COURT FILE NO.: 6361-10
DATE: 20120206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANTA SCALA
Self Represented
Applicant
- and -
DOUGLAS RICHARD HEATH
Self Represented
Respondent
HEARD: January 11, 12, 13, 2012
REASONS FOR JUDGMENT
Fragomeni J.
[1] The Applicant mother, Santa Scala, seeks sole custody of the three children of the marriage, namely, Julianna Caitlin Heath born June 29, 2004, Madison Skylar Heath born November 2, 2005 and Clarissa Zoe Heath born November 10, 2006.
[2] The Respondent father, Douglas Richard Heath, seeks joint custody.
[3] This trial focused on the appropriate parenting and residency arrangements and schedules. This trial also dealt with child support and the division of matrimonial debt.
Overview of the Facts
[4] Santa Scala, the mother, is 32 years of age, her birth date is August 9, 1979. Douglas Heath, the father, is 42 years old, his birth date being May 31, 1969. The parties were married on September 15, 2001. They separated on August 29, 2008. There are three children born of their marriage, namely: Julianna Caitlin Heath born June 29, 2004, Madison Skylar Heath born November 2, 2005 and Clarissa Zoe Heath born November 10, 2006.
[5] At the time of their separation in 2008 the parties signed a Separation Agreement dated September 22, 2008. Neither party had obtained independent legal advice prior to signing the Agreement, however, the Agreement did set out the parties’ respective positions on the family issues. In his trial testimony, the father acknowledges he should not have signed it.
[6] On January 21, 2010, Justice Herold made the following consent order as it related to the Separation Agreement:
Although the Separation Agreement may be referred to as background information, neither Santa Scala or Douglas Richard Heath is in a position to seek to enforce it.
[7] It is important, therefore, to set out the relevant terms of the Agreement. The mother was granted sole custody of the three children and the children would have their primary residence with the mother. The father agreed to a no access term. The father also agreed to pay child support in the sum of $700 per month. Although not in the Agreement a further financial arrangement was made that the father would contribute $200 per month toward the mortgage and $500 per month toward the matrimonial debts.
[8] The mother is employed full time and earns about $46,000 per year. The father has worked in the IT industry and testified that at this time he is earning about $20,000 to $25,000 per year. The father presently lives alone and exercises access in accordance with the consent order of Justice Herold dated January 21, 2010 which states at paragraph 4:
The children Julianna Caitlin Heath born June 29, 2004, Madison Skylar Heath born November 2, 2005 and Clarissa Zoe Heath born November 10, 2006 shall have their primary residence with Santa Scala subject to reasonable and liberal access with Douglas Richard Heath including at a minimum alternate weekends subject to further order.
[9] On May 18, 2011, the parties signed a Consent which stated, in part, that commencing June 10, 2011 the father would pay directly to the mother interim child support in the amount of $430 per month calculated on an imputed income of $20,700.
[10] Santa Scala testified and set out the particulars of the marriage and separation. The date of marriage being September 15, 2001 and the date of separation being August 29, 2008.
[11] Ms. Scala testified that at the time of their separation, Mr. Heath did not want anything to do with the children and that is why he agreed to a no access order in the Separation Agreement.
[12] Ms. Scala explained that Mr. Heath had problems with depression. He has also had substance abuse issues.
[13] Ms. Scala stated that Mr. Heath did not want time with his children despite her telling him he should see them. Ms. Scala testified that Mr. Heath did not want time with the children that first Christmas after the separation in 2008. In fact Mr. Heath did not even call the children on Christmas day, New Year’s day or their birthdays.
[14] Exhibit 40 is the Book of Evidence filed by Mr. Heath. At Tab 9, a series of e-mails are included by Mr. Heath. These are relevant on the issue relating to the level and nature of communication between the parties following the separation:
From: Doug Heath
Sent: Saturday, May 02, 2009 11:48 P.M.
To: ‘s.heath@rogers.blackberry.net
Subject: Re: Appointments
You denied my access to spend time with them separately, and left me with no other option other than to see them the way it is since looking after them all at once is too difficult for me right now, so I do the best I can.
I also tried to setup a calling schedule but you could not commit to a set schedule, something I would need in order for that to work. You state that I mentally abuse you yet I never initiate contact. I wanted the kids to call me in order to avoid confrontation. Yet you wanted me calling you and even cancelled the land line for a while and wanted me to ‘guess’ the time that would be ok to talk to them, playing hit and miss in order to call at an appropriate time, which leads to confrontation, so I stopped in order to avoid that.
I pay 1400 a month of my net pay, which is a LOT of money, and still have to pay for my own rent and expenses, and I don’t have a drug plan or dental, or any benefits. I don’t know what else to say other than I can’t pay what I don’t have.
As for my lawyer, I still have not heard. I am concentrating on getting the help I need right now and work, doing the best I can.
I am the one that feels abused, sorry you feel it’s the other way around.
From: s.heath@rogers.blackberry.net
To: Dough Heath
Sent: Sat May 02 23:03:10 2009
Subject: Re: Appointments
Doug,
I’, sorry you feel that way. You should know that I am not angry. If I was angry, things would have been taken to court by now. If I was angry, I wouldn’t be letting you see the girls. I wouldn’t let you stay at the matrimonial home, as opposed to your residence, for your hour or so with them every other week.
Yes, you are their father, who also signed a separation agreement stating that you did not want ANY access to the children. That being said, I do not owe you any explanations as to how the children are doing, where they are, and what they are doing. That is not my responsibility. I let you see the girls because I feel they should spend time with you, in which you have argued many times with me on how you do spend that time with them. You have stipulated many times that you only want one hour with them every other week. You have stipulated many times that if I ‘cause problems” with respect to your time with the girls, you would have NOTHING to do with them. These are your words Doug. You have cut them out of your life, not me. You have not called them. You don’t ask about them. What would you like me to do? I’ve made every effort to accommodate your needs, and it just never suits you.
