Court File and Parties

COURT FILE NO.: FS-33-13

DATE: 2013-08-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FRANCIS TIMOTHY BALAYO, Applicant

AND:

AMY SARAH MEADOWS, Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Brian R. Kelly, for the Applicant

Sharon J. Binning, for the Respondent

HEARD: August 13, 2013

ENDORSEMENT

Parties

[1] The parties commenced cohabitation in August 2008 and separated on August 9, 2012. There is one child of the relationship Ella May, born November 16, 2008 (age 4 years, 9 months).

Proceedings and Nature of Relief Sought

[2] The Applicant father commenced this Application on March 15, 2013 claiming shared custody, that he have regularized general and liberal periods of custodial care and control with the child, that he pay child support in accordance with the Federal Child Support Guidelines and that the parties pay their proportionate share of section 7 expenses. Although relief was claimed in the Application respecting the parties’ jointly owned residence, counsel have advised that there are now no outstanding property issues. In her Answer, the Respondent mother claimed spousal support, child support, custody of the child and related relief. A Case Conference was held on June 27, 2013 at which time temporary child support was ordered, on consent, to be paid by the Applicant in the sum of $721 per month commencing July 1, 2013. On consent, the involvement of the Office of the Children's Lawyer (OCL) was requested. Counsel have advised that the OCL has agreed to become involved and will undertake a clinical assessment. An order for questioning was also made.

[3] The Applicant has brought a motion for interim access and in his Factum proposes that access commence on four consecutive Saturdays from 10 AM until 7:30 PM and thereafter every other weekend from Fridays at 5:30 PM until Mondays at 8 AM and every Wednesday from 5:30 PM until 7:30 PM.

[4] The Respondent has brought a motion for sole custody of the child, that there shall be no access to the applicant until the OCL has completed its investigation, or in the alternative, that the applicant have supervised access for two hours weekly at Dalhousie Place Supervised Access Centre in Brantford, retroactive child support commencing September 1, 2012 in the sum of $721 per month, spousal support commencing May 1, 2013 in the sum of $617 per month and for an order transferring the matter to the Superior Court of Justice in Brantford.

[5] The parties are agreed on the quantum of interim child support in the sum of $721 per month based upon the applicant's annual income of $79,600. However, the Applicant does not agree that the child support order should be retroactive and does not agree that interim spousal support should be ordered pending trial, or at least pending the completion of questioning.

[6] The Respondent, in argument, did not pursue an order that there be no access to the Applicant, but rather submitted that access be exercised at the supervised access centre. The parties are agreed that an interim order for custody and access at this stage should be without prejudice to their respecting positions pending the receipt of the report of the OCL.

Issues

[7] The issues therefore are as follows:

(a) Should joint custody be ordered pending receipt of the report of OCL?

(b) What access should be granted to the Applicant and should such access be supervised, and if so, by whom?

(c) Should the child support to be paid by the Applicant be made retroactive to September 1, 2012?

(d) Should the Applicant be ordered to pay spousal support, and if so, in what amount?

(e) Should the matter be transferred to Brantford?

Custody and Access

[8] The Respondent deposes in her affidavit that since the child was born and since the date of separation she has been the primary caregiver for the child, that she and the child currently reside with her parents at St. George, in the County of Brant. The child is enrolled in a local school and during the summer months attends day care. The Respondent asserts that the Applicant was not an involved father, never changing diapers, helped with feeding and was never solely responsible for morning, evening or bedtime routines. Following the birth the child, the Respondent lived with her family for two months for assistance in the care of the child. She alleges that the Applicant was physically abusive towards her throughout their relationship and that the child witnessed much of the abuse. She also disposed that the Applicant was also verbally abusive towards the child and that she is now "petrified" of seeing him.

[9] The Respondent cites a number of specific incidents of alleged abusive behavior by the Applicant being in June 2008, August, 2010 and September, 2011. In addition, she says that there were numerous other similar incidents, the vast majority of which involved the Applicant grabbing her or throwing her against the ground, the wall or the stairs, or pinning her against a door. She stated that several of the incidents occurred after the Applicant returned home intoxicated or high on illegal drugs.

[10] The Respondent deposed in her affidavit that, although the Applicant exercised access following separation, it was always in her presence or that of the Applicant's parents and that he was never alone with the child. She stated that these visits ceased in or about late November 2012 after the Applicant showed up at the home and began shouting and yelling at her and pushed her to the ground in the presence of the child.

[11] The Respondent made various allegations that the Applicant regularly used illicit drugs, consumed alcohol to excess and became extremely violent as a result of both alcohol and marijuana use. She also alleged that he incurred significant debt to finance his drug and alcohol addictions and also "went through a gambling phase" during their cohabitation.

