Court File and Parties
Court File no. FC-12-769
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHRISTINA JUDITH BELISLE
Applicant
- and -
RANDY JOHN ABBOTT
Respondent
P R O C E E D I N G S A T T R I A L
BEFORE THE HONOURABLE JUSTICE J. MACKINNON
on October 3, 2013, at OTTAWA, Ontario
APPEARANCES:
A. Campbell Counsel for the Christina Belisle
Randy Abbott Representing himself
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
Decision
1
Transcript Ordered:. . . . . . . . . . . . . October 4, 2013
Transcript Completed:. . . . . . . . . . . . November 3, 2013
Ordering Party Notified: . . . . . . . . . . December 9, 2013
THURSDAY OCTOBER 3, 2013
THE COURT: I’m ready to give my reasons and once I’ve delivered them orally this morning, I would ask the recorder to prepare the transcript. All right, thank you.
THE COURT RECORDER: Of just the decision Your Honour?
THE COURT: Yes, just the decision, yes.
THE COURT RECORDER: Thank you Your Honour.
THE COURT: Yes, just the decision. All right.
R E A S O N S F O R D E C I S I O N
MACKINNON, J. (Orally)
Introduction and Background
The issues in this trial relate to Chance Shayne Abbott born on June 23rd, 2003. Chance is 10 years old. The parties are his parents. Both are seeking sole custody of Chance. The father seeks joint legal custody as an alternative. The other key issues are access and child support.
The parents separated in March 2010, they did not have a written agreement or a Court order until May 15th, 2012. At that time Master Roger made a temporary order for the father to have alternate weekend access to Chance from Friday from school until Monday morning at school and every Wednesday overnight until Thursday morning when he was to be returned to school. Not stated in the order but
clear by inference is the fact that Chance resided with his mother the rest of the time.
The mother lives in Ottawa, she has re-partnered with Tyler Shipley. Mr. Shipley had shared custody of his two boys who are close in age to Chance. The three boys get along well. The mother and her partner are both employed.
The father lives in Hammond, Ontario with his parents. He says that his mother has Alzheimer’s and his father has had dizzy spells for the past six months which prevent him from driving. The father has not worked for an unstated but long number of years. He says the reason is a bad back and he testified that he is in receipt of ODSP because of this. The father has not contributed any child support for Chance since the separation.
Chance has a significant learning disability. His school has created an individual education plan for him which include special classes and special assistance. He attends Pope John-Paul separate school in Ottawa.
On February 28th, 2013 Justice Polowin ordered the Office of the Children Lawyer appointed for a custody access assessment. The OCL appointed Lorraine Ceasor to do the clinical investigation. She met with the mother at her home for an initial meeting. She also saw Chance briefly on that occasion and made some observation of him. After two attempts to contact the father she was able to schedule a home visit with him for June 26th, 2013. As she was pulling up just after 12 noon the father was walking out to his truck. He said he was unable to meet with her that day because he had to pick Chance up at school. Ms. Ceasor explained the necessity for a timely meeting and the consequences of not meeting with her namely that she would be unable to do a complete report. The respondent then said he would call her the next day to reschedule, but he did not. The OCL also contacted his lawyer but the meeting with the father did not take place. The end result is that the OCL report was not completed. The usual steps of meeting with both parents, seeing Chance with each of them in their homes and interviewing Chance privately were not taken.
Custody
The father’s claim for sole custody is dismissed. The father did not present a parenting plan for having sole custody of Chance. He only said that he would continue to stay at his parents’ with Chance and would move into Ottawa at some point in the future. In the meantime he would continue to drive him to school. The respondent testified that he would like to have Chance live with him but I cannot change the child’s residential status quo for that reason. The father’s allegation that the mother had left Chance home alone has not been proven. The father could not prove this from his own testimony. He did file a report to the CAS. The CAS did conduct an investigation and found that the allegation was not verified. Their file was closed on intake. At that same time the father made other allegations against the mother relating to drug and alcohol abuse, all of which were looked into by the CAS and found not verified. In April 2012 the CAS social worker Ms. Willbond attended at the mother’s home. Amongst other observations she found that Chance was well dressed and healthy looking, that he hugged his mother when he entered the home, and he seemed very comfortable with her and happy in the situation. In addition, Chance denied that he had been left home alone or that he had observed excessive alcohol use or any drugs in the home. In May 2013 the OCL social worker was also in the mother’s home, she only saw Chance briefly but noted that he appeared comfortable and happy in the house. The father has not established any misconduct by the mother toward the child that would come close to warrant removing him from her care.
