COURT FILE NO.: FC-11-651-11
DATE: 20121127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natalie LaPalme Applicant – and – Jeffrey Hedden Respondent
Natalie LaPalme, Self-represented
D. Macfarlane, for the Respondent
HEARD: November 20 – 23, and 27, 2012
QUINLAN J.:
OVERVIEW
[ 1 ] Natalie LaPalme and Jeffrey Hedden were together for six years. They began living together in 2003, married in 2004 and separated in 2009. Less than a year before their separation, their daughter, Meegan was born.
[ 2 ] Custody, child and spousal support and property issues remain outstanding between them.
MONEY AND PROPERTY ISSUES
[ 3 ] When Ms. LaPalme and Mr. Hedden met, they each owned property. After they were married in the backyard of Ms. LaPalme's home, she sold that home, receiving net proceeds of $59,000. She gave $10,000 to Mr. Hedden so that he could pay off his Visa and his line of credit, together with some debts from their wedding. Ms. LaPalme used some of the money to pay off her OSAP loan of $11,000. She put the balance into the home that they later purchased.
[ 4 ] The parties lived in Mr. Hedden's home for a time: when they sold it, Mr. Hedden received net proceeds of $24,000, most of which he put into the home that they purchased.
[ 5 ] They remortgaged their home twice, once for $20,000 and once for $40,000. Shortly after Meegan was born and while Ms. LaPalme was on maternity leave, Mr. Hedden gave money to his father for expenditures on his father's cottage.
[ 6 ] The parties’ home was sold after separation for less than Ms. LaPalme wanted. The net proceeds of sale of their matrimonial home were $7570, which satisfied a legal aid lien for Ms. LaPalme's earlier representation in these proceedings.
- Money to pay off Mr. Hedden’s debts
[ 7 ] Ms. LaPalme seeks reimbursement for the $10,000 that she provided to Mr. Hedden from the sale of her home to pay his debts. Her position is that she lost a significant amount of money as a result of Mr. Hedden's spending during the marriage and she should receive the $10,000 back.
[ 8 ] The position of Mr. Hedden is that the $10,000 was a gift with no expectation of repayment. He argues that he used the money for the purpose for which it was provided, that is to pay down debt.
[ 9 ] As noted in Berdette v. Berdette, 1991 7061 (ON CA) , 1991 CarswellOnt 280 (CA) at paragraph 18 : “Ontario cases are consistent in holding that, in the absence of the retention of an express right of revocation, once a valid gift is made it cannot be revoked or retracted."
[ 10 ] Ms. LaPalme testified that the $10,000 was not a gift. She also testified that it was not a loan, but that it was to be used for repayment of debt and not for fun money. She acknowledged that she had no evidence that it was used for fun money.
[ 11 ] I find that the evidence supports that the $10,000 was used to pay down Mr. Hedden's debt, some of which he had before the relationship began and some of which was from their wedding.
[ 12 ] I am satisfied that the money was in fact a gift to Mr. Hedden with no expectation of repayment. Ms. LaPalme did not retain an express right of revocation. As such, she cannot revoke or retract her gift of $10,000. This claim fails.
- Money for expenditures on Mr. Hedden’s father's cottage
[ 13 ] During the time that the parties resided together, they had the use of Mr. Hedden's family cottage on Georgian Bay. Evidence as to the amount of use of varied: Mr. Hedden and his father testified to more use than testified to by Ms. LaPalme. What is clear is that the property was available for use, although not all of the time, at least some of the typical cottage months and that the parties used it when Ms. LaPalme was not working and they were not at Ms. LaPalme's family cottage.
[ 14 ] Mr. Hedden and his father testified that there was an expectation that Mr. Hedden and his brother would contribute to expenses at the cottage, a cottage that the two sons will eventually inherit. They also testified that Mr. Hedden had not contributed much for some time, but that he did contribute his share of a new steel roof, a small boat, outstanding taxes and maintenance in 2008.
[ 15 ] The evidence of Mr. Hedden and his father is that somewhere between $5500 and $6000 was spent on the cottage. The evidence of Ms. LaPalme, supported by bank records, was that in September and October 2008, while she was on maternity leave and at a time when the parties were struggling both financially and in their marriage, Mr. Hedden transferred close to $7500 from their joint account, presumably for the expenditures on his father's cottage.
