COURT FILE NO.: 2847/11
DATE: 2012-05-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Madeleine Gisele Gregory
Steven L. Nagy, for the Applicant
Applicant
- and -
Mark Allen Gregory
John Ellis, for the Respondent
Respondent
HEARD: April 20, 26 and May 7, 2012
The Honourable Justice C. A. Tucker
REASONS FOR DECISION
BACKGROUND
[1] Madeleine and Mark Gregory were married on August 25, 1998 and they separated on June 28, 2008 although they continued to reside together until December of 2008. They have three children, Richard aged 13, Nicole aged 11 and Erica aged 8.
[2] The parties have settled the property issues leaving the court to decide custody, access, child support and retroactive child support.
THE EVIDENCE
[3] The Gregorys testified. In addition, Mr. Gregory called his girlfriend, Caroline Vrsek, and his father, Mr. Gary Gregory.
[4] According to Ms. Gregory, she was always the primary caregiver for the children and she remains such to the present. The primary residence of the children is with her, and the father has access every other weekend from Friday after school until Sunday evening and one evening one week and two evenings the next week. He also has enjoyed four weeks of holidays with the children in the summer. Ms. Gregory testified that originally Mr. Gregory cancelled visits often and that he did not exercise greater access with the children even when he was laid off for six or seven months in 2009. Mr. Gregory’s father testified that his son had more access during that year and the children frequently stayed overnight during 2009 at least every week. Ms. Gregory said it was only in 2011, as the trial date approached, that Mr. Gregory began to seek to have the children with him whenever he is off work. Mr. Gregory said he always wanted to be with his kids more. He also said he had overnight access during the week two to three times a month up until last September when Ms. Gregory unilaterally terminated that access after Mr. Gregory refused to return the children after a visit.
[5] Ms. Gregory and Mr. Gregory have no issues with the other’s parenting skills. They both agree that there should be a joint custodial order made by the court. The difference is that Ms. Gregory would like to have the final decision making power, after consultation with Mr. Gregory. She seeks that authority because she is concerned that she may acquiesce to Mr. Gregory to avoid conflict and not necessarily because it would be in the best interest of the children. Mr. Gregory does not see any reason for such final decision making power to be held by either party as joint decisions have been made by the parties since separation without any difficulty.
[6] Mr. Gregory wants the children to be with him two overnights a week and every other weekend from Friday after school until Monday before school and for six weeks during his vacation time. He argues that as such he will have the children more than 40 percent of the time giving me the discretion to reduce his child support obligations. As discussed later in my decision in terms of retroactive child support, I find, based on the evidence, that with the present parenting regime he has not had the kids more than 40 percent of the time. Accordingly, any child support ordered by me from the date of actual separation and until my decision is released would be at the table amount. I recognize that the total quantum of retroactive child support and the date of commencement of the same are subject to my discretion, however it would only be prospective child support that would be affected by any change in the access regime that I order. Mr. Gregory clearly stated on more than one occasion that his desire to see his children more often has nothing to do with reduced child support.
[7] Mr. Gregory only began to pay child support in July of 2011. In April 2012 he began to pay $1,093 a month.
[8] After the parties physically separated, Mr. Gregory advised Ms. Gregory to pay $900 towards the cost of running the house. The matrimonial home was listed for sale but did not sell until the beginning of 2011. Ms. Gregory paid the $900 until April 2010 and on two occasions she paid $1,050. Mr. Gregory paid the household bills which were approximately $2,100 a month. Ms. Gregory paid for everything for herself and the children except the household bills. She earns approximately $30,000 to $34,000 a year working in the summer at a golf course. Mr. Gregory earns approximately $60,000 a year, and until he purchased a home in 2011 he resided rent free with his parents at their home. He has now sold that home. He paid for food and made meals for the children during their access visits. His schedule rotates but has become more fixed in recent times. He agrees that Ms. Gregory is very accommodating in terms of rescheduling access as a result of work changes.
[9] Mr. Gregory has recently moved into his girlfriend Ms. Vrsek’s house where she resides with her parents - who have an in-law suite - her two children and an exchange student. The plan is to purchase the home from her parents to provide more space. Right now, while Ms. Vrsek’s parents are away in Italy, Mr. Gregory and Ms. Vrsek have been using the in-law suite and the daughters Nicole and Erica occupy their bedroom, while son Richard uses a section of the basement as his sleeping quarters, according to Ms. Vrsek. Mr. Gregory said the girls had their own rooms. Ms. Vrsek also said the renovations for the basement were in the planning stage. Ms. Vrsek’s two daughters have the remaining two bedrooms of the four bedroom house. The exchange student will leave in June. The house sounds rather crowded, however cramped quarters alone I do not find to be relevant in determining the best interests of the children. Mr. Gregory expressed that he did not want to be a visitor in his children’s lives so he moved to Niagara Falls where they did to be closer to them even though he is farther away from his work in Nanticoke. He denied that he moved to the Falls to be closer to his girlfriend.