I did hear evidence about a New Year’s Eve party in her home. That party clearly got out of hand. There were concerns related to the conduct of one couple at the party and an argument that took place between the mother and her older son Alexander. Clearly these were not happy occurrences, but equally clearly the events of the New Year’s Eve party alone do not provide the basis for changing custody or residential placement for Chance.
Joint Custody
The father’s claim for joint legal custody is also dismissed. These parents do not get along with each other at all. This was very evident from watching and listening to them in the courtroom. There is no history of joint decision making between them. The father acknowledges that they do not communicate. The police have been called in on several occasions. The father has called in the CAS to investigate the mother. As already noted the CAS did not verify any of his complaints and closed the file at intake. Quite apart from the disputed allegations of physical assault by the respondent against the applicant there is just not the presence of any demonstrated ability to communicate or to get along for the sake of the child that would enable an order for joint legal custody to be made.
Sole Custody to the Mother
I also find that historically the mother has been the parent who has taken charge of Chance’s education and medical needs. No evidence has persuaded me that it would be in Chance’s best interest to change that now. Accordingly sole custody of Chance is awarded to the mother and Chance shall continue to have his primary residence with her.
In addition I incorporate paragraphs four and five from the master’s order into my own order as follows. The respondent may have access to and may have a copy of any and all school records and medical/dental records pertaining to Chance without the written consent of the applicant. He may communicate directly with school officials and medical professionals about any issue regarding Chance. The applicant shall keep the respondent aware of the medical and educational professionals involved with Chance and provide contact information to him. In addition I include the following term in my order. The respondent shall not be entitled to attend appointments or interviews when the applicant and child are present.
Access
Unfortunately the father’s failure to cooperate with the OCL clinical investigation has deprived the Court of much valuable information pertaining to Chance’s best interests and to his views and preferences. This is compounded by the lack of detail or factual content in the father’s own testimony. I have little idea about what he does with Chance when they are together. Despite this I have concluded from the testimony I did hear that he should continue to have unsupervised access with Chance. The concerns with respect to the father’s exercise of access to Chance are these: the father frequently does not comply with the return times set out in the Court order; Chance is absent from or late for school too frequently when he is with his father; the father makes negative comments to Chance or in his presence about his mother; Chance had bruises on his legs said to be caused by his father giving him charley horses.
I accept the applicant’s testimony detailing the times that the respondent has kept Chance in breach of the master’s order. Her testimony was precise and detailed. It was supported by the school attendance record and a letter from the school highlighting the urgent problem of Chance’s absence from school. In contrast, the respondent’s testimony was vague. I did not accept that he kept Chance from school only when he was ill. For example he testified that he kept Chance home from school for eight consecutive days due to illness; however he did not take Chance to the doctor even once during that period of time. The school calendar detailing absences was color coded by the applicant to show the days when the father was responsible for Chance’s non-attendance and when she was responsible. I accept her records which were detailed and consistent. They also correspond to the respondent’s exercise of Wednesday overnight access and alternate weekend access with Chance. I find that the respondent has kept Chance home from school for 32 days without justification during the academic year 2012 to 2013.
The respondent’s disregard of the terms of the access order is consistent with his disregard of other Court orders, in particular those requiring him to provide specific financial disclosure. In addition the respondent tried to shift responsibility to the applicant for some of his non returns of Chance by claiming that on some occasions his truck was not working and he called the applicant to say she would have to come to get Chance. It was his testimony that had she really wanted Chance she would have come to pick him up but she did not do so. This testimony was contradicted by the example given from this past summer. The applicant did in fact go out to get Chance on the Tuesday but he was not sent home with her, rather the respondent kept him until the Thursday or Friday of that week.