[ 16 ] I accept the evidence of Ms. LaPalme that this caused significant stress in their relationship and that she was against the expenditure, given their precarious financial situation. Mr. Hedden, although not prepared to directly acknowledge it, ultimately agreed that this caused strain on their relationship. I am satisfied that, despite her understandable reluctance, Ms. LaPalme agreed to the transfer of funds to be used on the cottage that she and her husband had use of and that her husband would eventually inherit.
[ 17 ] In her application, Ms. LaPalme claimed a constructive trust in relation to the cottage property on the basis that Mr. Hedden had an interest in the cottage, which interest was being held in trust on his behalf by his father. Mr. Hedden's father was not a party to the proceedings. At trial, Ms. LaPalme’s position was that she was not seeking an interest in the cottage, but rather wanted to be reimbursed for monies spent on the cottage.
[ 18 ] The basis for reimbursement would have to find its grounding in section 5(6) of the Family Law Act . That subsection provides that the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to a number of factors. The factor that could arguably be at play here is the intentional or reckless depletion of net family property. However, a consideration of that factor does not satisfy me that equalizing the net family properties would be unconscionable. The test for unconscionability is a high one: see Woods v. Robertson , [1998] O.J. No. 4730 (CA) . Although the expenditure of that amount of money when the parties were struggling financially and while Ms. LaPalme was on maternity leave with a significantly reduced income was imprudent, I cannot find that it was a reckless depletion of net family property. Accordingly, this claim fails.
- Money to facilitate the sale of the matrimonial home
[ 19 ] The parties separated on June 15, 2009. Mr. Hedden stayed in the family home until September 2009, at which point the conflict between them had increased to the point where he could no longer remain. The parties listed their property for $275,000. Their real estate agent, Stephanie Miller, testified that, in her view, the property was overpriced.
[ 20 ] The parties received at least one offer for $245,000 and perhaps a second offer for $255,000. Ms. Miller recalled the first offer; Mr. Hedden testified that there had been two earlier offers. I am satisfied for the purpose of a determination of this issue that there had been two previous offers as set out by Mr. Hedden in his evidence.
[ 21 ] A third offer came in for $255,000. Ms. LaPalme’s evidence, confirmed by Ms. Miller, was that she did not want to sell for less than $265,000. She had put a lot into the home and wanted to get some of her "sweat equity" out.
[ 22 ] Mr. Hedden wanted to sell. He was content with the price of $255,000. According to his evidence, he was "bleeding" financially and felt he could not continue to carry the residence. At that time, he was paying all of the household expenses, although no child support, daycare or spousal support.
[ 23 ] Ms. Miller testified that, considering the time of year (November) and the fact that the buyer knew that the parties were separated, information that she felt he should not have had, the price could be considered to be market value or in the ballpark. It was clear from the evidence of Ms. Miller that her assessment of the fairness of the price was influenced by those two factors, the latter of which, in her mind, would not necessarily be present. Although Mr. Hedden testified that Ms. Miller recommended that the offer be accepted, that was not Ms. Miller's evidence.
[ 24 ] Ms. Miller testified that Ms. LaPalme didn't want to sell the property for less than $265,000 and that Mr. Hedden had agreed to give her $10,000 in a certified cheque that was to go to Ms. LaPalme's lawyer to make up the difference.
[ 25 ] It was clear from the evidence of Ms. LaPalme that she thought that the offer was a lowball offer. The parties had just installed a new roof and deck from monies from the second refinancing. Ms. LaPalme testified that Mr. Hedden told her "I want to get out of here. I'll do anything." At that point she called her lawyer's office and was advised to ask for a certified cheque in her name to her lawyer's office for the next day in order for her to sign the agreement. She testified that Mr. Hedden told her that if getting a certified cheque for $10,000 would get her to sign, that's what he would do, even though he didn't know where he was going to get the money. Ms. LaPalme testified that there was no discussion of the money being for any shortfall.
[ 26 ] Mr. Hedden testified that there was a worry about a shortfall of funds on the house because they had not asked about an early payout penalty on the mortgage. His evidence was that he offered to cover up to $10,000 for a shortfall of funds because he was “financially bleeding”. When asked what he had to say about Ms. LaPalme's evidence that he offered to pay her $10,000 and that it had nothing to do with the shortfall, this was his response: "in the mental condition I was in, I may have, you know, out of pure anxiety it may have come out - off as that. She may have perceived it as that.” He testified that it would be crazy to think that someone would actually follow through on that. He described himself as "a desperate man in a desperate situation."