[10] He assumed Ms. Gregory would move to Niagara Falls once the matrimonial home was sold as she grew up there and had family there. He denied, however, being told of the move by her. He learned about the move from his lawyer. He wants shared custody where he has the children on all of his days off. Although he rejected the idea of a French immersion school for the children proposed by Ms. Gregory, they both agreed upon a Catholic education as a correct choice in the best interests of their children.
[11] Ms. Vrsek describes the Gregory children as wonderful, that she misses them when they are gone and that she loves them. She said they do as much as possible together as a family when the kids are visiting. The Gregory children interact well with her two girls who are 12 and 17. She works five nights a week. There were a number of small inconsistencies between the testimony of Ms. Vrsek and Mr. Gregory as to the access visits and sleeping arrangements for the children and future plans, but nothing that I find material to my decision.
[12] I note that all involved who testified indicated that the children are doing well in school and have no issues, health or otherwise. Ms. Gregory testified that the children love to spend time with their father and that they love him.
[13] According to her, access for the two and a half years after separation was after school on Friday until Sunday at 8:30 every other week and overnight one week Monday to Tuesday and the following week Tuesday to Wednesday. The schedule changed recently and is now from after school two days one week and one day the next week after school until 8:30. She says she tries to accommodate Mr. Gregory’s requests for access as long as she does not have plans. She further provided that if he plans to play hockey during access that he either takes the children to the game or returns them rather than leaving them with a caregiver. She testified that recently he has been taking the children to his hockey games and the children enjoy it. Both agree that Mr. Gregory signs the children up for such activities that the children are interested in and that Ms. Gregory is agreeable to that arrangement. During Mr. Gregory’s access visit she is allowed to see the children on her days off, which she says “keeps down the stress”. I am not sure what she meant by that. Last year they split March break and Christmas. I was assured by the parties that they could work out an agreeable ongoing Christmas season schedule which gave me confidence in finding in part that a joint custodial arrangement would work for these parties.
[14] Ms. Gregory is a fulltime mother when she is off work in the winter season. Most of the time, she says 99 percent of the time, she takes the children to their activities. She books and takes the children to their doctor’s appointments and the dentist, although her husband takes their son to the orthodontist. She now receives the child tax credit; although for the first three months after the physical separation of the parties her husband received it.
ANALYSIS AND DECISION
Custody
[15] The parties have been able to maintain communication and, for the most part, have made joint decisions working out an acceptable custody/access schedule for the children since they separated in 2008. The children are well adjusted and thriving. The parents are happy with the children’s extracurricular activities and their school choice. The parents communicate and Ms. Gregory accommodates Mr. Gregory’s access requests. Joint custody is a workable and desirable scheme for these parents and it is in the best interests of these children I find. Given this cooperative history, although perhaps not perfect, there appears to be no need to have one party with final decision making. They both love their children and I find will endeavor to act in their best interests. If at any point an issue arises which cannot be resolved, the parties can resort to court. However, if the past is indicative of the future, I find that course of action to be unlikely.
[16] In terms of access, it appears that on separation Mr. Gregory played an active but lesser role in the children’s lives than Ms. Gregory. Basically, primary residence was left with her for over three years of the children’s lives. The children have had a schedule of visits with their father for the three and a half years from separation. They enjoy time with their father, but at least since separation have resided with their mother. She is a stay-at-home fulltime mother for most of the school year.
[17] Mr. Gregory said that prior to separation while Ms. Gregory was working, he or her mother provided care for the children. The children are now 13, 11 and 8. On separation they would have been approximately 9, 7 and 4, so a good part of their lives have been spent under the present regime. The children are reaching an age where their friends will become more important to them and they will want to spend time with them. According to Ms. Gregory, they have not expressed a desire to spend more time with their father, although they love him. They want to be at “home”. Home is where their mother lives. The children found two nights a week too much time away from home. It is in the children’s best interests to have as much contact with their parents as possible and as can be exercised, keeping in mind the children’s routines, ages and wishes. The parents reside close to each other and the children’s school.
[18] The children are thriving, I find, which is very unusual for a lot of separated parents and I hope that they continue to do so. For this reason, I find it would not be in their best interests to alter greatly the time they presently spend with their father. They have had many disruptions as a result of the separation; a change of home, a change of hometown, and a change of school. At the same time, cementing in place the status quo without considering the benefits to the children of increased time with their father would not be in their best interests either. I find that the mother has been the primary caregiver to the children since separation and that although the father’s access was greater than many parents’, it was far from being equal sharing or even 40 percent of the time. Unfortunately, despite Mr. Gregory’s comments about wanting to be part of his children’s lives now, I find that he acquired a lesser role after the separation. I, however, also acknowledge the aftereffect of separation is difficult for all involved, including the father.
