Nixon v. Louttet, 2024 ONCJ 323
ONTARIO COURT OF JUSTICE DATE: 2024 07 03 COURT FILE No.: D22/08
BETWEEN:
Kathy Nixon Applicant
— AND —
Christian Michael Prescod Louttet Respondent
Before: Justice Cleghorn
Heard on: March 18, 2024, March 19, 2024, June 27, 2024, June 28, 2024 Reasons for Judgment released on: July 3, 2024
Counsel: Luke Weiler, for Kathy Nixon Christian Michael Prescod Louttet, on his own behalf
Cleghorn, J.:
Overview
[1] This matter involves the child, T.N., born on […], 2011. She is 12 years old.
[2] T.N. lives with the Applicant, Kathy Nixon, her maternal grandmother. Her father is Christian Louttet. Her mother is Kiyanah Nixon, who has been noted in default.
[3] There is a final order dated February 13, 2013. It provides for the following:
- The mother has sole decision-making responsibilities.
- The father is to have access, initially supervised, with the goal of unsupervised access every second weekend and sharing holidays.
- The father is to pay the mother child support of $123.00 per month based on an income of $16,367.00
[4] Ms. Nixon has brought an Application seeking orders for sole decision-making responsibility, defined parenting time for the father every second weekend, imputed income to the father, child support, and section 7 expenses.
[5] The father has filed an Answer. He seeks orders for sole decision-making, primary residence, parenting time for the mother, and police enforcement. He proposed that Ms. Nixon have supervised parenting time.
[6] The mother and child have lived in Ms. Nixon's home since the child was born. It is undisputed that the mother abandoned her parenting role gradually starting in 2018 and without question by May 2021. Ms. Nixon and the father, rather than discussing how best to meet the child's needs, given the mother's absence, began to fight over the child.
[7] Ms. Nixon alleges the father then over-held the child for Christmas 2023. The father believes that as the parent, he was entitled to take on a primary parenting role for his child. Ms. Nixon brought an urgent motion, and an order was made that the child was to be returned to Ms. Nixon's care on January 26, 2022.
[8] A temporary without-prejudice order dated October 6, 2022, provides for the father to pay Ms. Nixon $466.50 per month in child support starting May 1, 2022, based on an imputed income of $45,500.00. That order suspended the child support payable by the father to the mother.
Summary of the evidence
[9] The tragedy for this family is that before the mother left Ms. Nixon's home, the mother, the father, and the maternal grandmother were all involved in the child's life without issue. Changes to parenting time were made without arguments. There was flexibility and information sharing between them.
[10] For some reason, when the mother left, the child became a possession and something to be won. The ability to cooperate and make decisions to benefit the child between Ms. Nixon and the father dissipated. The urgent motion was brought, and the relationship between Ms. Nixon and the father has deteriorated to a point where it may not improve.
[11] By the time of the trial, the dislike, perhaps even hatred, that the adults now feel for one another has tainted the relationship between Ms. Nixon and the father. Neither can decide a parenting schedule that is in the child's best interests, as they are both playing to win the litigation. The child, of course, has and continues to suffer. Yet, Ms. Nixon and the father cannot see that each of their destructive behaviours is responsible for the child's misery.
[12] With this backdrop, I will summarize the evidence at trial.
[13] The mother lived with her daughter at Ms. Nixon's home when the order was made on February 13, 2013. The child has lived in her grandmother's house since birth. It is the only home she has ever known.
[14] The mother left Ms. Nixon's home in 2018. The mother returned for short visits with her daughter sporadically throughout the years. The mother left again in May 2021 and has yet to return. Much has been made about the mother's departure. The father argues he never knew that the mother was no longer in a parenting role. He believes Ms. Nixon intentionally misled him to keep his daughter from him. He argues that if he had known the mother had abandoned their child, he would have moved immediately for primary residence. He believes it was incumbent upon Ms. Nixon to tell him. Ms. Nixon argues that the father knew the mother was no longer present. After all, he continued to do pick-ups and drops offs.
[15] Since the mother's departure in May 2021, Ms. Nixon has been the primary caregiver to the child. She is responsible for medical, dental, and educational decisions. The father testified that he has tried to be involved in his daughter's life, but Ms. Nixon has severed his ability to be involved. He testified that Ms. Nixon never shared any important information concerning his child.
[16] The father testified that he tried to have the daughter in his primary care. He does not understand why the police, the Society and the court have allowed the grandmother to raise the child when the operative order provides sole decision-making responsibilities to the mother. He believes that a parent trumps a grandparent.
[17] The father did attempt to bring a Motion to Change but was unable to have the document issued before Ms. Nixon brought her urgent motion. He was representing himself and did not have the original order.
