COURT FILE NO.: 04674/11
DATE: 20140331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.G.C.
Applicant
– and –
C.L.C.
Respondent
Christopher J. Unruh, Counsel for the Applicant
Scott Vining, Counsel for the Respondent
HEARD: March 24, 25, 26 and 28, 2014
CONLAN, J.
REASONS FOR JUDGMENT
Introduction and the Background of the Litigation
This was a refreshing case in that it proceeded to trial relatively quickly rather than get bogged down in seemingly endless motions.
This case illustrates that when parties embrace the trial process it brings finality to the situation rather than engaging in a slew of mini-trials disguised as motions, leaving the parties with a series of Temporary Orders from various Justices, deep-seeded resentment engendered by the protracted nature of the litigation and busted bank accounts.
The parties were married on May 22, 2004 and separated on September 2, 2009.
The Applicant is currently 40 years old. The Respondent is now 33 years old.
In his Application issued in August 2011, the Applicant father, R.C., sought a divorce; joint custody of the two children, boy Ch. born on […], 2006 (7 years old) and boy Co. born on […], 2007 (6 years old), with their principal residence being with R.C.; reasonable access to the Respondent mother, C.C.; equalization of property; and child support from the mother as per the Guidelines including section 7 expenses.
In her Answer filed in October 2011, the mother sought sole custody of the two children; access to the father on alternate weekends; equalization of property; spousal support; and child support from the father as per the Guidelines including section 7 expenses.
On July 4, 2012, Langdon J. made a Temporary Order, on consent, for custody of the two children in favour of the father; specified access between the boys and their mother; and an offset amount of child support from the mother to the father in the amount of $94.00 per month, with the parties sharing section 7 expenses proportionately. That Order was based on attributed gross annual incomes of $53,811.00 for the father and $18,413.00 for the mother.
The Respondent mother paid no child support as ordered by Langdon J. until December 2013, about 17 months after the Temporary Order was made. Exhibit 7 at trial is the Family Responsibility Office’s statement of payments made by the mother.
By the time of trial, the contentious issues were framed as the primary residence of the children and child support. Essentially, the Applicant seeks a continuation of the status quo – primary residence of the children with him and alternate weekend access between the Respondent and the boys, along with other specified access.
The Respondent seeks primary residence of the children with her and alternate weekend access between the Applicant and the boys, along with other specified access.
Child support would be paid by the access parent, as per the Guidelines. The Respondent also seeks an Order that, between January and August 2013 while she was a student, despite the Temporary Order of Langdon J. referred to above, she was not liable to pay any child support.
A divorce and joint custody of the boys were agreed to by the parties, and the remaining issues raised in the pleadings had previously been resolved.
In the Trial Record, the most recent Financial Statements show that the father is self-employed and, as of August 2013, had a gross annual income of $48,060.00, while the mother, as of June 2012, was unemployed and had nil income.
The father’s estimated gross annual income in the year 2013 is $63,000.00.
Exhibit 10 at trial is the Respondent’s Financial Statement sworn on March 20, 2014. It shows a total annual income of $19,892.16 and total yearly expenses of $26,397.48.
The Trial Record includes a report of the Office of the Children’s Lawyer dated January 2, 2013. It recommends a custody and access arrangement in accordance with the relief sought by the father – joint custody with the boys principally residing with R.C. and specified access between the children and their mother.
This trial was held in Walkerton on March 24, 25 and 26, 2014. I reserved my decision, after hearing final submissions from counsel in Owen Sound on March 28, 2014.
The Issues and Analysis
Custody and Access
A. The Evidence of Karen Garbutt
Karen Garbutt, a clinical investigator with the Office of the Children’s Lawyer (“OCL”), was the first witness at trial, called out of order by the Respondent mother, on agreement of the parties.
Ms. Garbutt’s curriculum vitae was marked Exhibit 1 at trial. During cross-examination of Ms. Garbutt by counsel for R.C., an application was made to have Ms. Garbutt qualified as an expert witness in the field of emotional issues for children who are experiencing a parental separation. A brief voir dire was held, at the conclusion of which I delivered oral reasons dismissing the application. I was not satisfied that Ms. Garbutt is a properly qualified expert in the field mentioned; nor was I satisfied that the proposed expert opinion evidence was necessary. Its probative value did not outweigh its prejudicial effect. Finally, no notice had been given that the Applicant father intended to qualify Ms. Garbutt as an expert witness.
