COURT FILE AND PARTIES
COURT FILE NO.: FC-11-2806
DATE: 2012/10/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gregg Rebus, Applicant
AND
Cheryl Bateman, Respondent
BEFORE: Mr. Justice Peter Annis
COUNSEL: Julie Audet, for the Applicant
Susan E. Galarneau, for the Respondent
HEARD: October 17, 2012
ENDORSEMENT
Introduction
[ 1 ] This is an interim motion by the respondent mother for orders of custody and child support and spousal support.
[ 2 ] The parties commenced living together in 1996 and separated either July 17, 2010 or October 10, 2010, which is not a factor in this motion. They had two children: Caelan (D.O.B. […], 1997) and Rhyann (D.O.B. […], 1999).
[ 3 ] The parties shared custody on an on/off week basis until December 2011 when the applicant father relocated to Kanata to live with his new partner in a two-bedroom townhouse. This did not suit Caelan who commenced living full-time with his mother effective January 2012.
Income Earned by the Parties
[ 4 ] The father is a financial planner whose earnings, for the purpose of this motion, are his revenues, less an amount that I have adjusted to $20,000, for his expenses.
[ 5 ] This adjustment was somewhat in line with that advanced by his counsel. It reflects the personal use from business deductions, such as that for the automobile, as well as taking into consideration that he was deducting the respondent’s income before separation.
[ 6 ] Factoring in the foregoing adjustment, Mr. Rebus’ salary for these purposes was $61,000, $60,000 and $64,000 for the years 2009 through 2011. I understand from his salary earned to date that income in 2012 will be approximately $60,000.
[ 7 ] The respondent has been largely a stay-at-home mother. In the past she earned some income working for the applicant, as well as from part-time jobs. Her filed returns for the past three years indicate total income of $29,119, $16,179 and $8,362. She estimates her income for 2012 at $12,000.
[ 8 ] The father submits that the mother, who is 51 years old and has a high school education, did not contribute sufficiently to the finances of the family during the marriage, which contributed to its breakdown. He seeks to impute income to her.
[ 9 ] I will leave that for the trial judge as it requires a more detailed consideration of her past work experience than I can make with the information before me. For my purposes, I would think that $12,000 represents an appropriate interim amount based on past salary considerations and present circumstances. I accept that she is required to spend considerable time dealing with Caelan’s challenges from depression, anxiety, ODD (Oppositional Defiant Disorder), learning disorders and recently diagnosed ASD (Autism Spectrum Disorder-specifically Asperger’s Syndrome).
Custody
[ 10 ] The mother is seeking interim sole custody of the children so that she “may be able to better continue to advocate and make decisions on their behalf”, as she claims she has been doing for their entire lives.
[ 11 ] While the father, being employed on a full-time basis, would not have the same time available to spend with the children, there is nothing in the evidence before me which would support a claim for sole custody by the mother. I do not see the present de facto joint custody impacting negatively on her ability to respond to Caelan’s challenges.
[ 12 ] Rhyann is obviously attached to the father, while Caelan’s move appears to have arisen because of the lack of appropriate accommodation in the townhouse at Kanata, which only has two bedrooms, one of which was occupied by the child of Mr. Rebus’ new partner.
[ 13 ] There has been a breakdown in communications, but, to the extent determinable, I attribute it to the mother’s anger with the father over the separation and later unilateral move to Kanata to live with his “Mistress”. He denies any relationship prior to the separation. In any event, both parents are required to keep the best interests of their children in mind and make reasonable efforts to communicate with each other when it concerns the children.
[ 14 ] I have attached as Annex “A” standard decision-making and communication paragraphs which I order the parties to follow as a means to improve communications and ensure that both are involved in the decisions of their children, as apparently they should be from the information before me.
Child and Spousal Support
[ 15 ] The father claims that he is unable to pay support because he is presently paying $2,000 per month to eliminate family debts now reduced to $50,000. The mother asserts that these debts were caused by the applicant’s reckless post-separation spending. There is little evidence before me to support her allegation.
[ 16 ] Of more relevance is the fact that the father now lives with a new partner who holds a stable job, apparently in the public service earning $70,000 annually. He has purchased a new vehicle and gone on various vacations with this partner, while the mother has been forced to live with her mother in a relatively more economic lifestyle.
