Elliott v. Elliott, 2013 ONSC 6119

COURT FILE NO.: 12397/12

DATE: 20131003

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK DAVID ELLIOTT

Applicant

– and –

DEIRDRE ANN ELLIOTT

Respondent

Jerome Gardner, for the Applicant.

Matti Mottonen, for the Respondent.

HEARD: September 26, 2013

gauthier, j.

The Motions:

[1] On September 26, 2013, I heard the following motions:

By the Respondent, Deirdre Ann Elliott, (“the Wife”) for temporary sole custody of the two children, Liam and Alexandra (“Ally”), child support for the two children, exclusive possession of the matrimonial home, and a restraining order.

By the Applicant, Mark David Elliott (“the Husband”) for joint and shared custody of the two children, with each of the parties rotating out of the matrimonial home on a weekly basis (the “Bird’s Nest” Order). The party not in the matrimonial home could occupy the recreational property located a short distance from the matrimonial home.

[2] The Wife’s proposal is that the children remain in the matrimonial home with her, and that they be with the Husband every alternate weekend, from Friday after school until Monday morning. In addition, the children would be in the care of the Husband, including overnight on the four days per month (two days every alternate week) that she is required to work out of town. As well, the Husband could have weeknight access, not including overnight and until 9 p.m., any time. Finally, there could be daily telephone calls between the children and the Husband. The Wife would be prepared to allow the Husband two weeks from September 26, 2013, to move out of the matrimonial home which is currently occupied by both spouses and has been so occupied since the parties formed the intention to live separate and apart.

[3] The Wife is the sole registered owner of the matrimonial home.

[4] For his part, the Husband proposes that both parties continue to occupy the matrimonial home, but on a weekly rotating basis, until November 30, 2013, at which time he will be able to move into new accommodation that he has secured. The parties would share the parenting of the children equally. After November, the children would spend one week with one parent and the other week with the other parent.

[5] The parties began to live together in 1993. On July 18, 1998, they married. They have two children: Liam Aengus Elliott, born July 12, 1999 and Alexandra Ann Elliott, born March 30, 2002.

[6] The parties continue to occupy the matrimonial home located at 570 Kantola Road, in the City of Greater Sudbury. The valuation date is at issue. The Wife says the parties ceased to live together as a couple on or about October, 2010, whereas the Husband says that there ceased to be any reasonable prospect of a reconciliation between the parties as of November 30, 2011.

[7] The Wife is a Sales Representative for Hollister Ltd. She works from the matrimonial home. She is away from home an average of two days every two weeks. Her income is $81,000.

[8] The Husband is self-employed. He is the sole owner and operator of a landscaping company called Mark Elliott and Associates. There is some dispute about his income. I will have more to say about that later in these reasons.

[9] The Husband routinely leaves the home for work at around 8:20 a.m. which corresponds with the time that Ally gets on the school bus. He returns sometime between 5:00 and 6:30 p.m.

The Wife’s Position:

[10] The Wife raises serious concerns about the Husband’s ability to properly parent the children. She maintains that the Husband is verbally abusive to her in the presence of the children, and that he has anger management problems. She says that the Husband is disrespectful of her and of the children, and that he is unable to properly discipline the children. She goes further to suggest that he has mental health issues which directly impact on his parenting ability.

[11] The Wife says that the continued cohabitation of the parties has become unbearable and is having a negative impact on the children. She wants the Husband out of the matrimonial home.

The Husband’s Position:

[12] The Husband also raises the issue of mental health. He says that the Wife has mental health issues which affect her ability to properly parent the children. The Husband suggests that the Wife is exaggerating and distorting the facts. He denies having been abusive toward the Wife in any manner.

[13] The Husband says that he is the one who disciplines the children, not the Wife.

[14] The Husband believes that the parties can cooperate to make a joint parenting arrangement work, especially once they not residing together in the same home.

The Children’s Position:

[15] The children want to spend equal time with each parent and they want to see their parents communicate with each other.

[16] The children understand that for them to spend equal time with each parent, one of the parents has to move out of the matrimonial home. Both children are of the view that that person should be the Husband.

[17] Liam does not want a “week about” arrangement. Seven days is too long to be away from one or the other of the parents. Ally is comfortable with a seven day rotation schedule.

[18] Both children are clear that they “do not want to live out of a suitcase.” They do not want to be transporting things back and forth from one parent’s home to the other. They should have duplicate wardrobes: one at each parent’s residence.

[19] Ms. Parise, counsel appointed for the children by the Office of the Children’s Lawyer, offered some additional views on behalf of the children.

[20] Firstly, the two children should be kept together. Any order made should ensure that they continue to be together daily.

