an alternate round-trip basis with the Applicant, Megan Leanne Crowell to pay for the child’s first round-trip.
- Income is imputed to the Respondent Zachary Ryan Joseph Delisle based on his 2019 income of $43,428.
- Commencing January 1, 2021, the Respondent Zachary Ryan Joseph Delisle, shall pay to the Applicant Megan Leanne Crowell, child support for the child Grayson, in the monthly sum of $399 based on imputed income of $43,428 and the Child Support Guidelines.
- Arrears of child support owed by the Respondent Zachary Ryan Joseph Delisle to the Applicant Megan Leanne Crowell are fixed in the sum of $4,667 as of December 31, 2020 and shall be repaid by the Respondent Zachary Ryan Joseph Delisle at the monthly rate of $200 commencing March 1, 2020 until repaid in full.
- The claim for spousal support by the Applicant Megan Leanne Crowell is dismissed.
- The Respondent, Zachary Ryan Joseph Delisle shall immediately advise the Applicant Megan Leanne Crowell of any change in his income and provide proof of same within 14 days of the change occurring
- The Respondent, Zachary Ryan Joseph Delisle shall annually provide to the Applicant, Megan Leanne Crowell a copy of his income tax return with enclosures as well as his notice of assessment by May 30th commencing in 2021.
- All other claims made in the Application dated April 12, 2019; Amended Application dated July 16, 2020 Answer dated June 3, 2019 are hereby dismissed, save and except for the issue of costs.
- The First Court date of April 8, 2021 at 9:30 a.m. is vacated.
[178] With respect to the issue of costs regarding the trial as well as the motion returnable on June 3, 2020 and June 17, 2020, I am prepared to accept written submissions from the parties limited to five pages (exclusive of exhibits) to be filed with the Court by April 6, 2021 for consideration.
Released: February 25, 2021
Signed: Justice Heather-Ann Mendes
[1] Gordon v. Goertz, [1996] 2 S.C.R. 27
[2] Drygala v. Pauli, 2002 CarswellOnt 3228, 29 R.F.L. (5th) 293, 164 O.A.C. 241 (Ont. C.A.) paragraphs 31, 32, 35, 38.
[3] Drygala v. Pauli paragraph 28.