Court File and Parties

BARRIE COURT FILE NO.: FC-10-398-00 DATE: 20120423

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LEANNE ASHLEY WALTERS Applicant

Michael Miller, for the Applicant

• and -

KENLOCK EARL WALTERS Respondent

John Craig, for the Respondent

HEARD: March 19, 21-23, 2012

JUDGMENT

LAUWERS J.:

[1] The issues between the applicant and the respondent in this family case are custody and access involving their 6-year-old child, Reece Walters, child support and child support arrears.

Background facts

[2] Mr. Walters is about 41 years old. He has a university degree. He started his business, Ultimate Fitness, in 1999. Although he personally went bankrupt in 2009 as a result of a misadventure involving a second gym, he managed to retain control of the business and his personal assets, and continues to run the business now. He has started another business in mortgages.

[3] Ms. Walters is about 36 years old. She is a high school graduate. When she met Mr. Walters in 2002 she was working in an administrative position at Alliance Transportation. She worked for Winmar Restoration Company from 2004 until her daughter Reece was born in 2005. She worked on an unpaid basis for Ultimate Fitness until the parties separated. She resumed working for Winmar in November 2009, and still works there.

[4] The Statement of Agreed Facts sets out the following relevant facts:

(i) The applicant and respondent resided together for a one-year period prior to their marriage on October 23, 2004;

(ii) The parties have one child namely, Reece Walters, born August 30, 2005;

(iii) Since separation, as is set out in the order of Madam Justice Olah dated September 21, 2010, Reece’s primary residence is with the applicant mother;

(iv) Since separation, the respondent exercises regular access to Reece, including every other weekend and Wednesday nights overnight;

(v) At the request of the respondent, the Office of the Children’s Lawyer became involved and appointed Linda Bleau to prepare a report. A report was prepared by Linda Bleau and delivered to the parties in February 2011; and

(vi) Linda Bleau’s recommendation was that the parties have joint custody with the primary residence of Reece being with Ms. Walters. There is a further recommendation with respect to access which is reproduced as follows:

a. Mr. Walters shall have Reece on alternate weekends with a pick-up from school on Friday afternoon and a return to school the following Monday morning. Mr. Walters shall have Reece every Wednesday at 9:00 a.m. with a pick-up at daycare and a drop-off on Thursday morning directly to school. Once Reece starts full-time school [which has happened] the Wednesday mid-week visit shall start at school dismissal on Wednesday. The parties shall have Reece on alternate years for Christmas Eve to Christmas Day at 2:00 p.m. Mr. Walters shall [have] Reece for two weeks in the summer not to run concurrent. Mr. Walters shall have Reece for the March Break and for a week at Christmas. Mr. Walters shall have Reece for every Father’s Day and Ms. Walters shall have Reece for every Mother’s Day regardless of the regular schedule. Any transfers that cannot occur through the school or daycare, shall occur in a public location mutually agreed between the parties;

b. Communication between the parties to be via the Family Wizard Program;

c. The parties to ensure that Reece is not exposed to any adult conflict or sharing of inappropriate information about the other parent;

d. The parents shall discuss all decisions involving Reece via the Family Wizard Program. The parties must agree to any extracurricular activities during their respective access time with Reece.

e. The parties shall attain [sic] the services of a parent coordinator to assist them with their communication and in resolving any conflicts that arise. Parents shall meet with a parent coordinator on a monthly basis initially to assist them [as] co-parents and to minimize conflict. The parent coordinator may meet with Reece and parents to assist with the historical relational issues.

[5] Before they married the parties entered into a prenuptial agreement. Mr. Walters made it clear to Ms. Walters that there would be no marriage if she did not sign the agreement. Its primary purpose was to ensure that Mr. Walters would retain his assets, including his house at 5 Jewel House Lane in Barrie, Ontario, in the event of a marriage breakdown. The agreement records that Mr. Walters had assets worth about $1.5 million heading into the marriage and that Ms. Walters’ assets were about $15,000.00. The parties waived spousal support.

[6] The parties began living separate and apart in the same house in October 2009. They began working towards an amicable split. Ms. Walters pursued a living arrangement with a friend, Jan Handy. She had been renovating Ms. Handy’s house to accommodate her and Reece and had even got Mr. Walters’ assistance in buying a bedroom suite for Reece. The parties were negotiating custody and access through counsel, but things came to a head when his counsel advised her counsel that he would not consent to Ms. Walters and Reece leaving the matrimonial home until they had a shared parenting arrangement, something that she rejected.

[7] On February 22, 2010, Ms. Walters contacted the police and alleged that Mr. Walters had assaulted her seven months earlier in July 2009. Mr. Walters was removed from the house and she continued to live there with Reece. Mr. Walters paid the house expenses while living elsewhere.

[8] Things resolved under Olah J.’s consent order of September 21, 2010. Ms. Walters moved in with Michael Green a month later. The applicant continues to reside with her common-law spouse, Mr. Green, and his daughter Rebecca Green, who is 17 years of age.

