ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20120719
DOCKET: FS-08-00340601-0000
BETWEEN:
L.L. Applicant – and – M.C. Respondent
Applicant – In Person
Respondent – In Person
HEARD: February 28, 29, March 1, 5, 6, 7, 8, 14, 2012 and June 27, 2012
CZUTRIN J.:
[ 1 ] J was born on [ …], 2006 to his proud parents M.C. (“father”) and L.L. (“mother”). Since the parents’ separation on July 24, 2008 (they were married October 1, 2005), they have struggled at first with resolving their financial issues and then their parenting issues. The trial dealt mainly with parenting issues.
[ 2 ] After settling their financial issues by way of a consent order of December 16, 2009, the parenting issue became the focus of their attention. The father was without counsel after their first “final” financial consent ( June 8, 2009) which was ultimately modified by their second final financial consent that resulted in the final order dealing with financial issues only dated December 16, 2009.
[ 3 ] J was the first child of the father, who was previously unmarried, and the second child of the mother. The mother’s daughter L was born […], 1998. The mother has primary residence of L and has an amicable parenting arrangement with L’s father JW. The mother called JW as a witness. L’s paternal grandparents are involved with the family and include J. in many of their visits with L.
June 2010 Parenting Agreement not approved by Court
[ 4 ] The parents thought that they resolved their parenting issues when they signed a 25-page detailed consent-to-parenting agreement in June 2010. The consent provided for joint custody, with the father’s time with J.’s increasing to 43% from the time he had with him since separation. The consent also terminated child support, eliminating the support he was obliged to pay of $917 per month pursuant to the final consent order of December 16, 2009.
[ 5 ] After the consent of June 2010, it took some time to draft a proposed consent order. This order was drafted by the mother’s lawyer as the father no longer retained a lawyer at that time, and the proposed order came across my desk as a Family Law Rule 14 b motion. [1]
[ 6 ] I was not prepared to approve the order in the absence of Rule 35.1 affidavits [2] from the parents and without an explanation as to why there was to be no child support. I also questioned joint custody as the material disclosed high conflict.
[ 7 ] Even though a judge had yet to approve of the parenting arrangements, the parties implemented the new schedule.
[ 8 ] There was a delay in the filing the 35.1 affidavits and both parties ultimately appeared before Grace J. on December 2, 2010. Grace J.’s endorsement of December 2, 2010, included: “father believed that mother was to blame (for my refusal to approve the order on the material filed). She was not.”
Justice Grace did not grant order per Parties’ Parenting Agreement and gave reasons January 5, 2011
[ 9 ] In the aftermath, the parties became polarized and Grace J. adjourned the motion to me for December 14, 2010. I was unavailable and as a result he heard the motion on December 21, 2010. Grace J. released his decision on January 5, 2011 ( 2011 ONSC 67 ). By that time, Grace J. not only had the 35.1 affidavits but additional affidavits from each parent. In the end, Grace J. granted a temporary order of shared parenting, rather than joint custody, but the schedule was consistent with the consent. He also varied the December 16, 2009 child support order so as to require the father to pay $197 per month (this appeared to be a set-off child support guideline table amount based on each parents’ income). Grace J. allowed the mother to select the parenting coordinator (the consent had the father selecting), required disclosure of location and phone numbers for the child when traveling even in Ontario, and required consent for the child’s enrolment in extracurricular activities that overlapped parties’ time with the child and added that such consent should not be unreasonably withheld. He ordered that when communicating, the parties were not to harass or threaten to harass. He also requested the involvement of the Office of the Children’s Lawyer (“OCL”) and updated financial statements, and set a case conference.
[ 10 ] Grace J.’s endorsement of January 5, 2011 should be read in conjunction with this judgment.
[ 11 ] The father served a notice of appeal of Grace J.’s order.
[ 12 ] On May 12, 2011, the parties appeared before me and I was updated as to the status of their case and the father’s appeal. The OCL had agreed to do an investigation under section 112 of the Courts of Justice Act , R.S.O. 1990, c. C.43 concerning the parenting issues. I advised the father that while his appeal was pending, I could not deal with the child support issue. The father advised me that if I reduced his child support obligation as of January 1, 2011 to $66 per month from the $197 as ordered by Grace J. on January 5, 2011, he would abandon his appeal. The father agreed to abandon the appeal and based on his agreement I reduced the support.
[ 13 ] The Family Responsibility Office (“FRO”) was requested to prepare a new statement of arrears. Communication, except for emergencies, was to be by email.
[ 14 ] Because the parties were unable to resolve their issues, the matter proceeded to trial.
[ 15 ] In addition to the parties, I heard from witnesses called by the mother, including her former husband, her sister, her mother and a friend of the mother. The father called no witnesses. I heard from the OCL clinical investigator.
Some Additional Background and the History of the Post-Separation Process Leading to Trial
[ 16 ] The parents’ marriage ended on July 14, 2008 when the mother left the former jointly held matrimonial home. By July 18, 2010, she commenced an application seeking a divorce, custody of the children, spousal and child support and an equalization payment.
[ 17 ] The mother’s application was quite detailed as to the order she sought relating to the child of the marriage, J. J was approximately one-and-a-half years old at the commencement of the application.
[ 18 ] Her application requested custody of J and requested that the father’s time be limited to Tuesdays and Sundays for a maximum of four hours. She asked that the father be responsible for the pickup and drop off of J when he spent time with him, and that the drop off be “at a mutually agreed upon public place.”
[ 19 ] She asked that the father complete a “comprehensive age-appropriate parenting course as well as an anger management course.”
[ 20 ] The mother referred to her previous marriage to CFW (L’s father) and the joint custody arrangement she enjoyed with him, while maintaining primary residence of L.