As for Julianna, you won’t even help me to pay for the services that are required to help her. I’ve asked you several times. I work with her every single day, in addition to Madison and Clarissa, and a full time job, the commute, the bills, and maintaining the matrimonial home so that it may sell. It all adds up to a lot of time, stress and money.
Furthermore, I am waiting to hear from you with regards to some kind of agreement, in which you or your lawyer have not approached me with.
You have to stop abusing me Doug, please – mentally and emotionally. No, we do not get along anymore, but I’m doing the best I can to make our situation work. The girls are very happy children and I do my best to keep it that way.
You did not respond to my message of the other night. I have no idea what your intentions are. If you do not like the way the situation is, then you need to discuss that with your lawyer because obviously, things are getting nowhere.
I’ll see you tomorrow at 3:00.
Regards,
Sandra.
From: Dough Heath
To: s. heath@rogers.blackberry.net
Subject: RE: Appointments
Sent: May 2, 2009 9:23 PM
Sandra,
I know that we don’t get along, but they are still my kids too, and it is not any easier for me right now either. I am sorry, but if I don’t know what is going on, I can’t bring it up, and being angry with me only makes it harder for me to be their father than it already is. I know you are busy with our kids, but as their father I have a right to be informed about what is going on with them, and it is part of your responsibility to make sure that I am informed. I actually do have the ‘examinations for discovery’ appointment date, you did finally send it, and so I don’t need that. I do need to he kept informed about other things going on with the children though regardless of how you feel about me. I get absolutely no information from you in the form of reports, correspondence, or anything and should be.
Doug.
From: s.heath@rogers.blackberry.net
Sent: Saturday, May 02, 2009 9:09 PM
To: Doug Heath
Subject: Appointments
Doug,
I’ve been really busy lately and it might have slipped my mind. I apologize for that. You never brought it up with me which is why I though you knew about it.
You nev
[15] Exhibit 4 is a series of e-mails setting out Ms. Scala’s attempts and encouragement that Mr. Heath see his children. For example:
January 18, 2009 Ms. Scala to Mr. Heath:
Yes, but like I said before, you need to be more specific about the time you want with them.
Obviously next weekend does not work because you have to get your eyes zapped, which is why it’s this weekend. But, like I said before, every other weekend with all three. If you want to continue to do this, then there has to be some kind of agenda/plan so then at least the girls have a routine.
January 18, 2009 Heath to Scala:
Great, see them at 1:30.
January 18, 2009 Scala to Heath:
You can’t just keep popping into their lives whenever you want – gone for three months and then show up not knowing what you want. It needs to be consistent.
You did not want anything to do with them, and now you want to see them when you want to.
All I am saying is that we need to set a parenting plan as to when you take them. And it needs to be added to the separation agreement.
That’s the way it works. Think about it. I’ll have the kids ready and in the car for 1:30.
[16] Since November 2009, the schedule of access has been alternate weekends. Ms. Scala denied that she made it difficult for Mr. Heath to have access. She simply asked him for consistency so the girls would have a stable and consistent routine.
[17] Ms. Scala reviewed the access exercised by Mr. Heath. Since 2009 Mr. Heath has had alternate weekends. Mr. Heath did not request to see the children for March Break 2009. Thanksgiving, Easter and Christmas 2009 fell on his weekends. For the March Break 2010, again Mr. Heath did not request to have them for that March Break. Mr. Heath did see them on Christmas day 2011 for ½ day to December 27 at 7 p.m., then December 29, for 5 days.
[18] In the summer 2010, Ms. Scala agreed to two weeks for Mr. Heath but for financial reasons he did not take them. He said he could not afford to have them.
[19] Ms. Scala explained how the children are doing in school and set out the special needs associated with Julianna. Ms. Scala filed numerous exhibits in this regard. All three children are doing well at school with no complaints from the school. The girls are happy.
[20] Ms. Scala testified that she does keep Mr. Heath informed about the children’s appointments and activities and Exhibits 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 setting out their communication on these issues corroborates her testimony in this regard.
For example: At Exhibit 18: January 15, 2011 e-mail Scala to Heath:
From: Sandra Scala
Sent: January 15, 2011 12:22:33 PM
To: Doug Heath
Cc: s. scala@live.com
Hi Doug,
I just wanted to inform you that an Occupational Therapist by the name of Cathy Heger called me to advise that she would be visiting Julianna at the school to assess her needs. A follow-up appointment has not yet been made, but I will let you know once I hear further from her. We had discussed time frames, and a lunchtime appointment seems to be what might work best.
As discussed in the IEP meeting held on November 30, 2010, Julianna will be meeting with a Communicative Disorders Assistant. Her name is Mrs. Canivet and the number she provided if there are any questions or concerns is (905) 632-6314, ext. 398, which is the board office number. She sent home a Communication Book with Julianna, and this book will be sent home on a weekly basis with notes of Julianna’s progress regarding language therapy. I can send this book home with you on your weekends with the children for you to read so that you are up-to-date on Julianna’s progress. We need to make sure that this Communication Book is returned to me at the end of the weekend so that I may send it back to the school with Ulianna the following Monday.
In addition, as you know, Julianna is involved in the Model Me Kids Program with the school. A note was sent home advising that there is a class portal for the program. To access this portal, go to www.hcdsb.org – select Schools – Schools and administrators – St. Francis of Assisi – Model Me Kids. Weekly updates will be provided as well as downloadable forms for each session. The contact person is Mrs. McLean or Mrs. James at 905-877-6928.
In regards to Madison and Clarissa, the school has sent me a form regarding parent/teacher interviews. The date is set for Monday, January 31, 2011. For Clarissa, the time is 8:30-8:45 a.m. and for Madison, 8:45-9”00 a.m. These are the times that the teacher has set out. I am not sure if they have contacted you in this regard, if it not, you are now aware of the interviews.
Let me know if you have any questions.
Thank you,
Sandra.