[ 17 ] I can see no reason why the applicant should not pay child and spousal support effective October 1, 2012. I fix the monthly amount payable at $1,375, of which $852 represents amounts paid towards child support. These payments reflect salaries of the applicant and respondent which I fix at $60,000 and $12,000 respectively with Rhyann having shared residency and Caelan living with the mother.
[ 18 ] I further award retroactive support to the mother in the amount of $1,375 monthly for the first nine months of the year, totalling $12,375. This award is conditional on this amount being paid out of funds held in trust from the sale of the matrimonial home and that it is matched by an equal payment to the father from the trust funds.
[ 19 ] The payment to the father will represent a contribution by the mother to the joint family debt on valuation date. Both payments, if made, will be on a without prejudice basis and subject to final determination and attribution by the trial judge.
[ 20 ] Section 7 expenses retroactive to January 1, 2012 shall be paid by the applicant proportional to the incomes described in the preceding paragraph. If a dispute arises as to what amounts paid by the parties fall within Section 7, the matter may be referred to the Master in writing for resolution, including submissions on costs.
[ 21 ] My conditional retroactive order is based in part on the respondent’s indication of her intention to move out of her mother’s home, requiring an extra infusion of cash. Payment to the applicant on the other hand, will help reduce his debt thereby responding to his liquidity difficulties.
Pending Decision on Children’s School
[ 22 ] At the conclusion of the motion, I provided some direction on the pending problematic issue for resolution of where the children will attend school in September 2013.
[ 23 ] My comments should be considered “off the record” and not repeated to any judicial decision-maker in the future who may have to decide this issue. If the parties do bring this matter forward, they should advise the court that I am not in a position to decide the matter.
Next Steps
[ 24 ] While it is my hope that the parties reach resolution without the further intervention of the court, I have nevertheless set the matter down to be tried during the January 27, 2013 trial sittings, with a settlement/pre-trial conference to be held on January 8, 2013 at 10 a.m.
Costs
[ 25 ] Given the success of the respondent, I award her costs in the amount of $4,500 plus HST. This award is subject to any submissions that she or the applicant may wish to make if not in agreement with this cost award, for whatever reason. I consider my contingent award appropriate on the basis of proportionality, the complexity of the issues and the seniority of counsel.
[ 26 ] If questioning took place, which I note was agreed to by consent order, I would increase the award by $750 for the first half-day of three hours to a maximum of $1,250.
[ 27 ] On interim motions particularly, I would prefer to receive costs outlines in pre-sealed envelopes at the completion of motions, accompanied by any oral submissions the parties care to make at that time.
Interim Orders:
(1) No order as to custody, subject to the attached orders in Annex “A” to guide decision-making.
(2) The applicant to pay the respondent support in the amount of $1,375 monthly, $852 of which represents child support, effective October 1, 2012.
(3) The applicant to pay the respondent retroactive support of $1,375 monthly for the first nine months of 2012, in the total amount of $12,375. Payment shall be on the condition that it is drawn from the amounts retained in trust on the sale of the matrimonial home, with a similar payment from the trust funds to the applicant representing a contribution by the respondent to her share of the joint family debt at valuation date.
(4) Receipted Section 7 expenses shall be paid effective January 1, 2012 on a proportional basis relative to the incomes of the applicant of $60,000 and the respondent of $12,000. If any dispute arises as to what amounts paid by the parties fall within Section 7, the dispute may be referred to the Master in writing for resolution, including submissions on costs of the matter.
(5) The parties shall exchange financial information effective June 1, 2013 and thereafter, if this order remains in force, adjust child support in accordance therewith.
(6) The applicant to pay the respondent her costs of the motion in the all-in amount of $4,500 plus HST, subject to an increased amount for any questioning that occurred or pending further submissions by the parties, both as described above.
(7) The orders contained in the attached Annex “A” shall apply to guide the decision‑making and access communications on an interim basis, unless otherwise modified (e.g. communications by telephone) in writing by the parties.
Annis J.
