COURT FILE NO.: 07-FL-2322-2

DATE: 2012/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELENA INOSANTE

Applicant

– and –

SCOTT BROOKS

Respondent

Sandra Jones, for the Applicant

Self-Represented

HEARD: December 1, 2 and 3, 2011

REASONS FOR DECISION

Mcnamara J.

Introduction

[1] This was a trial of an application and cross application brought by the parties.

[2] The Applicant, Elena Inosante, is at present 39 years of age and the Respondent, Scott Brooks, is about to turn 49. Both reside in the city of Ottawa.

[3] The Applicant and Respondent are the parents of Kyle who was born June 1, 2007.

[4] The Applicant was born in the Philippines and moved to Canada approximately 11 years ago.

[5] The Respondent is from Nova Scotia and moved to Ottawa 14 years ago.

[6] The couple met while both were working at a local Loblaws. They began dating in approximately 2003. It appears their relationship was initially quite stable. In 2006, the Applicant discovered she was pregnant. It seems that both parties were pleased with the news. When she was seven months into her pregnancy, the Applicant moved in with the Respondent. They lived together from April 2007 to August of that year at which time the parties separated.

[7] On September 6, 2007, the application was issued and served. An answer was filed by the Respondent on September 27, 2007. From that point to the date of trial there have been, by my count, at least 15 separate orders and endorsements issued by various members of this Court.

[8] It was agreed at the outset of this trial that the issues in this case can be generally summarized as follows:

(1) Custody/access; pick-ups and drop-offs;

(2) Child support and child support arrears;

(3) Travel out of the country with Kyle;

(4) The child’s name.

Custody/Access; Pick-ups and Drop-offs

[9] Dealing firstly with custody, it is the position of Ms. Jones, counsel for the Applicant, that that is not in fact an issue. She points to an order of Sheffield J. of this Court dated December 7, 2007 where, on consent, a final order was made granting sole custody to the mother. The father indicated very emphatically in his evidence that he never consented to a final order and was under the very clear impression when the subject order was made that, like many others in this case, it was a temporary order only. He testified that custody has been a central issue in this case from the outset, and that he would never have consented to a final order.

[10] I accept his evidence on this point. A review of the long history of this case makes it clear that custody arrangements have always been an issue and that is reinforced by the father’s motion dated July 13, 2011 wherein he sought, amongst other things, shared custody. As I read the endorsement of Mackinnon J. of this Court dated September 8, 2011, that issue and others were put over to this trial for final determination. I am persuaded, in all the circumstances, that I have jurisdiction to deal with this matter.

[11] As relates to custody it is the position of Mr. Brooks that custody ought to be shared. Ms. Jones argues that the order for sole custody should remain in place as there has been no material change in circumstance of the nature required in order to change the status quo.

[12] The term “shared custody” denotes an equal division of time with the child or split care and control of the child. In the Ontario Child Support Guidelines, shared custody has been defined as a situation where the child spends somewhere between 40/60 and 50/50 percent of the time with each parent. That definition applies only to child support but is nonetheless instructive.

[13] The decided cases suggest that courts are more inclined to order shared custody where the parties have actually operated under such a regimen after separation, and the child has adjusted to it (see Caroll v. Staples, [2001] W.D.F.L. 250). Most courts are reluctant to impose divided custody or shared custody where parents cannot agree on such a regimen.

[14] An alternative to shared custody is, of course, joint custody. That generally describes a childcare arrangement where a child lives with one parent on a regular basis and that parent has the day-to-day care and control of the child, while the other parent has generous contact with the child and a right of consultation and input into most childcare decisions.

[15] Sole custody, as the name implies, denotes one parent being responsible for the child on a day-to-day basis and making the day-to-day as well as the major decisions on behalf of a child. The access parent has the right to visit with and be kept informed about the child’s health, educational and social problems and progress.

