ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D 19665-11
DATE: 20121221

BETWEEN:

Suzanne McCarthy Applicant – and – Dale McCarthy Respondent

Applicant, self-represented
Respondent, self-represented

HEARD: December 3, 4, 5 and 6, 2012

REASONS FOR JUDGMENT

poupore j.:

[ 1 ] This is a high conflict matrimonial dispute. The parties have been separated since Suzanne McCarthy (the applicant) left the matrimonial home with the three children of the marriage on the 1 st day of April 2009.

[ 2 ] Agreed Facts:

1. The parties began cohabitating in May 2001;

2. the parties were married on June 18, 2005;

3. the parties separated on April 1, 2009;

4. the parties have three children together:

a) Dylan McCarthy, born March 30, 2003

b) Lennon McCarthy, born August 20, 2004

c) Presley McCarthy, born March 3, 2006

[ 3 ] The issues in dispute are:

a) custody;

b) access;

c) child support; and

d) arrears of child support.

Custody and Access

[ 4 ] I accept that the applicant left the matrimonial home with the children as a result of a long period of mostly psychological abuse. Dale McCarthy (the respondent) continually belittled the applicant and verbally abused her in his concerted attempt to control her. The respondent was and still is unable to take no for an answer. When the applicant stood up to him he reacted in an abusive manner.

[ 5 ] The respondent refuses to acknowledge that his manner can be controlling and abusive.

[ 6 ] The Application was issued on September 15, 2009. The applicant at that time was claiming joint custody of the children with primary residence to her. The Application was amended on October 18, 2011, wherein the applicant now seeks sole custody.

[ 7 ] After much litigation including many affidavits, court attendances and court orders, the respondent filed an answer.

[ 8 ] The most contentious issue in dispute between these two parties is the amount of time the respondent should get to spend with the children.

[ 9 ] From the beginning, the applicant attempted as best she was able to promote liberal access to the children by the respondent. For the first four months of the separation, she and the children lived at a women’s shelter, which made access difficult; however, a regime of access was soon established whereby the children spent alternating weekends with their father.

[ 10 ] In January 2010, the father’s access to the children was extended to include Wednesday evenings. This lasted to March 7, 2012, when by a consent order access was increased once again.

[ 11 ] Both parties acknowledge the other’s good parenting abilities. They acknowledge that the children do well in each household. Unfortunately however, the evidence is clear that the children have suffered as a result of their parents’ conflict.

[ 12 ] The child Dylan has required and probably still requires counselling. The child Lennon has anger issues and suffers from A.D.D. The applicant recognizes that the children need structure and consistency in their lives. She believes this will be best achieved by having the issue of custody settled and by establishing a clear decision-making process. I agree with the applicant that together with a very structured access order, this should lessen the conflict that has existed to this point.

[ 13 ] The applicant agrees that a generous access order to the respondent is in the best interests of the children. This will be reflected in the final order.

[ 14 ] The respondent in argument requested custody of the children with equal access being granted to the applicant.

[ 15 ] I am satisfied by the manner in which the respondent has conducted himself throughout this matter together with the controlling and demeaning way he has treated the applicant that it would not be in the best interests of the children to leave him with final decision making power over the children. He does not react well to stress or rejection. This ultimately does not bode well for the applicant and the children.

[ 16 ] The applicant has clearly stated that she will continue to consult with the respondent about the children. I am sure she will do so as long as the respondent acts appropriately towards her.

[ 17 ] I am satisfied therefore, after hearing from the parties and their witnesses, reviewing the documents filed and considering what is in the best interests of the children as set out in s. 24 of the Children’s Law Reform Act R.S.O. 1990, c. C.12 , that the applicant should have custody of the children Presley McCarthy, born March 3, 2006; Lennon McCarthy, born August 20, 2004; and Dylan McCarthy, born March 30, 2003. Access is to continue in accordance with the Order of Hennessy J. dated March 7, 2012, on a final basis.

[ 18 ] In addition to the above-noted access, the respondent shall have access to the children during holiday periods as follows:

1. Christmas Holidays:

a) To be split evenly between the parties with the applicant having the children for the first week of holidays in even years; and the respondent having the children for the second week in odd years commencing after school of the last day of school;

b) that the applicant having the children for the second week of holidays in odd years; and the respondent having the children for the first week in odd years;

c) for December 25 th , the parent not having the children in the first week, shall have the children from 12 noon to 12 noon on the following day.

d) for January 1 st , the parent not having the children the second week, shall have the children from 12 noon to 7:30 p.m.;

2. Easter weekend with the applicant in even years and odd years with the respondent from end of school day prior to the holidays.

3. Thanksgiving weekend with the respondent in even years and odd years with the applicant.

4. Family Day shall be with the applicant in odd years and with the respondent in even years.

5. March Break shall be evenly split between the parties with the turnaround day to be Wednesday at 6:30 p.m. Where the party’s regular weekend access is during the first weekend of March Break, it shall extend to the Wednesday with the other party having the balance of the March Break with the children.