[18] The urgent motion set the tone for the litigation. The father believes Ms. Nixon wrongly obtained the order through her lies and manipulations, with the result that the court made an order "taking" the child from him.
Medical and Educational Issues
[19] Several issues were raised at the trial that demonstrate how the parties have handled important decisions. I will begin with the medical issues.
[20] The parties agree that the child's pediatrician has diagnosed her with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. Ms. Nixon has accepted this diagnosis and has faithfully administered the medication prescribed for treating these conditions. In contrast, the father disagrees with the diagnosis and refuses to administer the medications because he believes the child does not require them.
[21] It deserves to be mentioned that a letter written by the pediatrician, Dr. Michael Promnitz, became an exhibit during the cross-examination of the father to establish that he was aware of the diagnosis and the medications prescribed. Of course, the letter's contents are hearsay and cannot be relied upon by the court for the truth. Their relevance turns exclusively on the fact that the father is aware of the child receiving a diagnosis from a qualified medical practitioner and, despite this, refusing to accept it or administer the medications prescribed for it.
[22] As a result, Ms. Nixon attends the child's school every Thursday morning, after the child has spent an overnight with her father, to give the pill to the child before the start of school. The school had an option to administer the pill; however, the father refused to sign the needed form.
[23] The child goes without the medication on the alternate weekends when the father has parenting time. The father was clear in his evidence that if he is granted primary residence and sole decision-making responsibilities, he has no intention of administering the child's medication.
[24] The parties have disagreed over the child's educational support.
[25] The child has an IEP at school. Filed as an exhibit at trial is the IEP of the child, dated October 17, 2023. The school noted that the father chose not to attend the meeting when the plan's final version was being presented. Ms. Nixon approved the educational plan. The school put several supports in place.
[26] A major issue of contention is tutoring, which first arose when the child was in grade 5. Ms. Nixon and the father disagree on the issue. He would like the child to have a tutor. Ms. Nixon testified that after consulting with the school, she decided not to arrange tutoring for the child as it was felt that this would be too much for her to handle.
[27] Ms. Karen Johnson, the child's grade 5 teacher, testified. Ms. Johnson taught the child through remote learning for the 2021/2022 academic year. The child was observed to have significant learning disabilities, especially in math, reading, and writing.
[28] Ms. Johnson observed Ms. Nixon to be attentive and supportive throughout the year. Ms. Nixon sat with the child through the difficult subjects, which Ms. Johnson believed helped to focus the child.
[29] Ms. Johnson recommended that the child not participate in tutoring in the evenings for math. She made this recommendation for several reasons. First, the child worked in a small group with a special education teacher three to five times per week. Ms. Johnson felt that specific attention was being provided in the areas of concern outlined in the IEP. Second, Ms. Johnson observed that the child remained very focused during the day, and by the end of the day, the child was exhausted. Ms. Johnson did not think the child should be subjected to further schoolwork, given her hard-working habits throughout the day and the additional assistance provided. For these reasons, Ms. Johnson believed that tutoring could be counter-productive, and the child needed the afterschool hours to unwind from her hard day of focusing and working.
[30] The parties continue to disagree on tutoring. Ms. Nixon has found additional support for the child through Indigenous resources.
[31] Ms. Nixon is Indigenous, as is the child. Recently, Ms. Nixon has connected the child with an Indigenous worker at school, who will assist the child academically and provide emotional support during the school day. The father takes issue with this recent involvement. He testified that his daughter has never been raised within the Indigenous culture, and he wonders what the motivation of Ms. Nixon is now to expose the child to that culture. It was less than clear if the father supported the academic support provided through the program. The father questions why Ms. Nixon now agrees to what he believes is tutoring with the Indigenous worker but refused the tutoring in grade 5.
[32] Aside from the tutoring, both parties testified about virtual school when the child was in grade 5.
[33] Ms. Johnson was very concerned when the child did not return to school after the Christmas 2021 break. She missed seven days of school. Ms. Johnson testified that, given the child's special needs, this resulted in a major setback. The days the child missed school in January 2022 were when the father overheld the child. He acknowledged that he kept the child after the Christmas break because, he explained, he was the father and the mother had abandoned her; in his mind, he was right to do so.
[34] In terms of virtual schooling, the father testified that he asked Ms. Nixon for the child's laptop, but Ms. Nixon would not provide it, so the father made the necessary arrangements with the school to obtain a new laptop. In short, the father and Ms. Nixon pointed the finger at each other for why the child was unable to attend virtual school after the Christmas holidays. During the time the adults argued, the child fell behind academically, in school.