[9] Mr. Walters moved back into his house on November 1, 2010. Shortly after the split Mr. Walters took up with Shelly Moore, with whom he had a tumultuous relationship. She gave birth to Oasis, now 14 months old, who lives at Mr. Walters’ house half the time, since he shares custody with Ms. Moore. As an entrepreneur and business owner of a fitness gym, Mr. Walters controls his own working hours. He is able to take care of Oasis when Ms. Moore is working her shifts as a nurse.

The positions of the parties

[10] The applicant is prepared to accept Ms. Bleau’s recommendations but would prefer that the March Break access alternates so that she could take Reece away from time-to-time.

[11] The respondent would accept Ms. Bleau’s recommendations with the following changes:

“The child shall reside with each parent on a week-about basis, with the exchange to occur on Friday evenings, and with a mid-week Wednesday overnight visit for each parent during the other parent’s week.”

The respondent also seeks an order that he:

“shall pay to the applicant offsetting child support Guideline Support based on his income of $65,000.00 a year and the applicant’s income; and

There shall be no retroactive child support ordered and the respondent owes no arrears of child support to the applicant as of this date.”

The witnesses

[12] The parties both testified. Mr. Walters is a large, well-built man who works out and participates in many sports. He is charismatic, self-confident and articulate. The evidence shows that he is also emotionally volatile, argumentative, vocal and aggressive. He gets along with those who get along with him and where he sees some mutual benefit in the relationship. He is quite focussed on achieving material success and grew testy in cross-examination when challenged about the affordability of his car.

[13] Ms. Walters is a petite, articulate woman who knows what she wants. She remains angry with Mr. Walters and is personally convinced that she was and still is his victim. She too is interested in material prosperity; the prenuptial agreement was an issue for her before and during the marriage, while she accepts that it is enforceable.

[14] Ms. Walters called some witnesses. Michael Green is her common-law spouse. I found him to be a straightforward witness. He has largely adopted Ms. Walters’ view of things.

[15] Penny Peters-Feldman is Ms. Walters’ close friend. She is familiar with both parties. She visited Ms. Walters at home and assisted her in carrying down to the basement a door that had been damaged, according to Ms. Walters, by Mr. Walters punching it. Ms. Peters-Feldman helped care for Reece from time-to-time and gave some assistance to Ms. Walters when she was suffering flare-ups of her rheumatoid arthritis.

[16] Jane Richardson is Ms. Walters’ mother. She describes Ms. Walters as “happier, relieved and healthier” now that she is out of the marriage.

[17] Patricia Gill has known the parties for 11 or 12 years. She worked at Ultimate Fitness for ten years. She testified to Mr. Walters’ volatile relationship with his first wife, Erica Egely, who also worked at the gym. She was familiar with Stacey Bowan, another employee at the gym who Mr. Walters dated for about two years. They had a loud fight at the gym. She also saw a fight in the parking lot between the parties. She testified that she saw no real affection between them. Ms. Walters was frequently sad and tearful at the gym.

[18] Mr. Walters called evidence from a number of witnesses to establish his good relationship with Reece and his general reputation as a good person and a good father. Nancy Walters is his mother. I found her to be a defensive witness, clearly partial to her son and therefore not reliable when she thought that her answer might harm his interests. She did not respond candidly and promptly to simple questions, suggesting that she was calculating her answers.

[19] Christine Blondell is an employee at the gym. She described Mr. Walters as a good boss, friendly and fair.

[20] Jessica Puddifant has known Mr. Walters for about four years. She works in sales and marketing for the Barrie Colts, and Mr. Walters is a sponsor. She socializes with Mr. Walters. She testified to the good relationship between Reece and Oasis. She testified that she has never seen Mr. Walters lose his temper. In cross-examination Ms. Puddifant commented on the relationship between Mr. Walters and Shelly Moore. They were friends but no longer are because Ms. Moore was jealous of Ms. Puddifant’s relationship with Mr. Walters.

[21] Sherry Clark is a long-time employee with the gym. She described Mr. Walters as a loving father. She testified about an argument between Mr. and Ms. Walters at the gym in which there were raised voices. (According to Ms. Walters, this was the fight about whether she would have more children with him.) She had witnessed arguments between Mr. Walters and Stacey Bowan and also with Erica Egely.

[22] Martin Birch has a couple of daughters by Patricia Gill, who is his ex-fiancé. He gets together with Mr. Walters so that their children can play together. He describes Mr. Walters as a good father. Mr. Birch recounted a situation where Ms. Moore accosted Mr. Walters at the Queen’s Hotel and noted that Mr. Walters did not respond argumentatively.

[23] Kevin Jones has known Mr. Walters for 15 to 20 years. They became friends while employed at Ontario Store Fixtures. For a couple of months in 2009, Ms. Walters lived at the home of Mr. and Mrs. Jones while she was separated from Mr. Walters. The separation was apparently due to a dispute about the prenuptial agreement. Mr. Jones testified to the good relationship between Reece and Mr. Walters.

