ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-7542M
DATE: 20130417

BETWEEN:

GREGORY GEORGE MORRISON

Ross H. Thomson, for the Applicant

Applicant

• and -

CHARLENE ELIZABETH JOY TREMAIN

M. Jill Gamble, for the Respondent

Respondent

HEARD: March 20, 21, 22 and April 16, 2012

REASONS FOR JUDGMENT

Conlan J.

Introduction

[1] The father wants to spend more time with his three children. The mother wants the status quo to continue. This case is all about whether the father’s access should be expanded.

[2] The Applicant father (“Mr. Morrison”) commenced this litigation in November 2010. The parties married on October 14, 2000. They separated on January 11, 2010 and were divorced on August 12, 2011.

[3] There are three children: a daughter, A, born June 11, 2002 (10 years old), a son, I, born March 12, 2004 (9 years old) and a son, L, born April 3, 2006 (7 years old).

[4] A February 2012 report commissioned by the Office of the Children’s Lawyer recommended sole custody of the children to the Respondent mother (“Ms. Tremain”); access between the children and Mr. Morrison; and counseling for the children and the parents.

[5] Mr. Morrison is 35 years old. He is a college graduate and currently works full-time in a training position at Nucomm in Owen Sound.

[6] Ms. Tremain is 35 years old. She has always been the primary caregiver for the children. The children have lived with her since separation. They currently live in subsidized housing. She earns a few thousand dollars per year from teaching piano lessons.

[7] If this marriage ever had a honeymoon, it lasted about as long as it took for the ink to dry on the marriage documents. This was not a match made in heaven. But it is a union that created three lovely children. They are the focus of the Court.

[8] This matter was tried in Owen Sound over three days in March and April 2013. These Reasons are provided the same week as the trial’s conclusion.

The Secondary Issues – Child Support and section 7 Guidelines Expenses

[9] Currently, by Temporary Order of Langdon J. made on August 12, 2011, Mr. Morrison pays $584.00 monthly in child support based on a gross income of $29,207.00.

[10] The parties agree that there should be a Final Order that Mr. Morrison pay $539.00 per month child support commencing May 1, 2013. That is based on his 2012 gross income of $26,609.31. On consent, Final Order accordingly. A Support Deduction Order shall issue.

[11] Currently, by that same Temporary Order, Mr. Morrison pays section 7 Guidelines expenses pro-rata based on his gross income for the tax year 2010.

[12] Mr. Morrison suggests that, going forward, he pay 70% of section 7 expenses for the children. Ms. Tremain disagrees.

[13] I reject the argument by Mr. Morrison that income ought to be imputed to Ms. Tremain beyond that indicated as her gross earnings for the tax year 2011 - $3,855.00.

[14] The two leading decisions are: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.) and Drygala v. Pauli, 2002 41868 (ON CA).

[15] There is a three-step approach. First, is the spouse intentionally underemployed or unemployed? If so, is the intentional underemployment or unemployment required by virtue of the needs of the child or children or the education or health of the spouse? If no, what income is appropriate to be attributed to the spouse?

[16] Although Ms. Tremain is intentionally underemployed, that is required in her present circumstances. She is the full-time residential parent of four children all 10 years or younger, including an infant (not a child of this marriage).

[17] Using $26,609.31 as the gross income for Mr. Morrison and $3,855.00 as that for Ms. Tremain, I fix the section 7 contributions of the parties at 85% for Mr. Morrison and 15% for Ms. Tremain. Final Order accordingly.

[18] This Court Orders that Mr. Morrison shall maintain the children’s coverage on his employment benefits plan.

[19] This Court Orders that Mr. Morrison shall forthwith pay the full amount of the children’s outstanding dental bill in the amount of $318.00. If that has already been paid by Ms. Tremain, then Mr. Morrison shall forthwith reimburse her for the total amount paid.

[20] This Court Orders that Ms. Tremain shall limit the non-medical and dental special and extraordinary expenses for the children to $50.00 monthly. No approval in advance is required from Mr. Morrison.