At Exhibit 19: November 30, 2011, e-mail Scala to Heath:
From: s. scala@live.com
Date: Wed, 30 Nov 2011 23:02:05
Subject: School meeting and Christmas
Doug,
This Friday, I have a meeting at the school at 3:10 with Julianna’s teacher, the school resource teacher (Sherry Grant-Thompson) and Jeanette McNalty (Occupational Therapist, CCAC) regarding Julianna.
Also, I propose for this year at Christmas, I have the girls for the first week during their break. I propose you pick them up at 12 noon on December 30th and since Julianna has an appointment on the 6th of January, we can do the exchange then, right after the appointment.
Sandra.
At Exhibit 20 : November 14, 2011: e-mail: Scala to Heath:
From: Sandra Scala
Send: November 14, 11 1:30:53 PM
To: Doug Heath
Julianna has an appointment with Hearing Assessment Services located at 717 Richmond St., Suite 205 in London, ON. Their phone number is 519-642-4888.
The appointment is set for Friday, January 6th, 2012 at 12:30 p.m.
At Exhibt 20: Nnovember 14, 2011: e-mail: Scala to Heath
From: Sandra Scala
Sent: November 14, 11 1:17:41 PM
To: Doug Heath
Bcc: s. scala@live.com
The girls have an initial doctor’s appointment with Dr. Tukmachi located at Dundalk Medical Centre at 53 Main Street in Dundalk. The phone number is 519-923-3456.
The appointment is set for this Thursday, November 17th at 5:30 p.m.
At Exhibit 23: November 2, 2012: three e-mails:
From: Sandra Scala
Sent: November 02-11 7:50:16 PM
To: Doug Heath
Today. The school’s number is 519-924-2752.
From: Doug Heath
Date: Wed, 2 Nov 2011 23:24:49
To: s. scala@live.com
Subject: RE: Girls School
When did they change from St. Peter/St. Paul?
From: s. scala@live.com
Date: Wed, 2 Nov 2011 20:53:44
Subject: Girls School
Doug – just letting you know that the girls changed schools. They are going to Ecole MacPhail Elementary School in Flesherton.
Sandra
At Exhibit 26: June 22, 2011: e-mail : Scala to Heath:
From: Sandra Scala
Sent: June 22-11 6:26:37 PM
Cc: Sandra
Hi Doug,
I was just wondering if you have decided on your summer holidays with the girls? Please let me know so I can make arrangements with the daycare.
Also, I wanted to let you know that I’ve booked the trip to England for the girls and myself. I will provide you with an Itinerary as requested. Have you had a chance to talk to your lawyer about having the document notarized?
Thank you,
Sandra.
At Exhibit 27: June 16, 2011: e-mail: Scala to Heath:
From: Sandra Scala
Sent: June 16-11 9:28:32 AM
To: Doug Heath
1 attachment
Manulife. Pdf
Hi Doug,
Just a couple of matters to clarify…
I am resending the below email to you, which you confirmed with me on the Friday, June 10th, that you had received and read. You said to me that you would have to confirm whether or not the girls will be staying with you, during the first week in July and the first week in August, for the summer holidays. I need to make arrangements with the daycare for the girls, as well as myself and holidays with them, and cannot do so until you have confirmed these dates with me.
I had also asked if you would be contributing towards the dental bills for Madison and Clarissa (I also mentioned the expense for Julianna’s eyeglasses). I have not heard back from you in this regard. I have now received the statements regarding the dental bills from my insurance and attach them for your reference. The total cost is $2,280.10 which is $1,140.05 split between the both of us, plus the $200.00 ($100.00 split evenly) for Julianna’s eyeglasses (which I mentioned before is not covered by my insurance). Therefore, the total amounts to $1,240.05 if split evenly. There will also be the cost of Madison’s dentist appointment next week, as you know, scheduled for June 24th at 3:30 p.m. in Hanover.
On another note, Julianna’s appointment with Dr. Hallett has been moved from August 8th to August 9th. Dr. Hallett will not be in on the 8th of August, so they bumped everyone up. Since Julianna’s appointment was already booked, I got a referral for Clarissa to see Dr. Hallett as well on that day. The school teacher has expressed some concerns with regards to her attention span and focus, as well as her speech/language, so I took the initiative to at least have her seen by Dr. Hallett on the same day as Julianna. The appointment is scheduled for 11:00 a.m. in Stoney Creek on August 9, 2011.
Please let me know of your plans as soon as you can, and whether or not you intend on contributing to the girls’ health needs.
Thank you,
Sandra.
From: s. scala@live.com
Date: Thu, 9 Jun 2011 17:32:51
Subject: Tomorrow
Hi Doug,
As you know already, the dentist appointment for Madison and Clarissa is tomorrow at 7 a.m. at Grundy Family Dental Care in Hanover, I gave you all of the information about a month ago.
Doug, will you he helping me out with these costs?? Even Julianna’s glasses which you know aren’t covered by my work.
You need to help me pay for these things… they’re your girls too…
As well, we need to discuss summer holidays…first week in July? And first week in August? Would that work for you? I will hve to make some phone calls, so please let me know in advance.
Let me know your thoughts.
Thanks,
Sandra.
[21] I have not reviewed all of the Exhibits filed but in light of those e-mails Ms. Scala argues that it is difficult to understand why Mr. Heath asserts a position that he is kept uninformed or that she is marginalizing his involvement with the children.
[22] Further, at Exhibit 40, the Book of Evidence prepared by Mr. Heath, Mr. Heath includes in that Book of Evidence numerous e-mails and communications, which again, demonstrates the nature and level of communication between the parties.
[23] For example, at Tab 2, September 22, 2010 letter from Ms. Scala to Mr. Heath’s counsel:
September 22, 2010
By Fax Only
Mr. G. William Corby
Barrister, Solicitor, Notary
234 St. Patrick St. E.
Fergus, On
N1M 1M6
Dear Mr. Corby:
Re: Scala and Heath
Court File No. 09-7301 M
Please advise your client that the children and I will be relocating to Georgetown at 39 Duncan Dr., and also that the children have been registered at St. Francis of Assisi Catholic School located at 120 Sinclair Avenue, Georgetown, ON L7G 1J4, telephone number 905-877-6928. They will be starting school on October 4th, 2010.
