COURT FILE NO.: 4432/12
DATE: 2013-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Suzanne Nicole Weaver
Applicant
– and –
James Robert Simonics
Respondent
Counsel: Michael S. Stratton, for the Applicant In Person
HEARD: June 11, 12, and 13, 2013
the honourable justice c. a. tucker
reasons for judgment
Background:
[1] Ms. Weaver is 34 years old and Mr. Simonics is 43. They never married. They began to reside together in 2003. They separated for the first time in 2006 and reconciled in 2007. They separated again in July of 2010 and have not resumed cohabitation.
[2] They have two children, Noah, born March 2005, and, Evelyn, born September 2008. There is no dispute that Ms. Weaver and Mr. Simonics are the biological parents of these children.
[3] They purchased a home as joint tenants located 31953 Feeder Road in Wainfleet on September 30, 2005.
[4] The separation occurred after Mr. Simonics said the relationship was over and assaulted Ms. Weaver. This led to a no contact prohibition between the parties after the respondent pled guilty to the charge.
[5] After separation the respondent had no access with the children for several weeks, then had some visits arranged through his sister and then access was terminated by the applicant. Access was re-established in May of 2012 by court order and has been expanded to a point where Mr. Simonics enjoys visits with his children every other weekend and for a few hours in the evening after school a day every other week.
[6] Ms. Weaver has paid the mortgage, insurance, taxes, utilities and all other expenses on the jointly owned home since the parties separated. The property has been listed for sale and is partially rented out. Ms. Weaver lives with her parents and the children in Niagara-on-the-Lake. Mr. Simonics lives in Welland.
THE ISSUES
(i) What parenting arrangements are in the best interests of Noah aged eight and Evelyn aged four? "The Parenting Arrangements"
(ii) What child support should be paid by the respondent and what should be its commencement date? "Child Support"
(iii) Should the children have passports? "The Passports"
(iv) What should be done with the parties' jointly owned property? "The Property"
(v) Is Ms. Weaver entitled to be repaid one-half of the costs of the loan she incurred to roof the couple's home? "The Roof"
(vi) Is Ms. Weaver entitled to be repaid $10,000 that she gave to Mr. Simonics during cohabitation on account of credit card indebtedness? "The $10,000 Payment"
(vii) Should there be a mutual restraining order? "Restraining Order"
(viii) Should Ms. Weaver be allowed to move out of the Regional Municipality of Niagara with the children? "Mobility"
(ix) Is Mr. Simonics entitled to occupation rent for the home given that for some time Ms. Weaver resided there and collected rent from a tenant who rents part of the home? This claim was withdrawn at trial by Mr. Simonics given that all the costs of the property were paid for by the applicant since separation.
I will deal with the issues in the order set out above.
THE PARENTING ARRANGEMENTS
[7] Ms. Weaver seeks sole custody of the children while Mr. Simonics seeks joint custody with the children residing with their mother.
[8] During the trial it became obvious that the only child-related issue for the court to decide was whether a sole or joint custody order should be made. Access was agreed to by the parties during their evidence and their submissions.
[9] Accordingly, on consent of the parties, I order that the children shall enjoy effective immediately:
(1) (a) Alternating weekends with their father from Friday after school to Sunday at 6:30 p.m. to be extended to Monday at 6:30 p.m. if it is a holiday weekend except for Easter weekend and Thanksgiving Day weekend;
(b) One evening each week with their father from after school to not later than 6:30 p.m. unless the children are not in school, then beginning from a time earlier in the day mutually agreed between the parties and ending at 6:30 p.m.;
(c) Equal sharing of their parents on Easter weekend and on Thanksgiving Day weekend;
(d) Alternating Christmas Eve and Christmas morning between their parents and an equal sharing of time with each parent for the rest of the Christmas school break;
(e) Fourteen days of summer vacation with each parent as mutually agreed between the parties, which may be taken on non-access weekends or on non-sequential weeks by either party.