[35] Ms. Johnson's only contact person for the child during the grade 5 school year was Ms. Nixon. Ms. Johnson testified that Ms. Nixon was engaged and committed to the child's education. She saw the father once on a video, and they waved to each other. She did not have any contact with the mother.
[36] Ms. Johnson testified that the child was more focused while in Ms. Nixon's care than her father's.
[37] The father testified that he did assist the child when school was virtual. The paternal grandmother testified that the father was helping his daughter with schoolwork.
[38] The father testified that he had been involved with the child's school prior to the litigation. He stated that there had been occasions when the school could not reach either Ms. Nixon or the mother, and he was called to collect the child when she was experiencing behavioural problems.
The involvement of Family and Children Services of Guelph and Wellington County
[39] Child Protection Worker Kunle Adetayo swore an affidavit summarizing the Society's involvement on March 1, 2022. Mr. Adetayo also testified at the trial.
[40] The child was never in the Society's care. Mr. Adetayo's evidence is that the Society was providing support to Ms. Nixon. His evidence is that the family, Ms. Nixon, and the mother and father's actions resulted in undue stress on the child.
[41] The affidavit outlines the Society's involvement. In broad strokes, the following has occurred:
- In 2017, an education assistant called the Society as the child referred to a gun her father had. The father denied that he owned any firearms, and none were found. The father acknowledged to the worker that he had spanked the child. Involvement with the family ended on November 8, 2017.
- In 2019, a mental health worker called the Society to report Ms. Nixon's concerns that the father was hitting the child.
- In 2020, Ms. Nixon called the Society with allegations that the father was hitting the child. The father told the worker that he does use spanking as a last resort. Involvement with the family ended on June 15, 2020.
- On September 23, 2021, the parents called the police to have the police intervene in removing the child from the grandmother's care.
- On October 6, 2021, the father called the police for a wellness check on the child.
- On December 29, 2021, the mother and Ms. Nixon called the police as the father would not return the child to Ms. Nixon's care. The police did not intervene.
- In 2021, Ms. Nixon called the Society with concerns that the mother was not properly caring for the child and that the child did not want to attend parenting time with the father. The child made an allegation her father had spanked her and yelled at her.
- On January 26, 2022, the police assisted with enforcing the order that the child be returned to Ms. Nixon's care.
- In 2022, the child's teacher contacted the Society because she had concerns about what the child had written in her journal about her father. The father told the worker he "taps her on the back of her hands." The worker warned the father about the use of corporal punishment and that if a mark was left on the child, he could be charged.
[42] Mr. Adeyto summed up his affidavit with the following, which captures why the Society has been involved with the family over the years:
It appears Kiyanah, Christian, and Kathy wanted to provide care to T.N. all at the same time without considering each person's ability and capacity to meet T.N’s needs and appropriate support for the child to reach her optimum potential. Adult disputes tend to take a toll on this family['s] dynamics. Strained relationships between caregivers seemed to create unnecessary emotional stress on the child.
[43] The court interviewed the child on March 20, 2024. The child made disclosures which engaged the duty to report. Family Services Worker Jordan Risidore investigated and verified that there were no concerns. Mr. Risidore testified that as of June 2024, the Society has no protection concerns regarding either party's parenting.
Father's Parenting Time
[44] The father's parenting time has been alternate weekends and Wednesdays overnight. For several months in 2023, Ms. Nixon asked if the father could extend his visits to include Thursday overnight. Ms. Nixon's evidence is that she formed a social group that supported her. Instead of having a babysitter, she thought it best for the child to be with her father. However, this arrangement eventually came to an end. The father believes the Thursday overnight was terminated because he and Ms. Nixon could not agree on tutoring.
[45] Ms. Nixon described her communication with the father as close to non-existent. She has tried to speak to him on the phone on numerous occasions, but he directs her to the paternal grandmother instead. Ms. Nixon feels the obstacle to effective communication with the father is the father's own doing. He does not want to speak with her.
[46] The father testified that Ms. Nixon would not speak to him. He states that Ms. Nixon has never included him in decisions and has never provided him with updates. For example, Ms. Nixon enrolled the child in counselling and did not inform him.
[47] When the trial continued in June 2024, the father testified that Ms. Nixon had the child's mother call him twice to request that the father extend his parenting time to include Thursdays. The father does not understand why Ms. Nixon would not call him directly on his mother's cell phone, as he does not have a phone of his own.