[24] Kevin Thompson testified that he has been Mr. Walters’ friend most of his life; they grew up on the same street. He continues to socialize with Mr. Walters and has seen the children in their respective homes. Reece and Oasis have a good relationship with their father and each other.

[25] Melissa Fairbairn has known Mr. Walters for three years. They dated from March to July 2011, and have remained friends. She testified about an incident between Shelly Moore and Mr. Walters which resulted in Ms. Moore being charged and being required to post a peace bond. Ms. Fairbairn testified to hearing Mr. Walters speaking to Reece about the importance of her black heritage.

[26] Ms. Fairbairn testified that she was at a restaurant Deb’s Place for breakfast. Reece saw her mother there and wanted to go over and say “hello,” and Mr. Walters let her go. But two weeks before the trial she saw Reece at a Barrie Colts’ game and went over to say “hello.” Reece said that she wanted to visit her father and Ms. Fairbairn told her to ask her mother for permission. Ms. Walters did not give permission and did not let Reece come down to see her father. In cross-examination, Ms. Fairbairn admitted that while they were dating she and Mr. Walters fought and that she did leave to “cool off.”

[27] Linda Bleau is a qualified professional who conducts clinical investigations for the Office of the Children’s Lawyer and has done so for many years. She is trained as a social worker and a therapist and has provided many opinions to courts. Ms. Bleau’s report was even-handed and she provided her evidence in the same way, adding details where necessary. Her investigation was thorough. She met with the parties and had an opportunity to see Reece interacting with her parents at their respective homes. She interviewed other significant people in Reece’s life from November 2010 to January 2011. She interviewed Reece at school on January 4, 2011. There was a disclosure meeting with the parties and counsel on January 31, 2011. Since then she has not had further contact with the parties nor has she had an opportunity to update the report. Reece was five years old when she was interviewed on January 4, 2011. She is now six years old.

[28] Ms. Bleau reported that the applicant sees herself as a victim of the respondent but concluded that there is no real evidence of that in an objective sense. Ms. Bleau noted that in her opinion if the applicant were really afraid of the respondent she would not have engaged in conflict but would have simply submitted; that is not what she did during the relationship or since. There is no power differential between the parties. Both exhibit poor conflict management skills and both are prepared to resort to yelling.

[29] There were a number of yelling matches between the parties, some of which were witnessed by others. The evidence, including the testimony of some of Mr. Walters’ own witnesses, establishes that similar disputes arose between Mr. Walters and other women with whom he was having a relationship, including his first wife Erica Egely, and the girlfriend he took up with after his marriage to Ms. Walters, Shelly Moore. Ms. Bleau cites Mr. Walters’ mother, Nancy Walters, as having said in her interview that Mr. Walters was “excitable by nature.” While his mother denied making that comment in her evidence at the trial, I accept Ms. Bleau’s evidence as accurate.

Analysis

[30] The major issue is what custody and access arrangements would be in Reece’s best interests. The child support issue follows.

[31] As noted, the applicant is seeking a continuation of the existing access arrangements. The respondent is seeking week-about equal access, with adjustments to be made to child support to reflect the new arrangement. The parties tacitly agree on joint custody since they have each otherwise accepted Ms. Bleau’s recommendations.

[32] The custody and access issues are to be determined under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. Section 16 provides:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[33] I find that, despite their past communications problems, the parties have demonstrated an ability to co-operate. The access arrangements are working well and there is no reason to assume that things will change for the worse. I find that joint custody is appropriate in line with the principles in Kaplanis v. Kaplanis, [2005] O.J. No. 275, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373 (C.A.), and Ladisa v. Ladisa, [2005] O.J. No. 276, 11 R.F.L. (6th) 50 (C.A) per Weiler J.A.

[34] The parties draw on section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [CLRA], as amended, which also invokes the “best interests of the child.” For convenience, I will use the section as a framework.

[35] Section 24(2)(a)(i) of the CLRA requires the court to consider “(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child.”

[36] Ms. Bleau found both parents to be “delightful.” They evidently had good relations with Reece. Both engaged Reece in a positive manner. Both really love her and she clearly loves them. Both are good parents and neither one is better. Reece’s teacher acknowledges that Reece is doing well, is well behaved and presents no social issues. She is a leader by nature.

[37] One of Ms. Bleau’s main recommendations, however, is that the parties engage a parent coordinator “to assist them with their communication and in resolving any conflicts that arise.” Ms. Bleau testified that this recommendation was important because of the obvious difficulties between the parties in their relationship. Both parents show poor impulse control. They are prepared to engage in public confrontations including yelling and name calling. That has happened in front of Reece in the past, but the parties have structured their exchanges to avoid confrontation. The parties have consented to this recommendation being in the order.

[38] Ms. Bleau records the following in her report which she considers to be quite telling:

Ms. Walters has explained to Reece that she and daddy do not yell at one another anymore. Ms. Walters stated that she “will not be flexible with Ken because of his power, control and bullying ways.” Ms. Walters would like to see the present parenting plan continue without the mid-week visits so there is less opportunity for further conflict. Ms. Walters stated that she believes that would be in Reece’s best interests as she has been traumatized by what she has experienced.

