ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0336-00
DATE: December 16, 2013
B E T W E E N:
Jacqueline Bedard
M. Mauro, for the Applicant
Applicant
- and -
Jocelyn Bedard
Self Represented
Respondent
HEARD: December 11, 2013,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons For Judgment
Background
1The parties are parents of two children, Bethany Claire Bedard, born September 23, 2004, and Madeline Grace Bedard, born May 16, 2006. Custody issues were resolved by minutes of settlement which were embodied in the order of Mr. Justice McLeod of the Ontario Court of Justice, granted January 25, 2012. The parents have joint custody of the children whose principal residence is with the mother in Thunder Bay.
2While the Superior Court has no jurisdiction to vary an order of the Ontario Court, this matter comes before the Superior Court of Justice as a divorce proceeding, with corollary issues of access attached. The father’s answer included a claim for custody; however he has abandoned that claim. The court has jurisdiction to consider custody matters anew pursuant to the provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) because the Divorce Act is paramount legislation compared to the provincial legislation governing custody, the Children’s Law Reform Act, R.S.O. 1990, c. C.12 under which Justice McLeod’s order was granted.
3The issues for trial were set by order at the trial management conference. The mother seeks an order for current and retroactive child support. The father seeks orders for access, and relating to communication by the children with him. Costs are also in issue.
4Originally, the parties and their children lived together in the Sudbury area. The father continues to live there. On October 18, 2010, the parties separated. In February of 2011, with permission of the court, the mother and children moved to Thunder Bay in order for the applicant to take employment. These cities are 1,000 kilometres apart. Thus, the distance between the parties’ residences was a live issue when they negotiated access terms embodied in the previous order.
5The provisions of Justice McLeod’s order relating to access and child support are intertwined and are relevant to a consideration of the issues both parties bring to trial. Dealing first with child support, paragraph 8 of the order states:
that for so long as the Respondent [mother] resides in Thunder Bay with the children or in any other location which requires extensive travel by the father for purposes of access, Jocelyn Bedard shall, and on a without prejudice basis pay no child support to the mother for the support of Bethany and Madeline.
6At the time the mother moved to Thunder Bay, now almost three years ago, the mother and children moved in with the mother’s sister, where they lived rent-free for a year with the assistance of family. However, the mother has now purchased a home and has the usual expenses of home ownership, which are approximately $1,368 per month. As well, she says the children are growing and they require more expensive clothing for each season.
7The mother has borrowed from her sister, to the extent of $23,500, has a line of credit at $18,000, and credit card debt of $5,000. She submits she cannot continue in this fashion and requires support from the father. Her employment as a teacher provides her with income of $55,000 per year in non-taxable funds. In addition, she receives $759 per month from child tax benefits, for total annual income of $64,112 currently. She is employed on a contract basis.
8The father is employed. In 2012, his total income was $61,668. In 2013, his year-to-date income as of September 19, 2013 (the 19th bi-weekly pay period of the year), was $47,522.61. His projected annual earnings for 2013 are therefore $65,000.
9The father’s circumstances have also changed since the previous court order was made. He has made an assignment in bankruptcy and has moved in with his mother, to whom he pays rent of $500 per month. While he may have payments to make to the trustee on account of surplus income, once the bankruptcy is complete, he will have no debts to pay.
Access
10The father’s access is specified in the court order. It provides that the father shall have access in Thunder Bay every third weekend. The 2012 weekends were identified in the order. The order required the parents, in subsequent years, to agree upon a schedule of predetermined access for the father. Apparently the parents have not done this, and this omission has led to hard feelings, unpredictable access, and miscommunications between them, the very problems the order was structured to prevent.
11The order also provides for specified Christmas and March Break access each year with pick-ups and returns in Thunder Bay. As well, the father is entitled to have the children during the month of July, with the mother to transport them to Sudbury and the father to return them to Thunder Bay.
12There is a general clause in the order granting the father liberal access, not limited to the weekend access. Finally, the order provides that the father have such other access as the parties can agree upon or as ordered by the court.