[48] At this point, the father testified he had given up on having Ms. Nixon share information. He does not believe he can do anything about Ms. Nixon's decision to exclude him, and he does not believe the court system can do so, either. He thinks the only solution is an order for him to have primary residence and Ms. Nixon to have supervised parenting time. All of this is concerning to the father as he testified that when the mother had primary care of the child, the father, mother and Ms. Nixon could communicate. He does not understand why Ms. Nixon has chosen to keep him in the dark when concerning information regarding the child. As an example, he noted that Ms. Nixon used to call him to assist with calming the child when she was having behavioural issues. The father and Ms. Nixon both testified that they do not understand how the lack of communication has deteriorated to the current state. They each blame the other person.
[49] Ms. Nixon testified that she is no longer allowed to contact the child when she is in the father's care. The last time she spoke to the child on the phone was when she was at the father's home, Ms. Nixon testified that she heard the father tell the child she was not allowed to speak with her grandmother, and then the call was disconnected.
[50] Likewise, the father testified that he is no longer allowed to contact his daughter when she is in Ms. Nixon's care.
[51] The father testified that Ms. Nixon used to be more flexible with parenting time. From March 2023 until August 2023, the father had parenting time, at Ms. Nixon's request, from Wednesday until Friday mornings. In the summer months, the father's parenting time was Wednesdays to Sundays.
[52] He also testified that Ms. Nixon unilaterally cancelled his parenting time several times.
Other Issues
[53] Several specific issues were raised during the trial.
[54] First, the method of discipline used in each home. Ms. Nixon testified that she spoke with the child and imposed a consequence, such as taking away the child's phone. Ms. Nixon believes that the father uses corporal punishment. She claims the child has returned to her home with a red hand because of the father slapping the child's hand.
[55] The father has admitted to smacking the back of the child's hand before the litigation began. There was no evidence that the father has continued in this practice for the past two years.
[56] The father believes that Ms. Nixon calls the child demeaning names. On January 4, 2024, the father called the police and the Society to express this concern. Ms. Nixon categorically denies the allegation. There is no evidence that CAS verified a protection concern.
[57] Ms. Nixon and the father have disagreed over extracurricular activities. With karate, it was recommended the child attend two classes, with one class being a self-defence class. The self-defence class was offered on Wednesdays and Fridays only. The father would not bring the child on his parenting days. Eventually, the child quit karate. The father testified he signed the child up for dance and purposefully chose a studio close to Ms. Nixon's home. Despite the location, Ms. Nixon did not take the child on weekends.
[58] While at karate, the child injured her shoulder. The father testified he called Ms. Nixon to obtain the child's health card so he could take her to the hospital. He states Ms. Nixon refused to provide him with the health card and said she would take the child when she returned home. Ms. Nixon testified that the father should have taken the child to the hospital and that he was neglectful in leaving it up to her. Both point the finger at the other for not bringing the child to the hospital. While the adults disagreed on who should take the child to the doctor, the child remained in pain.
[59] In October 2023, there was an incident at child's school. Ms. Nixon was waiting at the school to give the child her medication. Ms. Nixon and the paternal grandmother exchanged words in front of the child. Ms. Nixon testified that the paternal grandmother was holding onto the child's backpack and would not release her. When Ms. Nixon tried to intervene, she testified that the paternal grandmother pushed her to the ground. The paternal grandmother denies the allegations that she pushed Ms. Nixon to the ground. On her account, Ms. Nixon and her male friend approached her, grabbed her by the shoulders and would not let her go. The paternal grandmother testified that Ms. Nixon tripped over her feet and fell to the ground.
[60] The child then ran away when one of the grandmothers told her to run.
[61] The police were called, and no charges were laid.
Collateral Witnesses
[62] Pamela Stuckless is a friend of Ms. Nixon, and they have known one another for eight years. She has observed a close and loving relationship between Ms. Nixon and the child. The child calls her aunt Pam.
[63] Patricia Zawadowski is a friend of Ms. Nixon, and they have known each other for nearly thirteen years. She, too, has observed a close and loving relationship between Ms. Nixon and the child.
[64] Ms. Zawadowski testified that she had seen the child's discomfort at exchanges with her father. On one occasion, she called the police when the child returned from father's care and the child's hand had a mark on it.
[65] Ms. Teri Brown testified on behalf of the father. Together, they have a six-year-old daughter. Ms. Brown testified that she has no concerns with the father's parenting abilities and that he is loving, caring, and engaged father to their daughter. The father has parenting time alternate Wednesdays to Fridays and alternate Fridays to Sundays.
[66] Ms. Brown has never seen the father drink to excess, have anger outbursts or be easily triggered.
[67] The father does not pay Ms. Brown child support, but he does contribute to the cost of their daughter's dance and swim lessons.
