COURT FILE NO.: 09-7286M
DATE: 20120524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOBBY GREEN
Applicant
– and –
LAURA COOK
Respondent
Mr. Green, In Person
Ms C. Allen, for the Respondent
HEARD: April 4, 10, 11, 12, 13, 16, 17, 18, 19, 26, 27 and May 7, 2012
C.J. CONLAN, J.
REASONS FOR JUDGMENT
[1] Opposites attract. Anyone who doubts that has not met Bobby Green and Laura Cook.
[2] This was a lengthy family Trial in Owen Sound. As I said on the last day, Ms. Cook is fortunate to have been very ably represented by Ms. Allen, and Mr. Green represented himself in a very competent and respectful manner.
[3] I thank the parties for their thorough written submissions.
[4] The parties are to present to the Court a Final Order for issuance in accordance with these Reasons. If the parties cannot settle costs, which I am inclined to think ought to be borne by each party without compensation from the other given the mixed results, then they are to contact the Trial Coordinator in Owen Sound to schedule a Court attendance to hear oral submissions on costs not to exceed one hour total.
CUSTODY
[5] Each parent seeks sole custody of Kaitlin Minna Green ("Katie") born […], 2008.
[6] This is not an issue that is wrenching to decide, on these facts.
[7] What is in the best interests of Katie? That is the question.
[8] Joint custody is not an option as the parties intensely dislike each other; they live several hours apart; they have not shared parenting for a long time; and the prospect of much cooperation between the parents is, to be kind, slim.
[9] Mr. Green seeks sole custody. He has a new partner and a plan of sorts for Katie. Mr. Green is a man with real potential. I do not for a minute believe that he is the monster that some perceive him to be. He has undoubtedly made serious mistakes in the past regarding Ms. Cook and his daughter. He has several challenges as outlined in the report from the London Clinic.
[10] Recognizing without dwelling exclusively on those shortcomings and mistakes of the past, this Court is firmly of the opinion that Mr. Green has his heart and head currently in the right place. He is devoted to Katie. He truly wants what is best for his lovely daughter.
[11] Custody would certainly be in the best interests of Mr. Green. It may even further promote his road to being a more insightful person without the same hubris that seems to have distracted his efforts in the past.
[12] But custody in favour of Mr. Green cannot be said to be in the best interests of Katie. Certainly not at this time. Mr. Green has really never been a full-time parent to his daughter. That is not because he has never wanted to do so, but a fact is a fact. Disruptions to access, although without Mr. Green's consent, have resulted in Katie and her Father being like distant relatives, soon to be strangers if the present path is navigated much longer. That is sad. It is, however, true.
[13] To pluck Katie out of her familiar environment at her age and ship her hundreds of miles away to live with her Father and Ms. Adavastro, no matter how much this Court accepts their good intentions, is too risky.
[14] Besides, Laura Cook has mothered Katie very well. By all accounts, Katie is thriving developmentally. Ms. Cook deserves genuine appreciation and credit for that. I urge Mr. Green to recognize that. I know that he will in due time.
[15] I have considered all of the evidence, testimonial and otherwise. I have contemplated Mr. Green's very able written submissions on this issue, including his arguments about alleged parental alienation at the hands of Ms. Cook. I do not find that Ms. Cook is responsible for the disturbing remarks made by Katie about her Father. There is no evidence to support that assertion, besides speculation and suspicion.
[16] This Court accepts and finds as a fact that Katie has made very disturbing comments about Mr. Green, without being manipulated by her Mother. I do NOT find that it has been proven on balance that Mr. Green in fact said the alleged things to Katie. I do not believe that he did. Like the Children's Aid Society and the police, both of whom investigated the matter and did not conclude that Mr. Green abused his daughter in the way alleged, I am at a loss to explain the comments by Katie. In any event, I must leave that to professionals. Suffice it to say that I do not find that Mr. Green made any of the alleged remarks to Katie at access visits, all while being closely supervised by trained persons taking copious notes about as "hawkish" as one could get and without any reference to anything untoward.