[39] The nub of Ms. Bleau’s report is set out in the following paragraph:

Reece is five years old. She is a strong, independent, playful, happy and social child. Although Reece indicates a desire for increased time with her father, she is somewhat reactive to time away from her mother. She is academically meeting the expectations for Senior Kindergarten and is described by her teacher as getting along well with peers and staff in the school setting. Reece is clearly caught in the middle of her parents’ conflict and this is demonstrated by her awareness of the conflict between them. She talked about her mother’s prayers, her mother throwing out hair ties that were from Ms. Moore, not being allowed to talk about her father when in her mother’s home and her emotional distress when going and returning from visits. Ms. Walters referred to the marriage breakdown and stress as being what “he (Mr. Walters) has done to us”. There is a closeness between Reece and her mother that is notable. Ms. Walters may be placing her own emotional response to the situation onto Reece. This attitude places Reece in the middle of the conflict and Reece may feel like she has to choose sides. It is imperative that Reece be allowed to have a positive relationship with both her mother and her father. It is clear from Reece’s interviews that there is negative talk about her father from her mother. Reece enjoys a positive relationship with both her parents and talked about many activities she did with each of them. She described her parents as being good “snugglers” and sees herself as being loved and cherished by both of them.

[40] I accept Ms. Bleau’s evaluation that there are strong ties of love and affection between Reece and each of her parents. The evidence I heard from all of the witnesses corroborates her evaluation. I also accept Ms. Bleau’s reservations about the conflictual relationship between the parents and their need to improve their interaction style, especially in light of the long future relationship required by their mutual parenting of Reece. I return to this issue below.

[41] Section 24(2)(a)(ii) of the CLRA requires the court to consider “(a) the love, affection and emotional ties between the child and… (ii) other members of the child’s family who reside with the child.”

[42] The only other person who would reside with Reece at Mr. Walters’ house at the moment is Oasis, who is currently 14-months-old. Oasis is at his house half the time since he shares her custody with Shelly Moore, Oasis’ mother. Numerous witnesses described relationship between Reece and her little sister Oasis as excellent.

[43] Section 24(2)(a)(iii) requires the court to consider “(a) the love, affection and emotional ties between the child and… (iii) persons involved in the child’s care and upbringing.”

[44] There would be no one else but Mr. Walters at his home. But his mother does have child care responsibilities in picking up and dropping off Reece on occasion. I accept her evidence that she has an excellent relationship with Reece. There is no evidence to the contrary.

[45] The evidence is sparse on the bonds between Michael Green, Ms. Walters’ new spouse, and Reece, or between Rebecca Green, his 17 year old daughter, and Reece. Ms. Bleau does not comment on any interactions between Reece and Michael Green and Rebecca Green. Ms Bleau’s report notes:

Reece stated that Rebecca likes to talk on the telephone with her boyfriend. Rebecca and Reece do puzzles together and she watches television with Reece. Reece said that Mr. Green does group hugs with her.

[46] I find this brief reference to be sufficient to evidence positive relationships between Mr. Green and Reece and between Rebecca and Reece. I am not prepared to draw an adverse inference from the sparsity of Ms. Bleau’s observations, as Mr. Craig suggested. I have no doubt that if anything in their interactions had seemed odd to the Ms. Bleau she would have noted it in her report.

[47] I find that both homes are suitable for Reece.

[48] Section 24(2)(b) of the CLRA requires the court to consider “the child’s views and preferences, if they can reasonably be ascertained.”

[49] In her report Ms. Bleau notes:

Reece said that she would like sleepovers at both her mother and her father’s houses. She enjoys spending time with her mother and would like to have more time with her father. She misses her mother when she is at her father’s house and misses her father when she is at her mother’s house.

Under the current arrangement, Reece does not see her father for seven days every other week.

[50] Section 24(2)(c) of the CLRA requires the court to consider “the length of time the child has lived in a stable home environment.”

[51] Mr. Craig urges the court to place less weight on the status quo, arguing that Ms. Walters engineered it to her own advantage. She contacted the police on February 22, 2010, to make an allegation about an assault that took place seven months earlier, knowing full well that the result would be that Mr. Walters would be removed from the house and she would be able to continue to live there with Reece.

[52] Mr. Craig relies on the decision of Linhares deSousa J. in Ladisa v. Ladisa, [2004] O.J. No. 800 (S.C.). The court approved a week-about arrangement for two children aged eight and 12. The trial judge noted that the status quo had been manufactured by the mother, and added at paragraph 38 that the long term parenting arrangement: “has been the source of much conflict between the parents and it has been a live issue in the minds of the children since their parents separated. The question of status quo must be considered in the light of the history of this case. The matter is only now being decided on its merits for the first time.” At paragraph 51 she considered the application of section 16(10) of the Divorce Act. She made an order for joint custody and a week-about arrangement. Mr. Craig asserts that the situation here is similar.

