ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 940/08 (Guelph)
DATE: 2012 09 21
B E T W E E N:
STEFANIA STEFANEC aka STEFANIE STEFANEC
Andrea S. Clarke, for the Applicant
Applicant
- and -
RICHARD HARRY STEFANEC
Self-represented
Respondent
HEARD: Tried at Guelph on September 12, 13, 18, 19 and 20, 2012.
REASONS FOR JUDGMENT
Seppi J.
[ 1 ] The parties’ marital separation has driven them both into financial and emotional despair. Despite the early happy events of the birth of three children, positive efforts at building a tanning business together, and joint purchase of a home for their family, both are now unemployed, on government assistance and visibly traumatized by the conflict manifest in this litigation.
Issues
[ 2 ] There are two issues:
(1) Whether the custody of the three children should remain as determined in 2004, by consent, to be joint in residence with the applicant wife and liberal access to the respondent father; or sole custody to the wife, with scheduled liberal access to the father; and,
(2) Whether an income at minimum wage should be imputed to the respondent for child support purposes, despite his disability which impairs his ability to be employed.
The Factual Analysis
[ 3 ] The applicant, Stefania Stefanec, has had primary care of the three children since the parties’ final separation in 2007. On November 1, 2004, the parties agreed to an Ontario Court of Justice (OCJ) order for joint custody, with primary residence to the applicant and liberal access to the respondent. This was after a separation in about September of 2004.
[ 4 ] According to the applicant, this agreement was made in the hope of a reconciliation, which they attempted and failed, culminating in their final separation in May 2007. She seeks sole custody with specific scheduled access. She believes joint custody is not in the children’s best interests, having regard to the toxic relationship between the parents and the respondent’s manipulation of access to suit his personal agenda rather than the needs of the children. The respondent Richard Stefanec’s position is that there never was a reconciliation. The parties have faithfully been following this joint custody regime for 8 years as separated parents, and it should remain unchanged.
[ 5 ] The parties purchased a house together about a year after their 2004 separation. Title was taken in joint tenancy. The applicant claims this was a matrimonial home where they were living together at the time of their final separation in May 2007. The respondent states this was done to provide a home for the applicant and children, with him in separate quarters in the house without any spousal relationship.
[ 6 ] Before moving into the house in September 2006, the applicant signed an acknowledgement, dated August 17, 2006, of the intention to “maintain a separated marital status by keeping separate living arrangements within the home”. She testified she did this under pressure from the respondent to make her eligible to collect the Ontario Tax Credit, despite their reconciliation, because he needed her to contribute to the family finances and pay some of the bills on the house. Ultimately, this status of separated spouses was rejected by the Canada Revenue Agency which adjusted their marital status to “married” effective December 31, 2005. The parties sought to challenge this and both signed a statutory declaration dated June 5, 2007, stating, inter alia :
“Although we share a home together by tile [sic] only since December 1, 2005 at 74 Royal Palm Dr., Brampton, Ontario, we do not fit the part of husband and wife legally by the family law act. We only have a relationship for the children. Stefanie Amato (Stefanec) moved into separate living quarters on September 2006 at 74 Royal Palm Dr.”
[ 7 ] The respondent claims the idea for Ms. Stefanec to collect the Child Tax Credit when they lived in the same house was hers. However, the letter of rejection from Revenue Canada was addressed to him, which supports her contention that he instigated the plan. The statutory declaration was signed by both parties. Clearly, at the time, it was a joint decision to live together in the same house after they had purchased it together, and to present the arrangement as separated spouses for purposes of collecting the Child Tax Credit.
[ 8 ] In all the circumstances, the evidence of the applicant that her move into the house was for the purpose of reconciliation is accepted as credible. It followed a separation of several months when she and the children lived with her sister rather than moving into the house with the respondent as soon as they bought it.