[17] I agree with Mr. Green that the woman who once loved him and married him now tends to see him through a dirty glass. Ms. Cook strikes me as a devoted and very capable parent, as well as an extraordinarily loving daughter to her own folks. Dr. Cook and her husband Paul have been beacons of light and support for Katie and Laura. I commend them. They are champions to their granddaughter. Laura Cook tends, however, to see Mr. Green in an exclusively negative view. That became apparent to the Court through her answers and demeanour in the witness box. That is understandable as a very protective Mother in the face of frightening circumstances, but change is needed if Mr. Green is to be re-integrated in to his daughter's life, which now leads to a discussion of access.
[18] This Court orders that Ms. Cook have sole custody of Katie. At this time, on the evidence, the stability that provides is in the best interests of Katie.
ACCESS
[19] Laura Cook seeks an Order for no access between Katie and her Father. Mr. Green obviously opposes that in vigorous fashion.
[20] This Court heard testimony from two experts, both called by the Mother: Dr. Louise Sas and Dr. Dan Ashbourne.
[21] Dr. Sas is a very experienced clinical psychologist who specializes in child psychology, among other matters. She was declared, on consent, an expert in four areas: (i) clinical and child psychology including access, (ii) the emotional, psychological and social development of children, (iii) the capacity of children to testify, and (iv) the attachment and bonding between children and parents. Dr. Sas' curriculum vitae was marked Exhibit 38, and her reports dated June 8, 2011 and August 15, 2011 were filed as Exhibits 39 and 40 respectively.
[22] Dr. Ashbourne is a psychologist and the Executive Director of what was then called the London Family Court Clinic. He was declared, on consent, an expert in clinical psychology and custody and access assessments. Dr. Ashbourne's curriculum vitae was marked Exhibit 56, and the Clinic's Court-ordered assessment report was filed as Exhibit 41.
[23] Neither expert recommends no access between Katie and Mr. Green.
[24] The evidence is clear that Katie generally enjoys visiting with her Father. There is also evidence, primarily from Laura Cook and her parents, that Katie has in the past experienced negative behaviour changes after access with Mr. Green. I accept that Katie has made some dark and deeply concerning comments to others which she says were told to her by her Father during access visits. Although I do not believe that Mr. Green is responsible for that, as indicated above in these Reasons, I must take in to consideration those remarks by Katie in determining whether access with her Father would be beneficial and meaningful to Katie and overall in her best interests.
[25] I have concluded in the affirmative. There shall be access between Katie and Mr. Green. The two major factors in reaching that conclusion are the expert opinions of Dr. Sas and Dr. Ashbourne. Dr. Sas has worked extensively with Katie and Laura. She is well aware of all of the relevant circumstances, and yet she testified that she supports supervised access with a parent coordinator. Dr. Ashbourne testified that ignoring the Clinic's recommendations and imposing no access between Katie and her Father would be a "sad scenario" and "worrisome".
[26] This Court orders that there shall be access between Katie and Mr. Green on the following terms.
(A). The parties shall retain Ms. Donna Broga as a parenting coordinator, with the costs to be shared equally by the parties.
(B). Ms. Broga shall determine the access schedule in terms of frequency, dates, times and places. That shall be determined with input from the parents. But in any event, the access shall be at the very least twice per month and shall commence no later than 30 days from the date of this Order.
For so long as Katie appears to be enjoying and benefiting from access with her Father, it is hoped and expected by this Court that the access visits will become as frequent and lengthy as the circumstances reasonably permit.
(C). Ms. Broga shall personally supervise the access visits for the first six months from the date of this Order.
(D). After the first six months from the date of this Order, Ms. Broga may in her discretion appoint one or more persons who may be alternate supervisors for access. That discretion shall be exercised with input from the parents and either Dr. Sas or Dr. Ashbourne.
(E). Any costs associated with Dr. Sas and Dr. Ashbourne to fulfill this Order shall be borne equally by the parents.
(F). All other issues regarding access, including but not limited to recording, a communication book and exchanges of Katie, shall be determined by Ms. Broga with input from the parents.
(G). Robert Green shall not consume alcohol or non-prescription drugs within 24 hours of exercising access or during access.
(H). There shall not be any suspension or termination of access without a further Court Order.
(I). There shall not be any suspension or termination of the involvement of Ms. Broga as the parenting coordinator without a further Court Order.
(J). There shall not be any unsupervised access without a further Court Order.
(K). The matter shall be brought back to Court no later than 12 months after the date of the first access visit, at which time Ms. Broga shall report in writing to the parties and the Court on any relevant matters such that the Court may properly determine at that time whether any further Order is required regarding access.
