ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-5110
DATE: 2013-01-21
B E T W E E N:
Lindsey Margaret Chapates
Stephen Lundin for Applicant
Applicant
- and -
Derek Ronald William Hamilton
Greg Welch for Respondent
Respondent
HEARD: January 16, 2013 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons on Motion
INTRODUCTION
[1] The applicant, Lindsey Margaret Chapates (the ”mother”) has brought this motion seeking a temporary order for custody of the child Aubrey Holly Hamilton (“Aubrey”) born December 29, 2008, with specified access to the respondent, Derek Ronald William Hamilton (the ”father”). In the alternative, the mother seeks a temporary order that Aubrey reside primarily with her and that she have primary care and control of Aubrey, with specified access to the father.
[2] The mother also asks for a temporary order for child support, pursuant to the Child Support Guidelines based on the father’s 2012 total income together with a proportionate contribution to her s. 7 expenses, being day care expenses only at this time.
[3] Finally, the mother seeks an order requiring the father to maintain the mortgage, utility, real property tax and insurance payments on the jointly owned residence until sold and further requiring him to clean the home for the purposes of sale.
BACKGROUND
[4] The mother and father began to live together in February 2005. Aubrey was born on December 29, 2008. In July 2011, the mother advised the father that she wished to end their relationship. The mother and father then lived separate and apart in their jointly owned home until December 17, 2011. At this time, the mother left the jointly owned home with Aubrey and found rental accommodation. The father has remained in the jointly owned residence since that time.
[5] The mother began this application in January 2012 and was self-represented until December 2012. A Case Conference held March 26, 2012 resulted in a consent Temporary Order for the listing and sale of the home and for reciprocal financial disclosure. The mother was also given leave to bring a motion for temporary child support.
[6] The evidence on this motion suggests that Aubrey resided primarily with the mother during the early part of 2012, with the father exercising what access he was able to arrange. The father alleges the mother was uncooperative in regard to access during this period of time, in an attempt to establish herself as the primary care parent.
[7] In the spring and early summer of 2012, there were two developments. The mother brought a motion seeking temporary and retroactive child support, a contribution to her day care costs for Aubrey and temporary spousal support. The parties also entered into a “Proposed Sharing Plan”, establishing a three month interim “custody schedule” on a 2-2-3 rotation beginning May 1, 2012 and ending August 1, 2012. This agreement was prepared by the mother and signed by both parties in May/June 2012. Despite the fact that this agreement has expired, care of Aubrey is still being shared as of the date of this motion, according to its terms, more or less. The terms of this agreement have not been made the subject of a temporary order.
[8] The mother’s motion was resolved on consent, resulting in the Temporary Order of The Honourable Justice Shaw dated July 5, 2012. This order set out the current incomes of the parties and required the father to pay to the mother temporary child support and s. 7 day care expenses in the amount of $519.00/month beginning May 1, 2011. The order expressly acknowledged the shared temporary custody arrangement in place as a result of the parties’ earlier agreement. This order also set arrears for child support and s. 7 expenses for the months of January to April 2012 inclusive at $2,500.00.
[9] The July 5, 2012 support order is being enforced by the Family Responsibility Office in regard to both arrears and ongoing child support. The mother’s affidavit of December14, 2012 alleges that she received no support pursuant to this order until she received the amounts of $348.50 from the FRO on November 30, 2012 and again on December 4, 2012. These allegations were not disputed by the father. The father has entered into a payment agreement with the FRO which requires him to pay arrears at the rate of $175.00/month in addition to ongoing child support.
[10] The jointly owned residence remains occupied by the father, who is making the mortgage, utility, real property tax and home insurance payments. It is listed for sale with a list price of $199,000.00.
[11] At a second Case Conference held January 7, 2013, a consent order was made requesting the Office of the Children’s Lawyer become involved to conduct an investigation into the issues of custody and access and to report and make recommendations to the court.
POSITION OF THE APPLICANT
Temporary Custody
[12] In her evidence on this motion, the mother alleges that she proposed the temporary shared custody arrangement that is currently in place in an attempt to determine if the father was genuinely interested in and capable of co-parenting Aubrey or if his motive in pursuing same was to reduce his child support obligation.