I still have yet to receive a response in connection with my letter to you dated August 31, 2010, whereas I requested that you provide me with a detailed list containing any and all attempts in which your client has commenced in obtaining employment since January 21, 2010. I request your prompt attention to this matter.
Further to my letter to your client dated July 30, 2010, I specifically noted, “I will no longer be responding to any messages sent by you containing rude or inappropriate language. As I had also previously advised you on several occasions, any concerns that you may have should be directed to your lawyer, and not to me”. In addition to the emails I receive every Tuesday night, I received another email just last night (as you know, since it was copied to you), and I do not appreciate this.
Understandably you and my previous lawyer had come to a verbal agreement that telephone access would be allowed on Tuesday and Thursday nights, in which it was tried. I had initially requested that we start off slowly since I noted that the children were becoming hyper and their change in routine was affecting their behaviour.
Since telephone access took place, your client has done nothing by complain about his conversations with the children, and thus, has made it quite clear that he is bothered by their behaviour.
On another note, your client continues to keep sending me emails with regards to Tuesday nights, but when he is late with phoning the children on Thursday night, or misses a phone call completely, I do not receive an email from him. Why is it okay for your client to miss a call if he is so adamant about telephone access?
Please advise your client to stop harassing me, and to direct any questions or concerns he may have, to your attention.
Yours truly
Sgd.
Sandra Scala.
[24] At Tab 2, October 6, 2010 e-mail from Scala to Heath:
From: Sandra Scala
Sent: Wednesday, October 06, 2010 11:16 PM
To: Dough Heath
Subject: Contact Information and Address
Doug,
I am unaware if you have contacted your lawyer since your last visit with the girls, and at that time, since you demanded that I “send you something in writing”, here it is.
I tried to let you know of my plans, and since you were unwilling to communicate, this email is to let you know that the girls and I now live at 39 Duncan Dr. in Georgetown. This will be where you pick them up going forward for the weekends spent with them. My new phone number is (905) 702-5193.
I am having a hard time understanding how you can afford to live day-to-day on social assistance when you have the girls every other weekend, rent to pay, a home phone, a cell phone, television services, heat and hydro, food, laundry, vehicle maintenance and insurance, cigarettes, drugs, etc. etc.
What exactly are your reasons for being on social assistance? Depression? If it is depression, how is this beneficial to the girls? And what kind of example are you setting for the girls by not working and offering support for them?
Just thoughts…
Since I still have not yet received a response from your lawyer with regards to your employment status and efforts being made in obtaining employment, it would be appreciated if you could please have him give me an update. I have copied him on this correspondence so that he is aware of my concerns.
Thank you,
Sandra.
[25] Ms. Scala’s mother testified and confirmed that her daughter and the three girls reside with her and her husband Paul in Flesherton. From August 2008 to 2010, they all lived with her. In 2010, Ms. Scala and the girls moved to Georgetown so Ms. Scala would be closer to work. However, the cost of living was expensive so in September 2011, Ms. Scala and the girls moved back to live with her and her husband. The girls were registered in a Catholic school but the school bus came by very early and returned them late. It was a very long day for the girls so Ms. Scala enrolled them in a public school 5 minutes from their residence and the routine is much better for the girls. Paul Scala does not work so he cares for the girls after school until their mother gets home from work. Maria Scala works only two minutes from the school so she is also available in the event of an emergency.
[26] Maria Scala stated that her daughter has a good routine with the girls.
[27] Maria Scala confirmed that Mr. Heath has telephone access on Thursdays at 7 p.m. The reasons Ms. Scala reduced it to Thursdays was that during the last two years Mr. Heath was calling their home every night to speak to the girls and this was too much for them. It was too disruptive for the girls.
[28] Ms. Scala also testified about the financial issues relating to child support and the matrimonial debt. Ms. Scala stated Mr. Heath started working in January 2010 but did not let her know in accordance with Justice Herold’s order. Further, despite commencing work in January 2010 he only starting paying $430 a month in June 2010 on an imputed income of $20,700.
[29] Ms. Scala stated that Mr. Heath is underemployed.
[30] At Volume 2 of her Book of Documents, Tab 14, Ms. Scala encloses documentary evidence demonstrating Mr. Heath’s income in the past. For example, his Notice of Assessment for 2009 confirms an income of - $58,358.
[31] Ms. Scala also prepared a Chart that she states demonstrates that Mr. Heath is underemployed. The Chart is reproduced below:
BILLING FOR WORK VS. MONTHS
2010
2011
MONTH
HOURS
MONTH
HOURS
JAN
9.5
JAN
29
FEB
16
FEB
25
MAR
15.5
MAR
27
APR
10.5
APR
26.5
MAY
11
MAY
26.5
JUN
18
JUN
27
JUL
17
JUL
22
AUG
17
AUG
37
SEP
25
SEP
30.5
OCT
26
OCT
31.5
NOV
27
NOV
32
DEC
20
DEC
Unknown
TOTAL HOURS
212.5
314
The average person works 160 hours per month which equals 2,080 hours per year
The Applicant earns a gross income of $46,109 per year, for a family of 4
For 2010, the Respondent earned a gross income of $15,937.50 per 1.328125 months, for 1 person
For 2011, the Respondent earned a gross income of $23,550.00 per 1.9625 months, for 1 person.
Based on this chart Ms. Scala questions whether Mr. Heath is doing enough to earn a meaningful income to help support his three daughters.
[32] In addition Ms. Scala filed job searches she conducted relating to Mr. Heath’s skill and training that show he can earn more than he is earning. These are set out at Exhibits 36, 37, 38 and 39.
RESPONDENT – DOUGLAS HEATH
[33] Mr. Heath reviewed with the Court his employment history. Shortly after the marriage he was working for Deloitte as a full IT Consultant. He was working 70-80 hours per week and acknowledges he neglected his family. The parties decided that changes had to be made so he left Deloitte and started working at Serco DES as an employee. He was eventually let go there as he was declared redundant.