[ 9 ] Mr. Stefanec was tried on charges of assault and uttering threats, following the applicant’s report to the police in 2004. The applicant recanted at the trial, in effect claiming she had overreacted and these offences never took place. Her evidence that she did this upon the respondent pleading with her to drop the charges suggests she lied under oath at the criminal trial. Her explanation that she did this because the respondent convinced or pressured her is believed in the circumstances. The respondent was acquitted of the charges in April 2005. It was after that the parties cooperatively sold their matrimonial home where the applicant was residing with the children, and then bought the second house on Royal Palm Drive which closed in November 2005.
[ 10 ] The parties’ relationship eventually completely broke down. The applicant and children moved out of the Royal Palm Drive house at the end of May 2007. This was after the respondent suffered a major seizure on or about May 12, 2007. The applicant, who was present in the house, called 911. The police attended on the scene and handcuffed the respondent. The applicant observed the respondent being taken out on a stretcher, while still handcuffed. He was hospitalized for several weeks following the incident. Tests were conducted, and medication administered. He also suffered and was treated for renal failure. Years later, in 2011, he had surgery on both shoulders for torn rotator cuffs, which have also been attributed to the events which occurred during his seizure.
Child Support
[ 11 ] A serious nerve injury to the respondent’s right wrist is described in letters from his doctor as a permanent disability. He was on painkillers and various medications for a year and a half after the seizure. He attempted modified duties with his employer, Trans Northern Pipeline. He was soon let go, after which he went on long term disability (LTD), providing him a monthly income of about $3,390.00 until the end of 2009.
[ 12 ] The respondent also collected rent of about $2,000.00 on the Royal Palm Drive house until it was finally sold with a closing in February 2011. Some of the rental income was used to pay expenses in the house but no accounting was ever provided to the applicant who believes the respondent neglected to pay the mortgage. Mortgage arrears and costs of the default are reported to have accumulated to about $100,000.00, but this was forgiven by the Credit Union that held the mortgage said to be based on evidence of certain wrongful dealings on the part of the lender.
[ 13 ] Mr. Stefanec currently receives $1,064.00 per month from the Ontario Disability Support Program (ODSP) and has been found to meet the program’s definition of a disability. Of this amount, $700.00 is paid directly to his landlord for rent on a basement apartment. The balance, $364.00, is paid directly to him for other expenses. He has applied to CPP for disability benefits to supplement this income and is awaiting a hearing. Until the approval for the ODSP allowance, he received $599.00 per month from Ontario Works, of which $400.00 went to his rental of a room.
[ 14 ] The government assistance began in about March 2010 after his long term disability had ended. His line 150 total income went from $41,163.06 in 2009 to $11,989.29 in 2010. Of that amount $6,705.00 was from Employment Insurance (EI) in addition to the $5,284.29 social assistance payments received. In 2011, his total income was $7,118.00, all from social assistance as his EI ended in 2010.
[ 15 ] The applicant maintains that Mr. Stefanec is intentionally unemployed and, if he tried, could work in a job which does not involve the physical exertion that is hindered by his disability. To support her position, she led evidence about the respondent working out in a gym. She testified about how smart he is, giving examples of how he manoeuvred finances during their relationship. The respondent admits he goes to the gym, but indicates it is for cardio exercise recommended for his general health, which does not require the use of his disabled wrist or upper body. He claims any job for which he might otherwise qualify requires completion of paperwork and duties that he is unable to perform due to his disability, which is why he remains unemployed.
[ 16 ] As stated above, Mr. Stefanec did attempt working on modified duties with his employer after his injuries. He was on strong medication and painkillers for about 18 months after his release from the hospital. His employer terminated him even from the modified duties in part due to his physical limitations. He received LTD under his benefits plan until the end of 2009, and has not been employed thereafter.
[ 17 ] The applicant also contends that, based on the respondent’s comments to her, he is not working because he has a pending lawsuit against the Peel Regional Police, and employment would reduce his potential damages. The respondent was very evasive when questioned about the details of his claim and potential for a large payday from the lawsuit. His refusal to provide the information, on the pretext that he does not know anything about it because it was the lawyer who drew up the court papers, is unreasonable. This refusal gives rise to the inference that he does anticipate an award of damages for loss of future income on his claim. However, having regard to the weight of evidence which supports his disabled condition, the anticipated damage award is not found to be his reason for not having remunerative employment.
