COURT FILE NO.: FC-10-2199
DATE: 2012/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLINE ELIZABETH DOYLE (DAIGLE)
Applicant
– and –
STEPHEN PATRICK DOYLE
Respondent
Self-Represented
Self-Represented
HEARD: May 24, 25, 2012
REASONS FOR JUDGMENT
Kane j.
[1] This action required determination of the following issues:
(a) Custody and access.
(b) Whether Alyssa Doyle be exempt from the shared parenting schedule and be entitled to decide where she wishes to live.
(c) Offset child support arrears claim by the respondent against the applicant. The respondent claims arrears of $13,200 at the rate of $600 per month for 22 months being August 2010 until May 2012.
(d) Payment to the applicant by the Respondent of her 2010 income tax refund in the amount of $1,649.
(e) Whether the Ontario Disability Support Program (O.D.S.P.) payments should be payable equally to the applicant and the respondent or otherwise.
(f) Decree of Divorce.
(g) The respondent seeks a waiver of the May 3, 2012 order that he pay the applicant $500 costs.
CUSTODY AND ACCESS
[2] During this trial, the parties agreed upon the terms for a final order of custody and access in accordance with the terms of the recommendations made by the Office of the Children’s Lawyer and contained in the order of Mackinnon J. dated March 22, 2012.
[3] This Court is satisfied that the terms agreed to represent the best interest of the children and therefore grants a final order on the terms set out hereafter.
CUSTODY
[4] Stephen Doyle and Caroline Doyle (Daigle) will have and share joint custody of their children Alyssa, Ryan and Carter.
PARENTING SCHEDULE
[5] The following rotation two week schedule will be followed, commencing September 5, 2011:
Ms. Doyle (Daigle) (Parent A) will have the children Monday after school until Wednesday at 4:00 p.m.
Mr. Doyle (Parent B) will have the children Wednesday after school until Friday at 4:00 p.m.
Ms. Doyle (Daigle) (Parent A) will have the children Friday after school until Wednesday at 4:00 p.m.
Mr. Doyle (Parent B) will have the children Wednesday after school until Monday before school, and then the schedule will repeat itself.
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
Parent A
Parent A
Parent B
Parent B
Parent A
Parent A
Parent A
Parent A
Parent A
Parent B
Parent B
Parent B
Parent B
Parent B
[6] The school will be provided with page 1 and paragraphs 2 to 10 of these reasons outlining the parenting schedule and pick up of the children.
[7] When it is one parent’s day to pick up the children, the other parent will not come to the school at the end of the day, except for teacher interviews and school events.
[8] Both parents will ensure the children arrive at school on time and attend regularly in order to strengthen the predictability and routine for the children.
[9] Each parent is responsible for pick up and drop off of the children at school during their parenting time of the children.
[10] The above schedule will continue uninterrupted during the school March break.
[11] In the summer during the children’s school vacation, each parent will be entitled to two weeks of uninterrupted time in order to have a vacation if they choose. Each parent may take these two weeks consecutively or non-consecutively. In odd numbered years, Mr. Doyle will have first choice of summer vacation weeks. In the even numbered years Ms. Doyle (Daigle) will have the first choice of summer vacation weeks. The parent with the first choice of weeks will inform the other parent of their choice in writing by May 1st of that year. In choosing the date of their summer vacation the parents will ensure that the children will not miss school. The summer vacation shall commence on a Friday.
[12] The regular parenting schedule will be suspended at Christmas each year to provide that Mr. Doyle shall have the children each Christmas Eve from 4:00 p.m. until 8:30 p.m. when he will drop them off to Ms. Doyle (Daigle)’s home. The children will then remain with Ms. Doyle (Daigle) until noon on Boxing Day when Mr. Doyle will pick them up. At 4:00 p.m. on December 27th. The regular parenting schedule will then resume.
[13] All exchanges will occur at the children’s school. Whenever an exchange must occur, and there is no school (for example, PD Days, Snow Days, unexpected school closures), the children will be picked up at 4:00 p.m. at the home of the parent who has the children at the time.
[14] Communication regarding the children shall be by text message or e-mail, however in a time sensitive situation (example: sudden illness or an occurrence that affects the transfer of the children), each parent will notify the other as soon as practicably possible by text message or voicemail.
[15] Since each parent will have the children on specific week days, they may enrol the children in any activities that take place on the days the children are with them. An activity that occurs on the weekend would require the prior consent of both parents.
[16] If Alyssa Doyle wants to go to counseling, the parents will facilitate her attendance.
[17] The children are entitled to unhindered telephone access to the other parent.
[18] The parents agree that the children will be raised in the Roman Catholic faith.
