Jackson v. Mayerle, 2013 ONSC 3084

CITATION: Jackson v. Mayerle, 2013 ONSC 3084

COURT FILE NO.: F67/13

DATE: 2013-05-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Davis Jackson, Applicant

AND:

Eileen Mayerle, Respondent

BEFORE: Justice G. E. Taylor

COUNSEL: Richard G. Startek, Counsel, for the Applicant

Kanata Cowan, Counsel, for the Respondent

HEARD: May 24, 2013

ENDORSEMENT

[1] This is a motion and cross motion in which the applicant seeks greater time to be spent with his daughter Paige who is 5 years old and the respondent seeks spousal support. Both the motion and cross motion are for temporary orders.

Background

[2] I am dealing with this motion and cross motion on the basis of affidavits only. No questioning has taken place. There is significant disagreement between the parties about important factual issues. I will comment on the factual discrepancies later in this Endorsement. It is possible to discern the following facts on which there appears to be substantial agreement.

[3] The parties began cohabiting in 1997 or 1998. They were married on April 22, 2004 and they separated at the end of July, 2011. They have a daughter, Paige, who was born on June 16, 2007. The applicant is 43 years of age and is employed as a police officer with the Toronto Police Services. The respondent is 46 years old and is employed on a contract basis performing detailing, design and programing services for Engage Automation. The applicant’s income for 2011 was $94,405. The respondent’s anticipated income for 2013 is $27,600.

[4] On February 8, 2013 Brown J. made a temporary order on an urgent basis prior to the case conference granting the applicant alternating weekend access from Friday evening until Sunday evening, one weekday evening per week and telephone contact not less than two times per week. This order was made on consent.

[5] On February 15, 2013 McLaren J. made an order that the applicant pay child support in the amount of $835 per month based on his 2011 income of $94,405. This order was also made on consent.

Conflicting Affidavits

[6] Each party swore three affidavits. In many aspects their evidence is diametrically opposed. It is not possible to reconcile the factual discrepancies at this stage of the proceeding. Similarly it is not possible to determine which version of any particular event is accurate, if indeed either version is accurate. I propose to refer to only a few of these factual discrepancies.

[7] According to the applicant, it was he who was the parent responsible for the majority of Paige’s daily routines such as preparing her meals, bathing her, doing the laundry, purchasing her clothing and reading to her. According to the applicant, the respondent only became significantly involved in Paige’s upbringing after she became unemployed in the fall of 2009. According to the respondent, she has always been the primary caregiver for Paige. According to the respondent, the applicant was busy with his employment and had many social commitments which meant that she was the parent responsible for attending to Paige’s needs including meal preparation, bathing and laundry.

[8] The parties agree that the applicant left the matrimonial home towards the end of July 2011. At that time he moved in with his mother. According to the applicant, from that time until the end of August, 2012, he saw Paige on a regular basis on his days off and they spent a great deal of time together. According to the respondent, the applicant did not spend significant amounts of time with Paige following the separation. It was only after he commenced the present action that he sought to become more involved in Paige’s life.

[9] According to the applicant, the respondent began restricting his time with Paige when she learned in August 2012 that the applicant was cohabiting with his girlfriend. According to the respondent, throughout the period from the end of July 2011 until the end of August 2012, she understood that she and the respondent were attempting a reconciliation. She was unaware that the respondent had a girlfriend until August 2012. In another affidavit, the respondent states that the applicant has had an unstable living situation since the date of the separation. She says he has moved a number of times and has been involved in a number of unsteady relationships. The applicant says he resided with his parents from July 2011 until September 2012 when he moved in with his girlfriend. He says the only relationship in which he has been involved since the separation is with his current girlfriend.

[10] Each party accuses the other of being abusive verbally in the presence of Paige.

[11] In the order made on February 8, 2013, the applicant was given reasonable telephone contact with Paige of at least twice a week. According to the applicant, the respondent has interfered with his attempted telephone communication with Paige by refusing to answer her telephone, refusing to return messages and disconnecting her answering machine so that he cannot leave messages. According to the respondent, the respondent attempts to telephone Paige when he knows she will not be available and does not call at times when he knows Paige will be at home.

[12] There are many other examples of diametrically opposed versions with respect to significant events.

Time-sharing with Paige

[13] Section 16 (10) of the Divorce Act provides that the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interest of the child. In my view this principle is of importance in the present situation.

[14] Although it was submitted that the applicant spent little time with Paige before the urgent temporary order of February 8, 2013, it seems to me to be significant that the order was made on consent providing for significantly increased time to be spent by the applicant with Paige. If the status quo were as suggested by the respondent, it would have been appropriate for her to take the position that the access arrangement then in place was what had been implicitly agreed upon by the parties for the period subsequent to the date of separation and therefore there was no urgency. The February 8, 2013 order specifically reserved the right of either party to seek to change that order on a without prejudice basis.