[13] The mother further alleges that the “2-2-3” division of custody and primary care and control of Aubrey is simply not working and that continuing any form of shared, joint or co-parenting arrangement, even on a temporary basis, is contrary to Aubrey’s best interests. The mother alleges that she and the respondent cannot effectively communicate or cooperate when it comes to Aubrey’s needs. The current schedule is suggested to require frequent contact between the parties. Most, if not all, such contact is alleged to result in significant conflict, to the point where both the police have been called on more than one occasion and the local child and family services agency has become involved.
[14] The mother alleges that the lack of cooperation and effective communication and the conflict is increasing as time goes on. The mother alleges that Aubrey has been witness to the tension and animosity between the parties and that she is being negatively affected by it.
[15] The mother further states that the present schedule, given Aubrey’s age and full time attendance in Junior Kindergarten, results in far too much “back and forth” for her. Aubrey is required to move between the parties’ homes far too often, according to the mother.
[16] The mother submits that a temporary custody order in her favour is in Aubrey’s best interests at this point in time. The mother submits that she works on a Monday to Friday basis and that Aubrey goes to school on a full time basis. Having Aubrey reside primarily with her, subject to the father having access every second weekend and one weeknight each week, will serve to promote structure, stability and regularity for Aubrey, which is suggested to be what is best for this four year old child.
[17] The mother further submits that a careful review of the family history establishes that she has been the primary caregiver for Aubrey up to this point in time and that it is appropriate and consistent with Aubrey’s best interests that this continue. In support of this submission, the mother states that she took a 12 month maternity leave after Aubrey was born and was a full time caregiver to her during this crucial stage in Aubrey’s life. The mother points out that the father declined to take the paternity leave available to him after Aubrey’s birth.
[18] The mother submits that she, both before and after separation, has been the parent primarily responsible for Aubrey’s day to day physical and emotional needs. In support of this, the mother refers the court to the “Proposed Parenting Plan” entered into by the parties. In this document, the mother has seen it necessary to explicitly set out Aubrey’s specific needs as to clothing, personal items, personal habits and hygiene. The mother submits that this is indicative of the fact that it is primarily her that attends to these matters on a regular basis.
[19] Finally, the mother submits that the father’s failure to pay child support in a timely fashion, even after agreeing to the terms of a temporary order as to arrears and on-going support, is indicative of a lack of sincere commitment to the child’s best interests and corroborative of her allegation that a reduction in child support drives the father’s request for shared care and control of Aubrey.
Temporary Child Support and Section 7 Expenses
[20] The mother is seeking a temporary order requiring the father to pay to her guideline child support based on his 2012 income and based on Aubrey residing primarily with her, together with his proportionate share of the day care expenses she incurs for Aubrey. The parties have agreed that the mother’s 2012 income was $72,901.00 and that her annual day care costs are $5,705.00. It is also acknowledged that the mother will receive any tax credit for the child care expense.
[21] As to the father’s 2012 income, evidence of income from three places of employment was filed on the motion:
Kenora District Services Board year end pay stub dated December 20, 2012
showing year to date income of $86,260.00, less union dues of $1,000.00, resulting in
income from this source of $85,260.00;Sky Care Ambulance year end pay stub dated July 15, 2012 showing year to date income
of $3,640.00 (agreed to be father’s total 2012 income from this source);Rubicon Minerals year end pay stub dated December 31, 2012 showing year to date income of $8,840.00.
[22] The total income from these sources is $97,740.00. The mother submits that a further week’s income, in the amount of $1,672.00, should be added to the father’s income from the Kenora District Services Board to reflect income earned from the date of the end of the pay period set out above to December 31, 2012.
[23] The mother submits that I should find the father’s total 2012 income for guideline support purposes to be $100,000.00. If Aubrey is to be primarily resident with the mother, the mother submits that the father’s temporary child support obligation is $872.00/month plus 58% of the agreed upon day care expenses of $5,705.00.
The Jointly Owned Residence
[24] The parties are the joint owners of 73 Dickenson Road, Balmerton, Ontario. At the March 26, 2012 Case Conference, an order was made on consent that this home was to be sold. The father has resided in the home since the mother vacated in December 2011. The home has not sold to date.