[16] In deciding the issue of custody, s. 24 of the Children’s Law Reform Act directs that it be determined on the basis of the best interests of the child. In determining the best interests of the child the Court is directed to consider all of the child’s needs and circumstances including those enumerated at s. 24(2) of the Act. The evidentiary record on this trial demonstrates that these parents are unable to agree on virtually anything. As mentioned earlier, there has been enumerable court applications necessitated because the parties were unable to agree. Filed in evidence at the trial were a series of occurrence reports prepared by the Ottawa Police department where they had been called, usually by Mr. Brooks, to essentially referee issues relating to access. One of those reports dated April 2, 2009, makes reference to both parents being warned to be cautious about putting the child in the middle of their disputes. In another report dated September 30, 2008, there is reference to a suggestion being made to both parties that they not communicate when they meet. Mr. Brooks gave evidence at the trial that the Applicant has not spoken to him in four years.

[17] The child, Kyle, is four years old and by all accounts is a well adjusted, healthy, pleasant little boy. He has lived primarily with his mother and her family since birth. Mr. Brooks, on several occasions in his evidence, expressed the view that he was confident the parties can eventually work out their differences, but I find no evidence to date to support that.

[18] In the decision of Maddott v. Macorig, 2010 ONSC 5458, [2010] O.J. No. 4371 (S.C.), Blishen J. of this Court points out that in most cases where a request is being advanced for something other than sole custody, the parties have to demonstrate an ability to communicate with each other and to place the child’s needs and interests first. In my view, while both the Applicant and Respondent are well meaning and clearly full of love for the child, I am not persuaded on the evidence that there ought to be a change in the status quo. It may be that with the passage of time, and as the child grows older, some form of parallel decision making and joint custody order will be appropriate, but at this stage I cannot find that such an order would be in the best interests of this particular child.

[19] There certainly is no evidence that these parents could properly communicate or cooperate with one another.

[20] I move now to access.

[21] Initially, the Respondent’s access to his son was very limited. As time went by, however, Mr. Brooks did everything requested of him, including taking a number of parenting courses, and his access was significantly increased.

[22] By order dated April 14, 2011 access to the Respondent was increased to every second weekend from Friday at 5:00 p.m. to Monday at the opening of daycare or by 9:00 a.m. at the latest, and every Tuesday from 5:00 p.m. Tuesday to 9 a.m. Wednesday. He was also provided with two consecutive weeks of access during July and one in August.

[23] I am satisfied on the evidence that access is going well and that Kyle enjoys his time with his father.

[24] A report was prepared by the Children’s Lawyer dated August 26, 2009 which was placed in evidence. That report recommended an increased pattern of access roughly equivalent to what has occurred, with the present arrangement being the final variation of regular weekly access referenced in that report. That regular weekly access pattern will continue as it works well and that is in the child’s best interest.

[25] The report also recommended that commencing the summer after Kyle’s fifth birthday, which of course is this coming summer, the parents should have him in their care on alternate weeks during the summer months. I think that a very sensible suggestion and I order that that occur. That same report recommends that regardless of the pattern of access, Kyle will be in Ms. Inosante’s care from 9:00 a.m. to 5:00 p.m. on Mother’s Day and in Mr. Brook’s care from 9:00 a.m. to 5:00 p.m. on Father’s Day. Again that makes total sense and is so ordered.

[26] In terms of Christmas for the current year, pursuant to the order of Kershman J. dated July 6, 2011, Christmas access is to be divided, with the Respondent having Kyle from December 23, 2011 at 9:00 a.m. to December 28, 2011 at 3:30 p.m. The Applicant is to have the child for the remainder of the Christmas holiday. Commencing with Christmas of 2012, which is of course an even year, the pattern of Christmas access shall be that in even years Kyle will be in his mother’s care from Christmas Eve to noon on Christmas day and with his father for the rest of the day, and on odd years Kyle will be in Mr. Brooks care from Christmas Eve to noon on Christmas day and then returned to his mother. That recognizes that as Kyle gets a little older he will want to spend some time on Christmas with each of his parents.

[27] In terms of the Thanksgiving and Easter, the parties will alternate and to make the pattern consistent with the Christmas access, on even years Kyle will be in his mother’s care and on odd years in his Father’s.

[28] Mr. Brooks is to have four hours access on the child’s birthday.