Nevertheless, Ms. Garbutt is an educated and experienced lady. She has a bachelor’s of arts university degree in psychology, a bachelor’s of social work university degree and a master’s of social work university degree. She has worked for many years in the child protection and mental health spheres. She has conducted some forty to fifty clinical investigations for the OCL since 2007.
Exhibit 2 at trial is her report, 25 pages in length including two appendices attached thereto, dated January 2, 2013.
The investigation period was between October and December 2012. The investigation included but was not limited to two 90-minute home visits with the parties on November 3 and 8, 2012, two 40 to 45-minute interviews with the children, separately, on November 9, 2012 and a telephone interview with R.C.’s parents on December 3, 2012.
Each of the home visits with the parties was “positive and child-focussed”. The Respondent mother was living in Lindsay, Ontario at the time and was not prepared to move to the same community where the children and R.C. were living. The Applicant father and the boys were living where they are currently – near Paisley, Ontario.
Ms. Garbutt’s report deals with a variety of issues raised by the parties, including corporal punishment (spanking) of the children by the parents in the past, depression on the part of C.C., frequent moves by the Respondent mother (six of them) after leaving the Paisley home, concerns about C.C.’s physical and emotional stability and allegations of abuse by R.C. towards C.C. during their marriage.
Largely based on the value of stability and continuity in care for the children, who had lived with their father since the end of January 2011, Ms. Garbutt recommended joint custody of the children, primary residency with R.C. and specified access between the boys and C.C.
I was impressed with the evidence of Ms. Garbutt. She appeared to know the file well; she conducted a relatively thorough investigation; and she made concrete and well-supported recommendations.
B. The Evidence of R.C., the Father
In direct examination, I was also impressed, generally, with the evidence of R.C. He was responsive to the questions asked. He appeared to be an earnest, caring father who is committed to doing what is best for the children.
Now 40 years old, R.C. operates a beef farm and has worked in carpentry and woodworking for the same employer for about 19 years. He generally works 9:00 a.m. to 6:00 p.m., Monday to Friday. He is a member of a local carpenter’s union which gives him and the boys medical and dental benefits. He has a pension and life insurance.
R.C.’s gross annual income over the past few years was approximately $35,000.00 in 2009, about $37,000.00 in 2010, approximately $54,000.00 in 2011, and about $77,000.00 in 2012. In 2013, R.C. submitted invoices to his employer which totalled $37,883.89 (Exhibit 8 at trial). The Applicant estimates his total income for 2013 at about $63,000.00.
R.C. has lived near Paisley for a very long time. His home is owned by his parents.
Before the parties separated, the Applicant raised cattle. His farm chores took about 90 minutes or so in the mornings and about the same duration of time in the evenings. He was also working off the farm between 9:00 a.m. and 6:00 p.m. during the week. He was the breadwinner. The Respondent never earned anything but a nominal income. R.C. did some farm work on Saturdays. Sundays were reserved for Church and rest. His farm is about 119 acres of land. He has about 135 cattle.
The values of R.C.’s farm land and his cattle are going up.
According to R.C., he has not been a “full-time farmer”, as was suggested to him in cross-examination at trial. Further, family has always come before farming.
Since separation, his father, who has about 500 acres of his own land with as many as 300 cattle, has handled the farm chores for R.C. because of R.C.’s child-care responsibilities. Neither R.C. nor his father has currently, or has ever had, any farm employees.
R.C.’s father is 67 years old. He is fairly healthy, although he has diabetes.
Notwithstanding many questions in cross-examination at trial which suggested that, given the size of the farm operations of R.C. and his father, it is impossible that the Applicant’s father has been doing all of the farm chores when R.C. has the children, the Applicant remained steadfast in his evidence that he does no farming when the boys are in his care. His farming duties are limited to every other Saturday, when the boys are with the Respondent.
R.C. denied the suggestion in cross-examination at trial that he is continuing to farm while his mother has been doing the majority of the child care for the boys.
