Court File and Parties

Court File No.: 5231/10

Date: 20130613

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glover v. Glover

Before: Ellies J.

Counsel:
Susan McGrath, Counsel for the Applicant

Tyler Vibert, Agent for Lucia Mendonca, Counsel for the Respondent

Heard: June 10, 2013

ENDORSEMENT

1In this motion (found at v.II, tab 11, Continuing Record), Mr. Glover seeks a temporary order for custody and access in the same terms as recommended by an investigator engaged by the Officer of the Children’s Lawyer and an order varying on-going child support payments.

2Mrs. Glover argues that the recommendations contained in the OCL report should not be considered by me at this stage, although she concedes that the evidence contained in the report (which is filed in affidavit form, pursuant to s.112 (3) of the Courts of Justice Act) may be considered. For the reasons that follow, I agree.

3Based on that evidence, as well as the other affidavit evidence contained in the Continuing Record, a temporary order will issue as set out below.

BACKGROUND

4I will summarize the rather confusing procedural history of this matter so that any judge who succeeds me will not have to spend as much time as I did to become familiar with the case and so that the scope of the matters I have considered is clear.

5The parties were married on September 18, 2004. They have one child, Austin, who was born on April 6, 2009. They parties separated on November 22, 2009. Mr. Glover now resides with a new partner and her seven year old daughter in Flamborough. Mrs. Glover resides with Austin and her new partner, in Timmins.

6These proceedings began with competing motions, rather than with an application in the usual manner. Mrs. Glover sought temporary custody and child support. Mr. Glover sought to strike Mrs. Glover’s motion and to have the matter dealt with in Hamilton, which he alleged was the ordinary residence of the child. The acrimony obvious from the unusual way in which these proceedings commenced has continued more or less unabated ever since.

7The competing motions were originally returnable on August 3, 2010. They were adjourned on consent to August 30, 2010 on certain terms relating to access and child support. On August 30, the motions were dealt with at a case conference and were again adjourned on consent, to November 1, 2010. The terms of the agreement reached at that time included access arrangements to the end of October, 2010 and payment by Mr. Glover of child support in the amount of $500.00 per month, commencing September 1, 2010.

8The motions were adjourned again on several occasions, eventually being adjourned without a fixed date.

9On March 10, 2011 Mrs. Glover issued the application (v. I, Tab 12) that normally begins family proceedings such as these. But because of the motions brought earlier, there appears to have been a duplication of the various conferences required by the Family Law Rules, some being held with respect to the initial competing motions and others with respect to the application. Hence, the confusing nature of this file.

10On September 7, 2011 a settlement conference was commenced in connection with the motions. However, that conference was adjourned to September 30, on consent. The parties agreed to vary the August 30, 2010 consent order to provide for access during the months of September through to December 2011, inclusive. Access to Mr. Glover was granted generally on the basis of one week one month and two weeks the next.

11The September 30, 2011 settlement conference was again postponed, on consent, for medical reasons relating to one of the lawyers. It does not appear that it was ever rescheduled, although a trial management conference was ultimately held in connection with the motions on June 26, 2012, at which Valin J. ordered that the OCL become involved.

12The report of the investigator engaged by the OCL, dated January 23, 2013 (v.II, Tab 8), was received by the parties on or about January 25. This motion was brought shortly afterwards.

13This is actually the third motion brought by Mr. Glover seeking to vary the amount of child support he agreed to pay in August of 2010. Similar motions were brought on February 6, 2012 and on December 10, 2012. Neither one of the earlier motions appears to have been dealt with on its merits. The first was eventually adjourned without a fixed date and the second appears to have been adjourned to a case conference convened in connection with the application and does not appear to have been addressed again.

14For the sake of clarity, the order that I am making will dispose of the issues of temporary access and child support raised in all three motions.

ANALYSIS

Weight to be Given to the OCL’s Recommendations

15In a line of cases commencing with Genovesi v Genovesi (1992), 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Crt. (Gen. Div.)), it is been held that recommendations contained in a custody assessment ought to be used only at trial, and not at the interim motion stage, absent exceptional circumstances (see Medvis v. Peters, 2002, 49546 (Ont. S.C.), at para. 9; Mayer v. Mayer, 2002, 2753 (Ont. S.C.), at para. 24; Forte v. Forte, 2004 7631 (Ont. S.C.), at para. 7; Kerr v. Hauer 2010-04-06 ONSC 1995, at para. 7). This line of cases was thoroughly reviewed recently by Mitrow J. in Bos v. Bos, 2011 ONSC 3425, who concluded (at para. 23) that:

