J.Y. v. L.F.-T., 2019 ONSC 1718
CITATION: J.Y. v. L.F.-T., 2019 ONSC 1718
DIVISIONAL COURT FILE NO.: 1042/17
DATE: 20190320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, MYERS and SHEARD JJ.
B E T W E E N:
J.Y.
Christine A. Marchetti, for J.Y.
Applicant / Respondent on Appeal
- and -
L.F.-T.
G.S. Joseph, for L.F.-T.
Respondent / Appellant on Appeal
Heard at Oshawa: January 25, 2019[^1]
Heard at Toronto: March 12, 2019
ENDORSEMENT
The Court:
[1] Despite Mr. Joseph’s thorough and able submissions, we dismissed this appeal after oral argument with these reasons to follow.
[2] The appellant and the respondent are the biological parents of a little girl, G, who will turn eight years old in June 2019. The appellant and respondent never cohabited. The appellant is married to another man with whom she has two children, G’s half-siblings. The appellant and respondent had intimate relations on an “on-again, off-again” basis over nine years, outside the appellant’s marriage.
[3] The parties’ 12-day trial before McGee J. concerned issues of custody and access and related terms, and child support and Section 7 expenses (including arrears and prospective support). McGee J. ordered joint custody, primary residence with the mother, liberal defined access with the father, and numerous ancillary terms related to parenting arrangements.
[4] McGee J. imputed income to the father, with prospective support based on an annual income of $70,000, and arrears calculated on historical imputed income ranging from $50,000 to $70,000. McGee J. ordered costs of the proceeding in favour of the father approaching full indemnity, in the amount of $118,000, after finding that he had beaten his offer to settle in most respects and had conducted the litigation reasonably: she found the mother largely responsible for the ongoing conflict and high cost of the litigation.
[5] The mother appeals the order for joint custody on the basis that the conflict between the parties and their inability to communicate is inconsistent with an order for joint custody. She appeals support and support arrears on the basis that the trial judge should have imputed more income to the father. And she seeks leave to appeal, and if leave is granted, appeals the trial judge’s costs award on the basis that the amount is excessive and was based on overstated success by the father.
The Joint Custody Order
(a) The Mother’s Gatekeeping
[6] The trial was not “about” the conflict and failures to communicate between the parties. Those difficulties arose because of the mother’s improper “gatekeeping”, as described in detail by the trial judge: the mother unilaterally gave the child her husband’s surname, rather than the father’s. She trained the child to call the father “Bubba” rather than “Daddy”. She removed the child from the jurisdiction without prior notice to or consent of the father. Starting in January 2015, she made and persisted in false allegations of sexual assault against the father (for which no evidence was found by police, child welfare authorities, the child’s physician, or the child’s teachers). She made health care decisions affecting the child without informing the father or seeking his agreement. She unilaterally determined when and under what circumstances the father would see his child, including insisting that access be conducted under her mother’s supervision at her mother’s residence.
[7] Aside from the gatekeeping, the mother is a fine and experienced parent, with an established household, and she is well able to care for G. The father, for his part, seems a bit of a free spirit, irresponsible with money, without prior experience as a parent, residing with his own mother. At trial he was not seeking sole custody and he was not proposing that G live primarily with him.
[8] In the absence of the mother’s gatekeeping, this would have been a straightforward case: primary residence with the mother, defined access with the father, joint custody with some guidelines on decision-making processes. The “problem” in this case is the gatekeeping which has been pervasive and extreme, and which was the central challenge for the trial judge in fashioning an appropriate custody and access order.
[9] McGee J. concluded that joint custody was the best way forward. She found that “[w]hen one parent seeks to marginalize the other parent, joint custody may be necessary to ensure that one parent’s continued involvement in the child’s life.” We agree with this statement.
[10] McGee J. noted that this solution might not succeed. She commented about what might happen, in future, if joint custody does not work: she admonished the father to work on his parenting skills and on settling his life, in case things did not work out and an order for sole custody and primary residence with the father presented as the best solution to secure the father-daughter relationship. These comments were not improper obiter dicta. They were analytically sound and were designed to reinforce the joint custody order. We would provide further reinforcement.
[11] Absent the mother’s gatekeeping, obviously the best place for G to reside primarily is with her mother and half-siblings. The father did not contest this at trial, and properly so. But the mother should not understand that this obvious point precludes a change of custody and primary residence if she will not stop gatekeeping.
