Court File and Parties
COURT FILE NO.: FS-11, 641/2008 DATE: 20120801
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JEANA QUESNEL Applicant
– and –
JAMES ERICKSON Respondent
Counsel: Jeana Quesnel, self-represented Matti E. Mottonen, for the Respondent
HEARD: March 27, 28, 29, 2012 and June 7, 8, 14 and 15, 2012
REASONS FOR JUDGMENT
1The parties are unmarried parents of a four year old son. The applicant Jeana Quesnel seeks the following orders:
- Sole custody of their son Dexter born January 16, 2008;
- Supervised alternate weekend access in Sudbury of Dexter with the father;
- Retroactive child support adjustment and ongoing child support; and
- Retroactive and ongoing spousal support.
2In order for the court to make findings on the child support claim it will be necessary to fair a method to determine Mr. Erickson’s income. With respect to the spousal support claim, the issue is whether the parties were spouses within the meaning of s. 29(b) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).
Relationship History
3At the time of trial, Mr. Erickson was 44 years of age, living in Oakville and working full time as an on-line gambler. Ms. Quesnel was 41 years of age. She lives in Sudbury with Dexter and is not employed.
4The following are the key dates and events that defined the parties’ relationship.
5May 13 2007 - Mr. Erickson was 39 years old and Ms. Quesnel was 37 years old. Mr. Erickson had just moved to Oakville. The parties met in a pub/restaurant close to Mr. Erickson’s apartment. They worked full time, and lived in separate residences in Oakville. They started seeing each other almost daily. They went on fun dates, went out to dinner, had dinner at each other’s residences and went on a day trip to Niagara region. They visited with Mr. Erickson’s brother and his family in Oakville. The parties regularly stayed overnight at each other’s residence and shared intimate relations. They did not move their clothing into each other’s residence. They did not share bank accounts, debts or any financial arrangements. They each paid their own rents and maintained their mailing addresses and vehicles. They talked about their ideas of marriage.
6June 15, 2007 - Ms. Quesnel learned that she was pregnant and told Mr. Erickson while they were visiting Ms. Quesnel’s family in Sudbury. In a discussion on that day, Mr. Erickson suggested that Ms. Quesnel could move in with him in the fall. By the end of June, Ms. Quesnel had lost her job.
7July 2007 - In July, the parties began to disagree about a number of things, most significantly about their living arrangements and the timing of Ms. Quesnel’s move into Mr. Erickson’s apartment. Ms. Quesnel testified that she wanted to make firm plans and that Mr. Erickson replied that he wanted to wait. Ms. Quesnel wanted Mr. Erickson to buy a property. He refused. The most he would offer was that she could move into his apartment in the fall. He had first said September and then later moved the date to October. Ms. Quesnel felt, in her words, abandoned, confused, devastated and frustrated. Ms. Quesnel went to Sudbury to visit her sister for a few days. She returned on July 14, called Mr. Erickson, and arranged to visit him at his residence very early the next morning. There was an unpleasant incident during which Ms. Quesnel demanded money from Mr. Erickson and demanded an explanation as to why she could not move into the apartment before October. When Mr. Erickson refused the demand for money and would not change his mind on the move in date; Ms. Quesnel reacted and struck him. Mr. Erickson called the police and Ms. Quesnel was charged with assault. Ms. Quesnel ultimately received an absolute discharge after a plea on this charge. One of the release conditions after arrest was a ‘no contact, no association order’. Although the parties did communicate by phone approximately five days after the incident, there was no direct contact between them until sometime in August 2007 when the release terms were varied to allow them to be together so long as they were in the presence of another adult. In Mr. Erickson’s view, the relationship ended at this point.
8September 2007 - Ms. Quesnel moved to Sudbury. Mr. Erickson helped with the move and paid the associated expenses. He also gave Ms. Quesnel money to pay out the lease of her vehicle. Mr. Erickson characterized this transaction as a loan that was supposed to be repaid, but has not been. For the first month, Ms. Quesnel stayed with her sister and began to work at Teletech at minimum wage. Ms. Quesnel testified that Mr. Erickson often said that he would move to Sudbury but he would not give a definite time frame for doing so.
9October 2007 - Ms. Quesnel moved to her own apartment. Mr. Erickson visited Sudbury but he did not move his things or his clothes into that apartment. Sometime in the fall, there was a pre-natal paternity test. Mr. Erickson purchased one or two small appliances for the Sudbury apartment. From the end of summer and through the fall, Mr. Erickson testified that he lent Ms. Quesnel $14,000 for rent, car payments, and lease and moving expenses. He proposed pay back terms, but acknowledges that Ms. Quesnel has not paid back any of this money.
10November 2007 - The parties stayed for a few days in a hotel in Oakville with the purpose of trying to reconcile and re-establish the relationship. Mr. Erickson testified that within days, the problems were back and the relationship was off again. According to Mr. Erickson, this visit was one of three times during the period between July 15, 2007, and the birth of Dexter, when he had sexual relations with Ms. Quesnel. During the fall, Mr. Erickson did talk of moving to Sudbury, but would not make a commitment to do so nor did he make a commitment to a timetable to make the move.
11December 2007 - Mr. Erickson stayed one night in Sudbury on his way to Thunder Bay to visit his family for Christmas. He and Ms. Quesnel exchanged gifts.
12January 2008 - On January 16, Mr. Erickson learned by telephone that Ms. Quesnel had gone to the hospital to deliver the baby. Dexter was born five weeks before the due date. Mr. Erickson arrived in Sudbury that afternoon and stayed for the two weeks that Dexter was in the hospital. During that period, his mother and brother, both from out of town, visited Sudbury to see the baby. During those two weeks, but for the first two days, Mr. Erickson stayed at Ms. Quesnel’s apartment, while she stayed at the hospital.
13February to April 2008 - Mr. Erickson travelled to Sudbury regularly. Initially, he stayed at Ms. Quesnel’s sister’s residence and visited Dexter at Ms. Quesnel’s apartment in Ms. Quesnel’s presence. Ms. Quesnel testified that she, the baby, and Mr. Erickson were together as a family unit during these visits. After an argument between the couple, on Ms. Quesnel’s request, Mr. Erickson was no longer welcome to stay at her sister’s. From that time on, he rented a hotel room when he came to Sudbury. Mr. Erickson testified that he stayed in the hotel room over night and worked there during the days but for his visits with Dexter. He admitted that he often stayed during the evening with Ms. Quesnel and that on a few occasions they had intimate relations. Ms. Quesnel stated that Mr. Erickson stayed overnight with her on a regular basis. She testified that sometimes Mr. Erickson talked about moving to Sudbury but that other times he told her he would continue to keep his apartment in Oakville. Mr. Erickson testified that there was no further discussion of his moving to Sudbury after the birth of Dexter. He acknowledged that he did say that it would be cheaper for him to get an apartment than to stay at a hotel if he was going to visit with Dexter for a couple of days every week. Sometimes, Mr. Erickson would go to the hotel to avoid arguments with Ms. Quesnel. According to Ms. Quesnel, she had accepted that Mr. Erickson was not fully committed to the relationship. She had accepted that there would be no marriage at this time. However, she said that she had no inkling that they were not moving the relationship forward.