The allegation that the father disparages the mother to Chance has been proven to my satisfaction. I accept the mother’s testimony noting that it was also confirmed by Chance in his interview with the CAS social worker. I also note from my observations in Court that the respondent’s hostility towards the applicant and Mr. Shipley is evidently high. Having said that, I would also note that Chance has been described as being exposed to conflicts between his parents. I do not accept that the mother and Mr. Shipley have managed to shelter Chance from their own views of the respondent. I recommend that they both do more to make sure that Chance never hears them talking about his father and never sees them displaying any negativity in relation to his father.
The testimony with respect to the bruises was that Chance had three bruises on each of his thighs about the size of two-dollar coins. Both the applicant and Mr. Shipley described the bruises and stated that Chance had told them he was roughhousing with his father when his father gave him charley horses in order to toughing him up. The father denied the allegation. I was not satisfied on balance of probabilities that bruises caused by the respondent had been proven. I was not given any dates. There were no photographs. No report was filed with the CAS. Chance was not taken to the doctor in order to document any bruising. I am also satisfied that a previous problem occasioned by the respondent smoking in the child’s presence is not a problem at this time. Based on these findings I have not accepted that supervised access is warranted and the mother’s claim for supervised access is dismissed.
Access Schedule
There is no doubt in my mind that Chance is a child who needs to attend school every day. He has a serious learning disability and the important steps that the school is taking to address this cannot be successful should he continue to miss school at the rate that he did last year. I accept the legitimacy of the mother’s alternate proposal to the extent that the father’s access should no longer include overnight visits on school nights. Accordingly I order as follows. The respondent shall have access to the child every second weekend from Friday when he shall pick the child up from school at the end of class until Sunday at 7:00 p.m. at which time the child shall be returned to the mother at the Tim Hortons on Greenbank Road across from the police station. In the event that the Friday of the respondent’s weekend is a holiday or if Chance is not at school, then the applicant and respondent shall meet at the Tim Hortons identified above on Friday at 5:30 p.m. to exchange Chance. In the event that the Monday following the respondent’s weekend with Chance is holiday the parties shall exchange Chance on Monday at the Tim Hortons identified above at 7:00 p.m. The respondent is responsible for the transportation of Chance for all pickups and returns. On the other week the respondent shall have access to Chance on Wednesday from after school until 7:00 p.m. at which time he shall also return Chance to the applicant at the Tim Hortons identified above. Of course, the utility of the evening return times will be defeated should the respondent not comply with this order. In order to deter him from non compliance I make a further order as follows. If the respondent does not comply with the designated return time and place for Chance on a total of three occasions, then the return time on Sunday shall be changed to 3:00 p.m. at the Tim Hortons identified above and the Wednesday visits shall be cancelled. The applicant shall be required to provide independent proof of a late or non return in a motion brought on notice to the respondent, of which I shall remain seized.
Police Enforcement
By pulling the return times back, as I have, the mother will be provided with sufficient opportunity to have the order enforced and thereby to ensure that Chance is at school the following morning. Given the difficulties encountered with respect to the respondent’s non compliance with the return of Chance, I order that the police force having jurisdiction over the parties or the child shall when necessary enforce this order to maintain the parenting schedule contained herein. In doing so the police shall have the authority to and shall remove the child Chance Shayne Abbott born June 23rd, 2003 from the care of one parent and place the child in the care of the other parent as required by the terms of this order.
Summer and Holiday Access
The mother has asked that she be permitted to have some uninterrupted summer access with Chance which would involve cancelling two of the father’s weekend access periods. I agree that this is reasonable and I order as follows. The applicant shall be entitled upon 21 days-notice to the respondent to change two of the respondent’s parenting weekends per year for the purpose of Chance taking a vacation with the applicant. The two cancelled weekends shall not be consecutive. The mother did not propose holiday access for the father but my view is that he should be entitled to a full week of uninterrupted summer access with his son. I order that the respondent may choose a one-week period during which he will have summer access to Chance, the seven days to run from Monday to Sunday. The respondent shall pick his one week by notifying the applicant in writing by May 1st in each year. Further once he has done so the applicant may not cancel the weekend included in that one week period chosen by the respondent for the purpose of scheduling his own vacation with Chance.