[ 27 ] A letter sent by Mr. Hedden's lawyer to Ms. LaPalme's lawyer shortly after the signing of the agreement included the following: "I confirm that my client is willing to pay up to $10,000 in order to have this deal go through...Although I am unclear if the funds from my client are for a shortfall or otherwise, I can confirm that I will have same in my office for close of business today." Ms. LaPalme's lawyer did not respond to the letter.
[ 28 ] Mr. Hedden argues that this letter supports his position. I find that it does not. If the money offered by Mr. Hedden was for a shortfall, why would his lawyer indicate a lack of clarity in that regard? In addition, Ms. Miller and Ms. LaPalme’s evidence was that the figure was $10,000, not "up to" $10,000.
[ 29 ] I find that the evidence overwhelmingly supports that Mr. Hedden agreed to pay Ms. LaPalme $10,000 by way of certified cheque to her lawyer in return for her acceptance of the offer on the matrimonial home that, in Ms. LaPalme's opinion, was $10,000 less than she was prepared to accept. I find that the evidence overwhelmingly supports that the $10,000 was not contingent on there being a shortfall.
[ 30 ] Mr. Hedden argues that he was under "financial duress" at the time. His position is that he did not receive legal advice before agreeing to the payment of $10,000 and that Ms. LaPalme did. He argues that market price was obtained for the home and that, given that there was no shortfall, he should not be required to pay anything to Ms. LaPalme.
[ 31 ] I disagree. I find that Ms. LaPalme was unwilling to accept the offer as it was presented to her. The basis for her acceptance was the payment to her by Mr. Hedden of a $10,000 certified cheque. This was not an unreasonable position for Ms. LaPalme to take. They had recently invested significant funds into the home. She understandably wanted to get some of her money out. In addition, the buyer had knowledge he should not have had.
[ 32 ] I find that, just as Ms. LaPalme cannot resile from her $10,000 gift to Mr. Hedden on the sale of her property, Mr. Hedden cannot now reside from his agreement to pay Ms. LaPalme $10,000 in return for her acceptance of the offer on the sale of their matrimonial home. Mr. Hedden had other choices: he could have brought a motion to require Ms. LaPalme's consent. He did not do so. He could have waited to see if another offer came in that was higher. He did not do so.
[ 33 ] I find that Mr. Hedden owes Ms. LaPalme $10,000.
- Net Family Properties
[ 34 ] At the conclusion of the trial, counsel for Mr. Hedden assisted the court by preparing a Net Family Property Statement reflecting the evidence of the parties. The Statement is reflective of evidence that the parties were prepared to accept, even though for a number of items, neither had documentation in support.
[ 35 ] In the course of submissions, Ms. LaPalme accepted the accuracy of the Statement. That statement concludes with a determination, accepted by both parties, that Ms. LaPalme's net family property is $0.00, while Mr. Hedden's is $10,127.66.
[ 36 ] Accordingly, Mr. Hedden owes Ms. LaPalme $5063.83.
- Post-separation accounting
[ 37 ] In 2009, after Mr. Hedden moved out of the matrimonial home, he continued to make payments for household expenses, including the mortgage, house insurance, phone, cable, hydro and oil. He did not pay child support. Ms. LaPalme paid the day care expenses for Meegan. During that time, the parties also paid various expenses for which an accounting was required.
[ 38 ] Once again, Mr. Hedden's counsel assisted the court in preparing a listing of the credits owed to each of the parties. In submissions, Ms. LaPalme agreed to the accuracy of the figures. That accounting demonstrates that, considering the equalization owed to Ms. LaPalme and various credits owed to each, at the end of 2009, Mr. Hedden owed Ms. LaPalme $4358.07.
SUPPORT ISSUES
- Child Support
[ 39 ] From January 1, 2010, Mr. Hedden paid child support for Meegan. His counsel has prepared calculations setting out the quantum of child support that was and should have been paid in accordance with the Child Support Guidelines . Ms. LaPalme agrees with the calculations.
[ 40 ] The only issue for me to determine is whether Mr. Hedden's 2011 income should be based on his line 150 income of $67,566 or a lesser amount. He argues that, as the line 150 amount includes a withdrawal from his RRSP for the purpose of funding this litigation, money that was not used to support his lifestyle, his child support should be based solely on his employment income of $51,135. Ms. LaPalme takes no position on this issue.