13Unfortunately, the mother has ignored the spirit of the order, which is that the children should have generous access to their father. This was evident at trial when the mother refused to let the father, accompanied by the paternal grandmother and the father’s fiancée, have dinner with the children after the trial was done for the day. She also refused to permit the father access to the children on the days following the trial, saying that she had planned a sliding party for them with friends and he would have the children the following weekend. If the parties had only drawn up a yearly schedule as the order requires, there would be no excuse for the mother refusing access weekends that the father proposes on the basis that she “has plans.”
14The mother’s rigid and controlling approach to the father’s access suggests that she is trying to marginalize the father’s role with the children. She texted him incessantly on the day the father was to depart Sudbury to return the children, even demanding that he send her photographs of the children in the car so that she could be reassured that they were indeed on en route. This behaviour was intrusive, controlling, and inconsiderate of the children, as well as the father. The tone of the mother’s text messages is insulting. This behaviour is not in the children’s best interests. It fails to respect the relationship the children have with their father and escalates the tensions between the parents. The children are forced to choose which parent they are to please at any given moment.
15Unfortunately, the father also attempts to assert control over the mother’s care of the children which escalates the tensions. Telephone access is an example. Despite the fact that he telephones the children before bedtime 6 nights out of 7, he requests that the court order the children to call him at the mother’s expense. He also asks that the court order telephone access to his extended family, such as grandparents, aunts, cousins, and his fiancée.
16The mother complains that the father cut one of the children’s hair during an access visit, despite a prohibition in the court order that he not do so.
17On another occasion, when he was concerned that the mother would refuse his access, he told one of the children that he would come to see her at school, but instructed her not to tell her mother. The child was uneasy and told the father that her mother would be angry. The father did not seem to recognize that his behaviour in requiring the child to keep secrets from her mother put the child in a stressful position. It is indicative of his attempts to marginalize the mother and is not respectful of the relationship the children have with her.
18Each parent appears to treat the children as possessions that are at the heart of a tug-of-war between them. The testimony of each was strewn with expressions such as “my girls,” or “my babies.”
19It appears that neither parent has come to terms with the ramifications of their separation. They are still angry at one another. The children are living with the fall-out. Both parents would benefit from personal counselling to deal with their anger.
20The father asks the court to order that he have access on alternate weekends with fixed dates; that the mother drive the children half way; and that the drop-off following July access be the following weekend and not mid-week. The father takes the position that the money he spends to exercise access is child support. He has persuaded his trustee in bankruptcy to include some of the costs as part of his statement of expenses as child support.
21The father’s evidence is contradictory. On one hand he states that his employer cannot always spare him to spend several days in Thunder Bay based on the current schedule of every third weekend. He also argues that he cannot afford to pay child support without reducing his access. On the other hand, he is asking for an increase in access.
22The parties entered into an agreement which structured access in detail. The children are already exposed to the rigors of travel. In addition to shorter time with their father during the school year, they have longer vacations with him, including time at his home and in the company of his extended family.
23In my view, the existing order adequately meets the needs of the children if the parents would simply adhere to all of its provisions. Currently, the father does not exercise access to the full extent permitted by the existing order. The father’s demand that the children telephone him at the mother’s expense is unreasonable in view of the fact that he now speaks to the children 6 days out of 7.
24The father complains that the I-pod he gave the children to facilitate access is being used for other things, such that it is losing its effectiveness. He wishes to have access to the device in order to “de-clutter” it so it works more effectively. This is a reasonable request. The mother is ordered to provide the children’s I-pod to the father at every access visit and the father is ordered to return it at the conclusion of each visit. The father’s application is otherwise dismissed.
The Father’s Expenses
25On average, Mr. Bedard visits the children about 10 times per year. Over a period of three years, he has only missed about 5 monthly visits. He says that some of these missed visits followed closely on a longer visit, such as Christmas. The summer, Christmas and March Break visits take place at his home in Sudbury.
26The father’s evidence on the cost of travel is contradictory. His financial statement sworn November 30, 2012, claims that the monthly cost is $1,500 on average.
27Mr. Bedard testified that he could not afford to fly to Thunder Bay for weekend visits. His schedule of expenses filed as exhibit 16 shows expenses of $1,194.62 when he travels to Thunder Bay by bus for a weekend. This includes an item of $246.50 for lost wages.