The Primary Issue – Access Between Mr. Morrison and the Children

The Current Situation and the Positions of the Parties

[21] Currently, Mr. Morrison’s access is as set out in the Temporary Order of Justice Goodman made on June 24, 2011: unsupervised but restricted to every second Friday from 3:30 to 7:00 p.m. and every other Saturday from 10:00 a.m. to 7:00 p.m., with all access confined to Owen Sound and Grey County.

[22] Ms. Tremain asks that the status quo continue.

[23] Mr. Morrison proposes that it be expanded to include access out of Grey County, overnight access and access on special days and holidays. Mr. Morrison filed with the Court a very detailed written proposal for expanded access which includes more than ten terms.

The Evidence at Trial

[24] The evidence at trial most relevant to this issue, besides that of Mr. Morrison who not surprisingly testified that access with the children has improved over time and that of Ms. Tremain who opined otherwise and spoke of her concerns about changing what is in place currently, I have the testimony of Mr. Morrison’s parents, the testimony of the mother of A’s friend and the evidence of the children’s counselor.

[25] The paternal grandmother, Jane Morrison, states that over the last six months or so there has finally developed an actual relationship between the children and their father.

[26] The paternal grandfather, Ian Morrison, agrees. He indicates that the relationships between his son and his grandchildren have improved and become stronger over time.

[27] Tracey Weber is the mother of A’s friend. She recounted a birthday party for her daughter at Boston Pizza in Owen Sound. When she arrived at the restaurant, A was standing inside near the front door, alone. No other persons were around who were involved in the party. The implication is that Mr. Morrison left his daughter stranded at the pizza place.

[28] Tabatha Birtch, the children’s counselor since late 2010, states that the moods of T and I deteriorated when they commenced access with Mr. Morrison in March 2011. They are angry, upset, worried and anxious before and after access with their father. They have shown signs of feeling hate, anger and sadness towards their father. And Luke has made comments to her like “my dad is very mean” and “my dad likes to yell at me and I”.

The Law

[29] The guiding principle on access is the best interests of the children. I shall consider their conditions, means, needs and other relevant circumstances. I shall consider a parent’s past conduct only insofar as it is relevant to his or her parenting ability. I shall foster as much contact as possible with each parent as is consistent with the best interests of the children. I shall consider the willingness of the custodial parent to facilitate contact between the children and the other parent. See subsections 16(8), (9) and (10) of the Divorce Act, R.S.C. 1985, c.3, as amended.

[30] I shall further consider whether the parent seeking increased access has at any time committed violence or abuse: subsection 24(4) of the Children’s Law Reform Act (“CLRA”), R.S.O. 1990, chapter C.12, as amended.

[31] I shall consider the following factors as part of the needs and circumstances of the children: their love, affection and emotional ties to each parent; the views and preferences of the children; the proposed plan for the child’s care during access; and the ability of the parent seeking access to act as a parent. There are other factors that are more relevant to a claim for custody as opposed to access. See subsection 24(2) CLRA, as amended.

[32] A parent does not have a right to access. But it is generally in a child’s best interests to have meaningful contact with both parents in the absence of a reason to the contrary.

Analysis

[33] I accept the evidence of Jane and Ian Morrison that they have observed love, affection and growing emotional ties between the children and Mr. Morrison. There is a long way to go, but progress is being made.

[34] On the evidence before me, I am unable to ascertain with a degree of reliability the views and preferences of the children.

[35] I find that there is a plan being proposed for the care of the children during access with Mr. Morrison. It is not perfect and is without complete details, but there is a plan. For example, the home of Ian and Jane Morrison is being offered for access visits away from Grey County. As a further example, it is suggested that there be a prohibition on corporal punishment.

[36] I find that Mr. Morrison has limited ability to act as a parent to the children, but that is largely due to his estrangement from them until access commenced in March 2011 and the restrictive nature of the access since that time until now.

[37] I am satisfied on the totality of the evidence that Mr. Morrison has established on a balance of probabilities that it is in the best interests of the children to have expanded access with their father.

[38] But I am also concerned about the evidence of Ms. Birtch. She struck me as a credible, reliable and fairly independent witness, despite her agency’s obvious leanings in favour of female litigants. I accept her evidence as summarized above, but I wish to make clear that I do not make any findings that Mr. Morrison has abused his children, physically or emotionally.