[25] The mother alleges that the father has been uncooperative to the point of being obstructive in regard to efforts to sell the house. For the purposes of this motion, the mother alleges that the father has no incentive to sell the home and that he has let the home fall into a dismal state of cleanliness. In support of this allegation, the mother includes in her affidavit a portion of an email from their realtor wherein it is stated that “…the cats have taken over the basement and I don’t know that just cleaning will get the smell out...” The mother alleges that the home was clean and tidy without pet damage when she left in December 2011.
[26] The mother seeks an order requiring the father to forthwith clean the home and maintain it in a state of cleanliness until sold. The mother also seeks an order requiring the father to maintain the mortgage, real property tax, utility and home insurance payments until the house sells.
POSITION OF THE RESPONDENT
Temporary Custody
[27] The father agrees that the “2-2-3” shared parenting arrangement agreed to has been difficult to productively maintain. The father concedes that this arrangement requires a significant degree of cooperation between he and the mother which has not occurred. The father also acknowledges that there have been numerous difficulties between he and the mother since embarking on this regime. The father does not agree that the problems are to the extent alleged by the mother or that he is the sole cause of them.
[28] The father agrees that it is unfortunate that child and family services have become involved. However, the father suggests that if children’s aid had had any legitimate concerns as to his physical care of Aubrey, they would have formally intervened. The fact that they did not is submitted to suggest that there were no concerns in this regard. The father submits that what children’s aid was concerned about was the antagonistic relationship between he and the mother.
[29] The father recognizes that the “2-2-3” shared parenting schedule has not worked and is not in Aubrey’s best interests going forward. The father submits that it is in Aubrey’s best interests that he and the mother continue to share parenting and care and control equally, but that the schedule be changed to minimize contact, thereby minimizing parental conflict. The father submits that Aubrey should reside with both parents on an alternating weekly schedule.
Temporary Child Support and Section 7 Expenses
[30] The father is suggesting the temporary order as to child support reflect an equally shared residency of the child. As indicated earlier, the parties agree on the mother’s 2012 income, the amount of the annual day care costs paid by her for Aubrey and that the mother receives the tax credit for the day care costs.
[31] As to the father’s 2012 total income, the only area of dispute is whether the father’s 2012 income from the Kenora District Services Board should be the year to date income set out on the final pay stub for that year (December 20, 2012) or whether income earned from that source between December 20, 2012 and December 31, 2012 should be added to it. The father submits that the figure appearing on the December 20, 2012 pay stub is the figure that will be carried forward onto the father’s 2012 T4 from this income source and that that is the figure which should therefore be used in calculating his 2012 total income.
[32] The father submits that, using this methodology, his 2012 total income from all sources is $97,740.00. Using this income figure for the father and the mother’s 2012 income agreed at $72,901.00, the father submits that, if the child spends equal time with each of them, his net child support obligation is $198.00/month, plus 57.23% of the mother’s annual day care costs, or $166.00/month, for a total of $364.00/month.
[33] If it was ordered that Aubrey reside primarily with the mother, and using the same income figures, the father submits that his temporary child support obligation pursuant to the guidelines is $862.00/month, plus 56.88% of the mother’s annual day care costs, or $173.00/month, for a total of $1,035.00/month.
The Jointly Owned Residence
[34] The father is prepared to consent to a temporary order that requires him to maintain the mortgage, utility, real property tax and home insurance payments on the jointly owned residence. The father made no submissions as to the issue of the cleanliness of the home while listed for sale.
DISCUSSION
Temporary Custody
[35] The mother and father agree that the current “2-2-3” agreement as to shared custody is not in Aubrey’ best interests. Even if such agreement were not forthcoming, I would have no difficulty in coming to this conclusion. While on some level this arrangement may have conceptually been better for one or both parents, it has proven to be unworkable in practice. The mother and father have been in conflict essentially since physical separation occurred in December 2011. I find that it was inevitable that the increased contact and cooperation necessitated by this arrangement would lead to increased conflict between parents. This is exactly what has happened and both parents agree that it should not continue.