14April 2008 - By April 2008, Ms. Quesnel came to accept that Mr. Erickson would never move to Sudbury. He had not moved any of his things and would no longer discuss with her the possibility of his moving to Sudbury. From that point on, Ms. Quesnel testified that she drew boundaries on the relationship, and there would be no further intimate relationship. The couple went to see a counsellor, also described as a mediator. Ms. Quesnel learned that Mr. Erickson had not disclosed to his family his relationship with Ms. Quesnel. Ms. Quesnel thought the purpose of the counselling was to reconcile. According to Mr. Erickson, when asked by the counsellor to state his purpose in attending the counselling, he responded that he wanted to be able to get along with Ms. Quesnel as they dealt with each other on parenting issues. Mr. Erickson testified that that this response upset Ms. Quesnel. Ms. Quesnel testified that she believed that if Mr. Erickson was prepared to sit with a mediator to work out the challenges of travelling to see his son, then obviously he was committed to continuing a relationship with her and having a future as a family.
15Fall 2008 - By this time, Ms. Quesnel admits that she had come to accept that she and Mr. Erickson could be friends but were not in a relationship.
General Background
16Following Dexter’s birth, Mr. Erickson paid child support to Ms. Quesnel in the amount of $6,000 per month based on his 2007 income. In April 2011, Mr. Erickson reduced his child support payments to $3,073 per month based on his reduced income. There was no order or agreement with respect to the child support.
17Mr. Erickson continues to live in his rented two bedroom condominium unit in Oakville and derives his income from online gambling. He testified that he works full days, five to six days per week. His hours depend on the sporting events on which he bets. Mr. Erickson lives close by his brother and family and sees them often. Mr. John David Erickson gave evidence in this trial and described the close relationship that James Erickson had with him, his wife and three children.
18Ms. Quesnel continues to live in Sudbury. She has moved a number of times since she first returned to Sudbury in 2007. She has not been employed since Dexter was born. Her sole source of income is the child support payment she receives from Mr. Erickson. She testified that she has fibromyalgia and does not have enough energy to care for Dexter and to work outside the home.
19From the evidence of the parties and from what I observed in court and learned of their interactions during the trial period, the parents are for the most part respectful of one another and friendly toward each other. Mr. Erickson sends flowers on Valentine’s Day each year and the parties exchange birthday cards. When Mr. Erickson has been in Sudbury for this trial, they have gone out to eat together. They seem determined to put the interests of their son before the difficulties in their own relationship.
The child
20Dexter is now four years old. According to all of the witnesses and his health care providers, he is a bright, engaging and active child, developing within the parameters for his age. Dexter has certain health challenges which caused Ms. Quesnel to be very vigilant in her care with him. But for very few emergency situations, Ms. Quesnel did not allow Mr. Erickson to be alone with Dexter. Prior to the break in this trial, all of Mr. Erickson’s visits with Dexter happened in the company of Ms. Quesnel. In the last year, he has attended a public day care two days per week. The plan is that Dexter will start junior kindergarten in the fall on either a two or three day per week routine.
21Throughout the trial, there was considerable evidence relating to Dexter’s health status. Dexter has undergone a number of intensive treatment programs at the Children’s Treatment Centre (“CTC”). Dexter is in the 20th percentile for weight. He has a feeding difficulty of a highly selective type, called both a complex feeding disorder and a sensory feeding difficulty. Dexter has an extreme sensitivity to foods and reacts negatively to many of the characteristics of food and eating, e.g.: texture, temperature, the eating utensils, the eating schedule and the eating environment. He often refuses food for any one of the above reasons. He has a very limited diet and declines most foods. He drinks formula as a nutritional supplement and is still not fully trained on toilet use.
22According to Ms. Quesnel, as a result of Dexter’s low weight and low nourishment, he is often unwell. He tires easily. In the last year, Dexter has been to the emergency ward twice with general lethargy and a temperature. Ms. Quesnel testified that Dexter had often missed daycare either because he has been unwell or because he is attending one of his treating health practitioners.
23Dexter does not currently have a general paediatrician but sees a nurse practitioner for general primary care. He is not on any medication. He is being followed by Dr. Berall, Chief of Paediatrics, North York General Hospital, a physician nutrition specialist.
24There was some early concern that Dexter was not developing in certain areas. Dexter has been involved with speech language services, although his current therapist reports that he is no longer demonstrating a language delay. Dexter followed a course of treatment with an occupational therapist and a physiotherapist. Ms. Quesnel was concerned that Dexter’s issues fell within the Autism Spectrum Disorder. By prior arrangements, Dexter was assessed during the break in this trial and the assessment report was filed on the second set of sitting dates. The report noted that Dexter did not have sufficient symptoms to qualify for a diagnosis of Autism Spectrum Disorder, that he had average to above average cognitive and adaptive skills, and that he is a socially, engaging and polite young boy. The assessors did, however, make a number of recommendations which I will discuss later.
25It is common ground that Dexter continues to struggle with his eating. He only eats specific foods and brands. His food preferences change regularly and although he previously would eat certain foods he may no longer eat them after a period of a few months. Dexter reportedly also struggles to adapt to change in his routine. Sleep is reported to be challenging to Dexter.
26In February 2012, Dr. Berall told the parties that he wanted to continue with a close monitoring of Dexter and mentioned an intensive in-hospital treatment program that might be considered if Dexter regressed any further. Dr. Berall indicated that this program would be something to try as a precursor to any consideration of the insertion of a feeding tube. According to Mr. Erickson, Dr. Berall told the parties that a feeding tube was a response of last resort.
27On the basis of all of the evidence, I am satisfied that Dexter requires that all of his caregivers, including his parents, be schooled and skilled in the manner in which feeding is to be done. Dexter also requires a patient, knowledgeable and consistent approach to the treatment plan for his feeding difficulty and other sensory needs in order for him to progress in his approach to food, increase his food intake and thereby increase his body weight. In Dexter’s case, the consequences of not meeting his needs can be serious.