[34] In 2004 Mr. Heath had odd jobs but in the Spring 2007 he worked for Stonefields Management Inc. with his brother. He was terminated in September 2009. In January 2010 he started working for Floradale Feed Mill as a self-employed IT consultant.
[35] Mr. Heath explained the hours he works versus his billable hours and indicates that with respect to the Chart prepared by Ms. Scala, in order to generate, for example, 9 hours of billings he has to put in 20, 30 or 40 hours of work. The reason for this is he has to do research or training to reach the skill level needed to service the clients.
[36] Exhibit 37 sets out the list of jobs Mr. Heath applied for in January, February and March 2010.
[37] Mr. Heath states that his skill sets need updating. In cross-examination however, Ms. Scala asked him about the December 23, 2011 letter from Floradale Feed Mill Limited which endorses Mr. Heath as an ideal consultant in the IT/IS field. The letter states the following:
December 23, 2011
To: Whom it may concern,
Re: Douglas Heath and Invoice # 0492
I came to know Doug, in March 2009, when he was the consultant assigned to an IT project Floradale Feed contracted to “The Waterloo Networking Company”. The project was satisfactorily completed by May 2009.
In December 2009, I contacted Doug, by email, to discuss some networking issues with new equipment at Floradale Feed, as I thought the issues might be from the previous project he had finished.
In January 2010, Floradale Feed began an ERP Project. I contacted Doug about developing the specifications and arranging quoting for the hardware that would be needed for the project. As Doug was now an independent consultant, I hired him to setup the hardware and install the software needed.
Since Floradale Feed has a culture of being fair and paying for advice or work provided, I asked Doug to include his time for the issues from December 2009 on his first invoice. Since January 2010, I continue to hire Doug for various IT projects and support as his depth of knowledge make him an ideal consultant in the IT/IS field.
At no time has Doug ever been considered an employee, or been given privileges or responsibilities like an employee. Doug continues to bill us for the consulting services he provides.
Sgd.
Tim Metzger
IT/IS Manager
Floradale Feed Mill Limited
[38] Mr. Heath acknowledges that he has good skills and with a good reference from Floradale can secure more clients and increase his income. His income is growing slowly. At Exhibit 51 is a Model he is marketing to clients. He is growing and building his businesses.
[39] With respect to the matrimonial debt he does not dispute the numbers set out by Ms. Scala but he asks the Court to make certain deductions from his share of the liability.
[40] He states that at the time of separation he left behind about $6,000 worth of household items. No appraisals or valuations were done with respect to any of those items. In 2008 he states that Ms. Scala received a $10,000 tax return and he did not. He also states that just prior to being advised she wanted a separation, he gave Ms. Scala his pay in the amount of $11,800. He could not provide particulars of what was done with those funds.
[41] Mr. Heath testified that he is seeking joint custody of the three girls. His proposed Parenting Plan is set out in detail at Tab 1 of his Book of Evidence, filed as Exhibit 40.
[42] Mr. Heath acknowledges that Ms. Scala is a good mother. He understands that he made a poor decision when he signed the Separation Agreement agreeing to no access. He stated he was depressed at the time and sought counselling. Mr. Heath is still taking medication for ADHD. Exhibit 42 sets out the medication he is taking.
[43] Mr. Heath wanted to see the children more and states that Ms. Scala would not accommodate this. Further she made decisions relating to the children without consulting him or advising him in a timely manner. In short, Mr. Heath testified that he felt marginalized as a parent and uninformed about the children’s lives.
[44] Mr. Heath wants to be kept informed on all issues relating to the children. He would like a copy of the Communications Book relating to Julianna. He would like to be able to assist the children with their homework when they are in his care.
[45] Mr. Heath does acknowledge that Ms. Scala does now keep him informed. Mr. Heath believes the parties have co-operated on issues and can continue to do so and as such a joint custody order is appropriate.
Mr. Richard Heath and Margaret Heath – Respondent’s Parents
[46] Richard Heath was not well when he testified and had difficulty with his memory. During the marriage he sometimes saw his grandchildren. He also saw them after the parties separated. He described the girls as quite happy during the times he was with them. Richard Heath described Mr. Heath’s financial problems and confirmed he had financial difficulties that he and his wife helped him with. The grandchildren do not visit him at his residence due to Mr. Heath’s strained relationship with his brother who lives there.
[47] Richard Heath stated that he sees his grandchildren more now than he did before the separation.
[48] Margaret Heath loves her grandchildren and sees them as often as she is able to. She described all three girls as good kids, bright.
ANALYSIS
The Law Re: Joint Custody
[49] In Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (Ont. C.A.), the court confirmed that in any custody case, the sole issue before the trial judge is the best interest of the child. In Kaplanis, Weiler, J.A. set out the following at paras. 10 and 11:
As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be "fit" did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence before the trial judge should have revealed what bonds the child had with each of her parents and their ability to parent the child. In addition to detailing the mother's current arrangements respecting the care of the child, the evidence should also have indicated what practical plan to care for the child the father proposed to make when he had the child with him and the benefits to the child of such an arrangement. The trial judge had no evidence to this effect. Indeed, as the trial judge acknowledged at the time she made her order, the child had never spent an overnight with the father alone.
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, 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. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
[50] In Ladisa v. Ladisa, 2005 1627 (ON CA), [2005] O.J. No. 276, (Ont. C.A.), also a decision of Weiler, J.A. Justice Weiler sets out the trial judge’s findings as follows at paras. 12 – 14:
12 The trial judge found:
Despite the intense conflict between these parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other's presence. Some examples of this are the following. When Alana had her emergency treatment for her fall, the parents were able to work out their differences, although with some sadness on the part of Mr. Ladisa, as to who would stay with Alana and who would care for the other children. When Jordan was adamant that he needed the assistance of his father with his go-cart project, the parents were able to agree on a resolution in the interests of their son. When the parents have been forced together because of their children, such as at parent-teacher meetings, school functions and sports activities, they seem, with perhaps one or two exceptions, to have been able to behave appropriately. According to the testimony of third parties, including teachers, a former hockey coach, other hockey parents and neighbours, the parents have always acted appropriately when together towards each other and towards their children. Their conflict has not been obvious to the observation of these third parties. When the children have forgotten some item at the house of the other parent, arrangements to fetch the item or sports equipment have been worked out. This accommodation even includes the question of the children's confirmation last year. The disagreement was not whether the children should be confirmed but when they should be confirmed that seemed to have some financial consequences.