(f) Reasonable and liberal telephone access to either parent when they are not in that parent's care provided that such access shall be completed before 7:00 p.m.
(g) Such further and other times as the parties may agree.
(2) (a) The respondent is to be responsible for the pickup and drop-off for all access visits at a place designated by the applicant.
(b) Both parties shall have the right to receive complete and detailed information with respect to the children's education, medical care, dental care and other pertinent information involving the children's religious instruction and health and welfare. This shall also include the right to receive school report cards and hold interviews with the children's teachers, schools, summer camps, coaches, instructors, health care workers or other institutions the children may attend or become associated with in any way and each party shall be equally entitled to communicate with such persons or institutions.
(c) Each party shall provide the other with copies of all notices or reports concerning special activities which the children are engaged in upon receipt of such notices or reports. If one party receives oral notice of any special activity, that party shall also inform the other party of such activity as soon as possible.
(d) Both parties shall have the right to be fully informed of and to attend any extra-curricular activities involving the children such as, but not necessarily limited to, sporting and recreational league events, pageants, cultural and religious activities, school programmes, important social events, award ceremonies and concerts. If a parent attends the children's activity on a non-access day they shall not interfere with the children and shall attend as an observer only at such activity.
[10] I turn now to the custody issue. It is the mother's position that the children are happy, healthy, and doing well in school. I find that she has been the primary parent throughout her children's lives arranging schools, medical and dental visits for them and providing financially for them and their day to day care with the assistance of her family since separation
[11] The father points out, and the mother agrees, that he did provide care for the children when the mother worked or attended school during their cohabitation and that she had no concerns with their care.
[12] The mother sought counselling for the children including Layne, her son from an earlier relationship, now aged 12, as she was concerned about their fears and upset, behaviours which she attributed to the children observing the parents fighting prior to the separation. Layne, at the present time, has moved from his mother's residence to reside with his biological father. She believes that the children benefited from the counselling and they have no issues now. Mr. Simonics testified that he was the parent who tried to take the arguments away from the children's presence.
[13] Ms. Weaver acknowledges that the children, Noah and Evelyn, enjoy their time with their father but do not ask for him during non-access times. She also stresses that she and the respondent cannot communicate at all rendering joint custody difficult if not impossible. She says she restricted and terminated access because of Mr. Simonics threatening behaviours and the no contact order. The police have been called on a number of occasions to address the issues between the parties but there was no evidence of any other charges being laid in connection with these reports other than the initial assault.
[14] Mr. Simonics described his love for his children and says that the time period that he was separated from them as the worst time in his life. He says he suggested mediation in the fall of 2012 and did retain two different lawyers to assist him with the separation issues. He said his mediation request was rejected and he could not afford a lawyer for trial.
[15] I find that Ms. Weaver started the present action in the spring of 2012. In other words, Mr. Simonics did not bring forward a formal court request for access notwithstanding that he had little or no access since July of 2010 to his children.
[16] I would also note that despite Mr. Simonics love for his children, he paid no significant child support for the last three and one half years. Perhaps, he said, $500 which amount was not disputed by Ms. Weaver. During this same time period, Ms. Weaver was on a very limited income paying all the costs of the house and all the expenses of the children. I acknowledge Ms. Weaver has had the assistance, financial and otherwise, of her parents since separation, but Mr. Simonics' lack of financial support for his children leads one to conclude that although he may love them he is not prepared to pay for their essential needs. He even has failed to pay the May 2012 court ordered child support. During this same time period, I find that all the home expenses were paid by Ms. Weaver. Mr. Simonics is also willing for Ms. Weaver to be the primary parent with the day to day responsibilities of the care of his children while he enjoys weekend access without even financially supporting the needs of his children.
[17] The respondent questions the applicant's decision to deprive him of their children. He testified that if the situation was reversed he would never have deprived her of seeing their children.