[ 41 ] Section 16 of the Federal Child Support Guidelines states that, subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency. Under section 17, which allows the court to have regard to the spouse’s income over the last three years if the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the onus is on the payor to justify any deviation from the section 16 method of determining income: see Fung v. Li, 2001 28193 (ON SC) , [2001] O.J. No. 456 (SCJ).
[ 42 ] In Mask v. Mask, [2008] O.J. No. 423 (SCJ) the court determined that there was no reason why funds from an RRSP withdrawn to paid legal fees should not be included as income in determining the quantum of child support.
[ 43 ] When I consider all of the evidence, I am satisfied that Mr. Hedden has justified a deviation from the section 16 method of determining income. The money was a non-recurring withdrawal from his RRSP to pay legal fees. His income for other years has been relatively consistent. When I average his income for three years, I am satisfied that the fairest way to deal with the issue is to consider that the child support for 2011 be based on his employment income, without regard to the funds from the withdrawal of some of his RRSP.
[ 44 ] Accordingly, his income for child support purposes for 2011 will be based on his employment income of $51,135. Therefore, assuming 2012 income of $60,000 (his projected income in his new employment), Mr. Hedden has overpaid child support to the end of 2012 in the amount of $135.
[ 45 ] If his income in 2012 does not meet or exceeds the projected income, adjustments can be made after the provision of his 2012 income information.
- Spousal Support
[ 46 ] Ms. LaPalme was on maternity leave when the parties separated. She returned to work when Meegan was one year old, which would have been in August 2009. Mr. Hedden moved out of the matrimonial home in September 2009, but continued to pay all household expenses until the matrimonial home was sold at the end of December 2009. During that time he did not pay child support or contribute to Meegan’s day care, however, an accounting for those monies has been dealt with above.
[ 47 ] Ms. LaPalme's income for 2009, which consisted of employment income and maternity benefits, was $21,093. This was similar to her income in 2008, the year of Meegan’s birth. For the two years prior to that, Ms. LaPalme had been earning approximately $28,000 per annum. Mr. Hedden's income for 2009 was $52,918.
[ 48 ] Once Ms. LaPalme returned to work in 2009, she quickly increased her income. In 2010, she was offered a management position. Her income increased that year to $34,246. In 2011 she earned $41,677. In 2012, although her base salary was $45,000, considering statutory holiday pay, bonuses and other additions to her income, I accept the position of the respondent that Ms. LaPalme's income will be approximately $50,000.
[ 49 ] Ms. LaPalme bases her claim for spousal support on the economic disadvantages to her arising from the marriage or its breakdown. One of the objectives of a spousal support order as set out under section 15.2(6) of the Divorce Act is to recognize such disadvantages.
[ 50 ] Section 15.2(4) states that the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation.
[ 51 ] Ms. LaPalme fairly acknowledged that she did not lose career prospects nor did she suffer any disadvantage as a result of her maternity leave. Although her income was reduced as a result of a stress leave in advance of the birth of Meegan and maternity leave following, that reduction in income was short-lived. When I consider all of the evidence, I find that Ms. LaPalme is not entitled to spousal support.
[ 52 ] Ms. LaPalme's claim for spousal support is dismissed.
CUSTODY OF MEEGAN
[ 53 ] I now come to the most important issue in this trial, that is, the custodial and residency arrangements that should be made for Meegan.
[ 54 ] Ms. LaPalme seeks sole custody of Meegan and access by Mr. Hedden as set out in the temporary Order of Healey J. dated September 27, 2011. That Order was made pursuant to Minutes of Settlement entered into by the parties. The Order provided that Mr. Hedden have access every second weekend from Friday after daycare until Sunday at 8 PM. In addition, he would have a midweek visit each week on a day as arranged between the parties, from after day care until the next day at 9:30 AM, with no fewer than one midweek visit and one overnight visit per month. As I understand it from the parties, their agreement was that Mr. Hedden have one midweek visit and one overnight visit with Meegan per week.