[68] Ms. Paislee Goulden testified on behalf of the father. They have a three-year-old son together.
[69] Ms. Goulden has no parenting concerns for her child. She testified the father is loving and caring and does many activities with all the children.
[70] They lived together from September 2018 until January 2020. Ms. Goulden recalls the father being involved with the school and the child's doctor during this timeframe.
[71] Regarding discipline, she has observed the father smack the child on her hand when misbehaving.
[72] The father has parenting time with his son every alternate Wednesday overnight, every alternate Friday to Sunday, and every alternate Wednesday to Friday. He cares for the child while Ms. Goulden works full-time during the work week.
[73] The father does not pay Ms. Goulden child support. Instead, they have an arrangement by which the father pays no child support in exchange for Ms. Goulden collecting the full year of the Child Tax Benefit.
[74] Ms. Debbie Louttet, the paternal grandmother, testified. She testified that her son is a loving, capable, and devoted father.
[75] Ms. Louttet has observed the father's methods of discipline. He will give up to two warnings and then implement a consequence. The consequence can be a slap to the hand, an item being taken away or a time-out.
[76] Ms. Louttet is deeply bonded with the child. She has observed that during this lengthy litigation process, the child cries frequently.
Ms. Nixon's Plan
[77] Ms. Nixon planned to continue with the schedule that is in place, alternate weekends, and every Wednesday overnight. However, after the child was interviewed by the court, she modified her proposal and asked for an elimination of the Wednesday overnights for the father. She testified that she would remain flexible for additional requests made by the father.
[78] The mother lives in Guelph. She spends time with the child at Ms. Nixon's home. Ms. Nixon will continue to facilitate the relationship between mother and daughter.
[79] The child will continue to attend the same school she always participated in, the educational support will remain in place, and Ms. Nixon will continue to follow the medical treatment plan.
Father's Plan
[80] The father requests that he have the primary residence. He is concerned with what he believes is the level of manipulation Ms. Nixon exposes the child to and all Ms. Nixon's lies. For this reason, he maintains that it would be best for the child to have supervised parenting time with Ms. Nixon. He will facilitate the mother having alternate weekends. He testified that he is comfortable with the mother supervising Ms. Nixon's visits. The only condition he seeks for the mother's parenting time is that she has stable housing. He is fine with the mother exercising her parenting time at Ms. Nixon's home, which would allow Ms. Nixon to be supervised when the child is in her home.
[81] The child may have to change schools for her grade 8 year. The father has yet to call the child's current school to see if she can remain for grade 8 if the child lives outside the catchment area.
[82] The father has three younger children who do not live with him on a primary basis but with whom he has regular and frequent parenting time. His plan will allow the child to be raised with her two half-siblings. There is one son who does not have any parenting time with the father.
[83] The father is living in a six-bedroom home with his parents and grandmother. The child will continue to share a room with her younger sister.
Interview with the child
[84] I met with the child on March 20, 2024. She is a lovely young girl who appeared comfortable speaking with me. Her views and preferences are to remain with her grandmother and have parenting time every second weekend with her father. She would like to eliminate the Wednesday overnight visits. She would also like the summer schedule to remain every second weekend with her father.
Analysis
[85] Having summarized the evidence, I turn to examine it in light of the governing legal principles.
[86] The current Order does not reflect the reality of the situation. The mother is only infrequently involved in the child's life and is not in a primary parenting role.
[87] I will start with the issues of decision-making, primary residence and parenting time.
[88] The sole issue for the court to determine is the child's best interest, considering the factors enumerated in Section 24 of the Children's Law Reform Act.
[89] Ms. Nixon and the father are the two most important adults in the child's life. The child is deeply bonded with her grandmother and her father. Ms. Nixon has provided a stable home for the child since birth. It bears no weight that the mother lived at the house until 2018. The fact remains that the only primary home the child has known is that of Ms. Nixon's.
[90] The father firmly believes that his relationship as the child's father should trump Ms. Nixon's role as grandmother. His position disregards the nature and strength of the relationship between Ms. Nixon and the child and fails to consider the factors outlined in the legislation concerning the child's best interest.
[91] One of the factors to be considered is the ability of one parent to support the relationship with the other parent. The evidence does not support that Ms. Nixon will support a relationship with the father nor will Ms. Nixon support a relationship with the father. The parties cannot communicate with one another or refuse to attempt to communicate. It is challenging to accept Ms. Nixon's position that she will facilitate the father's additional parenting time requests when she is seeking to eliminate the time he has on Wednesdays.
[92] At the same time, the father's position that Ms. Nixon should move to supervised parenting time is not grounded in the evidence but rather in his frustration and anger. The father is not able to hear the child's views and preferences. He does not believe that his 12-year-old daughter can have an independent view from Ms. Nixon.