Custody and Access
28The mother requests sole custody of Dexter and frequent supervised access with the father of no more than four hours in duration. The father requests joint custody of Dexter, monthly multiple day visits during the school year, and half of the vacation periods. Mr. Erickson wishes to spend his access time with Dexter in Oakville. The custody and access dispute is centred on the mother’s concern that the father does not appreciate or understand the severity of the child’s sensory eating disorder and that, therefore, the child will not be properly supervised, fed, or cared for by the father during periods of access.
29The issue as framed by Ms. Quesnel is whether Dexter can be properly cared for by the father, as per s. 24(2)(d) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
30I did not have the benefit of a neutral independent assessment of each parent’s parenting capacity. The parents disagree with each other’s assessment of their parenting strengths and weaknesses. Neither parent alleged abuse or mistreatment of the child. I did have the benefit of a number of reports from the child’s treating health care providers and assessors. I am satisfied that this material and the evidence from the parents and extended family provided a full and accurate picture of the child’s health, character, and needs and the willingness and ability of each party to parent. Where there is a disagreement on this issue between the parties, I have considered the credibility of the parties.
31The mother testified that she believed it was a good thing for the father and son to have a close bond. However, she is of the strongly held view that the father is either not willing or not capable of properly caring for Dexter. She bases this view on her belief that the father does not accept Dexter’s diagnosis and that he believes that the mother is the cause of whatever problem does exist. The mother does not trust the father to follow the protocols and practices she has developed with Dexter, or the recommendations of the treating health practitioners. She argued that she is the only primary care giver that has the skill or knowledge base to feed Dexter and to deal with his other sensory issues. She testified that Mr. Erickson had never bathed or dressed Dexter, and that he has not properly handled Dexter’s feeding needs and preferences. Ms. Quesnel submitted that Mr. Erickson had not put any effort into learning about Dexter’s feeding issues, that although he had been given a chance to parent, he had not taken the opportunity to fully participate in Dexter’s care. The mother is regularly critical about the father’s care of Dexter, to Mr. Erickson directly and to others.
32The mother argued that Dexter has made remarkable progress in her sole care, combined with his own will and drive. On the other hand, she argued that Mr. Erickson had not made any progress over the last five years in his understanding, empathy, or grasp of Dexter’s condition.
33The father is of the view that the mother is irrationally critical of his parenting ability, that she expressed her belief that he would not be a good parent before Dexter was born and that she continues her criticism of his every action with Dexter in every situation. The father believes that the mother exaggerates when describing events on Dexter’s condition, over-reacts to Dexter’s preferences and accommodates his eating practices to his detriment. The father does not make any other criticism of the mother’s parenting capacity.
34There was a break in the trial between the March and June hearing dates. On an interim basis, I ordered two weekend visits twice during this period. The dates, travel, and accommodation arrangements were made on consent. For each of these visits, the mother drove to Oakville with Dexter and stayed at the father’s apartment. The father had sole care of Dexter during the day and the parents and the child were together at the apartment for the evenings. The descriptions of these visits unfolded during the examination and cross-examination of Mr. Erickson on the resumption of the trial.
35The mother argued that the evidence showed that during the April and May visits, Mr. Erickson took care of his own eating and scheduling needs and did not accommodate Dexter’s needs. She particularly referenced the occasion when she arrived at the apartment at 8pm to find the father and the son at the table, purportedly eating their evening meal. According to her, this was too late and the food being offered to Dexter was inappropriate. She testified that Dexter was hungry at the end of a day with his father and that was the reason he had more formula at night than he usually had. She was critical that Mr. Erickson did not bathe Dexter; he waited for her to arrive at the apartment and let her do the bathing.
36The father described in detail the events of the days he spent with Dexter, the meal times and eating, and the interventions of the mother. There is no doubt that Dexter presents a huge challenge to someone inexperienced with his very limited diet and his eating habits. This is not to say that Mr. Erickson is unfamiliar with Dexter’s habits, however, it was the first time that Mr. Erickson had sole responsibility for Dexter’s care. I accept Mr. Erickson’s evidence that he tried to follow the regime as described to him by Ms. Quesnel and Dexter’s preferences as expressed during the visit. I find Ms. Quesnel’s criticisms of Mr. Erickson’s care during these visits to be unwarranted. There was simply no basis on the evidence to support the conclusion that Mr. Erickson is either unwilling or unable to care competently and lovingly for his son. Rather, the evidence and the cross-examination showed that Ms. Quesnel could not see any of the positive features of Mr. Erickson’s parenting or Dexter’s interaction with him.
37I also heard evidence describing a short visit with the Erickson family during the first phase of the trial in cross-examination of Mr. Erickson, his mother and brother. Ms. Quesnel focused on the minutia of the visit, ie whether she had brought a bathing suit for Dexter. She only grudgingly acknowledged Dexter’s free and loving interaction with his father, uncle and grandmother during the short visit.
38The father’s evidence was that he had been involved with Dexter since birth. The father travelled to Sudbury as soon as he received news of his son’s birth in January 2008. He stayed in Sudbury for the full two weeks that Dexter was in the hospital. After January, he visited Sudbury every two to three weeks staying usually Tuesday to Thursday at Ms. Quesnel’s apartment. He testified that he would stay at the apartment during the day. In the second year of Dexter’s life, Mr. Erickson’s visits were for shorter periods of time over a two day visit. In the third year, Mr. Erickson testified that his visits were often coordinated with medical or treatment appointments for Dexter. He was only permitted to see Dexter at Ms. Quesnel’s apartment in Ms. Quesnel’s company.
39Mr. Erickson testified that he finds Dexter energetic, smart, caring, and outgoing. This portrait of Dexter was echoed by Mr. Erickson’s mother, brother and sister, who all attended the trial from out of town. When Ms. Quesnel has brought Dexter to Oakville, Mr. Erickson has often spent their time together at the home of his brother and his family. It appears to be a lively place, often full of extended family getting together to celebrate holidays and special events. There are many children around and many outdoor activities. Ms. Quesnel attended all of these events because she insisted that Dexter not be alone with Mr. Erickson and his family. Both of Mr. Erickson’s siblings are parents. The extended family is close, and spends family time together, even though his sister lives in Ottawa and his mother lives in Thunder Bay.
40The mother admitted that she had never allowed Mr. Erickson to have unsupervised time with Dexter. Mr. Erickson testified that, when Dexter was two, he asked for access alone with Dexter and that Ms. Quesnel refused. In January 2010, when Ms. Quesnel was moving, she told Mr. Erickson that she was having problems finding someone to take care of Dexter while she was moving. Mr. Erickson offered to come up and care for Dexter and Ms. Quesnel refused and told him he was incapable of caring for Dexter.
