ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D-1555/10
DATE: 2012-03-15

BETWEEN:

J L H Applicant – and – P G Respondent

In Person
In Person

HEARD: March 15, 2012

the honourable mr. justice a. pazaratz

1 . This is a motion by the Applicant mother to change certain provisions in the consent final order pronounced by Justice Mazza on January 21, 2011, relating to two children now ages five and three.

2 . The order includes the following terms:

a. Joint custody
b. Primary residence to the mother
c. Parties to discuss all major decisions regarding the children, but in the event of disagreement the mother has final decision making authority
d. Father to have access to the children to include Wednesday overnights, alternate weekends, and extensive provision for expanded access during summer, Christmas, Easter, and all special occasions.
e. Both parties entitled to communicate directly with third parties involved in children’s lives, such as doctors, teachers, etc.
f. (Unemployed) father is to use his best efforts to obtain employment and keep the mother advised of his efforts. If he does not use his best efforts, mother may seek to impute income for child support purposes
g. Any employment to be reported
h. Tax returns to be exchanged annually
i. No spousal support

3 . Apart from this general summary, two of the paragraphs of the Order are quite notable in their very specific requirements:

4 . Paragraph 9 starts with the statement: “The parties shall communicate with each other in a cordial and friendly fashion.....”

5 . Paragraph 14 states: “Within 10 days the Respondent shall provide to the Applicant a medical report confirming that he is in good mental health and that there is no concern with regard to him exercising access to the children.”

6 . The Respondent father did indeed provide a medical report dated December 31, 2010 (just before the order, and presumably in anticipation of the request for medical corroboration). The letter from psychiatrist Dr. Nick Kates includes the following observations about the Respondent:

a. He has been seeing Dr. Kates since July 2010
b. He was referred for symptoms of depression, exacerbated by the recent separation, but which had been present for more than a year
c. The Respondent acknowledged some history of depression including panic attacks and difficulty sleeping
d. The Respondent was seeing counsellors to help him cope with the stress
e. Dr. Kates diagnosed the Respondent with a major depressive episode secondary to stress
f. The Respondent acknowledged that he had acted out in ways that were out of character because of his frustration and shock about the marital breakup
g. The Respondent was placed on medications
h. In August 2010 he was “improving a little”
i. In November 2010 he was “demonstrating further improvement”
j. The Respondent took an anger management course which he felt had been helpful
k. The Respondent was upset about his limited contact with his children and his perception that the Applicant was further attempting to limit his contact
l. He was still getting panic attacks
m. H was trying to take all steps he could to bring some normality back to his life

7 . Dr. Kates summarized that the Respondent “suffers from a major depressive episode which is starting to improve.”

8 . Both parties filed extensive materials and factums in relation to this motion. Notably, the facts are not really in dispute.

9 . Although the Applicant had originally included in her motion a request for some modification of the Respondent’s access to the children, she confirmed during submissions that she does not seek to change or reduce the regular access which the Respondent is enjoying.

10 . I was left with two issues:

11 . Firstly, the Applicant seeks to impute income to the Respondent in the sum of $25,000.00 per year, for purposes of child support. This is approximately the income the Respondent earned at employment which he held for about five years prior to separation.

12 . The Respondent acknowledges that notwithstanding the provisions in the court order requiring that he keep the Applicant informed of his job search efforts – and notwithstanding the Applicant requesting such disclosure on the 21 st day of each and every month – the Respondent ignored the Applicant, and ignored the requirements under the court order.

13 . It was only after she served him with this motion that he collected up copies of e-mails and other documents setting out his job search efforts. The Applicant argues that the Respondent’s job search efforts amount to about 1.5 job searches per month, which she characterizes as insufficient, given his responsibility to contribute to the children’s expenses.

14 . While the Applicant understood that the Respondent turned down a job which was offered to him, during submissions the Respondent clarified that the job in question wasn’t actually offered to him; in fact he had a panic attack on the way to the interview and never made it.

15 . In ordinary circumstances I would accept the Applicant’s submission that the Respondent’s apparent physical health and abilities should have enabled him to find some employment. Imputing income in these circumstances could easily be justified.

16 . But for reasons which will be apparent as I review the second issue on this motion, I must conclude that the Respondent has some serious and unresolved mental health issues which appear to impact on his ability to function in various spheres – including the workplace. The Respondent says his Employment Insurance has actually expired, and he’s soon to be applying for Ontario Works. Based on the Respondent’s overall presentation and situation at this time, I am not in a position to conclude that the Respondent’s sporadic employment searches would justify a current finding that income should be imputed.

17 . By the same token, I share the Applicant’s frustration about the Respondent’s lack of financial assistance – and his lack of diligence in arranging his life so that he can contribute at least something.

