ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 787-09
DATE: 2013//October 3
BETWEEN:
SHERRY HUNNIFORD
John Summers, for the Applicant
Applicant
- and -
KEVIN W. FICZERE
Self-represented Respondent
Respondent
HEARD: April 10 & 11, 2013
The Honourable Mr. J. M. Johnston
JUDGMENT
[1] This matter proceeded by way of trial on the issues of custody, access, child support and claim for occupational rent.
[2] The parties were married on March 30, 2001, but began co-habitation in 1999. The parties separated while living in Alberta, moved to Ontario, reconciled and again separated September 11, 2009. There are two children from the marriage, namely, Kyle Hunniford-Ficzere, born April 14, 1999, and Kamren Ficzere, born March 24, 2004.
Background:
[3] The parties first separated in 2007 when they resided in Strathmore, Alberta. The parties reconciled one year later. During the first separation, Mr. Ficzere was placed under a peace bond recognizance as a result of allegations of verbally and physically assaulting Ms. Hunniford. There was no criminal conviction. Mr. Ficzere was prohibited during the period of the one year bond from consuming or possessing alcohol or intoxicating substances. The children resided with their mother during this period of time.
[4] The parties and the children resumed co-habitation together in August, 2009, and they re-located to Ottawa, Ontario. A second and final separation occurred on September 11, 2009. Mr. Ficzere vacated the home. The Applicant continued to reside in the matrimonial home with the children. Mr. Ficzere exercised access with the children.
[5] After the first separation, during the period of reconciliation, a further incident occurred, resulting in both parties facing criminal charges. The criminal charges against Ms. Hunniford were withdrawn outright. The charges against Mr. Ficzere were withdrawn on the condition that he enter into a peace bond pursuant to Section 810 of the Criminal Code of Canada and he did so on September 19, 2011. Pursuant to the terms, he was to have no contact, direct or indirect, with Ms. Hunniford and not to attend at her place of residence, school or employment. During this period of time, the children resided with Ms. Hunniford.
[6] The oldest child, Kyle, exhibited extreme difficulty in dealing with the separation. Kyle was residing with his mother when he became much more difficult. Ms. Hunniford, as a result, voluntarily place Kyle in the Children’s Aid care on a temporary basis from November, 2009, to May, 2010. During this time, mother exercised regular access with Kyle. Once the period of voluntary temporary care ended, Kyle returned to reside with his mother.
[7] In February, 2012, an incident occurred between Kyle and his father. Details of the incident are unclear; however, the result is that Kyle felt he did not wish to exercise access to his father. In fact, Kyle refused to see his father from February to the fall of 2012. Mr. Ficzere did not make much of an effort to engage Kyle during the period that Kyle was refusing to see him.
[8] In the fall of 2012, Kyle returned to a set schedule of access with his father. Kyle now regularly goes to his father, including overnights. On a number of overnights with father, Kyle actually stays at friends’ homes or has a friend stay over at his father’s home.
[9] Both parties agree that Kyle is now willingly exercising access to his father and the relationship between the two seems to be restored.
[10] Kamren is a special needs child. Both parents testified and acknowledged Kamren’s needs. Kamren has Attention Deficit Disorder and, at times, has acted out, including at school.
[11] Ms. Hunniford testified to a very difficult and strained communication with Mr. Ficzere. Mr. Ficzere acknowledges the earlier communication difficulties. He indicates that blame is shared between the two parties but maintains that communication has been much better since the fall of 2012.
[12] Mr. Ficzere acknowledges that the current access schedule is not exactly what he wants, however, believes that it is in the best interests of the children. Mr. Ficzere would like to have the children more often in his home but recognizes their needs and current circumstances. From Mr. Ficzere’s point of view, the only issue is joint custody. He seeks joint custody on the basis that he wishes to be a meaningful parent to the children.
Analysis on Issue of Custody:
[13] Mr. Ficzere testified that he is a good father to both the children and wants to be a better father to them in the future. Mr. Ficzere indicates that he has been active, to the extent that he can, with the children’s teachers and knowing about their lives. Mr. Ficzere conceded that he has been placed on two prior peace bonds by the Court as a result of incidents between him and Ms. Hunniford. Pursuant to the terms of the peace bonds, he was to have no contact with Ms. Hunniford for a total of two years. Obviously, during those two years, there was no communication between the parties.
[14] I accept the evidence of Ms. Hunniford that communication with Mr. Ficzere has been very difficult at times. Mr. Ficzere has been inconsistent in exercising access. I accept Ms. Hunniford’s evidence that, at one point, Mr. Ficzere advised that he was “washing hands” of the children. For a period of time, he had no contact with them, did not ask about them, and did not ask to see them. Mr. Ficzere indicated that he did this on the advice of counselors in dealing with his troubled relationship between himself and the children.