[29] As part of this access order Mr. Brooks will be entitled to be fully advised of Kyle’s progress at school including being permitted direct communication with teachers and school authorities. He will also be entitled to any and all health records and information from health practitioners relating to his son.

[30] The parties will confer with each other on all important matters relating to Kyle’s health, education and upbringing. In view of their inability to communicate directly with each other information will be exchanged via an existing communication book that will be placed in Kyle’s back pack. There was evidence at trial that both parties have made inappropriate comments in that communication book in the past and that is to cease immediately.

[31] If the parties are able at any point in time to communicate in a more meaningful fashion, they can, of course, modify the access by agreement in any manner they see fit. They should, of course, at all time put the best interests of their son ahead of their own.

[32] Next is the issue of pick-ups and drop-offs.

[33] The evidence on this trial satisfies me that the present arrangement of Kyle being picked up at his mother’s residence is not workable. The documentary evidence and the evidence of the various witnesses makes it clear that the exchanges have been extremely problematic and that there is room for blame on both sides. Having heard the evidence of the Applicant and her aunt Lourdes Quebec, with whom she and Kyle reside, I am satisfied that there have been occasions when they have not been cooperative in facilitating exchanges. That causes the Respondent to become agitated and he then acts inappropriately. The difficulty with this is that it often takes place in front of Kyle. This was recognized as a problem some time ago as evidenced by the report of the official guardian. In it the parties were strongly encouraged to carry out transfers at public locations with Kyle’s school being utilized as the most preferable transfer location. I am convinced as a result of the evidence that I heard that a change in pick‑ups and drop-offs must occur.

[34] As often as possible pick-ups and drop-offs will be at Kyle’s school. When that is not possible it should take place at a mutually convenient coffee shop or shopping mall. Perhaps, with the tension at the front door being removed from the process, that might be a building block upon which further cooperation can be built. Most assuredly it should eliminate situations where to police need to be called with the child present.

Child Support

[35] The evidence discloses that by order dated November 5, 2007, Mackinnon J. ordered the Respondent to pay Child Support in the amount of $172 per month based on an imputed annual income of $20,000. There was to be the usual adjustment to reflect the Respondent’s actual 2007 income when he provided income tax information.

[36] The Respondent paid Child Support in that amount from that point to and including February 2010. There have been no further Child Support payments from that date forward. It was the evidence of the Respondent at trial that he was laid off and he didn’t have the financial means to pay his support.

[37] There can be no question that the Respondent was very tardy in providing financial disclosure. In his evidence he suggested that part of that delay was caused by a former lawyer, but in any event shortly before the commencement of trial sufficient information was provided to allow his annual income over the past few years to be determined. In 2007 his line 150 income was $18,999.00 and in 2008 $25,456.00. He has not yet filed Income Tax Returns for 2009 and 2010 but as a result of his producing various T4 slips and statements of employment insurance benefits and educational benefits paid, it would appear that his 2009 income was $30,511.74 and his 2010 income was $28,736.29. In terms of his 2011 income there is as of this point no material available to allow an accurate calculation of what his income for this year will be. He is presently employed on a part-time basis at Wal-Mart. He testified he is guaranteed 28 hours a week and earns $11.60 per hour. He conceded that at times he gets more than 28 hours each week. He also took some training in 2010 that has put him in a position to work in hospital settings counselling individuals that have a substance abuse problem. He has only recently started to get work in this field and told me during his evidence that he has had 2-3 shifts in the past two weeks which each shift being approximately eight hours. He is paid, according to his evidence, a little above minimum wage.

[38] The Respondent’s position on the Child Support issue is that any arrears should be forgiven and ongoing Child Support suspended pending an improvement in his financial situation. He also argues that it is unfair that he has to pay full guideline support when his spouse earns something in the range of $10,000 more than he does and he has the child for the time he does each month.