After the parties separated, although he knew that money was a problem for the Respondent, R.C. did not pay to her any spousal support until after the issuance of the Temporary Order of Langdon J. It should be noted, however, that the Applicant was voluntarily paying child support well before the date of the said Temporary Order and even while the parties were rotating care of the boys on an equal basis. And R.C. denies that the Respondent’s money problems were the cause of her frequent moves after separation.
In examination-in-chief, R.C. described, in detail, a typical school day. Remember that the children have lived with him for more than three years now, since the end of January 2011. The boys attend the same school in Paisley. They travel to and from the school by bus.
The parents of R.C. live across the road, thus, according to the Applicant, it is an ideal situation in that the grandmother cares for the two boys from when they get back on the bus from school (just after 3:30 p.m.) until when R.C. gets home from work (shortly after 6:00 p.m.). That after-school care by the grandmother takes place at either the residence of R.C. and the children or across the road where the grandparents live.
Since the end of January 2011, there have been some time periods when R.C.’s regular work schedule changed. In cross-examination at trial, the Applicant confirmed that he worked four 10-hour shifts, 7:00 a.m. to 5:30 p.m. from Monday through Thursday, at Bruce Power from mid-June 2012 to the last week of August 2012 (for 11 weeks, while the children were not in school) and, before that, at a project in Owen Sound from mid-October 2011 to the first week of March 2012 (for 20 weeks, while the children were in school). Those were union jobs for which R.C. earned almost $35.00 per hour.
During the periods described immediately above, when R.C. was not at home and when the boys were not in school, the Applicant’s mother cared for the children. R.C. did not offer C.C. the opportunity to care for the children during those time periods.
According to R.C., the Respondent has very rarely, since the end of January 2011, asked for more time with the children.
I pause here to note that I found the evidence of R.C., in cross-examination, concerning in that he was very equivocal and hesitant to being open to having the children spend more time with their mother during periods when the Applicant has in the past been and may in the future be working extra long hours.
For example, it took great effort in cross-examination at trial to extract from R.C. a “concession” (my word – that is what it seemed like) that, during busy haying seasons on the farm, he would consider having the Respondent care for the children.
As another example, when asked in cross-examination at trial what he would do in the future if his parents could no longer help with the farm chores and the child care, R.C. did not mention anything about going to the Respondent for assistance. He said that he would likely dissolve the farm operation and rely on day care services.
The Applicant needs to gain a better understanding of the important principle, enshrined in the legislation, that children ought to have maximum contact with both parents so long as it is in their best interests. There is no allegation that C.C. is a bad mother. The Applicant is concerned that C.C.’s depression may return, however, it appears to be managed well at the present time.
The children are involved in some activities such as skating and Church programs. Their doctor is nearby, in Port Elgin, Ontario. Their dentist is nearby, in Hanover, Ontario. They have friends at school and in the community.
The local child protection agency investigated an allegation that R.C. had spanked his children and left marks on the boys. Although the injuries were not verified (Exhibit 9 at trial), the agency recommended that R.C. use alternative methods of discipline such as time-outs and the suspension of privileges. The Applicant testified that he now follows those recommendations and no longer spanks the boys.
R.C. denies that he has ever abused C.C., in any way. He testified that he grabbed the Respondent’s arm one time and stood in a doorway to block her movement during an argument, on one occasion.
According to R.C., the marriage deteriorated largely because of C.C.’s depression. Further, her horse business took too much time away from her family responsibilities.
It is obvious to me that R.C. has more traditional views of marriage than those held by the Respondent.
R.C. described at trial the history of how he ended up with primary care of the children at the end of January 2011. The short version is as follows. During the marriage, C.C. began spending more and more time with her horse riding business. After separation, the mother went to live with her parents. For about one year, the parties shared parenting on a week-about rotation. Then C.C. moved to Barrie for an esthetician course. The shared parenting continued until Ch., the eldest boy, started school. At that time, the mother assumed primary care of the children, with alternate weekend access between the boys and the father. Around Christmas time in 2010, C.C. told R.C. that she could no longer emotionally handle the children; that she wanted R.C. to have primary care of the boys; and that she would appreciate the children more if she saw them every other weekend.
Thus, beginning at the end of January 2011 and persisting through the Temporary Order of Langdon J., made on consent, until the present day, the children have lived with R.C.