[53] I agree with Mr. Craig’s characterization of events. Ms. Walters did not want a shared parenting arrangement, something that Mr. Walters was avidly pursuing at the time. She felt trapped and she needed a way out, which is why she called the police only then. Mr. Miller’s argument that it took her that long to work up her courage to call the police and that she was “terrified” of Mr. Walters is simply not credible in light of all of the evidence.

[54] That said, I nonetheless find that the current parenting and access arrangements do form the status quo, whatever their origin. Happily, these parents have become more reasonable in their approach and things have gone relatively smoothly from Reece’s perspective, judging from the evidence. The current arrangements represent familiarity and stability for Reece, at the age of six years; her interests are central.

[55] Section 24(2)(d) of the CLRA requires the court to consider “the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.”

[56] Mr. Craig emphasizes Mr. Walters’ ability to do all of these things and points out his ongoing involvement with the school and with various sports. In terms of “guidance,” Mr. Walters disciplines Reece very carefully. All of his witnesses said that he “got down to her level” in speaking to her when that was necessary. They testified that they did not hear him raise his voice to her. I frankly found that evidence to be so consistent that it appeared to be rehearsed. Even so, I accept Mr. Walters’ evidence that he does approach Reece gently where discipline is required. I find that he is able to provide Reece with guidance, education and the necessaries of life.

[57] Ms. Walters has been the de facto custodial parent and Reece’s current emotionally healthy state demonstrates her effectiveness in parenting Reece. Ms. Bleau considers the parties to be equally able and willing to provide Reece with the support and guidance that she needs, and I see no reason to doubt her evaluation.

[58] Section 24(2)(e) of the CLRA requires the court to consider “the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing.” The court must also take into account the requirement in section 16(10) of the Divorce Act that contact should be maximized and “the willingness of the person for whom custody is sought to facilitate such contact.”

[59] Mr. Craig points to signs of Ms. Walters’ unwillingness to facilitate access. This was brought up in Ms. Bleau’s report. At page 5 of the report, Ms. Walters indicated that she “will not be flexible with Ken because of his power, control and bullying ways.” Further, Ms. Bleau made the following observation at page 8: “Mr. Green stated that he believed it would be in Reece’s best interest to reside with Ms. Walters and have no access to her father.” Mr. Green now renounces that position.

[60] Mr. Craig submitted that Ms. Walters deliberately kept access to a minimum between the date of Mr. Walters’ arrest and the coming into effect of the consent order on September 21, 2010. I find that Ms. Walters deliberately subverted the more liberal access provisions in the consent order by changing her work schedule. Further, she discouraged flexibility in terms of return time to accommodate the cheerleader program. She discouraged contact during a chance encounter at a ball hockey game and more recently during a Colts’ game. Ms. Walters’ behaviour in the way she speaks about Mr. Walters, the evening prayer and disposing of the hair ties all indicate that she is opposed to additional access.

[61] Like Ms. Bleau, I am troubled by Ms. Walters’ attitude and apparent unwillingness to facilitate access by Reece to her father.

[62] Section 24(2)(f) of the CLRA requires the court to consider “the permanence and stability of the family unit with which it is proposed that the child will live.”

[63] Mr. Walters’ living arrangements have been consistent. He continues to live in a house that Reece has lived in from the very beginning. Oasis is a consistent element in that family structure; the evidence shows there is a very good relationship between Reece and her little sister Oasis.

[64] Mr Miller points out that Mr. Walters seems to be incapable of establishing a long-term spousal relationship, which raises the prospect of future relationships and other children who come and go. There may be changes in the future if Mr. Walters enters into a relationship with more permanence.

[65] The permanence and stability of Ms. Walters’ relationship with Mr. Green and his daughter favours her family unit.

[66] Section 24(2)(g) of the CLRA requires the court to consider “the ability of each person applying for custody of or access to the child to act as a parent.”

[67] Ms. Walters has acted as the de facto custodial parent throughout. She has demonstrated her capacity to be a parent. There is no evidence that she has not performed her parental duties well.

[68] There is no evidence that Ms. Walters has anger management problems. While Dr. Ahmed diagnosed a bipolar disorder on her part and recommended medication for mood stabilization, it is plain from Ms. Walters’ life since she and her husband separated that the problem was the relationship and the stress of “being in a war zone.” Once she got out of the relationship Ms. Walters was a lot better. I accept her evidence that she “needed a divorce, not medication.”

[69] The evidence shows that Mr. Walters has a good network of friends and family in which he is embedded together with Reece. His flexible work schedule means that he is always available for Reece.

[70] The issue is whether Mr. Walters has demonstrated sufficient ability to be a good father. It is relatively easy to deal with a child on the weekends or on an evening, but this is not the hard commitment of parenting.

[71] I accept Mr. Miller’s submission that the parties have not really co-parented Reece. There is no evidence of it while they were together. Instead they had a very clear division of labour under which Mr. Walters would work and provide for the family while Ms. Walters was expected to take care of Reece and keep the house. Mr. Walters had no difficulty in acknowledging these expectations about Ms. Walters’ work both in-chief and in cross-examination. He did not help around the house even when her rheumatoid arthritis was bad. Mr. Walters explained that he played a number of sports, had two shoulder surgeries, opened a second club, took a second job, laid off employees and took over their jobs which meant that he did not have much time in any event. There is no evidence that he has not been an excellent parent since the split.