[ 18 ] Section 19(1)(a) of the Child Support Guidelines (CSG) permits the court to impute income, as considered appropriate in the circumstances, where a parent is intentionally unemployed. The circumstances in this case are of a parent who is clearly disabled and himself financially suffering as a result of the disability. On balance, I am not convinced he is intentionally unemployed, despite the probable hope he has for a future damages award. There is no evidence of potentially available employment for the respondent in his current condition.
[ 19 ] Should this court impute a minimum wage income of about $18,000.00 per annum, his child support obligation under the CSG for the three children would be $380.00 per month. This is more than what he receives from ODSP after his rent is paid. A support order based on imputed income in the respondent’s current circumstances would likely interfere with his ability to attend to the children’s needs and transport at access times. In all the circumstances, this is not an appropriate case for imputing income for child support purposes at this time.
[ 20 ] The respondent, nevertheless, needs to focus on doing everything he can to improve his financial circumstances so that he can help to support his children. A father who does not provide support for his family causes the children to suffer. The applicant with her Ontario Works, Child Tax Credit and help from her family, is supporting the children on her own without any help from their father. She is restricted in her ability to be employed due to the need for her to attend to their son Richie’s health issues. Despite her hardship and daily struggles, the children are thriving and she makes every effort to provide what they need, without any help from their father. This is a most unfortunate situation and one which the respondent, in good faith, should want to remedy if he possibly can.
[ 21 ] The claim for support is denied at this time, and any arrears under past orders are expunged. Should additional evidence of the respondent’s ability to earn income or evidence of improved resources for him become available, leave is granted for the applicant to renew the support claim by motion to this court.
Custody and Access
[ 22 ] Based on the parties attempted reconciliation and cohabitation after their first separation, the 2004 OCJ order for joint custody is no longer in effect. The evidence of the applicant on the issue of their reconciliation, when she moved into the Royal Palm Drive house in September 2006, is preferred over that of the respondent. As was ultimately confirmed by Revenue Canada, the parties’ effort to present as a separated couple at the time was a sham, perpetuated to keep the Child Tax Credit despite their cohabitation. The respondent, who was clearly the controlling force in the relationship, convinced the applicant not to pursue the criminal charges against him, as a result of which she changed her testimony in the criminal court. She was concerned about the financial repercussions to the family. He convinced her to be a joint owner of the Royal Palm Drive house, and to attempt continued receipt of the Child Tax Credit despite their reconciliation. Such dishonesty on the part of both parties, though shameful, is admitted by the applicant. It is not condoned, but on the evidence is found as a fact.
[ 23 ] The decision of the court on custody and access must be based on what is in the best interests of the children. In the case at bar, it is painfully obvious that these two parents are extremely combative. They are unable to work cooperatively. They both admit to a lack of communication between them. Both were unable to control themselves to avoid volatile outbursts between them even in a controlled setting like the courtroom.
[ 24 ] The applicant’s evidence about the respondent’s random and limited pursuance of what have throughout been opportunities for generous time with the children is credible and accepted as fact. The respondent’s evidence about how often and in what circumstances he would actually spend time with his children was vague and inconsistent. At times, he would say he sees them every weekend, which is clearly not true. At other times, he admitted to his random pattern of access, and justified it as being due to the interference of the children’s own wishes and activities, or his financial limitations of poor accommodation and cost of transportation. He is not willing to commit to an access schedule. This supports the applicant’s evidence that he sees the children when it is convenience for him, rather than focusing on their need to have structure and predictability in having regular time scheduled for them to be with their father.
[ 25 ] Despite this refusal to commit to a schedule for seeing the children, and the overwhelming evidence of the applicant almost entirely alone providing for the children’s needs, the respondent claims he should have joint custody. He submits his access will be curtailed or reduced should the applicant have sole custody. The evidence, however, is to the contrary. The applicant clearly wants the respondent to be more involved with the children, to be with them more, and to commit to a regular schedule the children can rely on which is in the children’s best interests.