[15] I also find that the attitude of the respondent is reflected in a number of emails exchanged between the parties wherein she insists that the applicant promise in writing to return Paige to her at the time specified by her as a condition of allowing the applicant to see his daughter. From the emails sent by the respondent there does not appear to me to be a cooperative approach to parenting and a commitment to maximizing the time the applicant spends with Paige.

[16] There will therefore be a further temporary order to change and replace the order of February 8, 2013 providing for the applicant to spend the following times with Paige:

(a) alternateing weekends from Friday after school until Monday morning to be dropped off at school in time for the commencement of classes in accordance with the schedule in place pursuant to the order of February 8, 2013;

(b) during the weeks when the applicant is working days or nights, on Tuesdays from after school until 7 PM;

(c) during the weeks when the applicant is off work, from Wednesday after school until Thursday morning to be dropped off at school in time for the commencement of classes;

(d) on Father’s Day from 12 noon until 7 PM if Father’s Day falls on a weekend when the Paige is not otherwise with the applicant and if Father’s Day falls on a weekend when Paige is with the applicant, and her birthday falls on Father’s Day, then Paige is to be returned to the care of the respondent at 4 PM on Sunday;

(e) two non consecutive weeks during the months of July and August which weeks are to be provided to the respondent no later than June 1;

(f) from 4 PM on December 24, 2013 until 12 noon on December 25, 2013 and from 4 PM on January 1, 2014 until 12 noon on January 2, 2014;

(g) from 12 noon on December 25, 2014 until 12 noon on December 26, 2014 and from 4 PM on December 31, 2014 until 12 noon on January 1, 2014;

(h) other holidays and special days are to be reasonably shared between the parties on an approximately equal basis;

(i) reasonable telephone contact of at least two calls per week before 7:30 PM with the respondent to cooperate in and facilitate such telephone contact uninterrupted;

(j) at other times as the parties may agree with consent not to be unreasonably withheld.

[17] I have attempted to be reasonably precise with the days and times that Paige is to be with her father. I recognize, however, that due to the applicant’s work schedule some changes will be required, from time to time. With the intent of assisting the parties in making the appropriate changes to the schedule, as necessary, because of the applicant’s work schedule, I will make clear my intent in making this order. It is my expectation that Paige will spend two weekends each month with her father from Friday after school until Monday morning. It is my expectation that Paige will spend one overnight each week with her father from after school until the following morning when he is not working. Generally that day will be Wednesday, but if Wednesday is not workable because of his schedule, an alternate overnight should be arranged. Similarly, it is my expectation that when the applicant is working days or nights, Paige is to be with her father on Tuesdays from after school until 7 PM but if Tuesday is not workable, an alternate evening should be arranged. The only times when Paige will not see her father during the week will be when he is working afternoons from Monday to Thursday.

Spousal Support

[18] This was a relationship of 12 or 13 years of which period the parties were married for seven years. It is common ground that the respondent did not work outside the home from when her employment was terminated in 2009 until she began her current employment in January 2013. The respondent’s anticipated income for 2013 is $27,600. The applicant’s income for 2011 was $94,405. There is a suggestion in the Spousal Support Advisory Guidelines calculation which is an attachment to the respondent’s affidavit sworn April 8, 2013 that the applicant’s income is $99,271 but I could find no documentary evidence in the material to support that assertion. Nevertheless, I think I can infer that the applicant has received some increase in his income as a police officer for 2012 and 2013.

[19] According to the Spousal Support Advisory Guidelines calculation prepared by counsel for the respondent, using an annual income of $99,271 for the applicant, an annual income of $27,600 for the respondent and child support of $874 monthly (although the present order for child support is for $835 monthly), the suggested range of spousal support is between $948 monthly and $1689 monthly with the midpoint being $1341 monthly.

[20] I have reviewed the most recent Financial Statements provided by the parties. The applicant’s Financial Statement dated January 9, 2013 shows a monthly surplus of slightly over $2000 but without expenses for child support, spousal support or housing. The respondent’s Financial Statement dated April 15, 2013 shows a monthly deficit of slightly over $2200 but without reflecting receipt of child or spousal support. I also take into consideration that an award of spousal support will be taxable to the respondent and deductible for tax purposes by the applicant.

[21] Taking these circumstances into consideration, it is my view that an award of spousal support at approximately the midrange suggested by the calculation provided by counsel for the respondent is appropriate. There will therefore be a temporary order for spousal support in the amount of $1350 monthly commencing February 1, 2013. This order is without prejudice to either party taking the position at trial that spousal support ought to commence at a different date.

Costs

[22] If the parties are unable to agree as to the appropriate disposition of costs they may make written submissions. The written submissions of any party seeking costs are to be delivered to my office in Kitchener on or before June 14, 2013. Responding submissions are to be delivered to my office in Kitchener on or before June 28, 2013. The written submissions are not to exceed three pages exclusive of a Bill of Costs and a Costs Outline. Any relevant Offers to Settle should also be included with the written submissions.

G. E. Taylor J.

Date: May 28, 2013