[19] Mr. Gregory’s move to Niagara Falls for his children is indicative of his desire to be near them given he now has to drive over an hour each way to get to work. Ms. Vrsek may also have been a factor in his decision to move, but both deny that as a motivation and I have no reason to disbelieve them. The father’s residence is in flux, although there is sufficient room to accommodate the children on a temporary basis. Such temporary residence would make school nights more difficult. I acknowledge that would not necessarily be an obstacle that could not be overcome.
[20] So where does this leave us? The primary residence of the children shall continue to be with the mother in keeping with the routine they are accustomed to.
[21] The mother has the children fulltime while she is off work from Thanksgiving to mid-May in each year. While she is off work, the father shall have the children for three weekends out of four from after school on Friday until Sunday at 8:30 p.m. The rest of the year the access shall be every other weekend. I find it would be better for the children to return to their home prior to return to school on Monday. After the access weekend the father shall enjoy access one night a week from after school until 8:30 p.m. during the time in which he has alternate weekends. The following week he shall have one night of the week from after school until school the next morning. This will result in only one night every two weeks (or every four weeks as set out below) where the children’s regular schedule and school would be disrupted, which I find acceptable, especially given the benefit of spending more time with their father. During the time when he has three weekends out of four, weekly access shall be one day each week after school until 8:30 p.m. for the weeks that follow his three weekends and in the fourth week he shall enjoy one overnight during the week from after school until before school. When the children are on school holidays the access visit shall be every week from 1:00 p.m. the first day to 2:00 p.m. the second day. That way the father can enjoy supper, breakfast and lunch with the children and the desire for the children to be “home” can be accommodated.
[22] Each parent will have four weeks of holiday access with the children comprised of no more than two weeks at a time. The non-access parent shall be entitled to have one daily visit with the children in that time period, provided the parent is not working and the children are in town. If the holiday includes travel out of town, there will not be such a visit. During the four week vacation, regular access shall be suspended.
[23] Christmas access to be arranged by the parties and March Break to be split or alternatively, one party shall have access one year and the other party the next, whichever best suits the wishes and needs of the children.
[24] Mr. Gregory shall advise Ms. Gregory of the weekdays he wishes to have access as soon as possible, but at least at a minimum of 48 hours prior to the access.
[25] Mr. Gregory shall have Father’s Day with his children every year from 9:00 a.m. to 9:00 p.m.
[26] These access visits are a minimum. I strongly encourage additional visits as supported by the children, which can only be in their best interests.
[27] The parties will endeavour to use each other as caregivers and to be with the children while they enjoy their company.
[28] The parties shall both be entitled to obtain copies of school records, medical notices, and dental records. Both shall be advised of medical appointments and shall be entitled to attend upon them.
Child Support
[29] Given the access regime that existed since separation, as noted above, there would be no need to consider any reduction of the table amount. I find Mr. Nagy’s analysis of the amount owed by the respective parties to be fair and equitable for the parties. In making this finding, I find, among other things, that the parties split equally the proceeds of the home, that Ms. Gregory had the benefit of living in the home, that Mr. Gregory had the benefit of living rent-free with his parents, and that Mr. Gregory received the child tax credit for three months after physical separation.
[30] Accordingly, I find retroactive child support amounts in total to be $16,615. In making a determination of the amount to be paid, I take into account that this action was not commenced until May of 2011. Child support was paid at that point. I recognize that, unlike spousal support, the payor parent should be deemed to know he is obligated to pay child support. However, until the home was sold the situation of the parties was in flux. I also recognize that Ms. Gregory bore all the burden of paying for their children for two and a half years. Mr. Gregory will have ongoing support to pay together with the retroactive support. Therefore, I find it equitable that the amount of retroactive child support be reduced and be fixed at $12,000 to be paid by Mr. Gregory to Ms. Gregory. If the parties are unable to agree upon a repayment plan, I may be spoken to.
[31] Ongoing support shall be $1,141.25 per month commencing April 1, 2012 based upon Mr. Gregory’s 2011 income of $58,586.
[32] On consent, the parties shall exchange income tax and notices of assessment by April 1 of each year and they shall adjust the child support accordingly.
[33] On consent, extraordinary expenses will be borne by the parties in proportion to their respective incomes, and the parties shall maintain the children on all benefit plans available to them at work.
Costs
[34] If the parties are unable to agree upon costs, I may be spoken to.
Tucker, J.
Released: May 23, 2012
COURT FILE NO.: 2847/11
DATE: 2012-05-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Madeleine Gisele Gregory
Applicant
- and –
Mark Allen Gregory
Respondent
REASONS FOR DECISION
Tucker, J.
Released: May 23, 2012