Date: October 24, 2012
COURT FILE NO.: FC-11-2806
DATE: 2012/10/24
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Gregg Rebus, Applicant
AND Cheryl Bateman, Respondent
BEFORE: Mr. Justice Peter Annis
COUNSEL: Julie Audet, for the Applicant
Susan E. Galarneau, for the Respondent
ENDORSEMENT
Annis J.
Released: October 24, 2012
Annex “A”
Decision Making and Right to Information Clauses
[1] All significant decisions concerning the children’s health, education, religion and social and extracurricular activities shall be decided in accordance with the following procedure:
(a) Major decisions regarding a children’s medical care or educational programming shall be made in consultation with the children’s current healthcare providers or teachers.
(b) Any parent intending to make a decision to change or affect the status quo in matters of health, education, religion and social activities of the children will request consideration by the other parent, by email , setting out the details of the proposed change and why the change is considered necessary in the best interests of the children . Unless not practical or possible, 7 days notice should be provided of the intended change.
(c) The parent to whom the request is made will seek to accommodate the request as long as it is generally reasonable and not contrary to the best interests of the children . If the request is not viewed to be in the best interests of the children, the responding parent, as promptly as reasonably possible, will either propose a compromise solution, or indicate an unwillingness to agree to the change, also by email. In either case, an explanation shall be provided why the proposed change is not considered to be in the best interests of the children ;
(d) If the parents are otherwise unable to agree on the change in status quo in these matters, the final decision will be made by referring the matter to a third-party that the parents agree upon; and only thereafter, and with an explanation why no third-party decision-maker could be agreed upon , to the court in writing , which shall include a copy of emails exchanged between the parents.
[2] Each parent shall be responsible for making day-to-day decisions for routine emergency medical care while the children are in his/her care, and shall keep the other parent fully informed, by e-mail, of any minor illnesses, emergencies, treatments, medications administered or prescribed while the children are is in his/her care.
[3] Both parents are entitled to obtain information on the health, education and social activities of the children from all individuals or organizations involved with the children (i.e. teachers, school officials, doctors, health care providers, counsellors, etc.) not normally requiring a court order for that purpose. Both parents are entitled to attend any of the children’s scheduled appointments unless otherwise requested by the educator or professional being consulted.
Access Communications between Parents
[1] To the extent possible, the parents should attempt to communicate by e-mail and maintain a record of their communications. On the other hand recourse to e-mails should be on a strict need to use basis only. The e-mails shall not be read by the children. These communications are not privileged.
[2] The parents will generally keep each other apprised of the children’s activities, progress, health and education issues, developmental milestones, likes and dislikes, scheduled activities and appointments, in addition to any other significant events affecting or relating to the children that occurred or they became aware of during the time that they were with a parent.
[3] The parents shall not rely on the children to transport documents between them. The parents shall share all documents about the children by scanning the document and then sending it to the other parent by e-mail.
[4] Written and oral communications between the parents shall at all times be respectful and civil. No threats, intimidatory statements, disparaging, cynical, sarcastic or ironic comments shall be made concerning the other parent. Criticisms should be expressed constructively with suggestions of alternative courses of action or solutions supported by explanations such as to invite rational discussion focused on the children’s best interests that indirectly may include the needs of the parties in respect of their relationship with them.
[5] Conduct that may tend to alienate a child from the other parent, that may inconvenience or frustrate the other parent or hinder or complicate access to the children should be recognized as being contrary to the best interests of the children and shall be avoided.
[6] Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings, including any outstanding property or financial issues relating to the parents or the children, or more generally regarding conflicts between the parents relating to parenting issues. If questioned by the children on a conflictual issue, the answering parent should respond as circumstances require, but attempting to divert attention away from the conflict and stating the intention of the parents to resolve the issue.
[7] If one parent requests a temporary change in access, the other party shall respond as quickly as possible, unless not possible or practicable. Consent to requested changes, with the third makeup time if necessary, should not be unreasonably withheld, with full explanations provided if not agreed to. In the event of an emergency or truly time-sensitive matter, the parties shall call each other. If a response requires more than 48 hours, an e-mail shall be sent advising why a reply cannot be promptly made and advising when the response can expected.