[12] The Applicant vehemently denies the allegations of abusive behavior toward the Respondent and the child as well as the allegations of alcohol and drug abuse and gambling. He points to the lack of any corroborating or independent evidence in support of the Respondent's allegations. There was no police or CAS involvement nor was there any evidence that the Respondent sought medical treatment. The affidavit material contained no evidence from any independent parties to substantiate the Respondent's allegations.

[13] The Applicant is employed full-time as an assistant manager in a credit union and in addition works on weekends at Futureshop. He stated that, during cohabitation, even while maintaining two jobs, he remained an active and involved parent in the child's life and following separation he regularly informed the Respondent of his desire to spend as much time as possible with the child, however she insisted that his visits with the child be in her presence, and that the Respondent took a "take it or leave it" approach to scheduling visits. He alleged that whatever access he did have to the child was cut off completely by the Respondent when she found out on December 4, 2012 that he was in a new relationship with another woman. Included in the Applicant’s affidavit material were various exchanges of text messages between the parties following separation which demonstrated his genuine interest in the well-being of the child and his desire to spend as much time as possible with her, as well as his respect for the parenting abilities of the Respondent. He pointed to exchanges of text messages on December 1, 2012 which he says confirms that, contrary to her assertion that she never left the child alone with him, she did leave the child on that date in his exclusive care for a number of hours while she went shopping at the mall.

[14] In light of the stark contrast between the affidavit evidence of the parties on the issues referred to above, I am not in a position to make the findings of fact with respect to the very serious and inflammatory allegations made by the Respondent against the Applicant. The resolution of these issues will need to await trial where the parties will testify orally and will be subjected to cross examination. However, I do note that there is no independent corroboration of the Respondent's allegations, and indeed, based upon the exchange of the post-separation text messages which were put into evidence, there was no inkling of these issues being referred to by the Respondent in those exchanges. The interactions of the parties in their text messages were surprisingly cordial and cooperative and it was evident that the parties were making various plans to spend time together with their child. The text message interactions between the parties do not appear, on their face, to be consistent with a history of abusive behavior on the part of the Applicant. He appears to have demonstrated a caring attitude towards the child as well as a cooperative and respectful attitude toward the Respondent. The Respondent argues that the recitation of the text messages in the Applicant’s affidavit material is incomplete as there were more text messages beyond those transcribed in the material, however, her affidavit material does not set forth a different picture of the nature and tone of the text message interactions.

[15] I am similarly not in a position to make a finding as to what led the Respondent to discontinue any access by the Applicant to the child either in late November or early December. However, it is noted that the Respondent referred to the alleged violent incident in the home referred to above as having occurred "in or about late November" while it is evident from the text messages that the Applicant was watching a movie with the child at the Respondent’s home on December 1, 2012 while the Respondent was out shopping.

[16] The evidence of the Respondent respecting the child's current fear of the Applicant is not independently corroborated except in a very limited way by the affidavit of Inge Packull, a counsellor with whom the Respondent met, along with child, on July 2, 2013. However, Ms. Packull’s report of what the child said to her is very brief, has not been subjected to cross examination and accordingly the full context of her interaction with child has not been fleshed out. In my view, very little weight, if any, can be given to the affidavit evidence of Ms. Packull for the purposes of these motions.

[17] On the question of whether joint custody should be ordered as proposed by the Applicant or sole custody granted to the Respondent as proposed by her, it is noted that any order made at this stage, pending receipt of the report of the OCL will be relatively short term, and will be without prejudice to the positions of the parties at trial. It is clear that the Respondent, in her role as a stay-at-home mother, has been the primary care-giver for the child throughout her life and has certainly been such since the date of the parties’ separation. It is evident that the parties have not communicated effectively regarding the child since early December, 2012 and, pending the report of the OCL, there is no evidence that they will develop the ability to do so in the short term. Custody by the mother is the de facto status quo and pursuant to s. 20(4) of the Children’s Law Reform Act, R.S.O. 1990, c.C12, is the de jure status quo, given that the child has been living with the Respondent with the Applicant’s acquiescence since separation. Given time, the inability of the parties to communicate effectively regarding the child may improve, however, I see no reason to alter the status quo at this time respecting custody and I would order that custody remain with the Respondent mother.

[18] It is noted that the Respondent did unilaterally move with the child from the jointly-owned residence in Waterloo Region to her parents’ residence in the County of Brant without explicitly informing the Applicant. Although the Respondent may argue that the circumstances were such that she had no choice and, as the custodial parent, she had the right to make that decision, in my view the Applicant should be kept informed of any change in the child’s residence, as well as any significant events respecting the child’s medical and educational well-being and status.