[ 26 ] The Court of Appeal has recognized the challenges of joint custody in circumstances in which the parents are unable to communicate. Animosity and lack of communication between the parents do not, in themselves, preclude an order of joint custody. However as stated in Kaplanis v. Kaplanis , 10 R.F.L. (6th) 373, 2005 1625 , para. 11 :
“…hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another . No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.” [Emphasis added.]
[ 27 ] In this case, there is no evidence that these parents are able to communicate effectively to address the needs of the children. Despite Mr. Stefanec’s belief that he has been a joint custodial parent, the evidence is that Ms. Stefanec has shouldered all the parenting responsibilities alone. Their son, Ritchie, was diagnosed with Type 1 Diabetes a few years ago, and she has been the parent entirely responsible for his specialized care. Mr. Stefanec testified he bought some testing strips at the beginning, and encourages his son to follow a healthy diet and exercise, but the daily monitoring has been done by the applicant without assistance or even moral support from the respondent. His evidence was that he and the applicant do not need to talk, that he can communicate with his children. In his evidence, he demonstrated no knowledge about the extent of medical follow-up needed for his son.
[ 28 ] The two older children are teenagers and the parents both acknowledged the need for flexibility in access terms as these will affect them and their activities.
Result
[ 29 ] In the result, there shall be an order that the applicant shall have sole custody of the three children, Summer Starr Stefanec (d.o.b. September 30, 1996), Tabitha Joyce Stefanec (d.o.b. January 7, 1999) and Richard Curtis Stefanec (d.o.b. October 10, 2000). The respondent shall have liberal access which shall be on alternate weekends from Friday evening at 6:00 p.m. to Sunday evening at 7:00 p.m., commencing the weekend of September 28 to 30, 2012. If the access weekend falls on a holiday, it shall be extended to Monday at 7:00 p.m. to include the holiday Monday. The respondent shall also have access to Richie every week on Wednesday evening from 4:30 p.m. to 7:30 p.m.
[ 30 ] Additional access, if requested, may be arranged between the parties as communicated by test or e-mail at least 48 hours in advance. Neither party shall delegate scheduling of access to the children.
[ 31 ] The respondent’s access to the two older children, Summer and Tabitha, shall be subject to the children’s discretion, provided that the applicant is directed to encourage the children to have the access occur as frequently as possible.
[ 32 ] The respondent shall be responsible for the transport of the children to pick them up for access and to return them home to the applicant when the access ends, subject to the applicant assisting with the transport at her discretion.
[ 33 ] The parties shall communicate by text or e-mail, and if the respondent is unable to exercise his access as scheduled, he shall provide no less than 24 hour’s notice unless it is an emergency, in which case he shall provide as much notice as possible.
[ 34 ] Time for special holidays and for vacation periods with the children shall be shared by the parties and scheduled in advance. The respondent shall provide notice of his requested holiday access at least 1 month in advance by text or e-mail, and the applicant shall respondent within 7 days of the request.
[ 35 ] The respondent and the paternal grandparents shall be entitled to reasonable telephone access to all three children without restriction by the applicant, provided such communication is after 8:00 a.m. and before 8:00 p.m., and not during the children’s meal time.
[ 36 ] Both parties shall engender a positive relationship of the children with the other parent and shall not denigrate the other to or within the hearing of the children. Both shall ensure others in contact with the children also do not denigrate the other parent to or within the hearing of the children.
[ 37 ] The applicant’s claim for child support is denied at this time, provided that leave is granted for renewal of the claim on motion should there be additional evidence in regard to the respondent’s ability to pay. Any arrears under previous court orders are expunged.
[ 38 ] As there has been a divided result, there shall be no order for costs.
“original signed by Seppi J.”
Seppi J.
Released: September 21, 2012
COURT FILE NO.: 940/08 (Guelph)
DATE: 2012 09 21
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: STEFANIA STEFANEC aka STEFANIE STEFANEC Applicant - and – RICHARD HARRY STEFANEC Respondent REASONS FOR JUDGMENT Seppi J.
Released: September 21, 2012