6. Summer Holidays: The parties shall have the children for two weeks during the summer in one block of time or split. These holiday periods shall be agreed upon by the parties by no later than April 1 of every year. The applicant’s holiday period shall take priority over the respondent’s in odd years. The respondent’s holiday period shall take priority over the applicant’s in even years. The remainder of the holidays shall follow the regular schedule of access.

7. The respondent’s weekend custody will be suspended when the children are, pursuant to the above, to be with the applicant during the periods set out above.

[ 19 ] The following shall also apply:

1. Each party shall have the right to communicate with the children at any reasonable time by telephone and letter. Each will keep the other informed of the children’s address and telephone number whenever they change.

2. Each party shall have the right to be fully advised on the children’s school progress (including the right to have direct communication with all school authorities and to receive copies of report cards and notices of school events) and to be advised by the other party and by health practitioners about the health and general welfare of the children, and to obtain the children’s medical records. Both parties will share equal responsibility for co-operative decision-making with respect to the children; however, in the event they are unable to agree, the applicant has the ultimate decision-making power.

3. While the children are in either party’s care, they shall be responsible to take the children to their extracurricular activities, the medical clinic if necessary or any scheduled appointments and will be responsible to ensure the children complete their homework.

4. The parties shall advise each other of their intention to take the children out of the City of Greater Sudbury.

5. Should the respondent fail to abide by this order for access, the police service of the local jurisdiction where the children appear to be are directed to make all reasonable efforts to locate, apprehend, and deliver the children to Suzanne McCarthy.

6. For the purpose of locating and apprehending a child in accordance with this order, a member of a police force may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable in the circumstances between the hours of 6 a.m. and 9 p.m.

7. The respondent shall provide information in writing to the applicant within 10 days of any change in his employment or income, detailing such change.

8. This Order bears post-judgment interest at the rate of two per cent per year effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Child Support

[ 20 ] Although fully employed and initially residing in the matrimonial home, the respondent paid virtually no child support until he was ordered to do so in accordance with the guidelines on October 15, 2009.

[ 21 ] The respondent paid the court ordered child support until he lost his employment in early 2010. In 2010, child support ceased completely, even though the respondent was in receipt of Employment Insurance and thereafter some limited employment income.

[ 22 ] The applicant supported the children as best she could by living in subsidized housing and maintaining full employment for most of the period from separation until trial.

[ 23 ] Since the respondent became unemployed in 2010 he has not sought nor obtained full time employment. He is currently working part time at a gas bar. He states that once this matter is concluded he expects to become more fully employed.

[ 24 ] I accept the applicant’s evidence that the respondent has been purposely under-employed. He stated to her that he was going to concentrate on learning family law so that he would succeed in his quest for custody of the children.

[ 25 ] The respondent’s view of child support is that both parties are responsible to support the children. His evidence is that the applicant owes him for arrears of child support because she has been in receipt of more income since separation.

[ 26 ] I am satisfied on the evidence that the applicant has had de facto custody of the children since separation.

[ 27 ] The respondent has not consistently had the right of custody to, or physical custody of the children for forty per cent or more of the time over the course of any year since separation.

[ 28 ] The applicant was therefore entitled to child support for the entire time for all three children based on the federal child support guidelines.

[ 29 ] Based on the respondent’s evidence of what his income was for that time period and what he paid in support, I calculate that the arrears of child support payable by the respondent to the applicant are as follows:

2009: $586 / month, $7,032 / year Paid: $2,519 Owing: $4,513

2010: $627 / month, $7,524 / year Paid: $8,490 Owing: $-966 (overpaid)

2011: $364 / month, $4,368 / year Paid: $0 Owing: $4,368

2012: N/A $0

Total Arrears: $7,915.

[ 30 ] The $2,500 presently held in trust shall be released forthwith to the applicant on account of child support arrears.

[ 31 ] The respondent is voluntarily under employed. He must seek and obtain suitable employment immediately. In the meantime, he shall pay child support to the applicant of $200 per month on the first day of each month for the support of his three children. So soon as the respondent obtains more remunerated employment, he shall pay child support at the table amount.

[ 32 ] For as long as child support is paid, the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Child Support Guidelines .

[ 33 ] Costs shall be to the applicant based on two-thirds of her own solicitor’s accounts to her in this matter for time spent plus 100% of the disbursements plus H.S.T.

Mr. Justice John S. Poupore

Released: December 21, 2012

COURT FILE NO.: D 19665-11
DATE: 20121221

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Suzanne McCarthy Applicant – and – Dale McCarthy Respondent REASONS FOR JUDGMENT Poupore J.

Released: December 21, 2012