ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-2622
DATE: 2013 -06-04
BETWEEN:
ROMAINE THOMPSON
Applicant
– and –
LYNN MURPHY
Respondent
Self- represented.
Martin Kenny, for the Respondent.
HEARD: May 27 – 30, 2013
T.D. RAY, J
Introduction
[1] This trial involves claims for the custody, access and child support for Justis Thompson, born May 30, 2008 by the parents. Mr. Thompson is the father and Ms. Murphy is the mother.
[2] Initially an order was made in Nova Scotia on consent dated September, 28, 2010, for shared custody of Justis. After the parties came to Ottawa, the Ontario courts became available. The order of Kershman, J., dated November 16, 2011, provided for an interim regime for custody and access so that the respondent had primary care in Arnprior, Ontario where she lived ( 9 days out of 14); and the respondent had access (5 days out of 14). The order was breached more than followed, and on February 17, 2013, Master MacLeod ordered that the order remain in effect.
[3] The parties were never married, but Justis was conceived in 2007 while they were living together in Halifax, N.S from 2004 until 2008. The relationship has been marked by fractiousness, moves between Ottawa and Halifax, periods of estrangement, and periods of reconciliation, finally ending in July, 2012 when the applicant moved back to Halifax, and the respondent remained in Ottawa. The applicant, a career officer in the Canadian Armed Forces is now married to a fellow officer who he met in Ottawa in June 2012. They live in Windsor, N.S. with her 4 year old son by a previous marriage and see his 13 year old son, Brandon, by a previous relationship every second weekend.
The Applicant
[4] The applicant’s up to date income for 2012 was $105,894.00. His evidence was devoted exclusively to portraying their relationship as unworkable because the respondent was uncooperative and unreliable in the dealings between him and Justis. He said that the respondent was continually engaged in harassing behaviour when they were not living together; such as repeated phone messages, and parking outside his house. He said she was verbally abusive to him and his family.
[5] He described a period when he took over the care of Justis because she said she couldn’t deal with him, and he brought Justis to Ottawa with him at the respondent’s request. But then Justis returned to his mother when she moved to Ottawa from Halifax. The applicant’s career is demanding. While he said he attempted to accommodate Justis, his career demands clearly had priority. He said that when he and the respondent began living together, “it was understood that he was a career officer in the Forces and that his career would prevail”. Over the past several years he has had a number of different postings and travel commitments.
[6] The applicant said that in June, 2012, the respondent told him she was going to return to Halifax. As a consequence, he made arrangements to be posted to Halifax, but then he said, she reneged and didn’t move to Halifax.
[7] The applicant wants an order for custody of Justis and an order that he be permitted to remove Justis permanently to Nova Scotia. He only called one witness, the supervisor of the day care, but no witness to show the respondent to be unsuitable to have custody. The applicant’s evidence concerning his new wife (since February, 2013) was begrudging. He seemed to fail to understand the importance of evidence of someone with whom he is living being an important issue in this custody contest. The applicant’s wife purchased and owns the home in which they live. His failure to file an up to date financial statement, but only a draft of one prepared in February, 2013, showed no contribution to the family household expenses.
[8] The applicant filed a number of emails between himself and the respondent that he said showed shared custody had been working until the respondent decided not to cooperate any more.
[9] Susan Boudreau, the manager of the Sandy Hill day care where Justis had been staying gave evidence that the applicant appeared to be a good parent, and had provided adequate clothing for Justis. The applicant also paid the day care costs of approximately $1,000 per month. She said that Justis seemed quite happy with both of his parents. She agreed that she had received communications and emails from time to time from the respondent that she was moving back to Halifax – but in fact never did. A shouting match with the respondent caused Ms. Boudreau to terminate the arrangement for Justis.
The Respondent
[10] The respondent is 35 years old and lives alone with Justis in an apartment in Ottawa. Justis is in kindergarten plus pre and post school care. The nursery school costs $27.05 per day and the pre-after care costs $622 per month. She is employed doing secretarial/administrative work and earns $40,000 per year. She was educated at the University of Prince Edward Island and received a college diploma in payroll administration. She described that she met the applicant at a wedding in August 2004, and after dating for 2 years, she gave up her job as a restaurant supervisor and moved to Halifax with the applicant. The applicant bought a house and she lived there with him. She said she obtained employment as an executive assistant at St Mary’s University, and then in 2007 discovered she was pregnant. Justis was born May 30, 2008. She said that she was always the primary caregiver concerning medical appointments or sickness by Justis because the applicant was always so busy. He worked all the time. In January, 2009 they separated and she moved into an apartment. The applicant remained in his house. They divided their time with Justis.
[11] Throughout 2009, she said they made various attempts at reconciliation including mediation. She started an application in September 2009, and the reconciliation efforts continued. September 28, 2010, a consent order for shared custody was made by the Supreme Court of Nova Scotia.