[36] The issue is, between now and the date of trial, what custodial or residential arrangement is in Aubrey’s best interest? The answer to this question must be determined by reference to s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, C.12, which reads as follows:
S. 24(2) Best interests of child – 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 up-bringing;
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.
[37] Aubrey is now four years of age and attends school Monday to Friday. From the date of her birth until she was one year old, she was cared for primarily by her mother, who was at home on maternity leave. Between December 2009, when Aubrey was one year old, and December 2011, she was cared for by both parents. Beginning in December 2011, Aubrey resided primarily with her mother and the father had access. The shared custody arrangement began in May 2012.
[38] There is evidence to support the mother’s submission that she has been primarily responsible for Aubrey’s general care and day to day physical and emotional needs to this point in her life. In reviewing both parents’ affidavits, I am persuaded that the mother has taken the “lead role” in Aubrey’s care to date ,with the father playing a supportive or secondary role, albeit an important one. Further, the mother works on a Monday to Friday basis, while the father works shift work, involving 12 hour shifts. I find that the mother is in a better position to provide consistent structure and routine for Aubrey at this time. I am also persuaded that the father’s failure to pay child support between January 2012 and the late fall of 2012 is probative of his level of devotion, or lack thereof, to Aubrey’s needs.
[39] I am also of the opinion that the father’s proposal of alternating weeks of shared parenting is not, at this time, in Aubrey’s best interests. While alternating weeks of primary care and control will reduce physical contact between the parents, it will still require frequent communication and significant cooperation and compromise. There is no evidence to suggest that this would occur. The evidence before me on this motion suggests otherwise. Further, at four years of age, Aubrey is, in my opinion, too young to be out of her mother’s care for seven days on a regular basis.
[40] A temporary order shall issue granting the applicant temporary custody of Aubrey Holly Hamilton, born December 29, 2008, effective as of the date of the release of this decision. The respondent shall be entitled to temporary access to Aubrey every second weekend from Friday at 5:00 P.M. to Sunday at 5:00 P.M. beginning January 25, 2013. The respondent shall also have access to Aubrey one weeknight per week from 4:00 P.M. to 7:00 P.M.
[41] A temporary order requesting the involvement of the Office of the Children’s Lawyer has been made. It is my opinion that the involvement of the Children’s Lawyer would be extremely helpful in resolving the difficult issues of custody and access in this case. Should a clinical investigator be appointed, the investigator could also assist with negotiating any changes or alterations to the access schedule ordered herein, which will in all likelihood be required at some point in the future.
Temporary Child Support
[42] I find the father’s total gross income from all sources for 2012 to be $97,740.00. I do not accept the mother’s submission that income should be added to the father’s income from the Kenora District Services Board to reflect income earned but not received in 2012.
[43] Based on this income figure for the father, I order that the respondent pay to the applicant temporary child support in the amount of $862.00/month beginning February 1, 2013. In addition, the respondent shall pay to the applicant the amount of $173.00/month, representing the respondent’s contribution of 57% of the applicant’s net monthly day care costs for Aubrey.
Jointly Owned Residence
[44] On consent, the respondent shall pay all mortgage, utility, real property tax and home insurance payments for 73 Dickenson Road, Balmerton, Ontario, until sold or until further agreement of the parties or order of the court.
[45] Further, and as an incident of the consent order of March 26, 2012, the respondent is ordered to forthwith clean this residence in its entirety, including a commercial cleaning of the basement area. The respondent alone shall bear the cost of this. The respondent is further ordered to maintain this residence in a reasonable state of cleanliness and repair while the home is listed for sale.
Costs
[46] If the parties cannot agree on the costs of this motion, they may make written submissions as to costs, not to exceed 5 pages including their respective Bills of Costs. The applicant’s submissions as to costs shall be filed within 14 days of the release of this decision; the respondent’s within 7 days thereafter.
The Hon. Mr. Justice J.S. Fregeau
Released: January 21, 2013
COURT FILE NO.: FS-12-5110
DATE: 2013-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lindsey Margaret Chapates
Applicant
- and –
Derek Ronald William Hamilton
Respondent
REASONS ON MOTION
Fregeau J.
Released: January 21, 2013