[18] The respondent questions Ms. Weaver's decision making ability citing the roof repair, discussed later, as an example of what he described as a "bad" choice. He questions her credibility in putting forth an "estimate" as a repair bill suggesting kickbacks and other subterfuges without any evidence of either.
[19] The parties, according to the respondent, have been able to communicate better since last fall as the court date of trial approached.
[20] Ms. Weaver describes Mr. Simonics as manipulative. She said he agreed to sign the listing agreement if he got overnight access, for example, so she agreed to overnight access but he still failed to sign the listing agreement for almost three months. I must find, to be fair, that he may have felt that "blackmail" was the only way he could get overnight access without a court application but that fails to explain why the listing agreement was not signed. I do not understand why overnight access was not facilitated prior to that time.
[21] The respondent says that the applicant failed to tell him when the children were baptized, and she acknowledged that as a mistake for which she was sorry. The applicant did not provide the respondent with report cards and other information but the respondent also acknowledged that he did not seek out this information himself directly from the school or medical personnel. He said he was sure he would be refused.
[22] The parties agree with most major decisions for the children at this point: that the children's name not be changed from Simonics, that they are raised Roman Catholic, and that they attend a separate school in Niagara-on-the-Lake. The father has no objection to the children's doctor or dentist. both of which have been selected by the mother.
[23] Ms. Weaver condemned the attitude of Mr. Simonics citing his failure to sign the listing agreement; to contribute to the expenses of their jointly owned home since separation; to put a motor vehicle owned by her in his name or to put insurance on it; and, his failure to sign the children's passports even when, according to her, he knew that this prevented the children from enjoying holidays in Florida and Cuba. He denies that he knew the children had travel plans when he refused or neglected to sign the passports. Frankly, I do not find it credible that the eight-year-old, Noah, would not tell his father about a proposed trip to Florida.
[24] At trial, Mr. Simonics said he would sign the passports but he did not do so during the three day trial. He also testified that he did not object to the passports being issued for the children as long as he was given "equal" opportunity which I understand would be equivalent access. For example, if she took the children to Florida for a week and it impacted upon his weekend, he would be given "makeup" time and a chance to take the children for a week of his own. He was quite strident about being given "makeup" time for any missed access.
[25] If we examine the factors and the case law that tries to assist us in determining the best interests of the children, we always find that the cases are fact driven. Here, the mother has been the primary parent for all of the children's lives and the sole parent de facto for the last three years of their lives. Evelyn was only one when the parties separated.
[26] Mr. Simonics wants to be involved but is willing to allow Ms. Weaver to be the primary parent and to pay all of the costs of raising a child while he enjoys weekend access. I find that the children are happy, healthy, and well adjusted. There is no evidence to the contrary. The children enjoy spending time with their father.
[27] I do not agree that Ms. Weaver makes bad decisions that involve her children's well-being. I find she appears to carefully consider their well-being and their future plans in her decision making.
[28] Although communication has improved and access has been stabilized, it was clear during the court proceedings that the parties still show a great deal of hostility towards each other which can only result in bad communication. This was demonstrated by verbal attacks by Mr. Simonics on Ms. Weaver during his cross-examination as to her child-rearing abilities and her verbal and non-verbal responses not only to his questions but also to his testimony. The situation may change in the future but the listing agreement issue and the passport issue both provide examples of a very dysfunctional relationship.
[29] Accordingly, on all the evidence I have before me, I find that it is in the best interests of the children, Noah and Evelyn, to be in the sole custody of their mother enjoying access visits with their father.
[30] Ms. Weaver shall consult with Mr. Simonics about every major decision concerning the children; for example, choice of schools, doctor, dentists, or health care issues but she shall have the final decision making on all such decisions.
CHILD SUPPORT
[31] Mr. Simonics failed to pay child support even after a consent court order was made last May by Justice Maddalena. He said he had paid $500 in total since July of 2010. He has worked since separation at a variety of jobs including last year, which was learned only during the trial, as neither his T-4 slips nor his 2012 income tax return were filed prior to the trial. During the trial some T-4 slips were produced.