41The mother testified that she had had a number of caregivers for Dexter over the years, including family and people who were arranged through an agency. Sometimes the child care was provided on an ad hoc basis by her neighbour, her brother or her friends. Sometimes it was regular weekly care. For approximately two to three months, a nanny cared for Dexter 20 – 30 hours per week for a period while Ms. Quesnel was caring for her own mother who was terminally ill. Dexter has been in daycare, two days per week for the last two years. Ms. Quesnel has changed day care providers when she found that they did not properly accommodate Dexter’s needs. Ms. Quesnel currently has assistance from an elderly neighbour for Dexter’s care when she goes out in the days or evenings.
42Mr. Erickson recognizes that Dexter is very cautious about trying new things. Mr. Erickson noted that Dexter has had a few temper tantrums and acts like a four year old. He does not think it is normal for Dexter to still be drinking formula or still be in diapers and believes that Ms. Quesnel is catering to Dexter’s preferences and will not push him to try new things. In particular, Mr. Erickson disagrees with providing Dexter with two or three bottles of formula during the night, as he believes it reduces Dexter’s interest or motivation in eating. He realizes that Dexter senses the tension between his parents.
43When Dexter was two years of age, Mr. Erickson attended a number of appointments at the CTC, including physiotherapy appointments and feeding appointments. In 2011, he arranged, attended and paid for a week of intensive feeding therapy with a specialist, Katherine O’Leary. Ms. Quesnel travelled from Oakville and stayed with Mr. Erickson while the three of them attended the week long program. The father submitted that, in 2012, he had participated in nine of the last ten visits to the feeding clinic at the CTC in Sudbury.
44Mr. Erickson testified that he did not always receive information about appointments with health care providers, but when he did have the information in advance, he usually made the trip to Sudbury to attend appointments. Ms. Quesnel expressed considerable frustration that Mr. Erickson had not attended in Sudbury when Dexter spent time in hospital. She left me with the clear impression that she finds Mr. Erickson’s efforts to attend each and every visit with a health care provider or to the hospital to be wholly inadequate.
45For the most part, the parties are able to communicate in a respectful and caring manner when it comes to Dexter. There was one regrettable incident in May of this year when Ms. Quesnel called the police to attend the transfer of Dexter. I believe that Ms. Quesnel now understands that she made an error in judgment and that this call was unnecessary, unwarranted and a serious mistake on her part. That said, these parties have a long history of communicating and making arrangements with respect to access and Dexter’s care. They have coordinated dates for visits and medical appointments. Until May 2012, the parties still managed to be able to stay together in Mr. Erickson’s apartment during visits to Oakville. It was not always easy and there were tensions, however, the parties seemed committed to overcoming their own relationship difficulties to provide the best care that they could for Dexter. During this trial, I have heard that the parties have made their own arrangements to spend time together with Dexter and that it has gone well.
46As a self represented litigant, the mother cross-examined the father and three members of his family. The parties were very respectful towards one another throughout what must have been a very stressful situation for them both. I add that the mother was also very respectful in her cross examinations of the father’s siblings and his mother, as they were with her.
47Neither party was quick to praise the other for their contribution to Dexter’s care. The father did not take any opportunity to commend or notice the admirable job that the mother has obviously done with Dexter on many fronts. The recent assessment indicates a number of positive features about Dexter’s development and behaviour. The mother deserves credit for all of this. As well, the mother did not have anything good to say about the effort the father had made to spend time with Dexter and to learn about his issues. The evidence from the father and the extended family suggests that Dexter has enjoyed his time with the father and the extended family and that they engage in healthy loving activities.
48There is a significant lack of trust between the parties when it comes to an understanding of Dexter’s feeding and sensory issues. While the father accepts Dexter’s limitations, he believes that the mother over reacts and caters to Dexter’s behaviour. The mother believes that the father does not sufficiently understand Dexter’s fragility and the need to accommodate his complex sensory issues. She argues that his refusal to accept and accommodate Dexter’s specific needs and requests puts Dexter at risk.
49For the sake of the child, it would be better if the parents operated from the same understanding of Dexter’s needs. There is no doubt that a difference of professional opinion exists on the appropriate approach to Dexter’s feeding issues. Dexter was originally treated by Dr. Kumar, a Sudbury paediatrician. Dr. Kumar did not accept the mother’s reluctance to follow his advice. The mother expressed her lack of confidence in Dr. Kumar and has made a complaint about him to his professional body. One gets the impression that the mother believes that she alone can ever fully understand Dexter and his needs. Overcoming this deeply held view may not be easy. However, it is circular reasoning to say that the father cannot care for the child because he never has, while saying at the same time that the father never should be allowed to care for the child because he doesn’t know how to care for him. The mother has learned how to care for Dexter only through her experience with him and through professional advice and treatment. By denying the father and the son the opportunity to get to know one another and to experience extended visits with one another, it is more likely than not that the father will never know as much about Dexter as she does herself. There were a number of reports and clinical notes describing Dexter’s eating habits, issues and the recommendations for an approach to his eating. Not one of them mentioned, recommended or asserted that only the mother could or should feed Dexter. The important need is consistency of approach, not restriction of who actually presents food to Dexter.
50I find that, although the father does tend to minimize Dexter’s sensory issues, he is committed to do his best to follow the professional advice in how to best deal with them. It is not clear to me whether he is reacting to the mother’s constant criticism of his ability to care for the child or to Dexter’s behaviour and progress.
51On the other hand, the mother minimizes the father’s commitment to Dexter and his demonstrated interest in learning more about how to deal with the feeding issues. The father’s involvement in a week long intensive feeding session and nine feeding appointments in Sudbury is not trivial; it is a demonstration of the father’s long time commitment to this child, notwithstanding the barriers which have been put in his way. I find that the father has more than demonstrated his engagement in learning more about his son, his son’s needs, and the best professional advice for helping his son develop.
52I was also impressed during the trial on the two or three occasions when the father made a point to say that he would not undertake any change to Dexter’s routine without the mother’s cooperation and that he recognized that he would need to carefully transition the length of visits and routines to coordinate with Dexter’s needs.
53I am satisfied that both of these parents have the ability and willingness to care for Dexter and provide for him. They share a deep love and concern for him and are both in a position to follow the professional advice regarding his care. They will need some assistance to overcome their lack of trust in one another but I am satisfied that there is sufficient good will between them that even this can be achieved.