[72] The evidence amply demonstrates Ms. Bleau’s assessment that Mr. Walters lacks impulse control and is prone to making “snap decisions.” He told Ms. Walters to get out of the house in a fight over the prenuptial agreement when she was three months pregnant. She left and resided with the Jones family for a couple of months. Likewise, he told Shelly Moore to get out of the house.

[73] Mr. Walters has poor conflict management skills. He resorts to angry outbursts and yelling when he is not getting his own way. His marriage to Erica Egely ended badly; there was a public confrontation at the gym, which must be considered unusual for a place of business. The end of the relationship with Stacey Bowan involved the intervention of the police. There was also police involvement in the relationship that Mr. Walters had with Shelly Moore.

[74] The evidence shows numerous angry outbursts including a fight with a customer at the gym mentioned by the police to Ms. Bleau. Mr. Walters had a dispute with Ms. Walters’ doctor about her medication. He had a dispute with officials at the school that Reece attends. He had a dispute with his mother that resulted in a two-year estrangement when Reece was an infant. All that Mr. Walters’ mother said in response to questions about the cause of the estrangement, when she refused to be candid, was “Ken is Ken.”

[75] When Ms. Walters told Mr. Walters that she did not want any more children he erupted at the gym. They had a full-scale public altercation. He broke a calculator. This was the event that led to the separation.

[76] Section 24(4) of the CLRA provides that “[i]n assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse.”

[77] The evidence calls this factor into serious question in this case. I have set out above the evidence concerning a number of angry confrontations between Mr. Walters and others including his wife. This evidence is troubling.

[78] Ms. Walters alleges that an incident occurred on July 29, 2009 (which was a Wednesday). Ms. Bleau’s report sets out the details:

Ms. Walters advised the police that on July 29, 2009, Reece, Mr. Walters and herself attended Marble Slab ice cream parlour. Ms. Walters threw her ice-cream out stating that she was full. She stated to Mr. Walters that she wanted a slice of pizza and Mr. Walters became angry stating that she had wasted money, and had the nerve to ask for something else. When they got home Ms. Walters brought up the argument with Mr. Walters. She asked why she could not have a three dollar piece of pizza. Mr. Walters was yelling at her and then grabbed the edge of the kitchen table which is thick heavy wood and flipped it on top of her. Ms. Walters tried to get away from him, but he grabbed her by the arms and began to shake her. Ms. Walters convinced Mr. Walters to calm down by telling him he was right and it wouldn’t happen again. Ms. Walters stated that she was sore the next morning and had bruising on her arms. Mr. Walters denied the allegations of assault.

[79] Mr. Walters admits that there was an incident on a day during the long Civic Holiday weekend that year, which started a couple of days later. It was at an especially low point in his personal and professional life because he knew he was going bankrupt and they had very little money. He had finished cutting the lawn and was feeling sorry for himself and his family. Despite the lack of money, he decided to take the applicant and Reece to a new ice cream shop and use some of the company’s money to pay for the visit. Ms. Walters did not finish the ice cream cone. She asked for a piece of pizza since enticing odours were wafting out of the nearby restaurant. He refused. Her request raised for him an ongoing issue about what he saw as her spendthrift ways. They continued to argue on the way home and afterwards in the kitchen.

[80] Mr. Walters admits that he did lose his temper. He denies that he touched Ms. Walters. He also denies flipping over the table, which he says is too heavy for him. This was also Ms. Bleau’s sense and she added that if the table were flipped onto someone, that person would be seriously hurt because of its weight.

[81] Mr. Craig submits that I should discount Ms. Walters’ evidence about the bruising on her arms because it is self-serving. He further submits that Mr. Walters was talked into a peace bond by his lawyer, which should not be taken as an admission that he committed the assault.

[82] But the existence of the bruises was corroborated by Mr. Walter’s own witnesses and no credible alternative explanation was offered. Sherry Clark works at the gym as an administrator; Ms. Walters commented on the bruises at the time and Ms. Clark saw them. Christine Blondell works for Mr. Walters as a personal trainer and receptionist and has done so for about ten years. She was Ms. Walters’ personal trainer at the time. Ms. Walters missed a few days of training and later explained to Ms. Blondell that it was because she had bruises on her arms and Ms. Blondell saw them. I find that Mr. Walters did grab Ms. Walters and shake her on that occasion leaving bruises on her arms. I am not persuaded on the balance of probabilities that Mr. Walters flipped the table over on Ms. Walters. There would have been evidence of injury had that been true. Ms. Walters does not allege any other instances of personal physical abuse by Mr. Walters.

[83] Ms. Walters testified that on a couple of occasions Mr. Walters punched a hole in a door at the home during a fight. Mr. Walters admitted to a single incident.

Custody and Access Determination

[84] I must keep in mind the overall situation and take the statutory factors into account in a cumulative manner.

