ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-5210-00
DATE: September 23, 2013
B E T W E E N:
Tara Lynn Michalchuk
Thomas J. Carten, for the Applicant
Applicant
- and -
William Jacob Michalchuk
Sarah S. Trach, for the Respondent
Respondent
HEARD: August 28, 2013,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Interim Custody
Introduction
[1] The parties were married in 2003 and separated on May 16, 2012. There are three children residing with the mother: Kristin Douglass born December 16, 1997 (15); Dani Douglass, born January 2, 2001(12); and Keira Michalchuk born September 19, 2003 (10). Keira is the biological daughter of the parties. Kristin and Dani were born to the mother during a prior relationship; as they are subject to another custody order, the parties agree that this court need not make a custody order for the two eldest children.
[2] The mother seeks an interim order for custody of Keira while the father asks for joint custody; the father also seeks specified access. The mother asks for interim child support for all three children; the father concedes that he stands in loco parentis to the two eldest children. He submits that an award less than the table amount should be ordered. Finally, the mother moves for interim spousal support of $3,000 per month and asks that support be retroactive to the date of separation. The father argues that an income should be imputed to the mother and that he should be given credit for payments he has made on various expenses. He also suggests that the mother should be obliged to pay the vehicle loan and $126 per month for the camper loan. Health coverage for the mother and children is not in issue as the father has agreed to maintain coverage for them on an interim basis.
Previous Court Order
[3] The parties separated previously. During that separation, a final order was made on consent by Mr. Justice McKay of the Ontario Court of Justice, granting the parties joint custody of Keira and providing that the child’s primary residence would be with her mother. The order also provided for specified access, an order that the father pay child support for Keira only of $680 per month based on his then income of $75,000. The court determined that no spousal support would be paid. There were other ancillary orders as well. The father submits that because this order was never set aside, it continues. The mother does not agree.
[4] Before ruling on custody and other issues, the court must decide whether the reconciliation of the parties explicitly or implicitly terminated the previous court order. If Justice McKay’s order continues until it is set aside, then no further order dealing with Keira’s custody is required. As well, it provides the father a defence to the mother’s claim for spousal support. If, however, the order terminates as a result of the parties’ reconciliation, then this court must consider custody and support afresh.
[5] As neither counsel prepared argument on this point, I asked for written submissions which have now been delivered.
[6] The law has been guilty of inconsistency on the question of whether reconciliation terminates a court order and the legislature has not clarified the issue.
[7] In 1919, Mr. Justice Middleton of the High Court considered the question in Wiley and Wiley (Re), 1919 449 (ON SC), [1919] O.J. No. 28. Relying on the English case, Haddon v. Haddon (1887), 18 Q.B.D. 778, he held that the “resumption of cohabitation…annulled the order:” para. 14. This line of reasoning has been applied in a number of cases, including Snyder v. Snyder 1973 1946 (ON CJ), [1973] O.J. No. 1359 (Prov. Ct.); Mongrain v. Mongrain (1986), 1986 6325 (ON SC), 1 R.F.L. (3d) 330 (H.C.J.); Smith v. Smith 1989 8785 (ON SC), [1989] O.J. No. 3019 (H.C.J.); Grail v. Grail 1990 12256 (ON SC), [1990] 27 R.F.L. (3d) 317; and Nolan v. Duguay 1999 14962 (ON SC), [1999] O.J. No. 5014 (S.C.J.). This series of cases concluded that a bona fide reconciliation will terminate a previous court order.
[8] In Wilson. V. Wilson, 1983 1165 (ON CJ), the court held that a custody order was not terminated by the parties’ reconciliation; however, it held that a lengthy reconciliation may lead to a re-examination of the child’s best interests, based on any material change in circumstances.
[9] The following cases concluded that reconciliation, per se, does not terminate a court order although the order may be unenforceable during the period of reconciliation: Rodbard v. Rodbard 1993 16079 (ON SC), [1993] O.J. No. 784 (Gen. Div.); Fitzell v. Weisbrod [2005] O.J. No. 791 (S.C.J.); and Ivan v. Leblanc [2012] O.J. No. 3705 (S.C.J.). This line of cases held that the order is revived and becomes enforceable if the reconciliation fails. Cases on both sides of the debate, however, hold that the ongoing validity of the order is affected by the intention of the parties. See, for example, Nolan v. Duguay, paras. 21 – 24; Fitzell v. Weisbrod, para. 23; and Ivan v. Leblanc, para. 14.
[10] The question of whether a reconciliation terminates a court order is arguable, with merit on both sides of the argument. Many of the cases that give rise to the question deal with the payment of support. It is a fair point that conduct of the parties should not nullify a court order. See: Barnesky v. Barnesky (1988), 1988 7223 (MB KB), 16 R.F.L. 450 (Man. Q.B.). Were this so, observance of court orders would be largely voluntary. As well, it would be difficult for agencies or third parties tasked with enforcing court orders to know whether an order remains in effect. However, it is simple for one of the parties to advise a support enforcement agency to stop collecting support.