...the jurisprudence has evolved to a point that although the general principle enunciated in Genovesi continues to be well-founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

16At paragraph 26 of his decision, Mitrow J. set out some of the factors that should be considered where a court is asked to make an order regarding interim custody and access, where an assessment has been prepared, and where, as here, the court has not been asked to find that exceptional circumstances exist. These include:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b) What other evidence is before the court to support the change requested?

c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

17Based on these factors, I have concluded that the evidence contained in the report, but not the recommendations, ought to be considered at this stage. The change being proposed is significant. The assessor recommended that Mr. Glover have access for the entirety of every holiday period, in addition to on-going access. The assessor’s recommendations are based predominantly on facts already in evidence, such as the geographic distance between the parties. The recommendations made by the assessor do not involve the application of any highly specialized area of expertise, such as the recommendations of the psychiatrist whose report was at issue at Kerr. Lastly, the recommendations made in this case are highly contentious. Mrs. Glover disputed them immediately after receipt of the report. Her lawyer obtained an order permitting her to cross-examine the assessor at this motion, if necessary. However, when I indicated during the argument of the motion that I would consider only the evidence contained in the report, and not the recommendations, she determined that it was not necessary to do so.

18For these reasons, I have considered the assessor’s recommendations only as they reflect Mr. Glover’s requests on this motion. The evidence contained in the assessor’s report is not particularly significant in my opinion. It confirms what Mrs. Glover candidly admitted in her affidavit of December 5, 2012 (v. II, tab 6, para. 10), namely that Mr. Glover is capable of being a good parent. It also confirms that Mrs. Glover is a good parent, a fact that Mr. Glover never disputed. Lastly, and not surprisingly, it contains evidence that Austin enjoys spending time with both of his parents, although he seems to be a little more attached to his mother, with whom he resides.

Temporary Access

19Mrs. Glover has been Austin’s primary caregiver since his birth. Although there is evidence that Austin must go to daycare while Mrs. Glover works, the evidence with respect to Mr. Glover’s ability to be the primary caregiver is conflicting. In his affidavit of January 27, 2012 (v.II, Tab 23) Mr. Glover deposed at para. 13 that the travel restrictions he agreed to on August 30, 2010 “greatly hindered” his ability to generate income. However, he deposed in the same affidavit that he worked from home and that he was the full-time care giver to Gracey, his partner’s child. Moreover, Mr. Glover was prepared to accept the investigator’s recommendation that Austin’s primary residence be with Mrs. Glover. That is an indication that Mr. Glover believes that such an order is in the best interests of his son. I agree.

20I also agree with Mr. Glover’s position that he should be given access to Austin for one week per month once Austin starts junior kindergarten in September, which should incorporate any long weekends or professional development days during that month, so as to minimize Austin’s time away from school. Until that regular access begins, I share the view of Wilcox J. that Austin’s time with his parents should be divided roughly equally during the summer months. Just as Wilcox J. ordered with respect to the months of May and June, I order that, unless the parties otherwise agree in writing, Austin will spend from July 13, 2013 to July 27, 2013 and from August 10, 2013 to August 24, 2013 with Mr. Glover. In making this order, I have assumed that he will spend from June 16, 2013 to June 29, 2013 with Mr. Glover, in accordance with the proposed access schedule (“proposal number 1”), attached to Mrs. Glover’s affidavit sworn December 5, 2012 (v.II, Tab 6). The July dates I have set out above would allow for alternating two week periods of access. The August dates will allow Austin at least one week, if not two, to settle in before he begins school.

21Although I hope that this matter will have concluded long before then, it is my opinion that on-going access of one week per month should continue only until Austin starts senior kindergarten, at which time a further interim order will be necessary.

22I also share Wilcox J.’s view that access exchanges should take place in North Bay, and not in Huntsville. I reject Mr. Glover’s argument that his drive from Flamborough is a more difficult one than Mrs. Glover’s drive from Timmins. Once Mr. Glover reaches highway 401 or 407, the highway consists of four lanes all the way to North Bay, which is roughly halfway to where Austin resides. In contrast, the highway from Timmins to North Bay consists of a single lane, which is often a treacherous one in the winter and a dangerous one at certain other times of the year, during which large animals are on the move. While I am prepared to accept that the traffic in Southern Ontario can be heavy on Saturdays during cottage season, there are ways to minimize that problem, such as leaving early and spending a little more time in North Bay before the exchange. Unless the parties agree in writing otherwise, the exchange will take place at 1:00 p.m. at the Tim Horton’s restaurant located on McKeown Avenue, in North Bay. Given that Mrs. Glover is only able to drive on weekends because of her employment, all exchanges will occur on Saturdays, except as indicated below with respect to holiday periods.