[32] Mr. Simonics worked in 2011 at "He's Not Here", a bar, as a cook which employment continued until May 2012. He began working at Kent & Company which employment continues to today. He failed to provide adequate income information. We know he earned $25,056.09 in 2010 and $28,562.00 in 2009. From the information, scanty and difficult as it was, I find he earned income from a number of sources in 2011 and 2012 including a bar, "He's Not Here", and Kent & Company and catering. From his evidence the total amount of income is in the $25,000 to $26, 000 range.
[33] It appears that the respondent's income since separation has been in the $25,000 - $26,000 range. Child support on $25,500 for two children would be $373 a month.
[34] The date of formal demand for child support was March 1, 2012. I find child support is for the benefit of the children and it should have commenced August of 2010. However, given the limited means of the parties, I do not wish to create a burden which can never be lifted. Accordingly, I order child support to commence August 2011 in the amount of $373 per month. Accordingly, the total owing as at today is $8,952 less the $500.00 he has paid, or, $8,452.00. This amount shall be paid from the respondent's share of the proceeds of the house. This order varies the previous order of Justice Maddalena in relation to child support. The ongoing support shall be paid monthly in the amount of $373 commencing August 1, 2013 and should be enforced by FRO together with the arrears. The special expenses shall be paid proportionately to the parties' income. I find the respondent's income to be $25,500 and the applicant's income to be $23,283. Although the respondent argues the applicant could obtain better employment, she testified as to her attempts and failure to find other work which I accept. The parties shall exchange income tax returns and notices of assessment by July of each year and shall adjust the child support accordingly.
PASSPORTS
[35] There is absolutely no reason for the children being deprived of the opportunity to travel. Mr. Simonics shall execute and deliver to Mr. Stratton's office both passport applications for the children within 14 days of the release of this decision failing which the execution of such documents by the respondent shall be dispensed with.
[36] The passports shall remain with the applicant but provided to the respondent if he wishes to travel outside the country with the children. Upon 14 days request of the same, both parties shall give written notice to the other of any travel plans in excess of six days outside Canada with details of date of departure and return, contact information and accommodation details, and the country the children will be visiting.
THE PROPERTY
[37] At trial, Mr. Simonics agreed to sign a new listing agreement with a reduced purchase price of $219,900. The property has been on the market for some time without any acceptable offers. I find it is to both parties' benefit that it be sold as soon as possible.
[38] Mr. Simonics only agreed to the reduced price at trial and I find, given his pattern of delay in this regard as evidenced by Ms. Weaver and that of the real estate agent; accordingly, I order that if the new listing agreement is not executed within 14 days of my decision being released that his signature shall be dispensed with on the same.
[39] A shorter time period shall apply to the execution of any documents necessary to effect an agreement of purchase and sale or to complete such transaction. If, within 14 days of written request, Mr. Simonics refuses or neglects to execute any document, including the deed, his signature shall be dispensed with. From the sale of the home the necessary expenses will be paid and the net proceeds will be allocated equally to the applicant and respondent. From the respondent's portion of such monies, I order the one-half cost of the roof loan discussed below shall be paid together with child support arrears.
THE ROOF
[40] Ms. Weaver testified that the roof was leaking on the couple's jointly owned property prior to the couple's separation and that pails had been put under the leaks. Mr. Simonics was ambivalent about the leaking problem being a pre-separation issue but I accept Ms. Weaver's evidence in that regard.
[41] Post separation, while she was still residing at the home, there were more problems with the roof resulting in her bedroom being flooded and the ceiling in one room caving in. She tried to find someone to do the work. Mr. Simonics said that he could have helped to do the work or found someone to do it but he was not consulted.
[42] Ms. Weaver testified that she tried several people before she was able to get True Renovations to attend and provide an estimate of the cost of repair which she gave in evidence as the repair bill.