54The parties can communicate with respect to decisions to be made for Dexter. I am satisfied that it is in the best interests of the child that the parents share joint custody of Dexter and there shall be an order to this effect. On consent Dexter will have his principal residence with the mother. At the end of trial, I made an interim order for access that specified the dates of visits during the summer, the transportation, and the communication requirements. Although the mother did not agree to the proposed access, many of the terms of the visits were agreed upon by the parties. I will continue these terms for the continuing access. Following the summer, the father shall have access to Dexter as follows:
One extended weekend per month from Friday at 10:00 a.m. to Monday at 5:00 p.m. The weekend is to be scheduled by mutual agreement of the parties to coincide with any long weekends whether holidays or days off school.
One half of all holidays, including spring break, Christmas, and summer. In 2012, the holiday shall be split in such a way that Dexter spends Christmas with his mother. In the following years, Dexter will spend Christmas with parents in alternate years unless the parents otherwise agree.
One half of the summer vacation, with no more than two weeks consecutive with the father.
The parents shall arrange at least one audio/video (e.g. Skype) visit per weekend access visit and at least two audio/video visits per week for longer access visits. While the child is resident with the mother, the parties shall arrange at least two audio/video visits per week. The parties may wish to consider at least one of those visits to be before or after meal time.
Both parents have the right to contact the school, the doctors, or any other health professional with whom the child is associated including the leader of any extracurricular activity.
55I recommend that the parties attempt to come to their own variation on this arrangement, in consultation with the school, as Dexter progresses past kindergarten.
56On my suggestion, the parties considered the suggestion to retain the services of a mediator to deal with access and transportation issues as they arise. On the last day of trial, I was advised that the parties had agreed to find and engage a mutually acceptable mediator, to meet with the mediator to give background information and to use the services of the mediator to deal with issues that arise related the care, access, and transportation of Dexter. The father agreed to pay the initial costs of the mediator, however, the payment arrangement is not finalized for all time.
57The parents shall communicate with one another fully about Dexter’s activities while in their care; including particulars about eating, sleeping and any health matters. They are to do this in writing before and after each access visit.
58Joint custody is usually understood to be the equal sharing of parental authority to make all major decisions affecting the health, welfare and education of the child. The bundle of rights associated with custody is shared by joint custody parents. In this case, however, I make one special exception to this general rule. Ms. Quesnel shall have the authority to make final decisions related to Dexter’s health, including the choice of health care provider and his treatment. However, Ms. Quesnel has the important obligation to consult with Mr. Erickson about any decisions regarding Dexter’s health and treatment and the obligation to provide full and comprehensive information in a timely way. Ms. Quesnel is not authorized to make decisions that are outside the standard treatment protocols offered and paid for by the Ontario health care system. Mr. Erickson has the right and obligation to seek and obtain emergency and urgent care or treatment for Dexter while Dexter is in his care. The parties shall endeavour to make joint decisions regarding Dexter’s care and treatment and if they cannot come to a joint decision, using whatever assistance they can access, then Ms. Quesnel can make the ultimate decision.
59The mother shall fully inform the father of all health appointments and their results and share with him any reports, prescriptions or advice. The mother’s obligation is to do whatever it takes to ensure that the father has the same information that she has regarding Dexter’s health.
60While all children need consistent parenting, Dexter has a special need for consistency in certain aspects of his life. He cannot afford to have parents taking inconsistent or contradictory approaches on his feeding, sensory issues, bed times, behaviours, or discipline. The parents are to do their best to ensure that they offer Dexter an optimum environment to ensure his healthy progress throughout his childhood. The mother will have to give up some control in this regard and the father will have to accommodate the mother’s insecurities about his parenting.
61I have suggested to the father that he begin to put in place the usual supports for caring for a child, including child care during work periods, a health care clinic where he can attend for urgent care, as well as recreation or child resource centre where he can attend with Dexter and other parents and children.
Child Support
62From the time of the child’s birth, the father has been paying child support. There is no order or agreement in place with respect to the amount of child support. From February 2008 to April 30, 2011, the father paid child support of $6,000 per month, which was based on his declared income of $838,000 for the year 2007. Effective May 1, 2011, the father reduced his child support payment to $3,073 per month, based on the prior three year average of his declared income of approximately $330,000.
63Mr. Erickson gave evidence that he has been an on-line gambler since 2003. He has played on-line poker in the past. Currently, and for the last few years, Mr. Erickson has concentrated on betting on sports events, primarily soccer and horseracing, but also golf and tennis. For a few years, he gambled while maintaining full time employment. In his last year of employment in Thunder Bay, he earned $60,000 as a manager of a courier outlet. In 2007, Mr. Erickson moved from Thunder Bay to his current apartment in Oakville and became a full-time on-line gambler. Generally, Mr. Erickson works an 8 hour day. He logs on to his computer early in the morning, depending on the time zone where the sporting event is taking place. Weekends are usually a busy time for him. Mondays and Tuesdays are lighter days.
64Mr. Erickson produced his tax returns and assessments from 2005 to 2011. His income history as shown on the Notices of Assessment from Canada Revenue agency was as follows:
2005 $95,301.20 2006 $133,625.66 2007 $838,406.40 2008 $1,496,434 2009 -$409,221 2010 -$110,824.42 2011 $19,102.28
65Mr. Erickson explained that his gambling activity was primarily based on poker in 2005 to 2006 and on soccer in 2007 to 2009. He testified that he changed his primary emphasis when there were market adjustments. He stated that he now concentrates on horse racing.
66Mr. Erickson has retained capital of $270,000 in his bank account and over $110,000 in his gambling account. He requires this capital to continue to gamble and earn income. He has no other assets, either real property or investments. I find that the above amounts are funds Mr. Erickson requires either for living or for available capital for gambling. These sums should not be available for support purposes; they are necessary to sustain a certain level of gambling. They were earned over the period for which Mr. Erickson made total support payments in excess of the Child Support Guidelines (Ontario), O. Reg. 391/97 (“Guidelines”).
67Although the mother suggested in argument that Mr. Erickson likely had hidden off shore assets, there was no evidence to support this assertion. A number of features of Mr. Erickson’s evidence suggest that he has fully reported his income and assets:
- His consistent filing of tax returns and the confirmations received in the Notices of Assessments;
- The fluctuations in his income were explained to be the result of adjustments made in the particular gambling markets;
- The fact that he lives a modest lifestyle in rented accommodations. There was no evidence of expensive holidays, vehicles, jewellery, entertainment, or habits;
- The proximity of Mr. Erickson to his family and their evidence at this hearing. They were credible witnesses who described a close-knit, supportive and modest family life; and
- Mr. Erickson’s own credibility. His evidence was logically and internally consistent, fair, understated, and respectful. He answered all questions and suggestions in a thoughtful manner, sometimes in a way that was less than flattering to him. He did not seek to overemphasize his contribution to Dexter and to the mother’s support. In terms of financial and parental support, Mr. Erickson has conducted himself as a moral and law abiding individual since the birth of Dexter.