[85] Mr. Walters is seeking an immediate move to a week-about arrangement. He urged the court to give full effect as soon as possible “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child” as provided by section 16(10) of the Divorce Act. He relies especially on the decision of Linhares deSousa J. in Ladisa v. Ladisa, where the mother showed resistance to access by the children to their father, as Ms. Walters does here. Mr Craig conceded that some form of transition from the present arrangement to the week-about would make sense.

[86] At page 14 of her report, Ms. Bleau stated: “It is not believed that Reece could manage a week-about custody arrangement at this time as she experiences discomfort from extended periods of time away from her mother. However, it is imperative that Mr. Walters have frequent and regular access with Reece.” In cross-examination she admitted that increasing Reece’s access to her father and equal parenting would be the ideal arrangement, eventually. This is also what the Divorce Act encourages: see Roy v. Roy, [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.) at para. 14.

[87] Ms. Bleau testified that at Reece’s age and stage when she was assessed about 14 months ago, three sleeps apart from her mother was about the most she could handle, even though her recommendation would provide for two weeks in the summer, not consecutive. She acknowledges in her testimony that at such a young age things could have changed for Reece, but she has not done a new assessment. Mr. Miller submits that there is no evidence that Ms. Bleau was wrong when she said that three sleeps was enough of a separation between Reece and her mother; Reece is a sensitive child and “reactive.”

[88] Mr. Craig argued that Ms. Bleau’s position was based in part on her finding that Reece showed distress and got sick to her stomach when it was time for her to go with her father. The evidence shows, however, that this occurred on only one occasion and that Reece does not exhibit distress during transfers now.

[89] But the other evidence speaks too loudly. Mr. Walters is impulsive and demonstrates poor dispute resolution skills. His inclination to indulge in public yelling matches is problematic. In my view, in testifying that he had no need for and did not benefit from the anger management program that he was obliged to attend as a condition of the withdrawal of the assault charge, Mr. Walters demonstrated no insight into how inappropriate his behaviour is when he is engaged in disputes with others.

[90] I accept Ms. Walters’ evidence that she is not concerned that Mr. Walters would discipline Reece physically. I am not worried about physical violence.

[91] I am, however, concerned about the effect that an angry outburst against another person would have on Reece. Although there is no evidence that Mr. Walters has been angry with Reece up to now, I am even more concerned that Mr. Walters’ anger will be turned on her as Reece matures and develops the inevitable rebellious streak so familiar to parents of teenagers. Mr. Craig tendered no evidence, neither the exit report from the anger management program assuming there is one, nor any expert evidence, to address my concern. I am not persuaded that Mr. Walters has yet developed the personal skills and attitudes necessary to manage a week about arrangement with Reece.

[92] I am mindful that Mr. Walters has been on his best behaviour in the period leading up to the trial. In my view a longer period of observation is necessary for the court to be satisfied about his parenting abilities before a week-about access arrangement can be reasonably assessed. I am hopeful that a longer period of stability and modestly increased access will give Mr. Walters the opportunity to demonstrate his abilities to the court and to Ms. Walters. The assistance of a parenting co-ordinator will also assist.

[93] I am prepared to increase the access dates provided in the order of Olah J., in light of both Ms. Bleau’s observation that a separation of seven days every two weeks is a bit long, and of the stability and manageability of the current arrangements. The weekend and Wednesday arrangements will continue. On the weekend that Reece is with Mr. Walters, she will stay with him on the following Thursday as well. On the weekend that Reece is with Ms. Walters, she will stay with Mr. Walters on the following Tuesday in addition to the Wednesday. The pick-ups and drop-offs will be adjusted accordingly. That will result in Reece being away from her father for no more than four sleeps. I accept Ms. Walters’ suggestion that March Break access should alternate. The cycle will begin with the next March Break when Reece will be with Mr. Walters. Apart from these adjustments, I otherwise adopt Ms. Bleau’s other access recommendations, and continue with the cycle set by the order of Olah J.

[94] Further, in the interests of stability for Reece, in my view there should be no motions to change over the next two years unless there is a material change in relevant circumstances.

[95] For greater clarity, the order will provide:

1. Reece Walters shall have her primary residence with Ms. Walters.

2. The parties shall have Reece on alternate years for Christmas Eve to Christmas Day at 2:00 p.m. Mr. Walters shall have Reece for two weeks in the summer not to run consecutively. The parties shall have Reece for the March Break on alternate years and for a week at Christmas. Mr. Walters shall have Reece for every Father’s Day and Ms. Walters shall have Reece for every Mother’s Day regardless of the regular schedule.

3. Reece shall have access to Mr. Walters as follows:

   a. Every second weekend from Friday after school to Monday morning, to be extended to the Tuesday morning of a long weekend;

   b. Wednesday overnights;

   c. On the weekend that Reece is with the applicant Ms. Walters, she will stay with Mr. Walters the following Tuesday in addition to the Wednesday;

   d. On the weekend that Reece is with Mr. Walters, she will stay with him on the following Thursday in addition to the Wednesday;

   e. The Respondent to provide daycare for the child when the Applicant is working and the child is not in school. The Applicant shall convey through a third party as to when she requires daycare due to work; and,

   f. Such further and other temporary access as the parties may agree.