[93] Thankfully, to their mutual credit, Ms. Nixon and the father have followed the interim court order.
[94] Major decisions have been required for this child during the litigation. First, educational. Ms. Nixon made informed decisions on the IEP, tutoring, current support, and medical treatment. I cannot say the same is true for the father. The father is guided by his own beliefs. He has made no attempts to gather information from teachers or the doctor. In the end, he feels he knows better than the professionals, and he will do what he believes is right for his daughter.
[95] The father's decision to make uninformed decisions exposes the child to emotional harm. Adding additional work against the teacher's recommendation is harmful to the child's education. It is detrimental to the child not to be allowed to have her medication when in his care. The father should have engaged fully with the teachers on why they were making specific recommendations, and he should have engaged fully with the pediatrician. He could have sought a second opinion from a different doctor, but he did not.
[96] The decision to not allow the child to take her medication exposed the child to violence between her grandmothers. The child had to witness her grandmothers in a physical altercation at her school. The fact that there was a fight at the school and the fact that Ms. Nixon must attend school on Thursday mornings to administer the drugs is likely embarrassing for this child. Given her age and stage of development, the adults should recognize that her social world is essential to her. I doubt that a 12-year-old wants to have her grandmother on school property, and indeed, no child wants her friends to see adult members of their family engage in a dust-up in front of their friends.
[97] Of course, Ms. Nixon was left with no option but to attend the school, given the father's refusal to administer the medication, but as this child ages, this practice must stop. The child is entitled to attend school with a certain amount of independence without having an adult present. The child is entitled to have the adults in her life respect her needs, given her age and stage of development.
[98] It is only where the adults disagree that there are major issues. There was no evidence at the trial to establish that Ms. Nixon and the father had not met the child's day-to-day needs while in their respective care.
[99] The child has special needs, and the poor behaviour between Ms. Nixon and the father must stop. Both agree that joint decision-making is impossible. The parties cannot communicate with one another, and they appear to avoid one another at all costs.
[100] It is concerning that the father has ascribed a motive to every decision Ms. Nixon has made. For example, he fails to appreciate that the child would benefit from exposure to her Indigenous culture. The child should be allowed full advantage of specialized programming at school. Instead of promoting part of her identity, he was dismissive of it. At the same time, the father points out that the child must be exposed to her biracial culture. The child is entitled to be exposed to all the unique cultures that form her as a person. None is to be minimized.
[101] Ms. Nixon has demonstrated that she is best suited to make informed decisions for this child. Therefore, an order shall be issued for Ms. Nixon to have sole decision-making responsibilities.
[102] In deciding the primary residence, I must consider the child's views and preferences, the respective plans, and the adult's ability to cooperate.
[103] Like the education and medical decisions, the father must properly form his plan. His plan requires the child to potentially move to a new school in grade 8 and potentially lose all the supports already in place. The father has yet to bother to call the child's current school to see if they would allow an exemption for grade 8. The child will enter a high school in a different catchment area even if an exemption is allowed. Her friends from kindergarten to grade 7 will go to a different school.
[104] The father intends to move forward with tutoring and immediately stop the child's medication. He gave no evidence on how he would stop the medication, meaning he did not speak to a doctor about how to safely go about discontinuing a medication the child has been taking over an extended period.
[105] The father's plan to supervise Ms. Nixon's parenting time is most concerning. First, his plan requires the mother to be willing to spend alternate weekends at Ms. Nixon's home. He has not spoken about his plan with the mother. Second, the evidence does not support that the mother is actively involved in her daughter's life; instead, she pops in for a visit when it suits her. To accept the father's plan means to severely restrict the child from an essential person in her life and to remove her from the only home she has ever known.
[106] Again, the father gives no value to the child's views and preferences.
[107] Based on the evidence at trial, there is no basis to conclude that the parties have any ability to cooperate. The father believes that Ms. Nixon is toxic. I am unsure if this relationship between the father and Ms. Nixon can improve. Ultimately, it is up to the adults whether they want to do the hard work to repair their relationship for the benefit of this child.
[108] I find that all the fathers' decisions are based on what is best for him and not on the child's perspective.
[109] Ms. Nixon's plan maintains the structure and stability the child has known all her life. Given the trauma this child has suffered, which includes being abandoned by her mother and having Ms. Nixon and the father fight for over two years over her, it is time for the child to have some peace. The child needs stability to focus on being 12 and entering grade 8, a significant milestone in her young life.