28Exhibit 12 is a statement of income and expenses for the month of August 2013, made to the father’s trustee in bankruptcy. It shows claims for hotel, gas, and “child support” totalling $1,079.48.
29The September 2013 statement (exhibit 13) shows expenses for travel and “child support” of $892.30. Expenses claimed for October 2013 travel are $852.44; for November 2013, travel claimed totals $927.55. The average monthly expense for travel as claimed to the trustee in bankruptcy is $937.94.
30The father’s financial statement is a year old and predates his bankruptcy. It declares his annual income at $67,560. His budget includes additional expenses for vacations ($500 per month), clothing for the children at $50 per month, activities for the children at $50 per month, entertainment at $100 per month and meals outside the home at $100 per month. These are in addition to $1,500 per month for travel to Thunder Bay. Based on his income at that level and expenses claimed, he had a surplus of $898 monthly before debts were claimed.
31The father claimed monthly debt payments of $2,190.84. Of course, these debt payments are expunged by the bankruptcy. There is no evidence whether the father must make surplus income payments to his estate. The father has also made modest payments toward the children’s special expenses such as Girl Guide uniforms. His medical plan reimbursed him for the cost of his daughter’s glasses.
Child Support
32No order for s. 7 expenses is being sought at this time.
33Section 3 of the Child Support Guidelines sets out the presumptive rule: that guideline support will be ordered for children under the age of majority unless otherwise provided in the Guidelines. Section 10 deals with undue hardship. It gives the court jurisdiction to order an amount that is different from the table amount in circumstances of undue hardship.
34There is no formal application before the court for such a finding. Had there been such an application, the court would be obliged to consider whether, upon these facts, the father has unusually high expenses in relation to access.
35I have concluded that the father’s ability to access his children will not be curtailed if child support is ordered. Currently, the weekend visits occur about seven times a year. There are longer visits at Christmas, March Break and during July. He will ultimately have some relief from his debt burdens as a result of the bankruptcy.
36Section 11 (b) of the Divorce Act imposes on the court a duty to ensure that reasonable arrangements have been made for the support of any children of the marriage. Given the father’s income and expenses, I cannot conclude that it is reasonable that he pay no child support.
37The father has concluded that the money he pays to travel to Thunder Bay to see his children is child support. That is not the case. While I have no doubt that the travel is onerous and costly, the fact is that he has had a vacation from paying child support for nearly three years. He is not paying spousal support. He has had an opportunity to get his financial house in order. It is time that he shared in the financial burdens of raising the children so that they might better have their needs met.
38The father, Jocelyn Bedard, is ordered to pay to the mother, Jacqueline Bedard, child support for two children in the amount of $966 per month commencing December 1, 2013, based on annual income for 2013 of $65,000.
Retroactive Child Support
39The application was commenced on October 26, 2012. The mother seeks an order of retroactive child support from November 1, 2012 – November 1, 2013 (13 months) at the rate of $966 per month if his 2013 income is used or, alternatively, at the rate of $915 per month if his 2012 income is used.
40In my view, the father was on notice once the application was served that the mother was now demanding child support. He had the income to pay and, had the court made an order at that time, he would have been liable for child support based on his 2012 income, which was $61,668. The Respondent father is therefore ordered to pay to the applicant mother retroactive child support for two children from November 1, 2012 – November 1, 2013 at the rate of $915 per month for a total of $11,895. Arrears may be paid at the rate of $300 per month.
Divorce
41The divorce is proven. An order will issue that the parties be divorced.
Costs
42If the parties cannot agree on costs, either party may apply to the trial coordinator within thirty days from the release of these reasons for an appointment to argue same, failing which, costs will be deemed to be settled. The father has
leave to appear at a costs motion by teleconference provided he contacts the court to obtain teleconference information in advance of a costs argument.
“original signed by RSJ Pierce”
Regional Senior Justice H.M. Pierce
Released: December 16, 2013
COURT FILE NO.: FS-12-0336-00
DATE: December 16, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jacqueline Bedard
Applicant
- and –
Jocelyn Bedard
Respondent
REASONS FOR JUDGMENT
Pierce J.
Released: December 16, 2013
/ket