[ 55 ] At the commencement of the trial and on consent, Mr. Hedden filed an Amended Answer. He amended his claim from sole custody with primary residency to joint custody with shared residency. It is his goal to have an equal sharing of time with Meegan. If necessary for Meegan’s adjustment, he is prepared to increase his time incrementally so that shared residency on an equal basis is attained by the summer of 2013. He seeks to have Meegan stay overnight Sunday nights and to increase his time during the week to two overnights per week. He is prepared to have variations in the schedule to accommodate Ms. LaPalme's retail work schedule.
[ 56 ] Understandably, much of the evidence at trial was directed to the issue of custody of Meegan. Ms. LaPalme called her sister to address the respondent's abilities as a parent. She called her father to address both her and the respondent's abilities in that regard. Mr. Hedden called his father and two friends to testify to, amongst other things, his abilities as a parent.
[ 57 ] There is no doubt from the evidence that both Meegan's mother and father are loving, caring and devoted parents. Both are active in her life. Both want to spend as much time as possible with her. What is in Meegan's best interests?
- Is Joint Custody appropriate?
[ 58 ] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA) , [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
(i) There must be evidence of historical communication between the parents and appropriate communication between them.
(ii) Joint custody cannot be ordered in the hope that it will improve communication.
(iii) Just because both parents are fit does not mean that joint custody should be ordered.
(iv) The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
(v) No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
(vi) The younger the child, the more important communication is.
[ 59 ] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy , 2006 15619 (ON CA) , [2006] O.J. No. 1872 (CA).
[ 60 ] Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child. A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ) . The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: see Warcop v. Warcop 2009 6423 (ON SC) .
[ 61 ] The Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable to appreciate the importance of the father’s relationship with their children: see Andrade v. Kennelly , 2007 ONCA 898 .
[ 62 ] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 19764 (ON SC) .
[ 63 ] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.
[ 64 ] Ultimately, the court must decide if a joint custody order is in the child’s best interests and consider the factors set out in subsection 24 (2) of the Children’s Law Reform Act in reaching this decision. This subsection reads as follows:
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[ 65 ] Section 16 of the Divorce Act also sets out factors for a court to consider in making an order for custody. Section 16(8) requires the court to take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. In making an order, section 16(10) requires that the court give effect to the principal that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[ 66 ] Ms. LaPalme and Mr. Hedden have a history of animosity and antagonism towards each other, a history that unfortunately carries into the present. I had an opportunity to personally witness this as I observed their interaction during this trial.
[ 67 ] I found that Ms. LaPalme remains upset with Mr. Hedden. The fact that the marriage was financially devastating to her still clearly rankles with her. She was obviously bothered by the criticisms leveled against her concerning "clutter" in her home and her ability to provide a safe environment for Meegan. She remains frustrated by what she sees as her inability to communicate with Mr. Hedden, and what she considers to be his controlling behavior, both of which she attributes to his ADHD.
[ 68 ] I found Mr. Hedden to be rigid and inflexible. He holds strong opinions about the validity of his parenting style and about health and nutrition. Those opinions do not allow for other, more moderate views. He was critical of Ms. LaPalme's "clutter", an issue that I found was largely irrelevant. He was critical of Ms. LaPalme's ability to provide Meegan with a safe environment, evidence that I do not accept.
[ 69 ] Can these two parents work cooperatively in Meegan’s best interests? Can they communicate appropriately? Will Ms. LaPalme be able to move beyond her upset and frustration? Will Mr. Hedden be able to change his personality construct to allow for cooperation and compromise?
[ 70 ] And most importantly, would joint custody be in the best interests of Meegan? I find it would not.
[ 71 ] I am not troubled by the ability of Ms. LaPalme to move beyond her upset and frustration. I accept that she will be able to do so. However, although I do not doubt that Mr. Hedden has Meegan's best interests at the forefront, his rigid and inflexible personality and his strong opinions about the validity of his parenting style and what is in his daughter's best interests do not bode well for cooperative communicative parenting with the mother of his child.
[ 72 ] The issue about garlic demonstrates this. When Meegan was only 2 1/2, Mr. Hedden gave her sufficient garlic to cause complaints from daycare and from Ms. LaPalme about the odour and its effect on Meegan’s socialization. There were concerns about the impact on her digestion. I accept Ms. LaPalme's evidence, supported by that of her sister that it took months for Mr. Hedden to respond to the complaints. I find that he was so set in his opinion of the health benefits of garlic that he was prepared to brook no opposition.