[11] The proposition that the conduct of the parties in reconciling terminates a court order is confined to family law. It is not a principle of general application. Thus, there is no risk of a deluge of parties nullifying court orders by their conduct.
[12] Spouses do not embark upon a reconciliation expecting it to fail; if asked, most, if not all spouses, would say that the court order was cancelled by the reconciliation. Invariably, the order is not acted on during the period of reconciliation. Arguably, it is not conducive to marital harmony to have a court order hanging over the parties’ heads in case the reconciliation fails. Public policy would make this unseemly.
[13] In many cases – probably in most cases – the circumstances in the family change following a failed reconciliation, such that it is appropriate for a court to reassess the needs of the family. Family relationships are not static; nor are their incomes. It would be an unusual case where the order made before the reconciliation would “fit” the family after separation. If nothing else, the court should re-examine the best interests of the children before assuming that its previous order was appropriate. However, it may also be appropriate to review support orders, restraining orders, and orders for exclusive possession of the home.
[14] In this case, the parties reconciled for a period of four years. During this time, neither party behaved as though he or she considered the order of Justice McKay as continuing. Upon separation, neither party attempted to enforce the provisions of the previous court order.
[15] The matter comes before the court some six years after the reconciliation. Since separation, the applicant applied in the Superior Court for a new order for sole custody and for specified access. She also applies for spousal support. As I have noted, the previous order determined that no spousal support would be paid.
[16] The father’s Answer seeks divorce, joint custody and specified access. He has not pleaded that the previous order continues. If either party considered that the previous order for custody was still effective, claims for custody, access and spousal support would not have been pleaded.
[17] The parties, having cast their net in the Superior Court, do not wish to return to the Ontario Court to seek a termination of the previous order or a reconsideration of it, when the Superior Court has jurisdiction to determine all their issues. The Ontario Court has no jurisdiction over property or divorce. The law frowns on a multiplicity of legal proceedings; in practical terms, it is not economic for the parties to litigate in two courts and it is wasteful of judicial resources.
[18] I therefore conclude that the reconciliation of the parties terminated the previous order of Justice McKay dated May 30, 2007.
Interim Custody
[19] The father is employed as a police officer. Currently his work schedule takes him into remote communities, working 16 days, followed by twelve days off. The mother is a registered practical nurse. Unfortunately, she is unable to find work at present. There is no dispute that she has been the primary caregiver for the children. The mother asks for sole custody; the father submits that during their previous separation, the parties agreed to joint custody and that is the appropriate order now.
[20] The mother claims that the father became abusive towards her and the children in January, 2006, with the result that the police and child welfare authorities were involved and the parties separated for several months. The father does not dispute this allegation.
[21] The mother alleges further physical abuse of herself and Dani in February and April of 2011. Child welfare authorities became re-involved with the family and the father was charged with three counts of assault on the children. He denies that he assaulted the children but he entered into a six month peace bond to resolve the charges.
[22] The father’s contact with the children has been restored, with the consent of the child welfare authorities. The father indicates that he and the mother have argued in front of the children. It is obvious that they have different parenting styles and different expectations of the children. However, the mother has asked the father to provide respite care for the two oldest children when they test her patience and he has complied.
[23] Two issues militate against a joint custody order at this point. The first is a repetition of conflict in the home involving the parents and children. The father minimizes the pattern of conflict, suggesting that he and the mother can communicate when circumstances require it. That is hardly a recommendation for joint custody. In order to make decisions together, as joint custody requires, the parents need to be able to communicate in a respectful, civil manner. I am not persuaded that has yet occurred here although it may become the norm in future.
[24] The second issue is that the father’s work takes him away from the family for substantial periods of time such that he may be unable to communicate with the mother over parenting issues.
[25] I have concluded that Keira’s best interests require that there be one decision-maker for her on an interim basis. The mother shall have interim custody of Keira.
Access
[26] The parties agree that Kristin and Dani enjoy a relationship with the father and that an order for reasonable access on reasonable notice is appropriate, with access to be subject to the children’s wishes. This arrangement has been satisfactory and, given the ages of the children, their wishes should be considered. An interim order for the father’s access to Kristin and Dani on those terms will issue accordingly.
[27] With respect to Keira, the father asks that he have access from the second day he is off work until the day before he returns to work, which would amount to ten consecutive days. He proposes that he would assume care of the two older children during that time so that Keira would not be separated from her sisters.
[28] The mother proposes that the father have Keira two weekends per month plus a weekly dinner visit.