23In my view, it would not be in Austin’s best interests for Mr. Glover to have access to him for every holiday period. As Mrs. Glover submits, this allocates all of “fun time” to Mr. Glover and all the “work time” to her. It would not be in Austin’s best interests for him to begin to differentiate between his parents along those lines. It is enough that Austin will spend every long weekend with his father. Therefore, the holiday periods will be shared equally between the parties. Unless they agree otherwise in writing, the following will apply:

a) In 2013, Austin will spend Christmas day with his father, as Austin spent Christmas day with his mother in 2012, according to Rivard J.’s endorsement of December 10, 2012. The father will have access from December 21, 2013 until December 26, 2013. If this matter is not concluded before Christmas 2014, Austin will spend Christmas of that year with his mother, and thereafter from December 26, 2014 to January 3, 2015.

b) Access during the March break will alternate each year. In 2014, Mr. Glover will have access, which will replace his weekly access for that month. Unless otherwise agreed in writing, the exchange will take place on the Saturdays that fall on either side of that week.

Temporary Child Support

24The $500 per month that Mr. Glover agreed to pay on August 30, 2010 was acknowledged by the parties to be less than the guideline amount for his income at the time (which the parties agreed then was approximately $102,000), based on an anticipated reduction in his income of between 10 and 40 percent. In fact, Mr. Glover lost his job completely in September of that year. Nonetheless, in that year he earned $86,210. Thus, his income was not reduced to the extent contemplated. In 2011, he earned $64,788 (still more than 60 percent of his stated 2009 income) and in 2012, he earned $34,632.

25It is my view that Mr. Glover is not presently earning income to his full potential. In his affidavit of January 27, 2102 he was “cautiously optimistic” that he would earn between $30,000 and $50,000 that year. However, he has managed to earn only barely above the minimum estimated. There is no evidence that he has tried to do anything other than start up his own business. During the hearing of this motion, his counsel indicated that Mr. Glover was a “stay at home father”. I agree with the submission made by counsel for Mrs. Glover that he cannot afford this luxury where he has a child to support. The support that Mr. Glover agreed to pay in August of 2010 of $500 a month is the guideline amount payable for a payor earning $55,200 per year. Given that Mr. Glover’s income between the years 2008 and 2010, inclusive, ranged from $86,210 to $124,000, I do not believe that it is unreasonable to impute to him an income earning of ability of at least $55,000 per year. If he is not able to do that by staying at home and working at his own business, he will have to leave the home to work for someone else. Therefore, the amount of on-going child support will remain the same.

ORDER

26A temporary order will issue as follows:

a) Austin shall have his primary residence with Mrs. Glover;

b) Austin shall spend alternating two week periods in the months of July and August with each parent. He will spend from July 13, 2013 to July 27, 2013 and from August 10, 2013 to August 24, 2013 with Mr. Glover;

c) In September, once he starts school, Austin shall spend one week per month with Mr. Glover, to include long weekends, where possible;

d) Austin will spend from December 21, 2013 until December 26, 2013 with Mr. Glover. Unless otherwise ordered by this court or agreed upon in writing between the parties, Austin will spend from December 26, 2014 to January 3, 2015 with Mr. Glover; and

e) Unless otherwise expressed in this order or agreed upon in writing between the parties, access exchanges shall take place on Saturdays at 1 p.m. at the Tim Horton’s restaurant on McKeown Avenue in North Bay.

COSTS

27In my view, success on this motion was mixed. Mr. Glover was unsuccessful in his efforts to have all of the recommendations of the assessor incorporated into a temporary order and to have child support payments reduced. However, the order that I have made does mirror some of the assessor’s recommendations, and therefore some of Mr. Glover’s requests. For that reason, I would think that the parties might agree to bear their own costs. However, if either party wishes to attempt to persuade me that a different result should obtain, they may make written submissions, limited to five typewritten pages, excluding attachments, as follows:

a) The applicant shall serve and file her submissions within 10 days of the release of this endorsement;

b) The respondent shall serve and file his submissions within 10 days of the receipt of the applicant’s submissions or, if none are received and he wishes to pursue costs, within 20 days of the release of this endorsement, in which case the applicant shall serve and file her submissions within 10 days of the receipt of the respondent’s submissions; and

c) The parties shall serve and file reply submissions, if any, within 10 days of the receipt of the opposing party’s submissions.

Ellies J.