4. Reece shall be picked up for access visits to Mr. Walters at her school at 3:30 pm.. and be dropped off at her school at 8:00 a.m. at the end of the visit. Any transfers that cannot occur through the school shall occur in a public location mutually agreed between the parties.

5. Mr. Walters shall be entitled to all information respecting the child, including report cards and notice of activities, directly from the child’s school.

6. The parties shall discuss all decisions involving Reece using the Family Wizard Program. The parties must agree to any extracurricular activities during their respective access times with Reece.

7. The parties shall retain the services of a parent coordinator to assist them with their communication and in resolving any conflicts that arise. They shall meet with a parent coordinator on a monthly basis initially to assist them as co-parents and to minimize conflict. The parent coordinator may meet with Reece and parents to assist with the historical relational issues.

[96] To conclude on the subject of access, the parties need to understand, and to understand well, that reasonable access to each of her parents is Reece’s right. It is not a parental right. The parties are intelligent and are lovingly committed to Reece. They will be dealing with each other for decades over Reece. It is time for them to build a functional relationship with that understanding in mind. It is time for them to demonstrate the kind of flexibility with each other that daily human life necessarily requires.

Support Issues

[97] In terms of the support issues Mr. Craig proposes that the court rely on the 2011 T4 slip provided by the gym, which shows Mr. Walters making $52,000.00. He proposes that $9,400.00 be added to reflect the fact that as a self-employed person Mr. Walters gets other benefits. This would bring his total income to $61,400.00. Under the old Guidelines that would generate child support in the amount of $566.00 a month. Under the new Guidelines, the number is $559.00 a month. He notes that Ms. Walters now makes $25,372.00 for an offset of $204.00 per month, resulting in a net payment by Mr. Walters of $355.00 per month going forward. If the sharing arrangement is altered then the support number would need to be altered as well.

[98] Ms. Walters takes the position that $110,000.00 should be imputed to Mr. Walters as annual income. Mr. Miller’s theory is that Mr. Walters would need at least $110,000.00 to meet the $81,000.00 that he has described as expenses in Exhibit 1 and in Exhibit 6. Further, he submits that the suggestion that his salary is now $52,000.00 should not be taken seriously. Mr. Walters told Honda that he made $8,400.00 a month ($100,080.00 annually) and he told the Bank of Nova Scotia that he made more than $100,000.00. At the present time he is paying child support in the amount of $481.00 a month. In Exhibit 8 Mr. Miller calculates what Mr. Walters owes and suggests that appropriate support level is $1,024.00 per month.

[99] The factors that the court must consider in the imputation of income are set out in sections 18 and 19 of the Federal Child Support Guidelines, SOR/97-187, as amended. The corporate vehicle that operates the gym business is owned by Mr. Walters’ mother, but she is his nominee, in my view, considering the evidence. It is a corporation that is controlled by Mr. Walters. The allocation of income and expenses is done for tax efficiency purposes under the advice of the corporation’s accountant to whom Mr. Walters deferred on a number of occasions in his evidence. I do not find that Mr. Walters is doing anything to reduce his income for child support purposes, but that is the effective result of the ways in which he has organized his life from an income and expense perspective.

[100] I accept Mr. Miller’s argument that in order to meet the expenses that Mr. Walters has listed, his actual income would have to be considerably higher than his nominal income. I therefore reject the salary Mr. Walters earns from the gym at $52,000.00 as the right number for calculating child support. I also believe that the imputation of $9,400.00 more income to him that Mr. Craig concedes is also insufficient in the circumstances. In the absence of evidence that enables me to determine this number with certainty, since Mr. Walters did not call his accountant as a witness, I fix his income for child support purposes at $100,000.00. I note that this number reflects the income that Mr. Walters has used in discussions with lenders.

[101] At that rate, under the old Guidelines Mr. Walters would have been responsible for a monthly payment of $877.00. He has been paying $481.00 per month. The difference is $396.00 per month. The overall arrears for 2010, and 2011 would be $396.00 x 14 months for a total of $5,544.00. The arrears for 2012, when the Guideline support went to $880.00 per month, are $1,596.00, for total arrears of $7,140.00. Mr. Walters shall pay that amount to Ms. Walters.

[102] Going forward, the revised access arrangements will bring Mr. Walters over the 40 per cent threshold referred to in section 9 of the Federal Child Support Guidelines. If I were to do a complete offset of the respective incomes of the parties, the difference would be $676.00 net child support payable by Mr. Walters each month. In my view, however, since the access just edges Mr. Walters over the 40 per cent threshold it would be more appropriate to reduce the monthly child support he will pay from $880.00 to $775.00 per month.

[103] If the parties are unable to agree on costs, then I will accept written submissions not more than three pages in length within ten days, with reply submissions not more than three pages in length within an additional ten days.

[104] So ordered.

Justice P.D. Lauwers

Released: April 23, 2012