[110] To ensure stability is maintained for this child, to attempt to avoid the child being exposed to further conflict, and to give proper weight to the child's views and preferences, the child's primary residence shall be with Ms. Nixon.
[111] It is with great difficulty that I arrive at the father's parenting time. It is critically important that the child maintain a loving, close relationship with her father and her half-siblings. This will serve her well in terms of self-confidence and remaining part of a close family unit on the paternal side.
[112] I must balance the decisions made for this child and the conflict that arose in deciding the father's parenting schedule. The child must be able to take her medication. It is unfair to the child to have her medication cease on the father's parenting time. Second, the child cannot be exposed to further conflict or embarrassment by having adults attend her school. The child has a treatment plan, and whether the father agrees with it or not, he cannot risk the child's health by not following it.
[113] For this reason, the court must restrict the father's parenting time to daytime. It is in the best interest of the child to take her medication daily, both for her health and to shield her from conflict over the decision.
Child Support
[114] The parties proffered limited evidence on child support.
[115] Regarding financially supporting the child, the father has neither paid child support nor bought any needed items for his child. The father has testified that Ms. Nixon is only bringing this claim as she is motivated by finances. I cannot put any weight on this argument. The father has contributed nothing to his child financially since her birth. It is far-reaching to claim that Ms. Nixon is motivated by money when she has never received a dime from the father and neither has the mother. The only funds paid to the mother are through federal diversions, which have been nominal.
[116] In terms of his income, it has been as follows:
- 2023 $7,255.00
- 2022 $18,939
- 2021 $15,665
- 2020 $17,491
[117] The order of February 12, 2012, requires the father to pay child support to the mother based on a projected income of $16,367.40 of $123.00 per month starting March 1, 2012.
[118] A temporary order was made on October 6, 2022, suspending the mother's child support effective May 1, 2022. An interim-without-prejudice order was made, imputing the father's income of $45,000.00 and setting child support at $422.50 per month starting May 1, 2022.
[119] The Family Responsibility Office was ordered to hold all funds received until further order of the court.
[120] The father has chosen not to work since December 2022/January 2023. He has chosen to remain at home to care for his youngest child. He testified he will look for work in September 2024, when the youngest child starts school.
[121] Nothing is preventing him from working other than he has made a personal choice not to do so.
[122] Justice Casper made an interim without prejudice order imputing income to $45,500.00. The evidence at trial does not support that the father has ever earned that amount of income or that he has the potential to do so. The evidence at trial supports a finding that the father remains dependent on his mother. It is the paternal grandmother who is financially supporting her son. She testified she would continue to pay her son's expenses so long as required because "he is my son."
[123] To make an order that the father pay child support based on an imputed income of $45,500.00 would ignore that he could never realistically earn an income that high. The father has never shown motivation to earn an income in that range. Given his dependence on his mother, it is unknown if the father will ever be motivated to earn even a full-time minimum wage income.
[124] To impute income to the father, the starting point is section 19 (1)(a) of the Federal Child Support Guidelines, which provides:
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 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 spouse;
[125] To find that the father is intentionally under-employed, his actions must be viewed as "voluntary" which means that "the parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income:" See Drygala v. Pauli, [2002] 61 O.R. (3d) 711 (C.A.), at para. 28.
[126] The legislation aims to recognize the joint financial obligation of parents towards their children and meet that obligation by ensuring that each parent is earning to their capabilities: Drygala, at para. 32.
[127] The onus rests on Ms. Nixon to establish that the father is intentionally under-employed and provide an evidentiary basis: See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (C.A.), at para. 28.
[128] Ms. Nixon has established a prima facia case that the father is intentionally under-employed. With that, the onus shifts to the father to show why his income should be as stated on his income tax return: see Lo v. Lo, 2011 ONSC 7663, at paras. 57-58; Charron v. Carriere, 2016 ONSC 4719, at para. 66.
[129] The father has made a choice not to work. His argument that he has chosen to stay home to provide childcare for his youngest son fails to recognize his legal obligation to support the child before the court. Ms. Goulden, mother to the four-year-old, testified that she must work full-time to earn an income. The father has agreed to provide childcare while she works. Ms. Goulden is equally open to the paternal grandmother providing childcare. She testified that she believes the father should have a job. The arrangement Ms. Goulden has made with the father is no child support is payable, given the amount of parenting time he has.
[130] I find that the father has chosen to stay at home with his youngest child to avoid his child support obligations to Ms. Goulden and Ms. Nixon. The father has made informed decisions to have further children when he knows or ought to know that he has a financial obligation to his older children.
[131] The father has four children who require financial support. He does not have the luxury of choosing not to work while his mother supports him financially. The father needs to get a job.