[15] Ms. Hunniford’s current partner, John Dinsdale, testified in this matter. I also accept Mr. Dinsdale’s evidence as being objective. Mr. Dinsdale has witnessed the two children with Ms. Hunniford on a very regular basis. Mr. Dinsdale was also privy to the communication between Ms. Hunniford and Mr. Ficzere. According to Mr. Dinsdale, there was extreme animosity between the two parties in the past. Mr. Dinsdale had opportunity to review text messages received from Mr. Ficzere. Mr. Dinsdale describes these messages as very angry.
[16] Mr. Dinsdale testified that Kamren’s relationship with his father is strained at this time. Kamren does not really wish to go and see his father. Ms. Hunniford encourages Kamren to have a relationship and to see his father. When Kamren does go for visits with father, it is not usually for overnights. Mr. Dinsdale confirmed Ms. Hunniford’s evidence that there were times that Mr. Ficzere with Kamren was cut short, sometimes unilaterally. Kamren would want to come home and Mr. Ficzere would return the child, on one occasion, when no one was home.
[17] Mr. Ficzere states that communication is now much better with his former spouse, such that joint custody is workable.
Section 24(1) of the Children’s Law Reform Act:
[18] The merits of an application for custody to a child shall be determined on the basis of the best interests of the child in accordance with Section 24(1)(2)(3) and (4).
[19] In considering the best interests of a child or children, the court shall consider the children’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 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 resided in the stable home environment;
(d) the ability and willingness of each person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody over access to the child;
(f) the permanence and stability of the family unit with which each proposed child will live;
(g) the ability of each person applying for custody to the child to act as a parent; and
(h) the relationship by blood or through the adoption order between the child and each person who is party to this application.
[20] I accept the evidence of Ms. Hunniford and Mr. Dinsdale that Kyle and Kamren have a close, warm and loving relationship with their mother. I accept that the children have the closest emotional ties with their mother. The children have lived with their mother their entire lives, including the period of separations (except for the brief period that Kyle resided in foster care). At times, both children have had a strained relationship with their father. Kyle has experienced an on-again/off-again relationship with dad. Most recently, Kyle appears to have repaired his relationship with dad. Kamren has special needs and currently is reluctant to spend any significant time with father. I accept Ms. Hunniford’s evidence that she is using her best efforts to encourage and facilitate access between Kamren and his father. Mr. Ficzere began this trial insinuating parental alienation. However, in his final submissions to the court, it appears to me that Mr. Ficzere recognizes that Kamren has special needs and difficulties and that he wants to do his part to assist Kamren. Mr. Ficzere seems to recognize that it is not in Kamren’s best interests to force him to have access beyond what he is comfortable with at this stage.
[21] There is a relationship between both children and their father. I accept that Mr. Ficzere is doing what he believes he can to facilitate the relationship and act in the children’s best interests.
[22] The children’s views and preferences at this time seem to be clear. Kyle wishes to see and speak to his father on a regular basis, including overnights. Although, Kyle has not always held this view, he has entered into a new phase of his relationship with his father. Mother has facilitated this relationship. I am satisfied that Kamren wishes to see his father, however, on his own terms. This may not translate into overnight access at this time.
[23] Both children have lived in a stable home with their mother. Ms. Hunniford has made some decisions that she admits in hindsight were not the best. Nonetheless, I am satisfied that Ms. Hunniford has and will have the best interests of the children at heart and is in the best position to make such parenting decisions for the children. After the separation, Mr. Ficzere moved residence and did not always have a suitable environment for the children. At times in the past, Mr. Ficzere has withdrawn from the children in providing care and assistance to them. Mr. Ficzere maintains this will not happen in the future. Twice Mr. Ficzere has been involved in incidents with Ms. Hunniford that has resulted in a court order that he abstain from communicating with Ms. Hunniford for a period of one year each.
[24] I am satisfied that the level of communication between the parents has been very difficult in the past. While communication has improved, there are continued reasons to be cautious.
[25] I find that Mr. Ficzere’s involvement in the lives of his two children is important to them. Mr. Ficzere clearly has good qualities that will be beneficial to the children. Mr. Ficzere attempted to involve himself in the educational lives of his children, communicating with the teachers and assisting them with homework. This should be fostered and continued into the future.
Findings on the Issue of Custody:
[26] I am satisfied that there has been some improvement in the communication of Mr. Ficzere with Ms. Hunniford but it is still difficult. Ms. Hunniford has been the primary caregiver for both children in the marriage and since the second separation (and, in fact, during the first separation). I find that it is in the children’s best interests to continue in the sole care and custody of mother, subject to father’s right of reasonable access. I take mother at her word that she will continue to foster and encourage a relationship between the children and their father. The mother’s role in relationship with the children is beneficial to them and needs to be encouraged.