[19] Mr. Doyle will retain the children’s passport in his possession. Both parents will co-operate with the renewal of the passports when necessary. Mr. Doyle will provide Ms. Doyle (Daigle) with the passports upon receiving fourteen days notice of her intention to travel outside of Canada with the children. Upon return from the trip she will return the passports to Mr. Doyle forthwith.
[20] If either parent is travelling outside of Canada with the children they must give the other parent fourteen days prior notice. The travelling parent is required to supply the other parent with a descriptive itinerary and complete a travel consent form for each child. The itinerary must contain airline and flight numbers, departure date and times and seat numbers if available. The travelling parent will also provide addresses where the children will be staying and contact numbers. The consent forms are to be signed and returned to the travelling parent within 72 hours of receiving them. The consent to travel shall be in the form specified on the passport Canada website.
[21] Ms. Doyle (Daigle) shall retain the children’s health cards in her possession.
[22] The terms of this order shall be enforceable by any police force having jurisdiction in any area where the child may be located. The police force of Ottawa or any police force having jurisdiction shall, accordingly, be directed to locate, apprehend and deliver the child to the party intended to have care and control of the child in accordance with the terms of this order.
[23] The above schedule as to time with each parent, and all other terms in this custody section, shall apply to Alyssa. Alyssa is not permitted to decide herself where to live at this point in her life. She is 12 years old. To grant this self-determination request by the respondent is to over-empower a young child who in the past was subjected to too much adult responsibility.
[24] Making these scheduling provisions applicable to Alyssa also relieves her of any potential responsibility from parental pressure to choose between parents as to her residence. This child needs stability in her life and relief from past parental pressures, conflicting feelings of loyalty and the need to “support a parent.” It finally signals equal treatment among the three children. The last thing the boys need now is the absence of their sister 50 percent of the time.
RELIEF FROM COSTS AWARD
[25] The May 3, 2012 costs award of $500 was not appealed by the respondent. This Court ordered the same be paid again on May 18, 2012. There is no legal basis to reverse that order.
DECREE OF DIVORCE
[26] The parties married in Ontario on October 9, 1999. They lived together until their separation on June 18, 2010. They remained residents of Ontario thereafter.
[27] The parties did not reconcile or resume cohabitation since their above separation date.
[28] Upon the expiration of 30 days following this order and upon filing the requisite documentation, a decree of divorce shall issue.
CHILD SUPPORT
[29] Mr. Doyle claims $13,200 child support arrears from the applicant at the rate of $600 per month for 22 months commencing August, 2010 to date.
[30] The respondent’s new employment in June, 2012 is as trainee to become an appraiser of real property. For certification, Mr. Doyle must work 170 hours as a trainee for a qualified appraiser at a weekly salary of $500. That equates to an annual salary of approximately $25,000. He anticipates this training period, based on the hours he has available, may take a year to complete. Based on this new employment and the children spending an equal period of time with each parent, neither the respondent nor the applicant is claiming ongoing child support.
[31] The date of separation is June, 2010 as confirmed in the respondent’s answer to the application. This application issued on September 9, 2010, claims child support but does not present that request via an interim motion before trial.
[32] The respondent did not file his answer until March 11, 2011. It contains no claim for child support. He states therein that he will be commencing new employment mid-March, 2011 at a salary of $30,000 per year.
[33] It appears Mr. Doyle commenced employment in 2010. He testified that he had employment from May, 2010 until January, 2011 but earned no compensation for that work. It is not believable and I do not accept that anyone with three children and the serious debt load of the respondent would work for nine months for no compensation.
[34] A review of the pleadings, endorsements and orders in this action indicates that Mr. Doyle did not communicate a claim for child support until a case conference on the eve of trial. The absence of any claim or motion for interim child support from September, 2010 until trial undermines the respondent’s motive in presenting this arrears’ claim at trial.
[35] Mr. Doyle, through a personal holding company, owned a Midas Muffler franchisee prior to separation. His wife alleges he was less than studious in minding that business. The business was forced to close with mounting debt in March, 2009. The franchisor petitioned Mr. Doyle’s holding company into bankruptcy. This has led to further litigation which has not to date been successful for Mr. Doyle. The parties were each obligated for a portion of the outstanding corporate debt. This led to bankruptcy of the parties and the loss of the matrimonial home to creditors.
[36] Mr. Doyle claims he could not take new employment as he required to stay home and care for the children. This is contradicted by his testimony that he was employed from May, 2010 until January, 2011. Mr. Doyle states he was receiving cancer treatments which prevented him from working from June, 2011 until September, 2011.
[37] Mr. Doyle has been receiving social assistance due to his lack of employment and ineligibility for employment insurance since November, 2010. He filed no income tax returns in the pleadings or at trial since separation but insisted Ms. Doyle (Daigle) file her tax returns and obtain and file a 2012 first quarter compensation statement from her employer.