[21] Secondly, from what Ms. Parise has gleaned from her time with the children, both parents have involved the children in the litigation, and both parents have behaved poorly. Having said that, she further indicated that it appears that the conflict between the parties has lessened to the extent that the “Bird’s Nest” Order requested by the Husband may not be required. The Husband will be leaving the home at the latest by the end of November, 2013. Should the “Bird’s Nest” Order not be granted, Ms. Parise indicates that Liam and Ally’s best interests would not be negatively affected.

Analysis:

[22] The determination of the issues of custody, access, joint custody, and joint parenting, indeed, of any incident of custody or access, is determined on the basis of the best interests of the children. The provisions of section 24 of the Children’s Law Reform Act apply.

[23] I have considered the evidence before me in the context of subsections 24(2) and (3).

[24] There is no issue about both parents loving their children and both children loving both of their parents. There is also no question that the children have witnessed the conflict between their parents for the past two or more years, although, in their view, the level of conflict has decreased.

[25] It is also relatively easy to predict that, once the parties are no longer living in the same residence, the children will be exposed to far less parental conflict.

[26] Finally, the fact that both parents will continue to reside in the same part of the City of Greater Sudbury, i.e. Lively, means that contact between the children and the parents will not be complicated by issues of distance or transportation.

“Bird’s Nest” Order:

[27] I decline to make such an order. Firstly, and most importantly, the children do not view the current level of conflict between their parents to be such that, at this time, they cannot remain in the same residence. In fact, in the children’s ideal world, they and their parents would continue to live together, as a family, without the parental disputes. The continued sharing of the home by the parents then does not run counter to the wishes of the children, or their best interests. The evidence indicates that, despite the conflict, the parents are able to cooperate to a significant degree about the children’s school and extracurricular activities.

[28] Given that the current arrangement will cease in two months or less, I find that there is no compelling reason to make the order sought. The fact that the end of the current arrangement is in sight may go some distance in alleviating the stress on both parties.

[29] I have further considered the Wife’s need to access her home office daily to discharge her work duties as militating against the order suggested. She would be adversely affected by a “Bird’s Nest” Order.

Exclusive Possession of the Matrimonial Home:

[30] As indicated, the Husband will be moving to his own residence effective, at the latest, November 30, 2013. The Wife will be entitled to exclusive possession of the matrimonial home effective December 1, 2013, or the date upon which the Husband’s new accommodation becomes available for occupancy, whichever comes first.

Custody:

[31] The evidence indicates that both parties have been very involved in the life of the children, and wish to continue to be so involved.

[32] At this stage of the litigation, and on a temporary basis, there is no valid reason to entrust custody of the children to one parent exclusively. Both parents are available to make decisions concerning the children, and it appears that, for the most part, they have been able to do so in the past.

Residence of the Children/Parenting Arrangement:

[33] For reasons that follow, I am endorsing the Wife’s plan for the children. Liam and Ally’s primary residence will be with the Wife.

[34] Both parties list a litany of complaints about the other, many of them not directly related to the ability of the other to parent the children. The Affidavits filed for the motion are voluminous, and to a significant extent, not helpful to me in my assessment of the best interests of the children. A large part of the material filed is devoted to editorializing and to attacking the other party.

[35] Having sifted through the numerous complaints, I have concluded that the Husband has no serious and well-founded issue with the ability of the Wife to parent the children. Although he says he is concerned about her mental health and her ability to parent, he offers little evidence to support this concern.

[36] He offers that he is a nurturing parent and should have the children in his care half the time.

[37] For her part, the Wife does raise concerns about the Husband’s parenting. The concerns about Ally’s hygiene and her being late for school when in the care of the Husband are legitimate concerns.

[38] Although the Husband’s material offers some explanation, it appears that there have been some instances of Liam being out after dark without a light on his bike, and without a cell phone, when in the Husband’s care.

[39] The Husband admitted to having damaged Liam’s bedroom door after having been locked out by his son, although he attempted to minimize the event by describing it as having knocked the door with the side of his hand “a little too vigorously”.

[40] There appears to be no dispute that the Husband denied a request that Liam be permitted to stay with the Wife for a reunion with his cousins and that this situation upset Liam. Liam’s best interests were not served by the Husband’s inflexibility.

[41] After having considered the evidence, I conclude that the best interests of the children will be served by them remaining in the matrimonial home, where they want to remain, according to the evidence of the Husband. They have lived in that home for a significant amount of time. By remaining primarily in that home, Liam and Ally will have some stability and continuity. It is telling, in my view, that both children indicated a wish to remain in the home, and that they felt it was the Husband who should leave the home.