68For these reasons, I accept Mr. Erickson’s evidence that these Assessment Notices from Revenue Canada accurately reflect his income.
69The mother seeks ongoing child support of $6,000 per month. She seeks a retroactive award to April 2011 to compensate her for the difference between the amount received and $6,000. This difference to May 2012 is $38,051. The mother supports her request for this amount of child support by arguing that in the years 2007 and 2008 when the father had a very high income, he had the opportunity and should have put aside sufficient funds to pay support in the amount of $6,000 per month on an ongoing basis.
70The father proposes to pay child support in the amount of $1,000 per month for the balance of 2012 and thereafter to pay Guidelines support on an amount based on the income of the year prior or an average of the prior three years’ income.
71In this case, the question is how to determine the income on which to base child support.
72In the standard case, s. 16 of the Guidelines requires that a parent’s annual income be determined using the sources of income set out under the heading ‘Total income’ as reported to Revenue Canada.
73However, the Guidelines also provide the court with discretion to employ an alternative method of determining income where the s. 16 method would not be fair. See also Ewing v. Ewing, 2009 ABCA 227, at para. 37, 457 A.R. 238. Section 17 of the Guidelines reads:
Where the court is of the opinion that the determination of a parent’s income under s. 16 would not be the fairest determination of income, the court may have regard to the parent’s income over the last 3 years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
74In view of the income fluctuations that Mr. Erickson has reported, one might say that he has experienced non-recurring gains and non-recurring losses in each of the years from 2007 to 2010. To state the obvious, there is no predictable or reliable income from gambling. That is the nature of the activity. Every year the entire income is at risk. In my opinion, neither the s. 16 approach, basing income on the actual reported income, nor the s. 17 approach of calculating an average income over the last three years, would produce a fair or reasonable amount of support. In going forward, if one applied s. 17 and calculated a three year average, there would be no support payable as the average income would be a negative amount. If support were based simply upon the actual 2011 income, the Guidelines amount would be approximately $164 per month. Were Mr. Erickson to realize an income of $75,000 in 2012, which is possible given the income he has made over the last five months, Guidelines support for one child on that amount is $680 per month.
75The mother’s argument is that the court should impute an income of $838,000 to Mr. Erickson, either because he was intentionally under employed (s. 19(1)(a) of the Guidelines) or because he has diverted his income (s. 19(1)(d) of the Guidelines).
76Ms. Quesnel looks at the very high income of Mr. Erickson during the year they met and suggests that this unusual and extraordinary level of income should be imputed for another five years. She argued that Mr. Erickson should have set aside ten years of child support in 2007 when he learned he was going to be a parent. Ms. Quesnel submits that Mr. Erickson instead intentionally used his large gains in 2009 and 2010 to continue gambling and to intentionally risk losing these funds.
77In some cases of fluctuating income, it would be fair and reasonable to determine the income by taking for child support purposes a three year average pursuant to s. 17. However there is no legal basis to argue that a parent must put aside money for child support in high earning years so as to maintain a certain level of support for the next decade. Some parents do this and perhaps it is more likely in the cases where parents make joint decisions about household income. In any event, neither parent in this case put aside money in the year when the income was so extraordinarily high.
78It is ironic that the mother takes the position that Mr. Erickson should have set aside his income in 2008 to ensure that he could continue to pay a higher amount of child support than would be required by his income in succeeding years. From 2008 through to April 2011, Ms. Quesnel received child support of $72,000 per annum. She knew this support came from an income derived from gambling in 2007 and 2008 and more specifically, in 2009 and 2010 she knew that the income levels of 2007 and 2008 had not continued. As a single person, Ms. Quesnel had never earned more than $45,000 per annum and the last time she earned that amount was in 2009. She had been unemployed for approximately twelve months the year before she became pregnant. Ms. Quesnel did not put aside any of her child support in years 2008 to 2011 to cover for the contingency that the gambling would be less lucrative. There is no air of reality to her position.
79Ms. Quesnel further submits that in effect Mr. Erickson has been intentionally under or unemployed since 2009. Mr. Erickson left the employment market long before he was a parent when he had no other obligations than to take care of himself. He intentionally decided to earn his income through gambling. For a number of years he earned substantially more than he had ever made in the labour market. In the five years since he has been a full time gambler since 2007, he has earned an average income of over $370,000. One cannot conclude that he has intentionally manipulated his earnings to avoid or reduce his child support obligations. Nor can one conclude that his decision in 2007 to move to full time gambling was unreasonable, given his successes in 2005 and 2006. The question now for Mr. Erickson is how he can fulfil a minimum obligation to his child, while at the same time sharing with his child the fruits of his successes.
80Where a support paying parent has persisted in unremunerative employment or in unrealistic or unproductive career aspirations, the court has imputed income pursuant to subsection 19(1) of the Guidelines: see L.(N.) v. P.(B.), 2000 CanLII 22516 (ON SC), [2000] O.J. No. 2574 (S.C.). Although overall it cannot be said that Mr. Erickson has embarked on a persistently low income endeavour, he has now experienced three years of very low income. It is as a testament to his commitment to his son, he has not attempted to impose the full consequences of those losses upon him.
81It is easy to be distracted by the income levels of 2007 and 2008. However, it is apparent that those years do not represent a pattern of income or sustainable level of predictable or reliable income for Mr. Erickson. Those two years remain as outliers. The fact that until 2011 Mr. Erickson continued to pay child support based on his 2007 income is in direct contradiction to any suggestion that he has tried to minimize his support obligations. I decline to impute an income of $838,000 to Mr. Erickson.
82The best evidence of what Mr. Erickson can reliably earn is from his own evidence of his employment earnings of $60,000 before he turned his attention full-time to gambling. Support for one child on an annual income of $60,000 is $557 per month.
83Mr. Erickson did acknowledge in his evidence that he was reaching the point where he had to consider whether he could continue to rely on full time gambling as his sole source of income. Mr. Erickson filed his 2012 monthly income statements from the on line betting sites. As of May 31, 2012, he had earned approximately $35,000 and he believes therefore he is on track to earn approximately $70 -75,000 this year.