[19] On the question of access, it is observed that, regardless of the reason for the interruption in access by the Applicant, the reality is that the child has not seen her father for some eight months. I am prepared to accept that there is a process of re-acquaintance which will be required, in any event, regardless of whether the child is in fear of the Applicant, how deep-seated any such fear may be and the source of such fear . The question for now is whether it is necessary, in the best interests of the child, to impose limits and conditions on an access order in favor of the Applicant in these circumstances. In determining this question I am hampered by the starkly conflicting evidence of the Applicant and the Respondent respecting the nature of the relationship between the Applicant and the child and the Applicant’s past conduct toward the Respondent and the child, as well as by the lack of reliable input from knowledgeable third parties, at least pending receipt of the report of the OCL.

[20] It has been observed that supervised access may be deemed an appropriate remedy to address a number of varying concerns, including, as in this case, re-introduction of a parent to a child when access has not been exercised for lengthy period of time (see Birnbaum & Chipeur, “Supervised Visitation in Custody and Access Disputes: Finding Legal Solutions for Complex Family Problems” (2010) 29 Canadian Family Law Quarterly 85 at para. 7(b)). By the same token, it has been observed that access to a non-custodial parent is generally to be unsupervised, as supervised access, particularly through an access centre, is a highly artificial way of providing contact with a non-custodial parent and is to be saved for specific circumstances (see Jarvis v. Jarvis 2013 ONSC 1280 (SCJ) at para. 33).

[21] Based upon the evidence before me, given the lack of objective and verifiable information respecting the child's current emotional preparedness to interact with her father, and in light of the child's young age, in my view, the utilization of the access centre, on a time – limited basis, in order to facilitate a gradual re-introduction process would be advisable, notwithstanding that it may be regarded as an artificial means of providing access. I find that it would be the best interests of the child for the Applicant to exercise access at the supervised access centre proposed by the Respondent for two consecutive Saturdays prior to expansion of access to an unsupervised basis for full-day Saturdays for a further two weeks, and then transitioning to overnight access on alternate weekends from Saturday morning to dinnertime on Sunday, coupled with one weekly midweek access visit.

[22] It is to be noted that this provision for supervised access, on a short-term basis, is based solely on the need to provide for a gradual re-introduction of the child to the Applicant due to the lengthy period of non-contact and in the best interests of the child, and is not to be considered as an acceptance of the allegations of abusive or harmful behaviour made by the Respondent regarding the Applicant. Findings with respect to those allegations will be required to be made at trial.

Retroactive Child Support

[23] As indicated above, the parties consented to an order for child support commencing July 1, 2013 in the sum of $721 per month at the Case Conference. The Respondent now seeks to have that order made retroactive to immediately following the date of separation, being September 1, 2013. This amount totals $7,210. It is noted that, following separation, the Applicant asserts that he continued to remit mortgage, insurance, utility (at least in March 2013) and other payments relating to the jointly owned family home which the Respondent continued to occupy with the child, which he says totalled $16,253.63. It is noted that half of this amount would be the Applicant's responsibility in any event as co-owner of the property. The Respondent argues that three of the asserted mortgage payments were in fact not made by the Applicant, of which it would appear that the Respondent's share was $922.50 in the aggregate. Subject to a more complete accounting being undertaken at trial, it therefore appears that the Applicant paid the sum of $7,204.32 that might be regarded, in whole or in part, as a contribution towards his child support obligation. On the authority of the leading case of S. (D.B.) v. G. (S.R.) 2006 SCC 37, [2006] S.C.J. No. 37 (SCC), the conduct of a payor parent can militate against a retroactive award. In my view, this is a matter which is best left to be dealt with at trial, following pre-trial questioning, when a fuller accounting may be under undertaken. I would therefore decline to order that the child support be made retroactive.

Spousal Support

[24] The Respondent also seeks interim spousal support commencing effective May 1, 2013. She suggests that it be in the sum of $617 per month, being the midrange amount under the Spousal Support Advisory Guidelines. This amount is based in part upon the Respondent’s annualized income of $28,860, notwithstanding that she did not find employment until March, 2013 and accordingly her actual 2013 income will be less than that amount.

[25] There is a four step analysis to be undertaken on an application for interim spousal support, namely:

(a) does the applicant have standing to claim support;

(b) is the applicant entitled to the support;

(c) what are the defendant's needs; and

(d) does the payor have the ability to pay.