[12] In October, 2010, after the applicant had been posted to Ottawa, she said that she and the applicant had agreed that she would move to Ottawa with Justis. She said he told her that that he was coming to Ottawa to work. The applicant went ahead with Justis; and the respondent followed him to Ottawa January 4, 2011. She stayed with the applicant until January 15, 2011 when she moved into an apartment in Gatineau. She said that after that, they resumed the shared custody arrangement and she stayed at his apartment on weekends where they slept together. The respondent had obtained employment shortly after her arrival doing secretarial/administrative work through a temporary help agency. The respondent was paying the day care costs. She said that during 2011, the applicant was in Afghanistan for 6 weeks, and she thought Germany as well.
[13] The year 2011 was marked with a lot of activities with Justis and the two parents. These included camping trips, and social activities. She thought they were working at reconciliation, and that things had been going well. In October, 2011, she learned that the applicant was dating. She had thought there was chance of reconciliation; and when it appeared that was not going to happen, she asked him if she could move back to PEI or Halifax where his family and her family was located. She said she really didn’t know anyone in the Ottawa area. The applicant refused and told her that she could be charged with child abduction. He said she could leave but not with Justis. The threat of abduction caused her to “put the brakes on”, and so she filed a claim for custody. The parties were by this time quite estranged, and she said the applicant was not seeing Justis. Her suggestions about a drop off for Justis were rebuffed. Finally, a consent order was obtained from Kershman, J. dated November 16, 2011 that provided for shared custody- the applicant with Justis 5 days out of 14, and the respondent 9 days out of 14. They ran into a disagreement over the Christmas access. She had refused to permit him to have Justis for more than approximately 6 hours on Christmas Day because Christmas fell during her nine day period. The order provided that he would have access at Christmas.
[14] In the spring of 2012, the issue of relocating to Halifax came up again. She felt less prepared to move. She said her finances were depleted, and she had bought several large appliances, and had moved to Herongate in Ottawa. She said that Justis has friends in the area and seems happy. She appeared inconsistent as to her intentions to move back to Halifax, but said that she had decided not to move.
[15] The respondent said that since the applicant moved back to Halifax in June, 2012, he has not seen Justis very much, and has either ignored her offers of time when she has been in Halifax – or not utilized the time to see Justis when here in Ottawa. For example, she said the applicant has not seen Justis since he arrived for this hearing.
[16] The respondent called Major Doucette, the applicant’s career manager who said that according to his records, the applicant was posted to Ottawa August 16, 2010 to the Chief of the Land Staff (Army); on July 25, 2011 he started a one year French course; and on June 15, 2012 he was posted back to Halifax.
Analysis
[17] In considering the competing claims for custody of Justis, who is now 5 years old, I am obliged to consider only the best interests of Justis. I must be guided by the principles in section 24, Children’s Law Reform Act,[^1]as follows:
(2) The court shall consider all the child'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 or access to 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 lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child 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 of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person's past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).
[18] The relevant considerations:
a. Love, affection and emotional ties: The evidence is that both parties are in an equal position. Both have strong emotional ties to Justis, and are the exclusive family members with emotional ties to him.
b. Length of time in a stable environment: Justis has been primarily with the respondent during the last 12 months and has been in the same location for the past 8 months. At his age, this factor is not deserving of too much weight. Justis could just have easily moved to Halifax a few months ago and been in the same position as he is now.
c. The ability and willingness of each party to provide for the child: I consider the parties to be in similar positions. Neither party suggested the other to be inadequate or wanting as a parent. Both played a significant and meaningful role in the child’s life. I must add that the applicant demonstrated in his evidence to be primarily committed to his career with long days and travel commitments from time to time. He also has commitments (coaching his eldest son’s football team) to his eldest son which at Justis age, would conflict with his time with Justis. On the other hand the respondent’s career is a 9 to 5 obligation. Over the shared time with Justis, the respondent spent more time with Justis. The order of Kershman, J., which incorporated their Minutes of Settlement, formalized their respective time with Justis at 9/14 for the respondent, and 5/14 for the applicant – almost 2:1 as between them. This was a consent order.
d. The plan proposed by each person: The plan described by the respondent is really the present situation insofar as schooling and home is concerned. The applicant lives in an adequate home close to schools and parks. I am somewhat concerned at the lack of information concerning the applicant’s wife and son, who if I were to accept his position would form the household in which Justis would live. The applicant did identify his wife and wife’s son as being the family. The respondent says she is not involved with any other person. Both are permanent and stable family units.
e. The ability of each party to act as a parent: The evidence of both parties was preoccupied with problems between them in their relationship. However, the respondent concerned me with her apparent lack of willingness to be flexible. I found her position with the applicant at Xmas in refusing to be flexible an example of poor parenting. Similarly, the evidence that she had announced that she would move wherever she wanted showed a disregard for Justis’ need to maintain a relationship with his father. In fact she had no other connections that would make sense. I found her intransigence concerning the move to Halifax to be a further example of putting her wishes ahead of Justis’ best interests. In fact she had no connection or link to Ottawa to cause her to stay here. I found her reasons for staying here to be disingenuous. The applicant got trapped into moving to Halifax because she had threatened to move there, but then began to back away from what she had said. The only reason he sought a posting to Halifax was because he thought the respondent intended to relocate there – closer to her family and friends. On any other basis, he considered the Halifax posting not to be in his interests. Now he feels stuck there. When asked if he could post back to Ottawa, he said he was concerned that the respondent would then move back to Halifax. I found these issues demonstrable of the applicant’s clear ability to parent; whereas I was left with serious doubt concerning the respondent’s willingness to exercise her parental obligations to support Justis’ relationship with his father.