13 The trial judge also found that both parents had made efforts to meet the financial needs of the children when these needs presented themselves, without consideration of whether the other parent should be paying or without anticipation that one parent would reimburse the other for that expense, and that they had done this at great personal sacrifice to themselves.
14 In the result, the trial judge found that the children needed the parenting that both parents could give them. She therefore ordered that Jordan and Jessica reside with both parents on an alternating weekly basis with the transfer time to be Friday evening at 7 p.m. Each child was to be free to telephone the other parent while they were in the care of one parent but that, short of an emergency, the parents were to have no direct contact by telephone. Instead, communication between the parents was to be by means of a communication book or by email. School and statutory holidays were to be shared equally and a detailed order was made in this regard. Both parents were permitted to attend school functions and extracurricular activities for the children and both were entitled to receive all medical and school information concerning the children. Both were permitted to travel with the children outside of the Ottawa jurisdiction for vacation purposes upon reasonable notice to the other parent of at least 30 days and the provision of an itinerary.
[51] At para. 16 Justice Weiler states:
16 In my opinion, it was within the trial judge's discretion to make the order she did respecting Jordan and Jessica. The trial judge's conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents. With respect to communication and cooperation, the trial judge considered the evidence of third parties respecting the parents' interaction with their children. She was satisfied that, despite their strife, when necessary, the parents could and had communicated effectively and put the interests of the children ahead of their own. The appellant has not persuaded me that she made a palpable and overriding error in making this finding. The trial judge also had the benefit of the expert evidence of the Children's Lawyer who recommended joint custody. The trial judge's decision also took into consideration the wishes of Jordan, and, although she did not expressly advert to it, the lack of any compelling reason to separate custody of Jordan from that of his sister, Jessica, as well as the mother's evidence that Jessica should not be separated from her for more than a week at a time. In these circumstances, the trial judge did not err in principle in making an order of joint custody regarding Jordan and Jessica
[52] In Giri v. Wentges, 2009 ONCA 606, [2009] O.J. No. 5173 (Ont. C.A.), the respondent mother brought an application for sole custody of their daughter. The Court of Appeal stated that the trial judge, in a thorough and well reasoned decision, ordered that the mother have sole custody of the child with liberal and generous specified access to the appellant father. The father appealed and sought joint custody with primary residence to be with him. At para. 10 the court stated:
10 Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child: see Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.).
Custody and Access
[53] At the conclusion of his closing submissions the father stated that Santa Scala was an excellent mother. The thrust of his testimony is that he feels marginalized and that the mother has not allowed him to be more involved in the parenting of the children.
[54] This testimony however, is contradicted by the various emails filed and the testimony of the mother.
[55] At the outset I wish to point out that at the time of their separation the father agreed to a no access term. He set out in his testimony the reasons why he signed the Agreement and why he should not have signed it but the reality is that for several months, the mother had the sole responsibility to care for the three girls, without any input or assistance from the father. The mother on her own made all of the decisions relating to the children and did so always keeping in mind the best interests of the children.
[56] Further, in the summer of 2010, the mother offered to provide access to the father for a period of two consecutive weeks in the summer. The father did not accept the offer citing financial issues in not being able to afford to see the children.
[57] Further, and again citing financial difficulties, the father did not want to see all three children at the same time. Not only did he cite his financial difficulties in that regard, he also indicated that the residence he had could not accommodate overnight access.
[58] Again during this time period, which lasted really up to Justice Herold’s January 21, 2010 Order, the mother was responsible for the majority of the care of the children.
[59] The mother was assisted and continues to be assisted with the children’s care by her parents, Maria and Paul Scala, with whom she lives. They are of great assistance during the times the mother is at work and help out with respect to taking care of the children after school and making sure they are ready for school.
[60] The email exhibits filed demonstrate that the mother has advised the father of all relevant appointments relating to school or health care professionals.
[61] Understandably and considering the history of this matter, the mother has been tasked to make these arrangements and she has done so. I am satisfied that the mother has and will continue to make these decisions in the best interests of the children.
[62] On the evidentiary record before me I cannot conclude that any of the actions of the mother were designed to marginalize the father. I find that the opposite is true. She has attempted to keep the father informed. There is no doubt that the mother has changed the residency of the children and their schools, however, her reasons for doing so are reasonable. I agree with the father that he should have been provided with more timely notice that these moves were going to take place. I find, however, that the changes were made by the mother in the best interests of the children.
[63] In my review of the evidence I did not review all of the e-mails and communications filed by the parties at trial. I do wish to refer to a further e-mail as it directly relates to the issue of whether the parties can communicate effectively with one another such that a joint custody order would be in the best interests of the children. On this point, and again this e-mail was included in the Book of Evidence filed by Mr. Heath, I wish to set out an e-mail dated December 24, 2011 relating to Christmas access from Scala to Heath. It is at Tab 10:
From: s. scala@live.com
CC: s. scala@live.com
Date: Sat, 24 Dec 2011 04:01:52
Subject: Re: Christmas
Hi Doug,
Personally, I don’t like starting out emails like this, but I want you to make a change in how you communicate with me starting from today.
Effective immediately, I want you TO refrain from this line “their father”. I don’t want any more speeches. I want your time with the girls to be YOUR quality time with them; and, I would consider your request and respond with some options, if I can’t grant it.
In the future just ask me simple questions like, “Can I have the girls during their holiday in addition to my 2 day weekend?” OR “How many days can I have th girls over the holidays?” OR “I had planned to take the girls for a concert at the Disney show on my weekend, but would like to get your permission if they can stay an extra day?”.