With regard to sporting events, the Court orders that the parent who has Chance in his or her care shall ensure that Chance attends his regularly scheduled activities. The applicant shall not schedule activities for Chance during the one-week summer access period selected by the respondent.
Restraining Order
The father has admitted to two separate breaches of the no contact order made by the master on May 15th, 2012. His explanation seemed to be that the address provided for the mother in the style of the cause of that order was at 5 Jessica Private while, when the breaches were committed, she was living at a different residence. I do not accept this as a valid explanation. The order stated that the respondent was not to attend at the residence or place of employment of the applicant. The meaning of that provision is clear. In any event the father agreed to the issuance of a restraining order and with his consent I order as follows. The respondent Randy John Abbott shall be restrained from:
A. coming within 500 meters of the applicant, her home or place of work unless same is to pick up or drop off Chance Shayne Abbott pursuant to the terms of an order of this Court and;
B. from communicating or attempting to contact the applicant either directly or indirectly except in a case of an emergency regarding Chance Shayne Abbott in which case the communication shall be in writing which includes text message.
Child Support
The respondent reported $13,174 in his 2012 income tax return by way of annual income. The return notes or rather the summary provided notes the income is derived from social assistance. The amount is consistent with the amounts of income reported by him in the three preceding years as shown in the comparative income summary. The respondent did not comply with two separate orders requiring him to produce financial disclosure. The Court does not have actual proof that he is in receipt of ODSP. The Court has not seen an income tax return from him nor has he prepared a financial statement as is required by the rules of the Court and by a specific order of a judge of this Court. The respondent testifies he is unable to work because of a long standing back problem. He has not provided any details to the Court in his own testimony as to how this occurred or when. Nor has he provided any medical information to verify his inability to work. For these reasons, the applicant asked the Court to impute a minimum wage income to the respondent. The applicant also incurred special expenses for Chance for dental care and for the different sports activities and summer sports camps that she enrols him in. She has provided some records supporting some of these expenses and testifies that the total is about $4,000 for the current year. The applicant asked that the respondent contribute his percentage share of that amount. The applicant submits that at minimum wage the respondent could earn $19,987 per annum. Minimum wage is $10.20 per hour. Her calculation assumes that the respondent could be fully employed full-time for 52 weeks of the year. That is not reasonable. There are at least 10 statutory days each year. In addition the respondent has been out of work for a long time. He’s 50 years of age. He stated that he might try to retrain as a truck driver but there is no evidentiary foundation to show an ability to obtain work in that field. I find that $19,987 is an unrealistically high estimate of what the respondent could likely earn even with reasonable efforts. In fact the respondent would have to work not less than 25 hours a week just to match his ODSP income. Other than his failure to provide proper financial disclosure I am not persuaded that the respondent could obtain employment at that level of regularity. Accordingly I decline to impute additional income to him. I will consider his non compliance with the financial disclosure orders and rules of the Court when I am hearing submissions with respect to costs.
Section 7 Expenses
Based on the respondent’s actual income the table amount of child support is $62 per month. I direct that this be paid by him from the month in which it was first claimed namely March 2013. The respondent should also contribute something towards Chance’s special expenses. His own testimony was that he has between $100 and $150 per month left over at the end of each month after he has met his own expenses. Noting again that he has not proven what his expenses are, nonetheless having regard to his ODSP income this does not seem improbable. Accordingly in addition to the tabled amount I am ordering the respondent to contribute the monthly amount of $38 towards Chance’s special expenses for a total of $100 per month. Based on the respondent’s own testimony I am satisfied that he can afford this. Accordingly I order that the respondent pay child support and section 7 expenses to the applicant for Chance in the amount of $100 per month commencing March 1st, 2013 and continuing until further order of the Court. I also require the respondent to provide full disclosure each year with respect to his income for the preceding year. This is to include a copy of his income tax return and attachments as filed and is to be delivered to the applicant without further request being made by her no later than June 1st of each year commencing in June 2014. Should the respondent become employed, the applicant will then be able to seek a commensurate increase in the amount of table support and in the respondent’s contribution towards special expenses.