[43] Mr. Simonics questions the bill given that he cannot contact the roofing company by phone, and that it is said to be an estimate, and that it amounts to almost $18,800. He suggests that perhaps Ms. Weaver made a "side" deal and got cash back from the payment although he does not dispute that the monies were paid. He provided no evidence as to a "proper" value to repair the roof only his personal belief that it could have been repaired more cheaply if he had been consulted.
[44] This is a 100 year old, 4,000 square foot, house. According to the estimate, the materials alone costs over $13,000. I see no reason to dispute the amount claimed by the applicant. She explained that the monies in excess of the actual bill of $18, 800 used from the $20,000 line of credit that she took out to finance the repair were used to redo the ceilings and other portions of the house damaged by the leaks.
[45] To finance the repair cost of the roof, Ms. Weaver took out a $20,000 line of credit which was guaranteed by her father. She seeks the respondent to pay one-half of this loan including interest and that the same be paid out of the proceeds of the sale of the home.
[46] I find that she will be entitled to repayment of one half of the costs of the loan she incurred to repair the roof. The value of the home would have decreased without such necessary repairs. I further order that this half payment of the line of credit being $10,000 plus interest from the time of loan was incurred until it is repaid be made out of the respondent's share of net sale proceeds from the home. If there are not sufficient funds to do so, the balance of payment shall be made by the respondent from his own funds.
THE "$10,000 PAYMENT"
[47] The applicant claims repayment of two $5,000 payments that she made by taking advances on her credit cards to repay the respondent's credit cards. In the request to admit, the respondent does not dispute this advance. At trial, he pointed out, and his evidence was not contradicted, that during the entire time the parties co-habited in the home from in or about December 2003 to the date of separation in 2010, he paid the mortgage which included the property taxes and other bills arising from the home.
[48] These parties acted in "partnership" during their cohabitation and their financial arrangements other than as I have just noted were not explored or explained in the evidence. I do not know what payments each party made other than as noted above. Neither party sought an accounting of the couple's financial affairs and it is would be wrong, I find, to isolate two transactions, in this case the $5,000 payments, and find that one party benefited to the other party's detriment. I am not willing or able, nor do I feel it is appropriate, to order repayment without a complete audit of all payments made by both parties during their relationship. Accordingly, this claim of the applicant for repayment of $10,000 is dismissed without prejudice to the parties seeking a full accounting of all their financial affairs during their cohabitation.
RESTRAINING ORDER
[49] I do not find on the evidence I heard for a need for a restraining order. The only evidence of physical assault occurred over three years ago, although Ms. Weaver claimed that the respondent's behaviour was verbally abusive and his language threatening. There have been no charges since the parties' separation involving threatening behaviour between these two parties. The only contact is the pick-up and drop off which will not occur at either party's residence. I find there is no need to impose a restraining order in the circumstances. These parties need to get beyond their own concerns and focus on the growing needs of their children.
MOBILITY
[50] Ms. Weaver proposed that she may want to move from the Regional Municipality of Niagara for work in her field but provided no specifics or details of employment opportunities.
[51] I agree with Mr. Simonics that there appears to be no reason for such a move at the present time as no employment offers have been made.
[52] The children have extended family including their maternal grandparents with which they reside, their maternal aunt, as well their paternal aunt, and their father here in Niagara. The children have been moved and changed schools once since the separation of their parents. They do not need further disruption in their very young lives.
[53] Accordingly, I order that the applicant cannot move from the Regional Municipality of Niagara with the children without the written consent of the respondent or a court order allowing her to do so.
COSTS
If the parties are unable to agree upon costs, I may be spoken to.
Tucker, J.
Released: July 4, 2013
COURT FILE NO.: 4432/12
DATE: 2013-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Suzanne Nicole Weaver
Applicant
and
James Robert Somonics
Respondent
REASONS FOR JUDGMENT
Tucker, J.
Released: July 4, 2013