[39] The law applicable to Child Support is straightforward. Pursuant to s. 31 of the Family Law Act, every parent has an obligation to provide support for his or her unmarried child who is a minor. In terms of the quantum of that child support the Child Support Guidelines for Ontario in s. 3(1)(a) set forth a presumptive rule that unless otherwise provided by the Guidelines, the amount of an order for the support of a child under the age of majority is the amount set out in the applicable table.

[40] S. 9 of the Guidelines does provide for the possibility of an amount being paid that is less than Guideline support but only in circumstances where the payor or parent exercises a right of access to, or has physical custody of the child for not less than 40 percent of the time over the course of a year.

[41] S. 10 of the Guidelines does provide in subsection 1 that a court may award an amount of support different from the Guideline amount if the court finds the payor would otherwise suffer undue hardship. Subsection 2 of s. 10 then sets forth circumstances that may cause a payor to suffer undue hardship. They are as follows:

10(2). Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

[42] The evidence clearly discloses that the Respondent, at present and pursuant to this order, does not have Kyle 40 percent of the time over the course of the year. As such, the provisions of s. 9 are not applicable.

[43] In terms of undue hardship, in the case at bar, none of the circumstances set out in s. 10(2) apply. The principal debts the Respondent has to service, in addition to normal monthly expenses, are for a vehicle loan and his Visa bill. There is no evidence that either was incurred during co-habitation or to earn a living. There is no evidence of unusually high expenses in relation to exercising access or any of the other sub categories set forth in subsection 2. Money is certainly tight for Mr. Brooks as it is for virtually every party that comes before this Court. That does not diminish the obligation to support ones child.

[44] Based on the income levels outlined above, and after providing the Respondent with a credit for a small overpayment he made in 2007 and the payments he did make up to and including February of 2010, I calculate the arrears to the end of 2010 at $4,500.

[45] For 2011, it would appear that the Respondent’s income may be less than it has been. I agree with the submission of counsel for the Applicant that based on the evidence we heard, a reasonable imputation of income for 2011 would be in the amount of $21,000. The Guideline support, based on that income level, is $180 per month. That puts the arrears for 2011 at $2,160 for total arrears of $6,624. Child support for the current year will be adjusted, one way or another, once the Respondent supplies proof of his 2011 income figures.

[46] On the subject of providing income information, pursuant to s. 24.1 of the Guidelines, Mr. Brooks will provide the necessary financial information in order to determine his income during a particular year by no later than June 1, of the following year.

[47] In terms of Child support for the coming year, while 2011 would appear to have been a poor year financially for Mr. Brooks, he indicated in his evidence that he has had indications from both Wal-Mart and his other part-time employer of increased work. I think it would thus be reasonable, looking at his income levels over the past few years, to impute an income for 2012 of $26,000. That results in monthly Guideline support commencing January 1, 2012 of $222 per month.

[48] In terms of the payment of the arrears, I accept Mr. Brooks submission that his financial circumstances are tight and that any order to repay the arrears immediately could have drastic results. In those circumstances, I am prepared to suspend the payment of the arrears as long as he continues to make his monthly support payments going forward and until his income reaches a level of $32,000 per annum. Thereafter, he will commence re-payment of the arrears at the rate of $50 per month in addition to his Guideline support obligation.

[49] Finally, with relation to s. 7 expenses, again, because of his financial situation, the Respondent’s obligation in that regard will be suspended pending improvement of his financial circumstances.

Travel Outside Canada

[50] The Applicant has a trip home to the Philippines planned for this coming January and seeks an order allowing her to take the child out of the country for that trip and dispensing with the Respondent’s consent for any future trips.

[51] To his credit, during the course of submissions and after hearing the arguments of the Applicant’s counsel, Mr. Brooks provided his consent to the upcoming trip so long as he is supplied with an itinerary, contact information, and make up access for any he misses. That was agreeable to all.

[52] That then leaves the bigger issue of future trips.

[53] I heard nothing, during the course of this trial, that suggests to me that either party should not be allowed to take Kyle on a trip as long as adequate notice is provided, an itinerary and contact information is supplied, and if any access is missed, it be made up. I am not prepared to order that either party may unilaterally take the child on such a trip, but by the same token, consent may not be unreasonably withheld. In the event that situation occurs and a court application is necessary, it is hoped these reasons would be a guide to the presiding judge vis-à-vis costs against the party unreasonably withholding consent.

