SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-7144M
DATE: 20121212

RE: DIANE RUTLEDGE
Applicant

v.

DEAN RUTLEDGE
Respondent

BEFORE: CONLAN J.

COUNSEL:
Glenna McClelland, for the Applicant
Neil J. Arnold, for the Respondent

E N D O R S E M E N T

Conlan J.

Introduction

[ 1 ] Colton is a ten year old boy. He loves his parents, and they love him. He adores his older brother Tyler and his older sister Jordan.

[ 2 ] Unfortunately, he is an island. And sometimes a pawn.

[ 3 ] He deserves to be a child. His brother Tyler is estranged from his mother. His sister Jordan is estranged from her father. His big sister, Jasmine, died of leukemia not long ago.

[ 4 ] And yet Colton carries on. I wish I could meet him and tell him that he is making everyone proud.

The Motions

[ 5 ] For most of the day on December 6, 2012, two lengthy Motions were heard in Owen Sound. I am grateful to counsel, Mr. Arnold for the father Mr. Rutledge, Ms. McClelland for the mother Ms. Rutledge, and Mr. Vining for the OCL as assisted by clinical investigator Ms. Bilyea, for their able arguments and thorough materials which included facta on both sides and a casebook on behalf of the mother.

[ 6 ] It is high time that this proceeding go to trial. There have been numerous motions before various Justices over several years occupying volumes of Continuing Record materials. At the end of arguments on these two Motions, I reserved my decision but ordered, among other things, that this proceeding be placed on the trial list forthwith.

[ 7 ] The father’s motion seeks the following relief:

a) An Order that the child, namely Colton Kenneth Rutledge born May 24, 2002, reside primarily with the Respondent, or in the alternative an Order that the child namely, Colton Kenneth Rutledge born May 24, 2002, reside on a week about basis with each of the Applicant and Respondent.

b) An Order that Colton reside with each of the parties on a two (2) week about rotation during the summer school vacation with Colton to reside with the Respondent commencing June 29, 2012.

c) An Order that Colton be with the Respondent from December 24 through December 26, 2012.

d) An Order varying the Child support payable by the Respondent retroactive to September 1, 2011.

e) An Order directing the Applicant to forthwith execute any and all documentation necessary so as to allow payment to the child namely, Tyler Edward Rutledge born August 9, 1991, of the balance of the RESP with the Independent Planning Group Inc.

f) An interim order that the Applicant pay to the Respondent support for the child, namely Tyler Edward Rutledge born August 9, 1991, for the period May through August 2012.

g) An Order that the Applicant, within ten (10) days, pay to the Respondent the amount of $728.00 constituting the HST due and payable pursuant to the Order dated September 1, 2011, failing which the Applicant’s pleadings are to be struck.

h) An Order deleting the clauses in relation to alcohol and corporal punishment as provided for in paragraph 11 of the Order dated July 17, 2009.

i) An Order directing the Applicant to return all funds taken from the accounts in relation to the fundraisers and for all funds to thereafter be used for the funeral expenses.

j) An Order compelling the Applicant to, within thirty (30) days, comply with Paragraph 2 subparagraphs 1, 3, 4 and 5 of the Order dated April 28, 2011, failing which the Applicant’s pleadings are to be struck.

k) An Order directing the Applicant to provide to the Respondent details of all funds raised by the Walkerton Capitals.

[ 8 ] The mother’s motion seeks the following relief:

a) An Order varying the Interim Order of Justice Goodman dated July 2011 in relation to child support and spousal support.

b) An Order the that Applicant’s overpayment of child support in relation to Tyler Edward Rutledge born August 9, 1991 be set off against any arrears of child support, or in the alternative an Order terminating child support for the said child Tyler Edward Rutledge born August 9, 1991 for the period July 2009 through August 31, 2012.

c) An Order calculating the parties respective shares of child support and spousal support for the children, Tyler Edward Rutledge born August 9, 1991, Jordan Marie Rutledge born March 23, 1993, and Colton Kenneth Rutledge born May 24, 2002, including port secondary education expenses for the children Tyler Edward Rutledge born August 9, 1991, and Jordan Marie Rutledge born March 23, 1993.

d) An Order terminating child support for Jasmine Rose Rutledge born November 20, 2000 effective January 31, 2012.

e) An Order that arrears owing pursuant to the Order of Justice Goodman be paid at the rate of $150.00 per month.

Analysis

[ 9 ] It is very difficult and nearly impossible for a Court to adjudicate complicated matters which arise from lengthy procedural histories and involve dense contradictory affidavit evidence which is untested and not subject to cross-examinations and which raises multiples issues and disputed facts.