18 . I will require that the Respondent continue to make disclosure – both job search and medical disclosure – and the child support and imputation of income issue may need to be revisited.

19 . The second issue raised by the Applicant is her request to change the joint custody designation to sole custody. She advises that notwithstanding the representations and expectations regarding civil and cooperative communication which were inherent in the January 21, 2011 court order, the Respondent has consistently been rude, aggressive, offensive, uncooperative, and disinterested in co-parenting, even when invited to participate in medical issues relating to the children (the youngest of whom has certain special needs).

20 . The parties have communicated extensively by e-mail. The Applicant filed a series of e-mails forwarded by the Respondent, which include many provocative and offensive statements. These include:

a. Concluding an e-mail with the comment: “with prejudice and disdain always”
b. “I offer my comment with full prejudice against you, as your laziness astpunds (sic) me. Good riddance to you, I hope my children survive your care.”
c. “Amicable cooperation is impossible with you and your partner.”
d. “Regardless I have nothing more to discuss with you or your agents on your behalf”
e. “I don’t expect you to understand me. SO FUCK OFF.”
f. “....And what the fuck did you think this chapter in all our lives would do with (a child’s) ability to stay in his own bed? Really? Kiss my ass. Thank you.”
g. “Reminder, go fuck yourself.”
h. “Respectfully declining to be in the same room as you ever”

21 . The Respondent does not deny that he has included statements like this in various e-mails. He does not deny other allegations of rude, aggressive, provocative behaviour toward the Applicant. He attempted to reassure the court that the children have never been present or exposed to this sort of language.

22 . Basically, the Respondent submitted that while at times he has communicated in a “less than civil manner”, he insisted that he and the Applicant “do not argue all the time” and he feels they can still share joint custody. The Respondent did not deny the Applicant’s allegation that apart from the issue of offensive language, he has also declined requests by the Applicant that he participate in medical appointments involving the children.

23 . I am satisfied – without question – that there has been a material change in circumstances justifying a change in the custody designation. At best this was a nominal joint custody arrangement in that the parties were required to communicate, but the Applicant always retained the final say. The court order specified that the parties are to communicate in a “cordial and friendly fashion”. The Respondent fully admits that he hasn’t done so. He offered no explanation for his abusive behaviour.

24 . The Respondent still appears to have unresolved mental health and anger issues, which interfere with his ability to communicate with the Applicant. Fortunately – at least for the moment – there is no indication that the Respondent’s inability to regulate his behaviour has impacted negatively on the children. However, I have cautioned the Respondent that if the children come to be exposed to any inappropriate statements or behaviour, the nature and extent of contact he has with his sons may come under serious review.

25 . I find that joint custody is no longer in the best interests of the children. It is no longer viable. There is no longer any reasonable prospect of civil and productive interaction or co-parenting between the parties. While “shared parenting” (in its various forms) is a laudable goal, the court’s ultimate responsibility to children is to ensure that beneficial parental communications are encouraged; opportunities for destructive or inflammatory interactions should be minimized. In this case, the joint custody designation does not provide the benefit for the children which was contemplated when the order was made. It simply gives the Respondent opportunities to harass and abuse the Applicant. This cannot continue.

26 . My order:

27 . The Applicant’s motion to impute income to the Respondent for child support purposes is dismissed, without prejudice to the Applicant’s ability to have the motion returned in the future.

28 . The Respondent shall maintain a daily diary of his job search efforts. He shall send the Applicant a copy of his diary on a monthly basis, commencing April 30, 2012 and on the last day of each month thereafter.

29 . The Respondent shall, no later than September 1, 2012, provide the Applicant with a letter from his treating doctor or psychiatrist, updating the status of his physical and mental health, and specifically addressing whether there are any health issues which impact on either his (a) employability, or (b) parenting skills.

30 . Paragraph two of the January 21, 2011 order shall be deleted and replaced with “The Applicant shall have sole custody of the children. The Applicant shall keep the Respondent informed as to major developments or issues in the children’s lives.”

31 . The parties shall communicate primarily by e-mail. In the event that there are any further abusive, insulting, degrading, offensive or inflammatory e-mails or communications by the Respondent toward the Applicant, or any denigration of the Applicant in any setting or context, the Applicant shall be entitled to bring an emergency motion to deal with any required relief --- including any necessary review of access --- without the necessity of a case conference.

32 . Subject to my availability, any further motion during the next two years (in relation to support, access, harassment, or anything else) shall be returnable before me.

Pazaratz J.

Released: March 15, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: J L H Applicant - and - P G Respondent REASONS FOR JUDGMENT The Honourable Mr. Justice A. Pazaratz

Released: March 15, 2012