(b) Conflict and Communications Problems
[12] The ongoing conflict over the gatekeeping issues led to hard feelings and harsh words, on both sides. Blame for inappropriate communication lies on both sides. The trial judge recognized this in her thorough reasons, and had things to say to both parents about how they had not treated each other with proper respect and consideration.
[13] Both parents need to take these comments to heart. Both need to understand, especially now that their daughter is reaching an age where she understands more and more of the adult conflicts around her, that they are modelling adult behaviour for their daughter in the way that they treat each other. Adults, parents, can and do disagree. There is nothing wrong with that. But the path to adult conflict resolution does not lie in name-calling, bullying, threatening, recriminations, and false accusations.
[14] Mr. Joseph argues that the trial judge’s order for joint custody runs contrary to consistent dicta from the Court of Appeal that trial courts should not order joint custody where there is an inability to communicate or to engage in joint decision-making.[^2] There are decisions to this effect, but they must be read contextually. None of these appellate authorities involved severe gatekeeping. None of these authorities preclude orders for joint custody and parallel parenting.[^3]
[15] Gatekeeping is borne of a fundamental disrespect for the other parent, as a parent. An order for sole custody to the gatekeeping parent can reinforce that disrespect. Where, as here, parental conflict arises because of the gatekeeping, the intractable nature of the problem is obvious: awarding sole custody to the gatekeeper supports and rewards past gatekeeping and reinforces its lessons for the future.
[16] In acknowledging that joint custody may not work, the trial judge was being candid. In pointing out the risks, she was not dooming the family to recurrent litigation, but rather emphasizing the central point of her decision: the best interests of G would be served by her living with her mother and half-siblings, and having a flourishing relationship with her father. Both parties will need to mend their ways for this to happen. If it does not happen, then there may have to be further court involvement. And if that should happen, the mother should understand that the result will not necessarily be a diminution in the father’s involvement with G.
[17] Further, the trial judge expressly found that the conflict and communications problems do not present as intractable. At trial the father indicated that he was prepared to work with the mother. There was some evidence that communications had improved. And the disputes that brought the parties to trial did not concern joint decision-making, aside from the mother’s pattern of gatekeeping. And the judgment, itself, it is to be hoped, will have a salutary effect on future decision-making and communications.
[18] Finally, we note that McGee J. also made a detailed order about various parenting issues, including schooling and extra-curricular activities.[^4] The appellant pointed to health care issues as an area where there is little direction in the judgment. This child has no special needs or non-routine health care concerns. The trial judge was not asked to add a term related to health care decision-making. Of course, health care issues can arise, and the parties need to be in a position to make wise decisions, in their daughter’s best interests, and should not have to wait until there is an emergency to address concerns they have on this issue. If the parties are unable to agree on these issues, either of them can seek a variation of the judgment, either on motion back before the trial judge, or on a variation application. This is a matter of fine-tuning the judgment, properly dealt with at first instance, not on appeal.
[19] The trial judge’s custody and access order was well within her discretion. Indeed, we think it was thoughtful and wise in the context of this case. This ground of appeal fails.
(c) Appeal of the Access Order
[20] The notice of appeal raises the access order as a ground of appeal. This issue was not pursued in oral argument. When asked about it, Mr. Joseph confirmed to us that the appellant is not pursuing this aspect of her appeal.
The Support Order
[21] The father buys and sells used cars. He has a corporation, of which he is the sole shareholder, officer and director. He mixes his business and personal financial affairs. He has problems with CRA. He has no assets and substantial debts.
[22] The father made substantial disclosure (many volumes of raw financial documents), but did not obtain a professional valuation of his income. He gave the trial judge his own calculation of income, which he explained to the court, but it was far from a detailed accounting. The mother did not, for her part, prepare a rigorous analysis of the father’s income based on the documents provided. She made arguments based on specific facts, and asked the trial judge to generalize from those specific facts (ie that the respondent’s lifestyle – expensive bottles of wine and gambling – was consistent with a much higher income than he was claiming).
[23] We agree with Mr. Joseph that the father had to satisfy the court as to his income.[^5] We do not agree, however, that the father failed in an obligation to obtain a professional income valuation report. None was demanded before trial and we see nothing in the record to suggest that this issue was raised before the trial judge. The question of whether a party should be required to obtain an income valuation cannot be raised for the first time on appeal. The trial judge was satisfied that she could make the requisite findings on reviewing the father’s, “pattern of sales, expenses and personal spending within his extensive disclosure and sworn Financial Statements.” This is not a case where a party has made inadequate disclosure and should bear consequences for failing to do so.