[ 10 ] Add to that cocktail a layer of deep resentment and animosity between the parties, and the result is what is before this Court.

[ 11 ] This case is not unlike that which confronted Justice Power in Wynnyk v. Wynnyk , 2004 5093 (ON SC) .

[ 12 ] I exercise my authority under Rule 14(7) of the Family Law Rules and Order that, with the exception of the items expressly dealt with below and costs, all outstanding relief claimed in the two Motions before the Court shall proceed to trial. It is only through a complete record and viva voce evidence that those matters may be fairly and adequately determined with some confidence. To do so at this stage on the evidence before the Court would require speculation and conjecture and would not be in the best interests of the children or the parties.

[ 13 ] Of course, the parties are free to withdraw, abandon and/or settle any of the issues in the two Motions that have been ordered to proceed to trial. That would streamline the trial in dealing only with the claims raised in the original pleadings.

[ 14 ] I would be remiss if I did not take this opportunity to make a general observation. The Court was fortunate in this case to have experienced counsel who were well-prepared and demonstrated high standards of advocacy on these two Motions. But too often, counsel in family cases are bombarding the courts with “trials” disguised as endless complex motions asking for temporary orders that are hotly contested. That practice should be discouraged. It generally does not assist the parties and certainly does not save time or money. It results in a risk of inconsistent verdicts by different Justices on the same or very similar issues. It causes the parties to become even further entrenched in their positions, making compromise all the more distasteful. And, in custody and access matters, it amounts to litigation by installment rather than a focus on the big picture in the best interests of the children.

The Father’s Access with Colton

[ 15 ] As the jurisprudence filed by Ms. Rutledge makes clear, custody and access regarding Colton shall not be varied absent a material change in circumstances that has or is likely to affect the best interests of Colton.

[ 16 ] In determining the best interests of Colton, his views and preferences are one but not the only or even the most paramount factor.

[ 17 ] I find that Mr. Rutledge has established on balance that there has been a material change in circumstances since the date of the Order sought to be varied. That material change has been the involvement of the OCL and Ms. Bilyea and the evidence of Ms. Bilyea as contained in her Affidavit filed on the Motions.

[ 18 ] Further, I find that the father has established on balance that the said material change in circumstances is likely to affect the best interests of Colton. The OCL and Ms. Bilyea are the voices for Colton. They have interviewed Colton. They have observed Colton. Ms. Bilyea’s Affidavit speaks directly to, among other things, access between Colton and his father.

[ 19 ] I disagree with the mother’s argument that the evidence is that Colton wants the status quo to continue. I disagree further that the evidence is ambiguous as to what the child wants. What he wants is very clear from a reading of the entire Affidavit of Ms. Bilyea. He wants more time with his father. Exactly how much more time, or when, or how, is unclear. But those issues are for the Court to decide; not Colton. This is a ten year old boy who is stuck in the middle of two combatants. I would not expect Colton to be specific as to how exactly he wants the access schedule changed.

[ 20 ] I accept the evidence of Ms. Bilyea. I find that Colton’s views and preferences are important given what this boy has been through and the need to grant him some sense of empowerment.

[ 21 ] When balanced among the other factors regarding the determination of Colton’s best interests including but not limited to his special needs and his need for structure and consistency, and having considered the evidence of how Colton is at school after being with his father, I conclude on balance that it is in Colton’s best interests to expand, slightly, the access between Colton and his father.

[ 22 ] I agree with the position put forward by Mr. Vining as counsel for the child. This Court Orders that the access between Colton and Mr. Rutledge shall be increased, effective immediately, to be overnight on the weekday currently in place. Counsel and the parties shall work out the precise times, but the said weekday overnight access shall not commence any later on the first day as it does now.

[ 23 ] Otherwise, the access shall remain as is. Incremental change is necessary given Colton’s special needs.

Christmas 2012

[ 24 ] As per the suggestion of the OCL and on consent of the mother, although not precisely what was requested by the father, this Court Orders that Colton shall have access with Mr. Rutledge from 24 to 26 December, 2012, inclusive. Counsel and the parties shall work out the precise times.

[ 25 ] For the remainder of the Christmas break, this Court Orders that the time shall be divided evenly: 50% for the mother and Colton and 50% for the father and Colton.

Whether the Father Should Continue to be the Subject of

no Alcohol and no Corporal Punishment Terms Regarding his Access

[ 26 ] Mr. Rutledge, I have no doubt, has a temper problem. The evidence supports that, including the Affidavit of Ms. Bilyea.