[27] I accept the argument advanced by counsel for mother on the basis of Kaplanis v. Kaplanis [2004] in R.F.L. (6th) 373 (O.C.A.):
“where there is no evidence of historical cooperation and appropriate communication between the parents” that joint custody is not appropriate. Further, an order of joint custody is not appropriate “in the hopes that it would improve the parenting skills of the parties”. At paragraph 11 of the decision the court stated: “hoping that communication between the parties will improve once the litigation is over does not provide 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.”
[28] I am satisfied that both children live in a stable home environment with their mother and are thriving. Kamren does have his difficulties; however, he is doing well under the circumstances. Given the issues of control by father in the past and his willingness to walk away from the children in the past, joint custody is not appropriate in these circumstances.
Access:
[29] Access has really not been an issue between the parties in recent times. Mother and father have been able to work out periods of access between the children and father that meets the children’s needs and best interests. Father began the case by seeking week about residency of the children in his care but has concluded this is not in their best interests at this time. I agree.
Child Support:
[30] Father agrees to continue to pay child support, both base support and Section 7 expenses. However, father takes the position that mother has been able to secure a home for her and the children and that he, too, should be able to secure a similar home during periods of time the children would visit with him. Father maintains that he would not be able to afford his current home if Guideline child support is ordered to be paid.
[31] Father is self-represented but, nonetheless, Family Law rules apply whether a person is represented or not. Father initially claimed undue hardship, however, has not plead this in his Answer. Father, initially represented by counsel, indicated to this court that he paid his counsel significant fees and can no longer afford a lawyer. Father agrees that he does not meet the criteria of “undue hardship”.
[32] Mr. Ficzere filed a financial statement in the course of this trial indicating that he experiences a monthly deficit of $493.00 per month. The T-4 statement of remuneration for 2012 filed by Mr. Ficzere indicates that he earned $93,575.00 in 2012. Ms. Hunniford’s Financial Statement sworn March 25, 2013, reveals her total yearly income is $53,604.00. Ms. Hunniford resides alone with the two children. Mr. Dinsdale, her current partner, resides in his own residence. Mr. Ficzere resides alone.
[33] In all of the circumstances, there is no reason to deviate from the recommended Federal Child Support Guidelines. Mr. Ficzere earns significant income and has discretionary expenses such as entertainment, vacation, alcohol and tobacco. Mr. Ficzere has not formally commenced an undue hardship application. However, even if one were properly before me, I reject the claim. There is no foundation to base a claim for undue hardship in these circumstances.
[34] Accordingly, I order the Respondent to pay to the Applicant child support for the two children, Kyle and Kamren, in the amount of $1,337.00 per month payable commencing April 1st, 2013, and on the 1st day of each month thereafter. I have considered the request to make the increase retroactive to January 1, 2013, and decline to do so.
[35] Mr. Ficzere shall pay Section 7 expenses in relation to the children in a percentage based in proportion based upon his income of $93,575.00 and Ms. Hunniford’s income of $53,604.00, in relation to child care expenses and activities that exceed $100.00 in a calendar year including uninsured medical and dental expenses.
[36] The Respondent shall maintain the children on any existing medical/dental coverage available to him through his employment. The Respondent shall maintain life insurance for the children of no less than $150,000.00 naming the Applicant, in trust, for the children for as long as he is obligated to pay child support for one or other of the children.
Claim for Occupational Rent:
[37] Mr. Ficzere informally, at the outset of trial, claimed occupational rent for the period of time that the Applicant and children resided in the matrimonial home to and until he sold his interest in the home to Ms. Hunniford, in accordance with terms of a Separation Agreement.
[38] Ms. Hunniford argues that Mr. Ficzere is not entitled to bring such an Application at this late date, as he is, as of this date, no longer a registered owner in the former matrimonial home. Secondly, Ms. Hunniford argues that no actual claim has been made.
[39] I allowed this matter to proceed at least to the hearing stage on the basis that Mr. Ficzere has consistently maintained an intention to claim for occupation. Documents have been exchanged between the parties, both before and after Mr. Ficzere was represented by counsel. The Applicant, therefore, is not taken by surprise with respect to the claim for occupational rent. While I agree that unrepresented parties must abide by the rules, in this circumstance, I allowed the matter to proceed. Ms. Hunniford’s counsel was prepared at the outset of trial to deal with the issue of occupational rent and filed case material in support of her position. I indicated at the outset that counsel for the Applicant was entitled to an adjournment if he felt that he was taken by surprise or unprepared to deal with the issue of occupational rent. Counsel indicated his preference to proceed as to not unduly delay proceedings.