[ 73 ] I fail to understand how he could not consider the effect on Meegan’s socialization. As well, despite his daughter’s young age, and complaints about odour and the effect on her digestion, he did not seek input from Meegan's family physician to determine whether his views were supported by her medical doctor.
[ 74 ] I accept that Mr. Hedden now recognizes that he did not deal appropriately with this issue. However, it is his ability to recognize and deal with issues as they arise that will affect his ability to co-parent.
[ 75 ] This is but one example. Mr. Hedden holds equally strong views about other aspects of nutrition, and about exercise and the impact of third-hand smoke. Although I do not disagree with his concerns about Meegan being in a car in which her mother has smoked, it is his rigid and inflexible views that lead me to the conclusion that he would be unable to discuss issues and achieve a consensus with Ms. LaPalme, something that is necessary if the parties are to co-parent. Mr. Hedden appears unable to understand or accept that there might be other ways of parenting and other lifestyle choices that might have validity and that might serve Meegan equally well.
[ 76 ] Mr. Hedden's negative views about Ms. LaPalme also support that he would be unable to co-parent. He was critical about Ms. LaPalme's “clutter". Yet, on cross-examination, it became clear that he contributed to that clutter. He was critical of the state of the various residences in which Ms. LaPalme resided, including the state of the matrimonial home upon sale. However the evidence of Ms. Miller, their real estate agent, was that the house was well-taken care of, show-ready and in good condition. Mr. Hedden was critical of the state in which Ms. LaPalme left the matrimonial home on closing, yet in cross-examination it became clear that he only took the few things that he wanted and left Ms. LaPalme to deal with the rest, taking the position that that was not his responsibility. He was critical of Ms. LaPalme's ability to provide a safe environment for her daughter. Yet I do not accept his evidence that the backyard was unsafe. His evidence was inconsistent as to his reason for attending at the home. His evidence about the need to take the tree down because he could control whether a tree fell on his child did not have the ring of truth. Rather, it reinforced his need to control situations. I found that he was unnecessarily critical of Ms. LaPalme on issues that did not assist me in determining her ability to parent but that do assist me in determining his ability to co-parent.
[ 77 ] Mr. Hedden was unable to recognize, until trial, that his repeated efforts to contact Ms. LaPalme to confirm her safe arrival might be construed by his estranged spouse as excessive and controlling, as she testified “bordering on harassment”. I find this also demonstrates how a joint custodial arrangement would not work.
[ 78 ] Although all of the witnesses agreed that Mr. Hedden was a loving, caring and devoted father, it is his ability to work cooperatively with Ms. LaPalme in parenting Meegan that gives me concern.
[ 79 ] This is not to say that Ms. LaPalme does not share in some of the acrimony between them. She was critical of Mr. Hedden's sharing of family responsibilities while the parties were together. However, I find that her interaction with Mr. Hedden does not have the same rigidity, intensity or attempts at control.
[ 80 ] Now that the property issues will be resolved between them, I fully expect that Ms. LaPalme will be able to move beyond her upset and frustration. However, I find that Mr. Hedden's personality construct will not allow him to move to a cooperative and communicative parenting style. The basis for his personality and what part, if any, his ADHD plays, is not the issue. The best interests of Meegan are.
[ 81 ] I am satisfied Ms. LaPalme is not using the conflict as justification to oppose a joint or shared parenting order. I am satisfied that Ms. LaPalme is able to appreciate the importance of Mr. Hedden's relationship with his daughter. I am satisfied that this is not a situation where Ms. LaPalme only professes an inability to communicate.
[ 82 ] I am aware that the parties were able to agree on a school for Meegan and to attend some medical and school appointments together. I am aware that they use e-mail and text messaging in an effort to reduce the conflict that arises as a result of face-to-face communication. However, even many of the e-mails and text messages have an undercurrent of friction.
[ 83 ] When I look below the gloss of cooperation shown by the parties’ very recent agreement on a French school for Meegan, their attendance at some appointments together, to once have a coffee together, and some of their electronic communications, there are still real differences and disagreements in their parenting styles and in what is best for Meegan.
[ 84 ] It is accepted by both parties that Meegan is negatively affected by the conflict between them. The real discord that has surfaced and that has affected Meegan cannot be allowed to continue. A joint custodial arrangement would encourage that basic discord that surfaces between them and causes the best interests of Meegan to be negatively affected.