[39] Because of the evidence of Ms. Birtch which I do accept, I am granting only modest increased access between Mr. Morrison and his children, and I am insisting that the matter come back to Court for an update not later than six months from the date of these Reasons for Judgment.

[40] This Court makes a Final Order in accordance with the Applicant’s written submissions at subparagraphs 27(a), (b), (c), (d)(ii) through (vi) but with the times amended to noon on Saturday to Sunday at 4:00 p.m., (e) but with the words “and Simcoe County” replaced with the words “and the City of Barrie, including travel to and from”, (f), (g), (h), (i), (j), (k) and (l) except that the following words to be added “The matter shall come back to court before Justice Conlan not later than six months from the date of these Reasons for Judgment”.

[41] For clarity, Final Order to go as follows:

1. Charlene Tremain shall have custody and primary residence of the children of the marriage namely Ashleigh Lorraine Joy Tremain Morrison, born June 11, 2002, age 10 (“Ashleigh”), Isaac Donald James Tremain Morrison, born March 12, 2004, age 9 (“Isaac”), and Luke Jonathan Blaine Tremain Morrison, born April 3, 2006, age 7 (“Luke”).

2. Greg Morrison shall have access with the children, Ashleigh, Isaac and Luke every other Friday from 3:30 (after school) to 7:00 p.m. commencing Friday, April 19, 2013.

3. Greg Morrison shall have access with the children, Ashleigh, Isaac and Luke every other Saturday from 9:00 a.m. to 8:00 p.m. commencing Saturday, April 27, 2013.

4. Greg Morrison shall have access with the children, Ashleigh, Isaac and Luke one weekend per month from Saturday at 12:00 noon to Sunday at 4:00 p.m. at his parents’ residence in Barrie (the overnight is to be at the home of Jane Morrison and Ian Morrison). Overnight access weekends will be as follows:

(i) May 25, 2013.
(ii) June 22, 2013.
(iii) July 20, 2013.
(iv) August 31, 2013.
(v) September 28, 2013.

5. Greg Morrison shall have access with the children, Ashleigh, Isaac and Luke in Owen Sound, Grey County, Bruce County and the City of Barrie, including travel to and from, and elsewhere upon agreement.

6. Greg Morrison shall have access with the children, Ashleigh, Isaac and Luke on Father’s Day, his birthday, June 24, either Good Friday or Easter Monday, either the Sunday or Monday of Thanksgiving weekend, either the day before or the day after each child’s birthday, and December 24th of each year from 9:00 a.m. to 9:30 p.m.

7. Greg Morrison shall ensure that no physical punishment or corporal discipline is used by him or anyone else during his access visits with the children.

8. The exchange location for access visits shall be changed to the Daisy Mart located at 14th Street West and 4th Avenue West, Owen Sound with the exception of Friday afternoons when Greg Morrison shall pick up the children directly from their school.

9. The parties may be agreement change the exchange location or the times to accommodate their respective schedules and the activities of the children.

10. Greg Morrison shall arrange e-mail accounts for the children so that he may communicate with them via e-mail and so they may communicate with him in the same manner.

11. Greg Morrison and Charlene Tremain shall be entitled to contact the children by telephone while they are in the care of the other, such contact to be reasonable. Neither party shall interfere with telephone contact.

12. The issue of access shall be reviewed at the request of either party at any time after September 30, 2013 by way of motion to be brought before Justice Conlan. The matter shall come back to court before Justice Conlan not later than six months from the date of these Reasons for Judgment.

[42] Other than the five overnights at Mr. Morrison’s parents’ residence in Barrie over the next several months, this represents only a modest expansion of access between the father and his children. I am convinced that is in the best interests of the children.

Conclusion

[43] Final Order to go as per these Reasons, in favour of Mr. Morrison.

[44] If the parties are unable to settle the issue of costs, counsel may contact the Trial Coordinator in Owen Sound to schedule a further court attendance of thirty minutes in length to hear submissions and consider filings in that regard. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these Reasons for Judgment.

[45] I encourage the parties to focus their attention on their three children. They may not like each other, but they will have to cooperate in the best interests of these youngsters.

Conlan J.

Released: April 17, 2013