[29] The father’s work makes scheduling of access problematic. If his duties call for overtime, the access schedule will be disrupted. It is also important that Keira’s schooling not be affected. His proposal to have the older children live with him while Keira is there also may disrupt their lives. The parents do not yet have the ability to communicate in order to facilitate extended periods of access and the issues that may arise.
[30] The father shall have interim access to Keira two weekends per month and a weekly dinner visit plus any other reasonable access upon which the parties agree. As well, he is entitled to reasonable telephone access so long as it does not disrupt the child’s schedule, mail, and internet communication by text, e-mail, Skype, or other electronic means that are available to the parties.
The Father’s Income
[31] The court must determine the amount of the father’s income. His employment income was as follows:
• 2009 $93,600
• 2010 $88,090
• 2011 $104,411
• 2012 $116,617
[32] In December, 2012, when his base salary as a first-class constable was $77,702, his employer indicated that overtime for 2013 would not be available because of budget constraints. After this letter was issued, the father was promoted to senior constable, with a pay increase that the father estimated at $5,000 – 6,000 annually. The father’s financial statement sworn July 16, 2013 deposes that his current income is $84,216. His year-to-date pay stub dated June 23, 2013 sets out income of $46,499.63, which includes an unspecified amount for work travel and lodging. The pay stub shows $672.80 for travel. The father says that as of July 18, 2013, he was posted to Cat Lake and the cost of travel from Dryden, where he lives, to Sioux Lookout and thence to Cat Lake via Wasaya Airlines will not be reimbursed. He estimates this expense at $400 every fifteen days. His financial statement shows travel for employment at a cost of $426 per month.
[33] In submissions, the father took the position that his annual income would be $85,000 but conceded this was a transition year. He suggested that any interim finding should be without prejudice to an adjustment based on actual income at year-end. The mother argued that his 2012 income of $116,617 should be used for the purposes of support, or alternatively, $96,983, being the annualized figure based on his pay stub.
[34] There is no indication whether the travel allowance represents exact reimbursement for expenses incurred or an allowance for the officer to do with as he sees fit. The pay-stub shows no overtime. Employment income alone is $42,108.75. Annualized, the father’s income is $87,586.20. I find this to be his income for purposes of support.
Child Support
[35] Based on the table amount for three children, the father’s child support obligation would be $1,648. However, the father submits that his obligation to support his step-children should be reduced by the sum of $350 - 400 per month to take account of the money the biological father pays for the children. The mother agrees that a credit of $350 is reasonable.
[36] The father is ordered to pay to the mother interim child support of $1,298 per month for three children commencing September 1, 2013.
Retroactive Child Support
[37] The mother seeks an order for retroactive child support since May, 2011. The application was not commenced until September 24, 2012. The father has made some payments since separation but the amount paid is in dispute. The issue of retroactivity can be reviewed by the trial judge. The claim is dismissed on an interim basis.
Spousal Support
[38] The mother seeks an order for ongoing and retroactive spousal support. Her income consists of child support from the children’s biological father of $350 per month, the child tax credit of $891 per month, and $200 per month from the Trillium fund, a total of $17,292 annually.
[39] The mother’s work ended in 2012 and she received employment insurance benefits until December, 2012. Although she has nursing skills and experience, she is currently unemployed. The evidence is that she gave up jobs during the parties’ cohabitation when the father was required to move to different locations for his employment. The father argues that income should be imputed to the mother in the amount of $31,000 or at least minimum wage. I do not agree. The evidence indicates that the mother has made a concerted effort to find work, even work for which she is overqualified. Unfortunately, she has not been successful. I accept that there is not an abundance of jobs in Dryden. Had she not moved with the father to accommodate his employment, she would still be employed. She has the full burden of child care and it is not realistic to expect her to take shift work.
[40] In view of the dispute over interim payments made, the issue of retroactive spousal support will also be reserved to the trial judge. This claim is dismissed on an interim basis.
[41] The father shall pay to the mother spousal support of $1,323 per month commencing September 1, 2013.
Consent Orders
[42] On consent, the camper trailer shall be sold and the proceeds used to pay down the related debt. The father shall maintain the mother and children on his health care plan available through his employment.
Costs
[43] If the parties cannot agree on costs within thirty days, either party may obtain an appointment from the trial coordinator to argue same. If neither party applies for an appointment within thirty days, costs will be deemed to be settled. Costs submissions are not to exceed five pages.
“original signed by RSJ Pierce”
Regional Senior Justice H.M. Pierce
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Released: September 23, 2013
COURT FILE NO.: FS-12-5210-00
DATE: September 23, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tara Lynn Michalchuk
Appplicant
- and –
William Jacob Michalchuk
Respondent
REASONS ON MOTION FOR INTERIM CUSTODY
Pierce, RSJ
Released: September 23, 2013
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