[ 85 ] Mr. Hedden is understandably concerned that Ms. LaPalme may move to Sudbury in order to be closer to her family, a move she testified she is no longer contemplating. However, that is not grounds for an order for joint custody. Joint custody must be about the best interests of the child. Ms. LaPalme can and will be be restrained from moving beyond a certain geographical radius without consent, a method of alternative dispute resolution or order of the court.
[ 86 ] Mr. Hedden's facility with the French language and his ability to assist Meegan with her education plays no part in my decision.
[ 87 ] I find that it is in the best interests of Meegan that an order be made for sole custody in favour of Ms. LaPalme.
- What order for access is appropriate?
[ 88 ] The test for determining access is what order is in the best interests of the child. In making this determination, I have considered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act , as well as all other relevant considerations.
[ 89 ] The child should have maximum contact with both parents if it is consistent with the child’s best interests: see Gordon v. Goertz, 1996 191 (SCC) , [1996] 2 S.C.R. 27.
[ 90 ] The best interests of the child are met by having a loving relationship with both parents.
[ 91 ] There is a presumption that regular access by a non-custodial parent is in the best interests of a child. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: see Jafari v. Dadar, 1992 8642 (ON CA) , [1996] 42 R.F.L. (3d) 349 (Ont.CA).
[ 92 ] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction: see M.A. v. J.D., 2003 52807 (ON CJ) , [2003] O.J. No. 2946 (OCJ).
[ 93 ] Mr. Hedden seeks shared residency, with Meegan half of the time. Although having Meegan for two additional overnights would benefit Mr. Hedden's parents and allow Mr. Hedden to exert more influence over Meegan, and even considering that a Monday morning transfer would provide a "buffer zone" between the parties, given my findings as set out above, I am not satisfied that increased access would be in Meegan's best interests. Nor do I find support in the evidence for the proposition that Ms. LaPalme has excluded or even limited Meegan's paternal grandparents from her life. It was clear from the evidence of Mr. Hedden's father that they did not pursue time in the summer with Meegan.
[ 94 ] I am satisfied that Meegan's best interests would be met by a continuation of the access regime currently in place.
CHILD SUPPORT
[ 95 ] In view of my order that Ms. LaPalme have sole custody of Meegan, Mr. Hedden shall be required to pay child support in accordance with the Child Support Guidelines . Ms. LaPalme has agreed that child support for 2013 continue to be based on Mr. Hedden's projected income of $60,000 per annum, with a review once his actual income is ascertained.
[ 96 ] Accordingly, Mr. Hedden shall pay child support for Meegan in the amount of $546 per month based on income of $60,000 commencing December 1, 2012 in accordance with the Child Support Guidelines .
CONCLUSION
[ 97 ] I make a final order in this matter as follows:
(i) The applicant’s claim for reimbursement of a $10,000 payment to the respondent from the sale of her home is dismissed.
(ii) The applicant’s claim for reimbursement for expenditures on the respondent’s father's cottage is dismissed.
(iii) The applicant's claim for payment by the respondent of money in relation to the sale of the matrimonial home is granted.
(iv) The respondent shall pay the applicant the following amounts:
(a) $10,000 in relation to the sale of the matrimonial home; and
(b) $4223.07, being $4358.07 in satisfaction of the equalization of net family properties and the post-separation accounting between the parties, and considering the credit of $135 for overpayment of child support, subject to an adjustment to this amount on the consent of the parties to be filed within ten days or, in the alternative, by way of 14B Motion.
(v) The applicant’s claim for spousal support is dismissed.
(vi) The applicant shall have sole custody of the child Meegan Diane-Jan Hedden, born August 15, 2008 and the child shall reside primarily with the applicant. The applicant shall consult with and consider the respondent’s views and preferences in relation to decisions concerning the child, with the applicant having the final decision.
(vii) The respondent shall have access as follows:
(a) every other weekend from Friday after daycare or school until Sunday at 8 PM, with access to be extended until Monday at 8 PM if Monday is a holiday,
(b) one day midweek as arranged between the parties from after daycare or school until 8 PM,
(c) one overnight midweek as arranged between the parties from after daycare or school until the next day at 9:30 AM,
(d) the parties shall continue alternating the Christmas holidays,
(e) the parties shall alternate March break,
(f) the parties shall equally share the Easter and Thanksgiving long weekends,
(g) summer access as agreed upon by the parties, with no fewer than three weeks to the respondent, upon 60 days notice to the applicant, and
(h) such further and other access as the parties may agree upon from time to time.