[27] Ms. Broga was an impressive witness. Her professional background makes her an ideal fit for this family. The parties appear willing to work with her, and she is willing to work with the parents and consult with other professionals for input where appropriate.
[28] In his reply written submissions, Mr. Green expressed some concern about having access with his daughter in an artificial environment. It is hoped and expected by this Court that Ms. Broga and Laura Cook will facilitate liberal access between Katie and her Father, and that the access will be permitted to take place in environments that will foster a natural and healthy relationship between them.
CHILD SUPPORT
[29] Mr. Green had no comment on this issue in his written submissions except for some relatively brief remarks in reply.
[30] Very little time was expended and scant evidence presented on this issue at Trial.
[31] The parties married on August 24, 2002. They separated in November 2008. Katie has resided with Ms. Cook since separation. Child support is clearly due and owing by the Father. There is no evidentiary foundation for Mr. Green's reply submission that there are no child support arrears.
[32] This Court finds on the evidence the following incomes for Mr. Green for the purposes of child support: $23662.00 in 2009, $36170.00 in 2010 and $50700.00 in 2011.
[33] In the absence of any reliable evidence to the contrary, as requested by Ms. Cook for the benefit of Katie, this Court orders child support payable by Mr. Green in accordance with the Federal Child Support Guidelines and the above income figures. A support deduction Order shall issue.
[34] This Court orders that Mr. Green shall pay child support arrears in the amount of $188.92 per month for the 2010 year. Those payments shall commence on July 1, 2012.
[35] This Court orders that Mr. Green shall pay child support arrears in the amount of $316.00 per month for the 2011 year. Those payments shall commence on July 1, 2012.
[36] This Court orders that Mr. Green shall pay child support arrears for this year (2012) to date and ongoing child support in the amount of $468.00 per month, commencing July 1, 2012.
[37] No child support is being ordered for the year 2009. That was three years ago. The more appropriate time for that to have been addressed would have been in April 2010 when the Court made an interim Order for child support. In addition, there is no evidence of Mr. Green's 2008 income. Further, Mr. Green's ability to pay will be stretched already with the Orders made herein for subsequent years.
[38] This Court orders that, before June 1 of each year, each party disclose to the other his or her tax return and notice of assessment and notice of re-assessment, if any, for the most recent taxation year.
[39] This Court orders that Mr. Green pay 75 percent of reasonable and proper section 7 Guidelines expenses for Katie, on two further conditions. First, the expense must be mutually agreed upon by the parties in advance, with neither parent withholding unreasonably his or her consent. Second, Mr. Green's obligation to pay does not arise until forthwith after being provided with a bill, invoice or receipt.
[40] 75 percent is less than Mr. Green's proportionate share of expenses based on the 2011 incomes of the parties. The adjustment in Mr. Green's favour is being made in light of Ms. Cook's clear ability to work and earn an income and the other significant financial obligations of Mr. Green ordered herein.
PROPERTY
[41] Mr. Green opposes Ms. Cook's request for an Order that the net family property be divided unequally, in favour of Ms. Cook.
[42] Ms. Cook advances three arguments in favour of the unequal division of net family property: Mr. Green's alleged depletion of funds from the sale of the Sudbury home that the parties lived in before moving to Grey County, an alleged gift of $240000.00 from Laura Cook's parents to Laura Cook alone which was used by the parties to purchase the matrimonial home in Durham, and an alleged agreement by Mr. Green not to advance any claim against the $240000.00 in the event of a breakdown of the marriage.
[43] Ms. Cook cites subsections 5(6)(c), (d), (e) and (h) of the Family Law Act and two decisions: Serra v. Serra, 2009 ONCA 105, [2009] O.J. No. 432 (C.A.) and Ward v. Ward, 2011 ONSC 570 - Murray J.
[44] Mr. Green denied in his testimony any depletion of funds without the knowledge and consent of Ms. Cook, and he further denied any gift by his in-laws to Ms. Cook alone to help purchase the Durham matrimonial home as well as any agreement by him to forego any claim against that money if the marriage broke down.
[45] Dr. Minerva Cook, Laura's Mother, testified that Mr. Green emphatically committed to not touching the $240 thousand if the marriage fell apart or the property sold. The money was a gift to Laura alone, she said.