[38] Since November, 2010 Mr. Doyle has received social assistance at the annual rate of $7,200. The two boys qualified for O.D.S.P. during the period of separation regarding which, Ms. Doyle (Daigle) claims she should be receiving one half. In fact, Mr. Doyle has received all of that payment in 2011 and 2012. Currently it equals $890 per month, or $10,700 per year.
[39] Ms. Doyle (Daigle) acknowledges that she received the child tax benefit payments for the children from April until December, 2011 but has now been required to repay some $3,000 of that money to the government due to the children residing with each parent. She testifies that she has received $277 per month of the total child tax benefit payment since February, 2012 with the respondent receiving the balance. Mr. Doyle acknowledges that he has received monthly child tax benefits since March, 2012 of $762 per month.
[40] Summarizing the above, it appears that the total monthly payments going to Mr. Doyle since March, 2012 is $600 for social assistance, $890 for O.D.S.P. and $762 for child tax benefit, for a total of $2,252 per month which is $27,024 annually. That would have been approximately $18,800 in 2011 and some $11,600 for the period July to December, 2010.
[41] Ms. Doyle (Daigle) however alleges that all of the O.D.S.P. and child tax benefit payments were paid into their joint bank account from the separation until March, 2011 and withdrawn exclusively by the respondent. That would result in the total of 2010 money received by the respondent to be some $21,000 as compared to his 2010 line 150 income of $2,428.
[42] Mr. Doyle’s new employment income in 2012, combined with 50% of O.D.S.P. and 50% of the child tax benefit, if they continue to qualify for the latter, totals some $36,500 gross revenue received by the respondent per year based on a 50-week work schedule. Some of the latter two payments I understand to be non-taxable.
[43] Ms. Doyle (Daigle) obtained employment commencing in December, 2009. Her line 150 2010 income was $37,000 which, according to her testimony, is subject to a $13,000 claw back by London Life for cancelled business on which commissions were paid but no longer qualify. Her testimony is that she received no child tax benefit or O.D.S.P. in 2010.
[44] In 2011, Ms. Doyle (Daigle) earned $18,200 (line 150 from employment). She received the child tax benefit, less the $3,000 repayable, of some $3,400 for a total of $21,600 in 2011.
[45] Ms. Doyle (Daigle)’s employer states that her total commissions for the first quarter of 2012 totals some $4,200.
[46] The above totals include money beyond line 150 incomes however I must use these additional amounts as comparables as neither parent had sufficient income during the period under review. To do otherwise would not reflect their realities.
[47] I do not find Mr. Doyle to be a credible witness. I find the applicant more credible and generally accept her testimony over that of the respondent on conflicts in the evidence. In support of that conclusion, I have more corroborating documentary evidence from the applicant than from the respondent.
[48] The claim for arrears made by the respondent was not made until his answer was filed in March, 2011. Thereafter, he did not bring a motion for interim child support. The comparative total of money in 2011 received by each is $18,800 and $21,600.
[49] The difference as between the parties in the annual amount of income and other monies received by each do not exceed $11,000 annually. That is the necessary differential before child support may be claimed under the current Child Support Guidelines or $9,000 under the Guidelines prior to January 1, 2012. I find that the respondent made insufficient effort to obtain employment after the separation beyond the nine months of employment for which he declares zero compensation.
[50] For the above reasons, the respondent’s claim for child support arrears is dismissed.
APPLICANT’S 2010 INCOME TAX REFUND
[51] The respondent withdrew the applicant’s 2010 income tax refund from their joint bank account in March, 2011 and acknowledged to her that he had taken the money. The respondent is ordered to repay these monies in the amount of $1,649 to the applicant at the rate of $200 per month, on the first of each month, commencing September 1, 2012.
ANNUAL INCOME TAX RETURNS AND NOTICES OF ASSESSMENT
[52] Each party shall be required to send to the other a full copy of their annual income tax returns, including enclosures, and their Notices of Assessment by June 30 of each year commencing on June 30, 2012.
ONTARIO DISABILITY SUPPORT PROGRAM (O.D.S.P.)
[53] For so long as they qualify and subject to the internal rules of such program, this Court requests the payor authority to divide and pay one-half of the O.D.S.P. payments to each of these parents given the equal time the children spend with each parent.
COSTS
[54] Neither party claimed costs in argument. Therefore, there will be no order as to costs.
Kane J.
Released: June 14, 2012
COURT FILE NO.: FC-10-2199
DATE: 2012/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CAROLINE ELIZABETH DOYLE (DAIGLE)
Applicant
– and –
STEPHEN PATRICK DOYLE
Respondent
REASONS FOR JUDGMENT
Kane J.
Released: June 14, 2012