[ 21 ] L’s father testified and confirmed his current cooperative relationship with the mother, as well as their flexible parenting arrangement. I also heard that Mr. W’s parents enjoy a good relationship with the mother and both L and J. Both children spend time with Mr. W.’s parents.
[ 22 ] The mother is a pharmacist, working three long days (totaling 34.5 hours) each week. She had been working for 15 years at the time of separation.
[ 23 ] The father at the time of separation worked and continues to work. He works Monday to Friday from 9 AM to 5 PM daily but claims he has flexibility to accommodate parenting schedules.
[ 24 ] The mother alleged that the father was abusive in that he was extremely controlling of the mother. She detailed examples of his control.
[ 25 ] The mother alleged in her Application that:
(The father) Attempts to control the everyday tasks that the Mother performed, and included his attempts to control other people’s reactions and behavior so as to isolate the mother from her supports.
The Father had come to realize that all he had to do to get the Mother to comply with his wishes was to start screaming, swearing, and otherwise humiliating and degrading her in front of the children, especially J.
(The father) Accusing the Mother of cheating and checking her email messages, even though she h as never cheated on him.
(The father) Ridiculing and insulting her beliefs and religion.
[ 26 ] I only highlight a few of the specific allegations above to set the background for the mother’s decision to leave the matrimonial home on July 18, 2008, following an incident that required the police to attend. The father retained counsel. His Answer was dated November 20, 2008.
[ 27 ] The father’s Answer suggested a separation date of July 18, not July 14, 2008 as the mother alleged , and denied all allegations of abuse.
[ 28 ] He claimed that he was very supportive of the mother and, while conceding that the parties argued, he denied belittling or degrading her, and denies swearing or using foul language except for during a July 13, 2008 argument .
[ 29 ] He also claimed that he read her email on one occasion when she left herself logged on to her account. (The evidence satisfies me that the father accessed the mother’s email without her knowledge and authority after she left her email logged in on the computer left behind in the home. It is unclear how long he did so. Mother’s email account contained email between mother and her counsel.)
[ 30 ] As far as the specific claims for custody, he denied that the mother was the primary caregiver for J and stated that each of the parties provided parental care.
[ 31 ] While he denied abuse, he suggested that the mother’s “passive aggressive behavior was having a negative effect...on the children.”
[ 32 ] He sought to have J with him overnight preceding her workday, and alternate weekends. He also asked for joint custody and suggested the engagement of a parenting coordinator to assist in the implementation if necessary.
[ 33 ] As far as child support, he suggested a set-off based on the couple’s incomes.
[ 34 ] At the time of cohabitation, the mother was working Mondays, Tuesdays and Thursdays from 7:00 AM to 6:30 PM.
[ 35 ] J was and continues to be in daycare except on the wife’s days off.
[ 36 ] The mother claimed that although the father took parental leave, he saw it as a holiday, and that the mother and the maternal grandmother cared for J.
[ 37 ] The mother alleged that joint custody was not appropriate given the parties’ relationship.
[ 38 ] Although the father’s Answer was dated November 20, 2008, a case conference was held on August 18, 2008 prior to the service of the answer.
[ 39 ] At this conference both parents had counsel and they agreed to the sale of the matrimonial home. They also agreed that the father would pay $987 per month of child support for J based on the child support guidelines and the father’s income of $113,965 per annum. Additionally, the father was to pay $370 per month for daycare expenses from the joint account until the mother’s income for support purposes had been determined.
[ 40 ] Income disclosure was ordered.
[ 41 ] The parties agreed to a written communication log to be exchanged with each visit and the log was to contain “important information about J’s health, routines, meal status or anything else necessary concerning his current well-being.”
[ 42 ] In September 2008, while represented by counsel, the parties put a temporary parenting schedule in place that provided that the father’s time with J was to be from 4:00 PM to 7:30 PM Monday, Tuesday and Thursday, with the father picking J up at daycare and returning him to the maternal grandmother at a specified Walmart store.
[ 43 ] The father was also to have alternate Saturdays and Sundays from 10:00 AM to 5:30 PM with pick up and drop off with the maternal grandmother at the designated Walmart location. (This was the schedule in place until the June 2010 agreement.)
[ 44 ] They agreed to mediation/arbitration with Linda Chodos for all issues of custody and access. (This was never completed as Ms. Chodos resigned.)
[ 45 ] They agreed that they would not communicate directly, and that the mediation would not involve face-to-face contact unless they both agreed.
[ 46 ] If mediation did not resolve the parenting issues by January 30, 2009 they would proceed to arbitration by Linda Chodos.
[ 47 ] They sought to avoid litigating the parenting arrangements.
[ 48 ] On May 15, 2009 I granted, on consent, an order that mainly dealt with property issues, disclosure, and trial readiness, and set the case for trial for November 16, 2009.
[ 49 ] By June 8, 2009 the parties appeared to have resolved all financial issues including ongoing child support when they signed a 70-paragraph detailed agreement with certificates of independent legal advice signed by their respective counsel.
[ 50 ] The preamble recital to the agreement provided that this document deals with:
all financial claims that either party has, had or may have against the other as a result of their marriage ... including but not limited to, the claims made in these proceedings with respect to child support, arrears of child support, special and extraordinary expenses, adjustment to and arrears of special expenses, ongoing and annual financial disclosure, equalization and division of property including household contents, claims made by the (husband) to be reimbursed for the over-enrolment of J in daycare and on account of the various household expenses that he claims he paid on behalf of the (wife), maintenance of life insurance and extended health insurance for the benefit of the child and costs.
[... continued exactly as in the source ...]
Released: July 20, 2012
Czutrin J.