f. Past conduct: I did not find the history and past conduct of the parties helpful otherwise than I have already described.
g. Mixed Race Issue: Justis is of mixed race since the applicant is black and the respondent is white. This in an important issue for Justis and requires that he continue to enjoy a relationship with his father, and a role model of the same race. I give this factor importance because of its unique value to Justis in our multi-cultural society.
[19] In making my order, I have broad powers to accomplish the best outcome possible for Justis.[^2]
[20] In making my order, subject to my comments above, I consider that both parties are good parents, and both have demonstrated their ability and willingness to parent. Both parents told me they would keep the other fully informed concerning their education, school and health matters.
Conclusion
[21] As a consequence I order joint or shared custody in favour of both parties in order to ensure that neither party attempt to exclude the other from Justis’ life. The respondent will be the primary care-giver and will keep the applicant fully informed concerning Justis. If written consents are necessary to give effect to this provision then the parties will execute whatever is required.
[22] Because of my concern at the respondent moving, I order that she not move with Justis from her current residence unless she has the consent of the applicant. Otherwise, she will require an order from this court and will need to demonstrate that unless she intends to move closer to the applicant to make his access easier, she will need very persuasive evidence that the move is in Justis’ best interests.
[23] The applicant will be entitled to access as often as possible, and I urge the respondent to facilitate his access. In addition I order that they alternate years for their vacation or holiday access rather than dividing the various holidays.
a. 2013 – July or August at the applicant’s option. He needs to advise the respondent by June 10, 2013. The respondent will then have Justis for the other month. 2014 will be the same. In other words, the applicant will always have first choice, but will have to advise the respondent by March 1, 2014 and each year thereafter.
b. 2013- Thanksgiving weekend- the applicant, and in 2014, the respondent;
c. 2013- November 11 plus the days in between and including the closest weekend, to the respondent, and in 2014, the applicant;
d. 2013- Christmas Eve- from 10am until January 2, 2014 at 5pm to the applicant, and in 2014, the respondent;
e. 2014- Easter week- Day before Good Friday at 6pm until Easter Monday at 7pm to the respondent, and in 2015 the applicant;
f. 2014- Justis’ Birthday - May 29, at 6pm until May 30 at 7pm to the applicant and in 2015, the respondent.
[24] The above provisions will likely have to be modified from time to time to accommodate the parties as well as Justis’ schedule once he starts school. However I trust that the spirit of the foregoing will be retained and respected by the parties as one would expect of good parents.
[25] The applicant will pay support and secure the support to the respondent for Justis commencing June 15, 2013 as follows:
a. $775 per month plus day care expense of $154 per month, and the respondent will have the benefit of the child care deduction. The shared section 9 expense takes into account the respondent’s income of $40,789. This assumes his income of $107,928 including his PLD. While this is below the table amount, I am taking into account the travel costs the applicant will incur and for which he will be responsible. I consider that on the evidence in this case it is crucial for Justis, that the applicant be able to exercise his access;
b. The applicant will assign or designate irrevocably security in the form of a life insurance policy at least $190,000 for the period that he is obliged to pay support. In the event that the policy lapses or there is no insurance in place then there will be a first charge against the applicant’s estate.
[26] The respondent seeks arrears of support for 2011 and 2012. The applicant has never paid support for Justis. He did pay the day care expense, and has continued to do so. The applicant is to pay arrears of child support fixed at $17,424 calculated as follows:
a. 2011 arrears of $6,828. This is based on $569 per month (the applicants income at $102,696, and the respondent at $37,594) while they had shared time with Justis, and minus what the applicant paid for the day care;
b. 2012 arrears of $10,596. This is based on the applicant’s income of $105,888, and the respondent’s income of $41,878. There was not much shared time with Justis. Any reconciliation had failed. The arrears include the table amount of $883 per month, minus the applicant’s day care costs that he paid.
[27] If I have made an error in my calculations, the parties may send a written submission with a copy to the other party. If I hear nothing for 20 days, then I will assume the calculations are correct.
[28] As for costs, once the 20 day period has passed, the parties have a further 14 days to provide me with their costs submissions of 2 pages or less, copied to the other party, and a further 5 days for reply.
Honourable Justice Timothy Ray
Released: June 4, 2013
COURT FILE NO.: FC-11-2622
DATE: 2013 -06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROMAINE THOMPSON
Applicant
– and –
LYNN MURPHY
Respondent
REASONS FOR JUDGeMENT
Honourable Justice Timothy Ray
Released: June 4, 2013
[^1]: Children’s Law Reform Act, R.S.O. 1990,c.12,as am.
[^2]: Note 1, section 28