84Subsection 19(1) of the Guidelines is intended to capture cases that, in fairness, require an adjustment to the payor’s actual income and for this purpose, it provides a court with the discretion to impute income where it is appropriate to do so in the circumstances: see Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196. In the circumstances of this case, where the father’s last year’s income from gambling is less than one third what he last earned when employed in the labour market, the court has the discretion to impute an income based on a reasonable estimate of the income which he should reasonably have available to him but for his intentional decision to engage in high risk endeavours. The father has a right to earn his income in the way he chooses. He has the right to pursue his income through high risk endeavours instead of in the more predictable and reliable labour market. In the years where the father realized high level gains, he shared them with his son.
85High risk income generating endeavours, whether gambling, day trading or speculating, can also generate losses or very low income, as we can see by Mr. Erickson’s last three years of reported income. The downside of this risk may be acceptable for Mr. Erickson but it is not reasonable or fair that child support should be based on negative incomes or income levels close to the poverty line. Mr. Erickson should be obliged to manage his finances in a way that a reasonable level of support is always available to his child. I am satisfied that with a full search, on the basis of his skills and experience, he could find employment which generate a reliable income of at least $60,000 per annum. I find that at a minimum income of $60,000 per annum should be attributed to Mr. Erickson for the purpose of determining Guidelines support. The Guidelines support for one child on an annual income of $60,000 is $557 per month. For the reasons set out above, I do not find that it will necessarily be in the child’s best interest that the income be determined by taking into account either three or four or five year averages. It is now time to put together a sustainable and reliable method to determine the level of child support. I am satisfied that it is in the long term interest of the child to fix a minimum amount on which support should be paid, and require that amounts earned in excess of the Guidelines be subject to a determination that takes into account all of the conditions, means, needs and other circumstances of the child as well as the financial ability of each parent to contribute to the support of the child.
86To the extent that Mr. Erickson continues to gamble, either on a full time or part time basis, and realizes an annual income in excess of $60,000 per annum, his son should benefit from higher income. Support shall be payable based on the prior year’s income using the sources of income set out under the heading “Total Income” in the T1 General From issued by Canada Revenue Agency. Mr. Erickson shall disclose his income by March 31 each year and adjust child support the following June 1 to pay Guidelines support on any income over $60,000 up to $150,000 per annum. If in any year, Mr. Erickson’s income as reported is less than $60,000, the amount of $60,000 shall be imputed to him pursuant to s. 19 for the reasons set out above. Where Mr. Erickson earns more than $60,000 per annum, the Guidelines amount shall be payable on annual income between the amounts of $60,000 and $150,000. Should Mr. Erickson earn or realize gains in excess of $150,000, the amount for child support shall be the Guidelines amount in respect of the first $150,000 plus an amount either agreed to by the parties or ordered by the court. The parties shall endeavour to agree on a reasonable and fair amount for support in excess of the Guidelines amount up to $450,000.00, taking into account the factors enumerated in s. 4(b) of the Guidelines. In particular, I encourage the parties or the decision maker to consider among other things the following circumstances,
- any support paid based on imputed amount of $60,000 during years in which Mr. Erickson did not earn at least $60,000,
- amounts and percentage contributions of both parents to extraordinary expenses,
- the mother’s efforts to earn an income to contribute to extraordinary expenses,
- amounts Mr. Erickson put aside that year for the benefit of the child’s education in RESP or other financial instruments or plans,
- amounts Mr. Erickson put aside for the benefit of the child which amounts are not available to the child until after he reaches the age of majority, and
- amounts Mr. Erickson put aside for the benefit of the child to cover fluctuations in income.
87It is impossible to predict what Mr. Erickson’s income will be over the next 14 years, which is likely to be the minimum length of time that Mr. Erickson will have support obligations. If the factors set out above form part of the consideration for any future support orders, both parties may be motivated to make provision for their son during the good years.
88In his submissions, counsel for Mr. Erickson proposed that the father pay $1,000 per month child support for the duration of 2012. This is greater than the amount which would be triggered by the imputed income of $60,000. Under the Guidelines, it would take an annual income of $116,000 to trigger support of $1,000 monthly for one child. I am presuming that this proposal was based to a perceived hardship to Ms. Quesnel and Dexter that would be caused by such a drastic reduction. Child support payments have been the only source of household income for Ms. Quesnel since shortly after Dexter’s birth. Ms. Quesnel has not earned any income from any sources but for employment insurance income in 2008.
89It is fair and reasonable to provide Ms. Quesnel with a transition period before reducing the child support obligation. Therefore I will not make the order effective for another five months. Effective January 1, 2013, Mr. Erickson shall pay Guidelines support of $557 on an imputed income of $60,000 or the higher Guidelines amount based on earnings in excess of $60,000 for the year 2012. This gives Ms. Quesnel time to make arrangements as necessary to adjust her expenses or seek an income.
90I have heard briefly from Ms. Quesnel on extraordinary expenses, including costs of daycare two days per week and formula. Effective January 1, 2013, Ms. Quesnel shall provide to Mr. Erickson on an ongoing basis (within 30 days of incurring such expenses), proof of any claim for extraordinary expenses under s. 7 of the Guidelines. At this time, Mr. Erickson will cover 100% of those expenses. However, once and if Ms. Quesnel has an income, she shall be responsible for her proportion of those expense as per s. 7 of the Guidelines. Ms. Quesnel must provide full disclosure of her annual income and a copy of her tax returns by March 31st of every year.
91Mr. Erickson shall provide to Ms. Quesnel every year by April 1 his income tax return as filed and to provide his notice of assessment to her within 30 days. Support shall be adjusted every year on June 1 and shall be based on the prior year’s income pursuant to s. 16 of the Guidelines.
92With respect to the claim for retroactive support, Ms. Quesnel requests that she receive the difference between what she actually received and $6,000 she did receive from Mr. Erickson from May 1, 2011 to date. Ms. Quesnel did not bring any motions for interim support orders during this time and she was represented by counsel for some of this time.
93I find that the support paid for Dexter from January 2008 to the date of trial has been reasonable and fair in all of the circumstances. Ms. Quesnel received $72,000 per year for the years 2008, 2009, 2010 and the first quarter of 2011. Since that time, she has received $3,073 per month. There is no basis for a retroactive award.
Were the parties spouses?
94Ms. Quesnel claims spousal support based on her assertion that she and Mr. Erickson were spouses.
95Section 29 of the Family Law Act defines a spouse as either of two persons who are not married to each other and have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
96Spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequence of the relationship: see Brebric v. Niksic (2002), 2002 CanLII 41745 (ON CA), 60 O.R. (3d) 630 (C.A.).