Life Insurance
Similarly and although it is the respondent’s failure, I am not in a position to know whether he qualifies for life insurance or can afford to obtain a policy. One would hope that the respondent would meet his parental obligations to his son by obtaining a reasonable amount of life insurance to secure his obligation to contribute to Chance’s support. If he does not do so then at the time of his death the applicant shall have a first charge against his estate in the amount of $5,810 which is the amount of life insurance she requested in the event that income was not imputed to the respondent.
The formal order shall also contain the usual clause with respect to enforcement by the Family Responsibility Office and post-judgment interest with respect to the current arrears of support.
Conduct of Witnesses
Before closing I wish to comment upon the conduct of the respondent and his daughter Ashley Abbott in providing testimony to the Court. I found that both of them misled the Court as to the independence of their testimony. I have found that despite advising the Court to the contrary, in fact they did discuss the testimony that would be provided to the Court. After the issue was drawn to the attention of the Court and during the Voir Dire that was held, the respondent admitted that his daughter helped him to refresh his memory as to certain events. During the Voir Dire she testified that while the trial was in progress her father told her what he wanted to say and she wrote down notes for him to help him in this regard. After conducting the Voir Dire I could not conclude that there was a basis for finding of perjury against either of them. Nonetheless I did find that both witnesses were disingenuous and did mislead the Court in this regard. In particular, the respondent sat through his daughter’s testimony without attempting to correct or clarify it for the Court. He ought to have done so. As for Ms. Abbott, I concluded that her youth and her obvious loyalty to and sympathy for her father overtook her better judgement on this occasion. I have taken these factors into account in assessing the weight to be given to the testimony of both of them.
I will now hear submissions with respect to costs.
...SUBMISSIONS BY MS. CAMPBELL
...SUBMISSIONS BY MR. ABBOTT
Costs
THE COURT: The applicant seeks cost of this proceeding; she was clearly the successful party. This is a case that should not have come to trial. The respondent had no hope of obtaining sole custody or joint custody with respect to his son for the reasons I have given. The offer the applicant made was a very reasonable offer. It was not more favorable to the respondent than my decision but it was a reasonable offer. It called for a reply from the respondent. The respondent should have made a reasonable counter proposal at that time and he did not. In fact the respondent made no offer to settle at any time.
The respondent was also uncooperative during the litigation. He has failed to comply with two orders of the Court requiring him to make financial disclosure. He did not cooperate with the investigation by the Office of the Children Lawyer and failed to meet with the clinical investigator. To fail to meet with the children’s lawyer and to not participate in the clinical investigation ordered by the Court, and to then still come to Court and seek sole custody or joint custody is frankly irresponsible conduct.
In essence the respondent says he cannot afford to pay costs. It is late in the day to realise that. The law does not agree that an impecunious litigant can litigate unsuccessfully without exposure to an award of costs against him. Financial ability or inability is a factor pertaining to the amount of costs and I have taken that into account. I reviewed both of the bills of costs provided and having regard to the issues and the duration of the trial which was two and a half days plus this morning the amount sought of $14,988 is reasonable at a full recovery basis. My decision is to award partial recovery costs but at the high end of that scale as a concession to Mr. Abbott’s financial circumstances. I am allowing costs payable to the applicant by the respondent fixed at $12,000. Ten per cent of the amount is attributable to the child support issues and is ordered to be collected by the Family Responsibility Office.
I have endorsed the record, a final order will go in accordance with the oral reasons given. Costs are assessed against the respondent and fixed at $12,000, ten per cent of which is enforceable by the Family Responsibility Office. I have signed the pink form for the restraining order. Thank you.
Approved for release by The Honourable Justice Mackinnon
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Belisle v. Abbott in the Superior Court of Justice, held at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411_CR21_20131003_093934__10_MACKINJE which has been certified in Form 1.
Date Linda A. Lebeau