[132] The father can earn the equivalent of a full-time minimum-wage, and income at that level shall be imputed to him.
[133] The Application pled relief for parenting time for the mother and for the mother to contribute towards section 7 expenses. I decline to make those orders. There was no evidence of what the mother earns or whether income should be imputed to her. There was insufficient evidence for the court to decide whether it is in the best interest of the child to have parenting time with the mother. The order shall be silent as to both issues.
[134] Lastly, Ms. Nixon has requested that the child support payable by the father to the mother terminate effective October 31, 2018, and child support payable to her commence January 1, 2022.
Final Order to be issued:
Paragraph 1 of the Order dated February 12, 2013, shall be rescinded and replaced with the following:
Kathy Nixon shall have sole decision-making responsibilities for the child, T.N., born on [...], 2011. The primary residence is with Ms. Nixon.
Paragraph 2 of the Order dated February 12, 2013, shall be rescinded and replaced with the following:
Christian Louttet shall have parenting time as follows:
a) Every Wednesday from after school until 8:00 p.m. b) Every second Saturday and Sunday from 10:00 a.m. until 8:00 p.m.
Christian Louttet shall have the following holiday parenting time, which shall supersede the regular schedule:
a) Father's Day from 10:00 a.m. to 8:00 p.m. b) Christmas Day and Boxing Day from 10:00 a.m. to 8:00 p.m. c) Thanksgiving Day from 10:00 a.m. to 8:00 p.m. d) Easter Monday from 10:00 a.m. to 8:00 p.m.
Christian Louttet shall be responsible for the exchanges.
Paragraphs 3, 6, 9, 11, 12, and 13 of the Order dated February 12, 2013, shall be rescinded.
The child, T.N., born [...], 2011, shall be at liberty to communicate with Christian Louttet or Kathy Nixon when she is in the care of the other by telephone and shall not be prevented from doing so. If Christian Louttet does not own a cell phone, Kathy Nixon shall call the home telephone line to speak with the child or Christian Louttet.
The child support payable by Christian Louttett to Kiyanah Nixon, in paragraph 10 of the Final Order dated February 12, 2023, shall be terminated effective October 31, 2018.
Paragraph 4 of the interim without prejudice order dated October 6, 2022, shall be rescinded.
Christian Louttet shall pay monthly child support to Kathy Nixon for the child, T.N., born on [...], 2011, of $297.00 starting January 1, 2022, and continuing on the first of each month after that until further Order of the court. The Table amount is based on imputed income equivalent to a full-time minimum wage of $34,424.00.
Any monies that are being held by the Director, Family Responsibility Office, by the direction in paragraph 3 of the interim order dated October 6, 2022, shall be applied first to discharge arrears owing by Christian Louttet to Kathy Nixon for the support of the child, T.N., born on [...], 2011, and after that, if there are still monies being held by the Director, Family Responsibility Office to Kiyanah Nixon or Ontario Works (County of Wellington) by the customary practices of the Family Responsibility Office.
Christian Louttet shall maintain the child, T.N., born on [...], 2011, on any health/medical benefits available to him through employment. Once he secures employment, Christian Louttet shall notify Kathy Nixon within seven days if he has benefits.
Christian Louttett and Kathy Nixon shall share proportionate to their incomes any section 7 expenses of T.N., born on [...], 2011. Section 7 expenses include:
a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the party who has the majority of parenting time; b) that portion of the medical and dental insurance premiums attributable to the child; c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; e) expenses for post-secondary education; and f) extraordinary expenses for extracurricular activities.
Christian Louttet shall notify Kathy Nixon within ten days of any material change in his respective income and shall provide proof to her in the form of pay stubs, letters from employers stating gross pay amounts, and employment insurance stubs.
Should Kathy Nixon seek Section 7 expenses, Kathy Nixon shall provide Christian Louttet with her income tax returns by June 1 of each year and shall provide him with her notice of assessments within 14 days of receiving them.
Neither party is permitted to bring a Motion to Change without the court's prior approval, and the court must be satisfied that a material change in circumstances has been established on a prima facie basis.
If costs are an issue, Ms. Nixon shall serve and file cost submissions, limited to five pages, double-spaced, twelve-point font (not including the bill of costs) by July 26, 2024. Mr. Louttet shall serve and file cost submissions, limited to five pages, double-spaced, twelve-point font (not including the bill of costs) by August 16, 2024. If no cost submissions are received, there shall be no cost order.
The requirement to have the unrepresented party approve the order as to form and content is waived.
All other claims and counter-claims shall be dismissed.
Released: July 3, 2024 Signed: Justice Cleghorn