[ 27 ] But his temper and anger management problems do not necessarily make him more prone to imposing corporal punishment on his child(ren). There is an inadequate evidentiary foundation to find that Colton or his siblings are at risk of corporal punishment at the hands of Mr. Rutledge, assuming without deciding that, if there was, it should be prohibited.

[ 28 ] I am not satisfied on balance that Mr. Rutledge has an alcohol problem. He consumes alcohol, yes.

[ 29 ] This Court Orders that the condition regarding corporal punishment shall no longer apply to the father’s access with Colton, effective immediately.

[ 30 ] This Court Orders that the condition regarding alcohol shall be amended, effective immediately, to provide that Mr. Rutledge shall not consume alcohol while he is exercising access with Colton.

Child Support and the Incomes of the Parties

[ 31 ] To impute income to x, y must establish three things on balance:

(i) that x is intentionally unemployed or underemployed;

(ii) that there is no reasonable justification for the unemployment or underemployment; and

(iii) if there is no reasonable excuse, what income figure should be used for x.

[ 32 ] Imputation of income is not based on speculation or a bunch of “what ifs”. There must be admissible evidence on each of the three components of the test.

[ 33 ] In this case, neither party has established on balance that income ought to be attributed to the other.

[ 34 ] In the case of Mr. Rutledge, I find that the evidence does not substantiate that he is intentionally underemployed.

[ 35 ] In the case of Ms. Rutledge, I find that she is intentionally underemployed but had reasonable justification for accepting alternative employment, even if at a significantly lower wage, to remove herself from a hospital environment so soon after the tragic death of Jasmine. That is totally understandable.

[ 36 ] Thus, for support purposes (Colton and spousal), actual incomes of the parties ought to be used. If the parties are able to calculate what their actual gross incomes were for 2012, using an estimate for the rest of December, then those figures ought to prevail, and the support ought to be adjusted accordingly. If not, then the parties ought to resort to their 2011 tax year line 150 gross income figures, and the support ought to be adjusted accordingly.

[ 37 ] Note that I have not made an actual Order regarding support (Colton and/or spousal). That is because the parties may wish to await a trial to deal with all of the support issues at once. If the parties wish the Court to make a Temporary Order for support in accordance with this Endorsement, then I am happy to receive a consent or minutes of settlement in that regard.

[ 38 ] I agree with Mr. Arnold in his reply submissions that the most appropriate course is to leave the child support issues regarding Tyler and Jordan for trial.

Summer Access

[ 39 ] Because this is an important issue to Colton, and because there is a possibility, although unlikely, that this proceeding will not be tried before the start of the summer of 2013, I will make an Order.

[ 40 ] With the support of the OCL and in accordance with the wishes of Colton, and with no opposition by either parent, this Court Orders that Colton shall spend equal time with each parent during the summer break from school in 2013. Colton is a child who generally needs structure and continuity, thus, it is in his best interests to spend the first two weeks of the summer with his mother as his primary residence is with her. So ordered. Further, it is in the best interests of Colton that he spend time with each parent in two-week periods rather than one week. So ordered. The first two weeks with mother; followed by two weeks with father; and then continuing that rotation during the summer of 2013 such that Colton spends equal time with each parent throughout the summer. That is the Order of the Court.

Conclusion

[ 41 ] Temporary Order to go as per this Endorsement.

[ 42 ] I saw the pain and heartache on the faces of Mr. and Ms. Rutledge in Court on December 6. I urge them, for the sake of their children who are grieving the tragic loss of their sister Jasmine, and for the sake of themselves, to find more common ground. Colton, Jordan and Tyler deserve just that. Be proud of the productive and accomplished young adults that Jordan and Tyler have become and the resounding spirit of Colton, and recognize that it took both parents to help achieve that.

Costs

[ 43 ] If counsel are not able to settle the issue of costs, then they shall contact the Trial Coordinator in Owen Sound to arrange a further court attendance to hear brief submissions at that time. Filings can be made then.

Conlan J.

DATE: December 12, 2012

COURT FILE NO.: 09-7144M
DATE: 20121212

SUPERIOR COURT OF JUSTICE - ONTARIO RE: DIANE RUTLEDGE Applicant v. DEAN RUTLEDGE Respondent BEFORE: CONLAN J. COUNSEL: G. McClelland, for the Applicant Neil J. Arnold, for the Respondent ENDORSEMENT CONLAN J.

DATE: December 12, 2012