(viii) The respondent shall have the right to consult with and obtain information directly from the child's teachers, doctors or other professionals with respect to all aspects of the child's educational, medical and general welfare.
(ix) The parties shall keep each other informed as to their residential address and telephone number and notify the other whenever this information changes.
(x) The parties shall convey necessary information about the child to each other by means of e-mail communication.
(xi) Neither party shall speak negatively about the other party in the child's presence. Both parties shall make their best efforts to prevent all third parties from doing so.
(xii) Neither party shall smoke in the presence of the child or permit third parties visiting in their home to do so.
(xiii) The applicant shall not move more than 50 km from her current residence without the consent of the respondent. If the parties cannot agree, the matter shall be resolved by alternative dispute resolution or court order.
(xiv) Neither party shall take the child out of the Province of Ontario without the prior written consent of the other party, which shall not be unreasonably withheld.
(xv) The party traveling with the child out of the Province of Ontario shall provide the other parent with their travel and accommodation arrangements in writing prior to departure.
(xvi) Neither party shall change the name of the child without the other party's consent.
(xvii) Commencing December 1, 2012 and thereafter on the first day of each month the respondent shall pay child support to the applicant for the child Meegan Diane-Jan Hedden, born August 15, 2008, in the amount of $546 per month. This amount is based upon the respondents projected income of $60,000 and the Child Support Guidelines for one child.
(xviii) In addition to the above child support, the respondent shall pay to the applicant his proportionate share of the child's section 7 expenses, which shall include, but are not limited to, medical and dental expenses not covered by the parties' benefits and extra-curricular activities for the child. In the event that the respondent fails to pay his proportionate share of section 7 expenses to the applicant within seven (7) days of receiving proof of the expense, then such amounts shall be enforced by the Family Responsibility Office as child support upon the applicant submitting a sworn Statement of Arrears with a copy of each section 7 expense receipt.
(xix) The amount of $1434 for child support from October to December 2009 inclusive and $1329.18 for daycare expenses for Meegan from September to December 2009 inclusive (which amounts have been included as part of the post-separation accounting between the parties), if not paid by January 31, 2013, shall be considered as arrears of child support and collected as such by the Family Responsibility Office.
(xx) The respondent's obligation to pay child support to the applicant as set out above shall exist until
(1) the child no longer resides with the custodial parent. (“Resides” includes the child living away from home for school, summer employment or vacation),
(2) the child turns 18, unless the child is unable to become self-supporting due to illness, disability, education or other cause,
(3) the child becomes self-supporting,
(4) the child obtains one post-secondary degree or diploma,
(5) the child turns 22 years of age,
(6) the child marries,
(7) the child dies,
(8) a party dies, provided that the security in paragraph (xxiii) of this Order is in place at the time of death.
(xxi) Each party shall maintain the child on his/her benefit plan available through his/her employment for as long as it is available and shall provide proof to the other party forthwith of such coverage. The respondent shall provide all insurance monies for health benefits to the applicant immediately upon receipt.
(xxii) Both the applicant and the respondent shall provide the other with their income information required under sections 21 and 25 of the Child Support Guidelines , to include his/her recent pay stub and Notice of Assessment, by no later than June 1 of each year commencing June 1, 2013. The parties shall then review their child support arrangements and make such a variation to child support and extraordinary expenses as is required, based on their updated income information and the Child Support Guidelines . Pending determination of this issue, the respondent shall continue to pay his monthly child support obligation to the applicant.
(xxiii) On consent, both the applicant and the respondent shall maintain a life insurance policy with a face amount of at least $100,000 for so long as the child is dependent. The respondent shall irrevocably designate the applicant and Micheline LaPalme as co-trustees of the life insurance policy he has on his own life for the benefit of the child. The applicant shall irrevocably designate the respondent and Mark Hedden as co-trustees of the life insurance policy she has on her own life for the benefit of the child.
(xxiv) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
(xxv) This order bears post-judgment interest at the Courts of Justice Act rate, effective from the date of this order. Where there is a default in payment, a payment in default shall bear interest only from the date of default.
COSTS
[ 98 ] Each party shall bear his or her own costs.
QUINLAN J.
Released: November 27, 2012