Change of Name

[54] The child’s name as registered on the Statement of Live Birth is Kyle Macatual Inosante. The Respondent seeks an order changing that name to Kyle Scott Inosante-Brooks.

[55] The Applicant testified at trial that at the time of the child’s birth she provided the Respondent with certain paperwork to be completed dealing with the naming of the child for his completion and signature, but he never returned those materials to her. In June 2007, a handwritten consent was executed by the parties whereby they agreed that the name of the child would be registered as Kyle Macatual Steven Inosante-Brooks. It was also agreed that Mr. Brooks would be responsible for organizing the paperwork and paying any required fees.

[56] According to the Respondent, within hours of executing the consent, he was not happy about the precise name agreed to and so informed the Applicant through his counsel. He says he was told that the Applicant had also reneged on the agreement. In any event, the Statement of Live Birth that was filed as Exhibit # 10 on the trial was registered by way of a document dated October 2007 containing only the mother’s particulars. The section of it which seeks information vis-à-vis the other parent’s information is left blank, although of course Ms. Inosante was aware of the father’s particulars.

[57] Interestingly enough it would appear that in the province of Ontario, in circumstances such as exist in this case, the Vital Statistics Act permits a mother to choose the surname she wants without having to acknowledge the father or obtain his input. It is also a fact that a similar statute in the province of British Columbia was declared unconstitutional as amounting to discrimination on the basis of sex (see the Supreme Court of Canada decision in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835). It has also been held in at least two Ontario decisions, Gallant v. Lewis, 2008 CanLII 36912 (ON SC), [2008] O.J. No. 2913 and Ryan v. Scott, 2010 ONSC 4135, that a judge of the Superior Court may exercise his or her parens patriae jurisdiction and order that the Registrar General amend the registration of the child’s birth if that is in the best interests of the child.

[58] The submission of the Applicant on this issue is not to the effect that it is not in Kyle’s best interests to have both his parents acknowledged in his name. That is obvious from the fact that back in June of 2007, she was prepared to consent to such an order. The real argument seems to be that a lot of time has gone by, the Respondent has done very little about this issue, and it would be difficult to change things now. She points to the fact that his name as registered is the name Kyle is familiar with and he is just learning to write, that all of his official paperwork including medical records, dental records, OHIP card, et cetera, are in his name as registered, and for that reason it would not be of benefit to the child to change his name.

[59] Although indeed it would seem on a preponderance of the evidence that Mr. Brooks was not as diligent as he might have been about sorting this matter out, I am not persuaded that it would not be in the child’s best interest to make some modification of the name to reflect the fact Mr. Brooks is his father. I have commented earlier in these reasons that it is clear to me on the evidence that both these parents love this child very much, and frankly, neither one of them quibbles with that point. Failing to include Mr. Brooks surname in some fashion in the child’s name would have the effect of differentiating between the parents and in effect rendering the father a second-class parent.

[60] In order to minimize difficulties created by changing the surname at this late date, I order that the child’s name be changed to Kyle Macatual Brooks-Inosante. Any request for that change is not to be made until the upcoming trip to the Philippines has been completed in order to avoid any difficulties with a passport. Once the registration of the child’s birth is amended as indicated, the Registrar General shall provide the father a copy of the child’s amended birth certificate upon payment of the required fee.

Costs

[61] There were no submissions as to costs. If the parties are unable to agree on the costs issue, they may make brief written submissions (2 pages). I would indicate by way of preliminary comment, however, that in considering the costs issue, it would seem to me that success was divided and furthermore, I have serious reservations about the ability of either side to pay costs other than the ones incurred on their own behalf.

The Hon. Mr. Justice James McNamara

Released: January 6, 2012

COURT FILE NO.: 07-FL-2322-2

DATE: 2012/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELENA INOSANTE

Applicant

– and –

SCOTT BROOKS

Respondent

REASONS FOR JUDGMENT

McNamara J.

Released: January 6, 2012