I would appreciate it if your emails are straight to the point requesting my approval…by no means do I want to deny you from seeing the girls as you are their biological father, and I respect that. I want them to have a very healthy relationship with you.
We are adults, and need to start communicating like adults. But, starting today, I am no longer going to tolerate whiny, guilt-stricken, or pity-driven messages. No more forensic, hair-splitting messages.
I don’t want to sound harsh, but I want to start 2012 with respectful conversations in any median between us – no more proving points.
Now, here is the Christmas Schedule that I will give to you: Christmas day you pick them up at 12 noon and return them on the 28th of December, 2011 at 7 p.m. And then, on the 30th of December, you pick them up at 7 p.m. and return them on the 2nd of January, 2012 at 7 p.m.
I truly do believe that this will be acceptable to you, in light of what the Judge said today.
Thank you,
Sandra.
[64] I am not satisfied that Mr. Heath would be able to effectively communicate with Ms. Scala under a joint custody order. The criticisms Mr. Heath advanced regarding Ms. Scala are not borne out by the evidence. For example he complained about her lack of communication about appointments and yet the numerous e-mails confirm otherwise.
[65] He complains about not having enough time with the children and yet times were offered to him that he rejected. He complains about Ms. Scala making unilateral decisions about the girls and yet at the time of their initial separation he did not want to have anything to do with the children.
[66] Ms. Scala had to raise the children essentially on her own until Mr. Heath decided he wanted to resume being part of their lives.
[67] The school reports and records demonstrate that the children are doing well. Julianna has special needs but those needs are being addressed. The children are happy, healthy and bright. The evidentiary record establishes that they are in a healthy and stable environment.
FINANCIAL ISSUES
[68] I am satisfied on the record before me that Mr. Heath is underemployed and is able to earn more than the imputed income of $20,700.00. The minimum wage at $10.25 for a 40 hour week results in an annual gross income of almost $20,000.00. With his experience, skill and training Mr. Heath should be and could be earning more than the minimum wage. I am not satisfied on the evidentiary record before me that Mr. Heath has made the efforts required to increase his income. The chart prepared by Ms. Scala aptly demonstrates this. For 2010 his gross income was $15,937.50 having billed the equivalent of 1.3 months of time for the year. It is difficult to understand how, for example 20-40 hours of time is needed for 9.5 hours of billing. If that was the case Mr. Heath ought to have considered applying for other work. His job search history, filed as an exhibit, ends in March 2010. No details were provided by him at trial as to how many of these resulted in interviews or call backs. Ms. Scala also filed job opportunities that could be available to Mr. Heath all setting out an annual income well above minimum wage.
[69] I am prepared to impute a gross annual income to Mr. Heath at $45,000.00. If Mr. Heath can only earn $20,000 to $25,000 from his self-employed status as an IT Consultant he will either have to look for more meaningful employment or engage in a second job. Ms. Scala cannot continue to care for their three daughters without a more significant contribution from Mr. Heath.
[70] With respect to the matrimonial debt, Mr. Heath provided no particulars or documentary evidence confirming or verifying the deductions he asks the court to make. There are no appraisals or other documentary evidence relating to the $6,000 of items left behind.
[71] There is no indication how the $11,800 pay cheque he gave to Ms. Scala was expensed. To make any deductions would require me to speculate. In these circumstances it is reasonable to allocate the matrimonial debt to each of the parties equally.
[72] In her testimony Ms. Scala stated that the matrimonial home was sold in April 2010 as Mr. Heath indicated to her that he did not have a job, at that time.
[73] As a result of a shortfall relating to the sale of the matrimonial home, Ms. Scala took out a $30,000 line of credit at the Bank of Nova Scotia. This line of credit was in her name alone.
[74] Ms. Scala also had two other lines of credit, one was in her name and one was joint with Mr. Heath.
[75] As at the date of separation, the joint line of credit was at $14,534.00.
[76] As of November 2011 the line of credit in Ms. Scala’s name is $14,899.00.
[77] The line of credit covering the shortfall relating to the mortgage is at $29,654.00.
[78] Mr. Heath, in accordance with the separation agreement had been making payments toward the lines of credit and the mortgage, in addition to the child support payments. Those payments as outlined earlier ceased in September 2009. The order of Justice Herold ordered that Mr. Heath pay $430 per month commencing in June 2010.
[79] I am satisfied therefore, that Mr. Heath pay a monthly sum to Ms. Scala for his contribution to those matrimonial debts.
[80] Judgment to issue as follows:
Custody and Access
The applicant mother, Santa Scala, shall have sole custody of the three children of the marriage, namely, Julianna Caitlin Heath, born June 29, 2004; Madison Skylar Heath, born November 2, 2005, and; Clarissa Zoe Heath, born November 10, 2006.
The primary residence of the said three children shall be with their mother, Santa Scala.
The respondent father, Douglas Richard Heath, shall have the following access:
(a) every alternate weekend from Friday at 6:00 p.m. until Sunday at 7:00 p.m. If the Friday before the weekend is a statutory holiday then the weekend access shall commence Thursday at 6:00 p.m. If the Monday following the weekend access is a statutory or civic holiday then weekend access shall end on the Monday at 7:00 p.m.
(b) the father shall have mid-week access each Wednesday from after school until 7:00 p.m. the same day.
(c) The Christmas holiday period shall be shared as follows:
i) in even numbered years the children shall spend from 6:00 p.m. on the last day of school before the holiday break until Christmas day at 2:00 p.m. with the father.
ii) the children shall then be with their mother from Christmas day at 2:00 p.m. until December 29 at 6:00 p.m.
iii) the father shall then spend time with the children for the first ½ of the time remaining until the children return to school. The mother shall then have the children until the start of school. The normal and regular schedule will then resume.
iv) In odd numbered years the children shall spend from 6:00 p.m. on the last day of school before the holiday break until Christmas Day at 2:00 p.m. with their mother. The children shall be with their father from Christmas Day at 2:00 p.m. until December 29 at 6:00 p.m. The mother shall then spend time with the children for the first ½ of the time remaining until the children return to school. The father shall then have the children until the day before the start of school at 6:00 p.m. The normal and regular schedule will then resume.