[26] The court is not required to conduct an in-depth analysis of the standing and entitlement issues, but rather the party seeking support is only required to make out a good, arguable case for standing and entitlement before the court will assess support on the basis of the parties’ needs and means. (see Robertson v. Hotte 1996 CarswellOnt 1506 (Ont. Gen Div.) at paras. 7 and 8)

[27] I am satisfied, on the current record, that the Respondent has a good arguable case for standing and entitlement and that, based upon his income, the Applicant has the ability to pay spousal support. The Applicant states that the Respondent has not demonstrated a need for interim spousal support and points to the Respondent’s most recent Financial Statement in which she reports total monthly income of $2,705.32 and monthly expenses of $1,056.63. The Respondent argues, on the authority of Kereluk v Kereluk 2004 34595 (ON SC), 2004 CarswellOnt 4332 (SCJ) at para. 45, that there is no obligation on a recipient spouse to live with her parents and no obligation on the parents to contribute to her support and that the payor cannot avoid his support obligations by relying on the goodwill of the recipient's parents. However, it is noted that in the Kereluk case the recipient spouse led evidence that, although she had moved into her parents’ home on separation, she would like to be able to afford her own accommodation but was unable to do so without receiving spousal support. There is no such evidence presented in this case and indeed, there is no indication on the record that the Respondent has any present intention to move out of her parents’ home in the near to medium term.

[28] In my view, in the circumstances, it is premature to order interim spousal support based upon the record before me. Should the circumstances change and the Respondent come forward with demonstration of actual need, the issue may be revisited.

Transfer of Proceeding

[29] The Respondent requests a transfer of the proceeding to Brantford relying upon Rule 5(8) of the Family Law Rules which provides that "if it is substantially more convenient to deal with a case or any step in the case in another municipality, the court may, on motion, order that the case or step be transferred there." She argues that, at the time that the Application was issued, the child ordinarily resided with her at her parents’ home in the County of Brant and that therefore under Rule 5(1)(b) the Application should have been brought there. Moreover, she argues that the evidence about the child’s best interests is located in the County of Brant.

[30] As indicated above, the Respondent did not notify the Applicant that the child had been moved to the County of Brant prior to his issuance of the Application. Given the young age of the child and the fact that she had only resided in the County of Brant for in the range of three months, is difficult to see how she had become connected to it as her ordinary residence, given that she was born in the Region of Waterloo and had lived there in the family residence since birth. It has been recognized that, as a matter of principle, a parent should not be permitted to unilaterally change a child's ordinary residence by removing the child (see Morano v. Coletta, 2008 ONCJ 228, [2008] 52 R.F.L. (6th) 200 (OCJ) at para. 20).

[31] There has not been a sufficient basis established in the evidence to suggest that, the proceeding having been commenced in Kitchener, it is substantially more convenient to deal with the case in Brantford, as required by Rule 5(8). The nature and source of evidence from third parties respecting the best interests of the child have not been sufficiently identified on the record to make that finding.

[32] I would therefore decline to exercise the jurisdiction under Rule 5(8) to move the case to Brantford.

Disposition

[33] On the basis of the foregoing is ordered as follows:

(a) On a without prejudice basis, and pending receipt of the report of the Office of the Children's Lawyer:

(i) the Respondent shall have sole custody of the child Ella May Balayo, born November 16, 2008;

(ii) the Applicant shall have supervised access to the child at Dalhousie Place Supervised Centre for two (2) hours weekly on August 24 and August 31, 2013, and thereafter, shall have care and control of the child on the next two ensuing Saturdays commencing at 10 AM until 7:30 PM, and commencing on the following weekend and every other weekend thereafter from Saturdays at 10 AM until Sundays at 6 PM, and, commencing on the first Wednesday following the commencement of overnight access, and every Wednesday thereafter, commencing at 5:30 PM until 7:30 PM;

(iii) should it not be possible to complete the intake process at the said Access Centre in sufficient time to commence supervised access on August 24, 2013, the commencement of supervised access and the ensuing dates for the exercise of unsupervised access shall be adjusted accordingly;

(iv) the parties shall cooperate fully and expeditiously to complete the intake process for the commencement of supervised access at the said Access Centre;

(v) the Respondent shall promptly inform the Applicant in advance of any planned change in the residence of the child, and with respect to any significant occurrence or development affecting the child's medical well-being or her education, including the provision of any report cards or other communications received from her school respecting her educational progress and development

(b) The Applicant shall continue to pay interim child support to the Respondent in the sum of $721 per month based upon an annual income of $79,600.00 as ordered by Justice Flynn on June 27, 2013;

(c) the Respondent’s motion for interim spousal support is dismissed, without prejudice to her right to move for interim spousal support should she change her place of residence from that of her parents, and based upon demonstrated need; and

(d) the Respondent's motion to transfer this matter to the Superior Court of Justice at Brantford is dismissed.

[34] The parties may make brief submissions with respect to costs, not exceeding three double-spaced pages, exclusive of any Costs Outlines and authorities, within 30 days hereof.

D.A. Broad J.

Date: August 16, 2013