[40] While I allow the issue of occupational rent to proceed as an issue in this trial, I reject the Respondent’s claim. I find that the Respondent was a registered owner of the matrimonial home and was, therefore, entitled to commence a claim for occupational rent. In my view, that claim is not barred by the fact that Mr. Ficzere subsequently transferred the matrimonial home to his former spouse, pursuant to terms of a Separation Agreement.
[41] Ms. Hunniford denies that she ever received rent for any portion of the matrimonial home, subsequent to separation from Mr. Ficzere. Mr. Dinsdale did at one time reside with her but did not pay rent. Mr. Ficzere submitted into evidence an advertisement placed in a newspaper by Ms. Hunniford for a room within the matrimonial home. However, this advertisement was for rent after the time Mr. Ficzere released his interest in the home to Ms. Hunniford. Accordingly, I find there is no evidence that Ms. Hunniford actually rented the premises or portion thereof out to any individual during the time of separation and a time in which Mr. Ficzere was a part owner. Accordingly, Ms. Hunniford resided in the matrimonial home with the children. At most, during the period of time Mr. Ficzere was out of the home and a part owner of the matrimonial home, he paid up to one-half of the expenses. At no time did Mr. Ficzere pay all of the expenses in relation to the home.
[42] Finally, there was a Separation Agreement signed by both parties dated October 28, 2011. Mr. Ficzere was represented by counsel at the time of signing of the Agreement. The Agreement confirms that each party obtained independent legal advice and had read the Agreement in its entirety and understood the Agreement and acknowledged that the terms of the Agreement are fair and reasonable (pursuant to paragraph 20).
[43] Section 15 of the Agreement provides a release as to claims of all property by the parties. Section 16 of the Separation Agreement provides a general release. Mr. Ficzere testified that he signed the Agreement, however, was under duress from his lawyer. Mr. Ficzere argues that he had no choices at the time due to his debt position and the amount of money that he owed to his lawyer.
[44] I am satisfied that the Separation Agreement was signed by Mr. Ficzere. There is no evidence except for Mr. Ficzere’s assertions at the last minute, at trial, that he did not understand the Agreement and that he was signing under duress, to substantiate such claims. The issue of occupational rent was raised by Mr. Ficzere prior to the signing of this Agreement. In my view, the Agreement alone is a complete bar to the current claim for occupational rent. Mr. Ficzere did not attempt at any time, including at trial, to set aside some or all of the terms of the Separation Agreement as it related to property division. Accordingly, the Agreement is presumed valid.
[45] Secondly, for the reasons enumerated above, I do not find in the circumstances of this case that a claim for occupational rent has properly been established on the balance of probabilities. Accordingly, the claim for occupational rent is dismissed.
Summary of Findings and Order:
(1) The Applicant, Sherry Hunniford, shall have sole custody of the children, namely, Kyle Hunniford-Ficzere, born, April 14, 1999, and Kamren Ficzere, born March 24, 2004.
(2) The Respondent father, Kevin Ficzere, shall have access to the two children as follows:
(a) every weekend from Friday after school until Saturday at 5:00 p.m. and every second weekend from Friday after school until Sunday at 5:00 p.m. Any long weekend to be extended to the Monday at 5:00 p.m.;
(b) Mother’s Day shall be with mother and Father’s Day shall be father;
(c) Up to two weeks (non-consecutive) during the summer and any long weekends to be extended for the holiday;
(d) One week at Christmas, commencing at noon December 25th each year.
(3) The Respondent shall pay to the Applicant for support of the two children the sum of $1,337.00 per month, commencing April 1st, 2013, and on the 1st day of each month thereafter.
(4) Mr. Ficzere shall pay Section 7 expenses in relation to the children in a percentage based in proportion to his income of $93,575.00 and Ms. Hunniford’s income of $53,604.00, in relation to child care expenses and activities that exceed $100.00 in a calendar year including uninsured medical and dental expenses. The Respondent shall maintain the children on any medical/dental coverage.
(5) The Respondent shall maintain life insurance of no less than $150,000.00 naming the Applicant, in trust, for the children, for so long as he is obligated to pay child support for either child.
(6) The claim for occupational rent is dismissed.
[46] I encourage counsel for the Applicant and the Respondent to discuss the issue of costs. If costs cannot be resolved, the Applicant shall prepare and serve written submissions limited to two pages, in addition to a Bill of Costs, to be served within thirty days. The Respondent shall have the right of reply, again limited to two pages. Prior to filing the response to costs, the Respondent shall serve Applicant’s counsel: within thirty days of receiving the Applicant’s submissions.
The Honourable Mr. Justice J. M. Johnston
Released: October 3, 2013
COURT FILE NO.: 787-09
DATE: 2013/October 3
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHERRY HUNNIFORD
Applicant
- and -
KEVIN W. FICZERE
Respondent
JUDGMENT
The Honourable Mr. J. M. Johnston
Released: October 3, 2013