(d) Mother’s Day and Father’s Day shall always be spent with the respective parent no matter who is providing residential care. The children shall be with the applicable parent from 10:00 a.m. to 7:00 p.m.
(e) the March break consist of five school days. The mother and father shall each have the full week in alternating years. The father shall have the children during the March break in odd numbered years and the mother shall have the children in even numbered years.
(f) the children shall be with the father in all even numbered years during the Easter weekend from Thursday at 6:00 p.m. until Monday at 7:00 p.m. The children shall be with the mother in all odd numbered years during the Easter weekend even if the Easter weekend falls on a weekend that the children are to be with the father for his regular alternating weekend access.
(g) the children shall be with the father in all odd numbered years during the Thanksgiving weekend from Friday at 6:00 p.m. until Monday at 7:00 p.m. The children shall be with the mother on even numbered years during the Thanksgiving weekend, even if the Thanksgiving weekend falls on a weekend that the children are to be with the father for his regular alternating weekend access.
(h) the summer schedule consists of the months of July and August. The mother and the father shall each have two weeks with the children in each of the months of July and August for a total summer schedule of four weeks each. The two weeks that the father shall have with the children each month will be consecutive. The father shall advise the mother by May 15 of each of the two weeks he wishes to have the children in each month. Any changes to the weeks agreed on may be made by the parties on the written consent of both parties. In the event that the children are involved in any summer activities the parent who has the children will ensure that the children are taken to the activities that they are engaged in.
(i) the children shall spend Halloween with the father in even numbered years from after school until 8:00 p.m. the same evening should Halloween fall on a school day or from 4:00 p.m. until 8:00 p.m. the same day. Should it fall on a weekend. The mother shall have the children on Halloween in odd numbered years with the same schedule.
(j) the father shall have telephone access as follows:
i) each Tuesday and Thursday sometime between 6:00 p.m. to 8:00 p.m. The length of the call shall be reasonable and not to exceed 15 minutes.
ii) on the weekend that the children are not with their father, Saturday sometime between 6:00 p.m. to 8:00 p.m.
(k) during the weekends that the children are in the father’s care, the mother shall have telephone access on the Saturday sometime between 6:00 p.m. to 8:00 p.m. During the weeks that the children are in their father’s care, the mother shall have telephone access each Tuesday and Thursday sometime between 6:00 p.m. to 8:00 p.m.
(l) the father shall be responsible for picking up the children and dropping off the children. The pick-up and drop off shall take place at the mother’s residence.
(m) the father shall have any additional access agreed to in writing by the mother. The schedules set out herein may be changed by mutual consent of the parties as set out in writing.
(n) the mother shall continue to advise the father of all medical, dental and other health care appointments in a timely manner and the father is entitled to attend at those appointments if he wishes to do so.
The mother shall continue to advise the father of all school appointments and extra-curricular activities and religious sacraments or ceremonies relating to the children, in a timely manner, and the father is entitled to attend at such appointments or activities, should he wish to do so. Both parties are equally entitled to attend parent/teacher interview meetings (together or separately, as the parties decide from time to time), school concerts, volunteer days, plays, recitals, sporting and competitive events, special events and other activities in which the children may participate from time to time.
In the event that the children are involved in extra-curricular activities, the father shall ensure that the children attend those activities if they occur on the days or weekends he has the children.
All major decisions relating to the children shall be discussed between the parties. Major decisions include issues relating to the children’s health, education, religious, daycare, extra-curricular activities and their general welfare. In the event that the parties cannot agree after full consultation has taken place, the final decision shall rest with the mother.
Official documents shall not be unreasonably withheld when required by the other parent. The mother’s residence shall be designated the primary residence for registration purpose. The father shall be named the secondary contact.
In the event that the parties travel outside the Province of Ontario, each parent shall have the children’s passports for that purpose, otherwise, the passports shall remain in the mother’s custody. Further, when required for travel, each parent shall provide to the other a written letter of consent in a timely fashion. The parent travelling shall advise the other parent of the travel particulars including dates, times, mode of travel, destination, and contact information while away.
The father is entitled to contact the school and all health care providers directly and request information relating to the children and be provided with the information directly.
The father is entitled to volunteer for school and extra-curricular activities and the mother shall keep the father advised of those activities.
The mother shall provide to the father 60 days written notice before changing her place of residence or changing the children’s school.
Both parties will have equal access to the children’s report cards, school and activity schedules, notices, health care records and documents containing important information about the children.
The Communication Book relating to Julianna will be sent with Julianna on the weekends the father has access to the children. The Communication Book will be returned home with Julianna at the end of the weekend access so that the mother can send it back to school with Julianna on the next school day.
The children will be permitted to bring with them during their weekend access with the father, homework, if any, so that their father can assist with their homework if required.
Financial
The father shall pay to the mother for the support of the three children the sum of $881 per month based on an imputed gross annual income of $45,000, commencing February 1, 2012 and payable monthly thereafter.
The parties shall exchange copies of their respective Notices of Assessment and Re-Assessments each year.
The parties shall share all s. 7 expenses on a pro rata basis based on their incomes as follows: $46,000 to the mother and $45,000 to the father. With respect to the s. 7 expenses the mother shall consult with the father prior to enrolling the children in extra-curricular activities. The mother shall also consult with the father about expenses not covered by her health benefits at work prior to expending same. Any reasonable s. 7 expenses will be paid by the parties on a pro rata basis.
The father shall pay to the mother as his contribution to the matrimonial debt the sum of $200 per month commencing February 1, 2012.
There shall be no spousal support.
There shall be no retroactive child support.
The parties are hereby divorced.
The parties shall file written submissions on costs within 30 days.
The support and debt payments shall be paid through FRO and a Support Deduction Order shall, therefore, issue.
Fragomeni J.
Released: February 6, 2012