[24] The trial judge was entitled to decide the income issue on the basis of the case that was presented and argued before her. She was entitled to come to common sense conclusions on the basis of the evidence that she accepted – including evidence of gross sales, cost of sales, HST receipts and payments, lifestyle evidence, and evidence of the father’s assets and liabilities. The trial judge, not having been provided with anything approaching a systematic analysis of income by either side, was not required to prepare one herself: if neither side spends the time or the money to organize this aspect of the case, the trial judge cannot be faulted for proceeding on a common sense basis using the evidence she accepts.
[25] The trial judge imputed income at $50,000 for two years, $60,000 for two years, and then $70,000 for two years. Ongoing support was based on $70,000, but of course the father will have to disclose annual income prospectively and adjustments can be made for changes in the future.
[26] For one year (2012), the trial judge imputed $50,000, but the father stated that his income was $55,000. This seems a palpable error – to impute income at less than claimed income with no reason to discount it. However, it is clear that the trial judge was averaging income over time, on a sliding scale upwards. If this is thought to be an error, then we conclude that it is not overriding – all of the imputed income numbers are approximations, and it is to be presumed that they will be high some years and low others.
[27] Finally, we note that the trial judge approached this issue practically, given the record in front of her. This point is borne out by the parties’ response to our questions about remedies, if we were not satisfied with the trial judge’s approach to this issue. The trial judge’s reasons for the income figures she found are opaque in the sense that it is not possible to trace a line of analysis from data in the record to her specific conclusions about quantum. As noted above, this is hardly surprising, since the parties did not give the trial judge the tools she needed to prepare such an analysis, and she could be hardly expected to do it on her own. The trial judge did explain why her conclusions lay between the father’s claimed income, and the income that would be imputed for $1,000 per month, the amount he voluntarily paid at the outset, before he received legal advice.
[28] Neither party wanted us to send this issue back for a new trial on this issue – and rightly so: the cost of doing so would greatly outweigh any benefit for either side. The appellant asked us to impute income of $1,000 per month, which the father had paid voluntarily at the outset. We cannot do that: the trial judge expressly rejected that analysis, gave reasons for so doing, and she made no error of fact or law in that conclusion. If we were to select a different number, we would be doing the same thing the appellant says that the trial judge did – picking a number without a proper analysis of evidence to justify it.
[29] As an appeal court, our position is quite different from the trial judge. She was immersed in the entire evidentiary record during the trial. She gave reasons why she did not accept the appellant’s argument that the respondent’s income was much higher than he claimed. That finding is entitled to deference. The trial judge did not accept the respondent’s numbers, and she also gave cogent reasons for that conclusion. The figures she arrived at, if not explicable by way of calculation, are reasonable based on everything she had heard, the evidence that she accepted, and the arguments presented to her by both sides. This ground of appeal also fails.
Costs Awarded by the Trial Judge
[30] We would not grant leave to appeal costs. We see no error in principle in the trial judge’s award, and the amount awarded, although large for these parties, is not so high as to raise concerns that it is disproportionate given the nature of the case and the history of the litigation.
Order and Costs
[31] The appeal is dismissed. As agreed by the parties, we fix costs at $20,000, plus HST, payable by the appellant to the respondent.
D.L. Corbett J.
Myers J.
Sheard J.
Released: March , 2019
CITATION: J.Y. v. L.F.-T., 2019 ONSC 1718
DIVISIONAL COURT FILE NO.: 1042/17
DATE: 20190320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
J.Y.
Applicant / Respondent on Appeal
- and -
L.F.-T.
Respondent / Appellant on Appeal
ENDORSEMENT
D.L. Corbett J.
Released: March 20, 2019
[^1]: The appeal was adjourned and transferred on consent to Toronto to expedite the adjourned hearing of the appeal. [^2]: Kaplanis v. Kaplanis (2005), 249 DLR (4th) 620 (CA); V.(B.) v. V.(P.) (2012), 2012 ONCA 262, 19 RFL (7th) 292 (CA); Roy v. Roy (2006), 27 RFL (6th) 44 (CA). [^3]: Ursic v. Ursic (2006), 32 RFL (6th) 23 (Ont. CA). [^4]: We would not characterize the order as a full-blown “parallel parenting” regime: Ursic v. Ursic (2006), 32 RFL (6th) 23 (Ont. CA), but it has elements of such a framework. [^5]: See, for example, Blaney v. Blaney, 2012 ONSC 1777, per Czutrin, J. (as he then was)