[46] Paul Cook, Laura's Father, testified that Mr. Green made that agreement, although Paul Cook's discussion was with his wife and daughter and not Mr. Green directly. The money was a gift to Laura alone, he said.
[47] Laura Cook testified that the money was a gift to her alone; that Mr. Green agreed not to touch that money if the marriage broke down; and further that Mr. Green unreasonably depleted thousands of dollars from the proceeds of sale of their Sudbury home without her knowledge or consent.
[48] Financial documents marked Exhibits at Trial do in fact show numerous debits from the joint bank account which held the sale proceeds of the Sudbury home.
[49] On balance, I find the evidence of the parties on the alleged depletion of assets issue equally credible. I do not know who is telling the truth, Ms. Cook or Mr. Green. Ms. Cook has therefore failed to prove on the civil standard that Mr. Green depleted assets in the manner alleged.
[50] On the gift issue, I accept the collective evidence of the three Cooks, further buttressed by the bank document marked as Exhibit 45, over the evidence of Mr. Green. I find that the $240000.00 was a gift from Dr. and Mr. Cook to their daughter Laura, alone, and I find further that Mr. Green agreed to not make a claim against that money if the marriage fell apart.
[51] The jurisprudence under section 5(6) of the Family Law Act sets a high standard for a finding of unconscionability. Equalizing the net family properties would have to result in something that would shock the conscience of the Court or, in other words, would be shockingly unfair or patently unfair or inordinately inequitable.
[52] I find that Ms. Cook has satisfied on balance that stringent test. To treat the $240 thousand as anything other than a gift to Ms. Cook alone would lead to an unconscionable result in terms of net family property distribution. This was a relatively short marriage. Separation occurred very shortly after the purchase of the Durham matrimonial home. It would be inordinately inequitable and shock the conscience of the Court to allow what would amount to a patently unfair windfall to Mr. Green if there is not an unequal distribution of net family property.
[53] This Court orders that there shall be an unequal distribution of net family property such that the $240000.00 be listed and treated as excluded property (a gift) on Ms. Cook's Net Family Property Statement.
[54] Ms. Cook filed such a Statement with her written submissions. Mr. Green did not. I have reviewed Ms. Cook's Statement and accept it as accurate.
[55] Accordingly, this Court orders that Mr. Green shall pay to Ms. Cook the sum of $62886.10. That amount shall be paid out of Mr. Green's share of the proceeds of sale of the matrimonial home currently being held in trust.
[56] Ms. Cook asks in her written submissions for other items to also be paid out of Mr. Green's share of the sale proceeds: nearly $16000.00 allegedly owing by Mr. Green for his share of the costs of maintaining the Durham home from August 2009 through October 2010, child support arrears allegedly owing by Mr. Green for the year 2009, and just over $4400.00 allegedly paid to Legal Aid Ontario on behalf of Mr. Green.
[57] Only the latter Legal Aid item is allowed. The others are denied. The evidence is too contradictory and uncertain to find on balance that Mr. Green failed to comply with an earlier Court Order and pay the amount claimed towards maintaining the Durham home. The child support for the year 2009 is an issue that was dealt with earlier in these Reasons.
[58] This Court orders that the $4409.70 paid to Legal Aid and Mr. Green's half (50 percent) share of any outstanding LCAP invoice(s) shall be paid out of Mr. Green's share of the proceeds of sale of the matrimonial home currently being held in trust.
DIVORCE
[59] A divorce Order will issue, uncontested.
OTHER CLAIMS
[60] Mr. Green seeks in his written submissions a psychological evaluation or assessment of Ms. Cook. That request is denied for two reasons. First, it was not pleaded. Parties should be held strictly to their pleadings. This is not Trial by ambush, even when the requesting party does not have counsel. Second, there is no evidentiary foundation to make such an Order, without even deciding if there is authority to do so. Laura Cook has had some mental health issues related to anxiety for which she has taken medication. That is not sufficient reason to make the Order sought.
CONCLUSION
[61] If these parents truly want the best for their precious daughter, then they will cooperate in fulfilling this Order and put their resentments aside to focus on the future of young Katie. She is an exceptional child. Do not spoil that.
[62] Best wishes to Katie and her parents.
The Honourable Mr. Justice C.J. Conlan
Released: May 24, 2012
COURT FILE NO.: 09-7286M
DATE: 20120524
JUDGMENT
Released: May 24, 2012