[42] I have considered the wishes of the children as conveyed to me by Ms. Parise. It is not unusual for children to want to preserve the family relationship as much as possible when there is a breakdown in their parents’ marriage. One way of doing that is to evenly distribute the amount of time that they spend with each parent. This may or may not be in their best interests.

[43] The children will have to adjust to not having both of their parents in the home. They will also have to adjust with spending time with their father in his new residence. At least on a temporary basis, they should not have to adjust to going back and forth between the two homes every week, or every three days.

[44] The children indicated that they did not want to “live out of a suitcase”. I am unable to say how realistic their suggestion of a “double wardrobe” is, however, the reality is that it is not only clothing that moves with children when they go from one residence to the other. There are schoolbooks, electronic devices, and recreational equipment among other things. It is not realistic for those items to be duplicated. So, the proposed shared parenting arrangement would likely result in the children, to some extent, living out of a suitcase, which is not what the children want.

[45] At this time, notwithstanding the apparent wishes of the children, it is in their best interests that they reside primarily with the Wife, in the home they are accustomed to, and that they continue their school routine. This arrangement will provide some stability and continuity to Liam and Ally, all the while permitting extensive contact with the Husband, and reducing the back and forth between two households.

Child Support:

[46] The evidence about the Husband’s income is not straightforward. The Notices of Assessment or Re-Assessment for the years 2008, 2009 and 2010, show the Husband’s income for those years to be $110,000, $92,500 and $125,000 respectively, and the Tax Return for the year 2011 shows income of $64,000. There is other evidence suggesting income of $85,000 by way of management fees and the re-characterization of a vehicle expense for 2011. Other evidence indicates a drop in the Husband’s revenues from his business.

[47] The Wife suggests that the Husband has $1,054 per month for purposes of child support, based on an average income of $103,000. For his part, the Husband suggests that, on a temporary basis, his income be deemed to be $71,500 per year for child support purposes ($64,000 plus the amount for the vehicle).

[48] The income information is incomplete. For purposes of this temporary order, the Husband’s income shall be deemed to be $71,000 per year. The Husband shall pay child support based on that amount commencing December 15, 2013. Any deviation from the amount of support can be dealt with by the trial judge readjusting the child support. Further, it may be that the effective date for the triggering of the child support obligation will have to be changed, depending on when the Husband vacates the matrimonial home.

[49] Section 7 Child Support Expenses shall be in proportion to the parties’ respective incomes as I have determined them to be for purposes of this motion.

Non-Harassment Order:

[50] Although the Wife alleges that the Husband has been verbally abusive to her, and that he has been threatening to her as well, there is no evidence of any physical altercation between the parties.

[51] The evidence of the abuse is denied by the Husband. There is no objective evidentiary foundation for a non-harassment order. All I have before me is conflicting accounts of events of discord between the parties.

[52] Although police were called on three occasions by the Wife, and the Children’s Aid Society investigated the allegations of abuse, I was not provided with any police occurrence reports or Children’s Aid Society reports. No criminal charges were laid.

[53] In these circumstances, it would be inappropriate to make the order requested by the Wife, and I decline to do so.

Order:

[54] It is Ordered that:

The parties shall have joint custody of the children Liam Aengus Elliott, born July 12, 1999 and Alexandra Ann Elliott, born March 30, 2002.
The primary residence of the children shall be with the Wife.
The Husband will have the care of the children as follows: (a) every alternate weekend, from Friday after school, until Monday morning, commencing the weekend following the date the Husband vacates the matrimonial home; (b) for the two or three days and nights, every two weeks, that the Wife is away from the City of Greater Sudbury; (c) reasonable weeknight access, from after school until 9:00 p.m., every week.
The Husband shall be entitled to telephone access with the children on a daily basis.
The Wife shall have exclusive possession of the matrimonial home located at 570 Kantola Road, in the City of Greater Sudbury, effective the earlier of December 1, 2013, or the date upon which the Husband’s new accommodation becomes available for occupancy.
The Husband shall pay child support to the Wife for the two children in the amount of $1,051 pursuant to the Federal Child Support Guidelines, effective December 15, 2013 and on the 15^th day of every month following until further court order.
The claim for a restraining order is dismissed.

[55] I have not addressed the claim for retroactive child support set out in the Wife’s Notice of Motion, as counsel suggested that this would be more properly put before the trial judge.

[56] If the parties are unable to agree on the costs of the motion, they shall communicate with the Trial Coordinator, within twenty (20) days of the date of this Order to secure a date and time to argue the issue of costs, failing which neither party shall be awarded costs.

Madam Justice L. L. Gauthier

Released: October 3, 2013