97Ms. Quesnel asserts that she and Mr. Erickson cohabited from May 13, 2007, until April 2008, in a relationship of some permanence. She testified that the pregnancy was planned, her argument being; “He was 39, I was 37, we had unprotected sex; therefore it was planned.” She also testified that the parties discussed marriage and that they shared a committed relationship before and after Dexter’s birth.
98Mr. Erickson denies that he ever cohabited with Ms. Quesnel in a relationship of some permanence. Mr. Erickson testified that the pregnancy was not planned; they were simply careless with respect to their sexual intimacy and use of contraceptives.
99The parties did not share a residence during the time that Ms. Quesnel alleges that they co-habited. This fact alone does not preclude a finding of cohabitation. The case law recognizes that, given a variety of relationships and living arrangements, there should be a full assessment of their relationship in order to determine whether they cohabited in a relationship of some permanence.
100The parties’ evidence regarding their relationship is summarized at the beginning of this decision. Where there are differences in the description of the relationship as between the parties, I accept Mr. Erickson’s version. His evidence was much more fact based and was internally and logically consistent. On the other hand, Ms. Quesnel’s evidence was inconsistent and she asked the court to draw inferences from Mr. Erickson’s behaviour as to his intentions. From these inferred intentions of a future together, she then asks the court to conclude that the parties were cohabiting in a relationship of some permanence. For example, Ms. Quesnel testified that she would not have included the name Erickson on the child’s birth certificate if she had not believed that they would be a family unit. She testified that Mr. Erickson told her that she was the only woman he had introduced to his family. Ms. Quesnel testified that this was his way of assuring her that he was making a future commitment. Ms. Quesnel then takes this “commitment” to conclude that they were actually living in a relationship of some permanence.
101Ms. Quesnel’s position that the parties cohabited in a relationship of some permanence seems to have developed since she filed her Application in October 2005. In the Application, Ms. Quesnel indicated, in the portion of the form that asks about the relationship history, that the parties had separated on July 15, 2008. She further stated:
2 Shortly after commencing dating, the couple commenced residing together generally at the residence of the Respondent....
17 The Applicant, having lost her employment in southern Ontario due to pregnancy and being devastated by the breakdown of the relationship with the Respondent, moved to the Sudbury area where she resided as of October 2007. [Emphasis added.]
102In her evidence, Ms. Quesnel testified that the couple cohabited continuously from May 2007 to April 2008, while at the same time admitting that the Oakville November 2007 visit was an attempt to reconcile. Ms. Quesnel argued that the evidence shows that the parties were in a spousal relationship, which lead to the conception of a child. This may represent Ms. Quesnel’s wishes and desires; however, it is not supported by the facts. Regretfully, I find that Ms. Quesnel’s evidence about the status of her relationship with Mr. Erickson is more a statement of her hopes and desires than a description of what actually existed. From July 2007 through to the spring of 2008, Ms. Quesnel was trying to persuade Mr. Erickson to make a commitment to her or to reside with her. Mr. Erickson consistently refused to do both. Where Ms. Quesnel concludes that there actually was cohabitation in a relationship of some permanence, she lacks credibility. The evidence does not support cohabitation or a relationship of some permanence.
103I do not find that the parties cohabited in Oakville from mid May 2007 to September 2007 when Ms. Quesnel moved to Sudbury. There was no evidence that they conducted themselves as anything other than a dating couple. In the period before Ms. Quesnel moved to Oakville, there was evidence that the couple had dinner with his brother, and wife and family, on a couple of occasions. They were mature adults and they were seeing each other exclusively. However, there was no evidence that they lived together in a ‘marriage-like’ relationship: see Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), and M. v. H. (1996), 1996 CanLII 2218 (ON CA), 31 O.R. (3d) 417 (C.A.). There was no evidence that one kept house for the other or that they merged any part of their financial or household lives. There was no evidence that one did domestic services for the other. (I do not consider the evidence that Ms. Quesnel cleaned Mr. Erickson’s bathroom when she first stayed over at his apartment as the provision of domestic services.) There was no evidence that they participated together in neighbourhood or community activities or that they informed their families that they were in a committed relationship. The only evidence from family came from Mr. Erickson’s family. It was clear from them that they knew Mr. Erickson had started dating Ms. Quesnel, and that she became pregnant. After that, they only knew Ms. Quesnel as the mother of Mr. Erickson’s child. After Ms. Quesnel’s move to Sudbury, Mr. Erickson’s brother did not see the couple together unless it was a visit to Oakville where Ms. Quesnel brought Dexter to visit. Mr. Erickson’s mother and sister first met Ms. Quesnel shortly after the birth of Dexter. The involvement of Ms. Quesnel with the Erickson family post Dexter’s birth was limited to her visits to Oakville to bring Dexter to see his father. Ms. Quesnel attended get-togethers with the Erickson family arriving and departing with Dexter on her own.
104The Erickson family members testified that Ms. Quesnel routinely denigrated Mr. Erickson’s parenting and social abilities and refused to allow Dexter to visit with his father unless in her presence. They also had experienced a number of visits where Ms. Quesnel had indicated she would bring Dexter to a family gathering and then she would not arrive at all or would come very late. They believed that through this conduct she was asserting control over Mr. Erickson and his ability to have a relationship with Dexter.
105Mr. Erickson says he was committed to emotionally supporting Ms. Quesnel when he learned that she was going to have his child. Once Dexter was born, he fulfilled his statutory child support obligations immediately. He has also tried to develop a relationship with Dexter. However, he denies ever making a commitment to Ms. Quesnel to live together as a couple. Mr. Erickson accepted Ms. Quesnel’s restrictions on his access to Dexter.
106I am persuaded that, in the very early days of the intense romantic relationship, the parties may have discussed marriage and that they later discussed living together. However, very soon in the relationship, but after the pregnancy was confirmed, Mr. Erickson backed away from any further discussions along this line. I find that Ms. Quesnel, for reasons that perhaps her heart knows best, would have liked to and still would like to create a family unit with Mr. Erickson and Dexter. But there was no meeting of the minds on this point and no mutual commitment. Early in the relationship, Mr. Erickson refused to make the commitment that Ms. Quesnel so wanted. He had no intention of setting up a permanent household with Ms. Quesnel and in fact he did not do so.
107I find that Mr. Erickson and Ms. Quesnel did not cohabit in a relationship of some permanence and therefore were not spouses within the meaning of s. 29 of the FLA. There are no obligations of support between individuals under the FLA unless they are spouses of one another. Therefore, I find that the claim for spousal support fails.
Madame Justice P.C. Hennessy
Released: August 1, 2012