R.C. denies that there was ever any plan or discussion of C.C. resuming primary care of the boys after the completion of her esthetician program in Barrie.
The Applicant describes the children as sociable boys who make friends easily.
R.C. described at trial his plan of care for the children on a go-forward basis. In a nutshell, it will be a continuation of what has been the routine over the last three plus years. After-school care and occasional alternate care for the boys will be provided by their grandmother. The children will continue to attend the same school and the same Church and be involved in the same or similar activities. On Fridays, when the boys are tutored after school, they will continue to be picked up at school by their grandmother. R.C. or his mother will bring the children to their medical and dental appointments.
To date, the parties have shared March Breaks with the children – the first half of the week with one parent and the remaining half with the other parent. Before this past summer, the mother had the children for one week in July and one week in August. Because of sports for the boys, that past arrangement worked better than the more recent schedule of sharing the children throughout the summer on a two-week rotational basis.
If a holiday lands on one of C.C.’s weekends with the children, the practice has been to extend that access to include the holiday.
The parties have been exchanging the children at a restaurant near Flesherton, Ontario, which is about the mid-way point between Paisley and where the mother currently lives (near Barrie/Innisfil, Ontario).
Exchanges are hard for the children, especially Co., the younger boy.
It became evident in cross-examination at trial that R.C. has not been complying with the Temporary Order of Justice Langdon in terms of the stipulated time for the exchanges, 7:00 p.m. on alternate Fridays. The exchanges have generally been occurring at 8:00 p.m. because of time constraints when R.C. gets home from work.
Just as I am concerned about C.C.’s non-compliance with the support ordered by Langdon J., I am concerned about R.C.’s non-compliance with the time ordered for exchanges of the boys.
As I have said many times in the past, Court Orders are not “pleases and thank yous”. They are directives that shall be followed. If they cannot be followed for some legitimate reason, then it is incumbent on the party seeking a variation to have the Order amended, without delay. It is not for the party to modify the Order to suit his or her circumstances.
I conclude my discussion of the father’s evidence as relevant to custody and access with this observation. During his testimony in cross-examination, R.C. implied that C.C. wanted the children back in her primary care, after the end of January 2011, in order to qualify for social housing. That allegation was mean-spirited and completely unnecessary. There is not a shred of evidence to support such a serious accusation. R.C. is better than that.
C. The Evidence of Pastor Anthony Geense
This witness was called at trial by the Applicant.
Pastor Geense has known the parties since 2006. During the marriage, the parties and their children were regular attendees at the Church where the Pastor provides services.
There is nothing controversial in the evidence of the Pastor. He confirmed that both parties were involved in Church activities. He confirmed that the boys have been involved in Church programs.
The Pastor testified that R.C. has frequently sought advice as to how to be a better husband and a better father. R.C. is actively involved in the lives of the boys, in and out of Church. R.C. interacts very well with the children.
D. The Evidence of I.C., the Applicant’s Mother
This witness was called at trial by the Applicant. She is the paternal grandmother of Ch. and Co.
Retired since 2008 as a nursing assistant working in homes for the aged, I.C. is 70 years old and in fairly good health. She takes medication to thin her blood and to control her blood pressure.
In some ways, I.C.’s evidence at trial was consistent with that of her son, R.C. For example, she confirmed that she cares for the boys after school and until the Applicant gets home from work. And she confirmed that R.C. does not do any farming work when the children are with him.
In other ways, I.C.’s evidence was inconsistent with that of R.C. For example, she testified that, contrary to what the Applicant said in his evidence, I.C.’s husband has not reduced his own farming operation and has not changed his workload over the past few years.
With great respect for I.C., whom I found to be a loving mother and grandmother and a supportive spouse, I place little weight on her evidence at trial. It was obvious to me that she struggled with many of the questions posed to her. She appeared confused. She appeared uncertain. To her credit, she admitted to experiencing some memory problems that day at Court.
On contentious issues of fact between the parties, I would not rely upon the evidence of I.C. to resolve the uncertainty.
E. The Evidence of C.C., the Mother
The Respondent now goes by her maiden name, however, I continue to refer to her as C.C. in these Reasons.
C.C.’s father passed away in September 2013. Her mother lives in Fenelon Falls, Ontario.
The Respondent’s home town is Barrie, Ontario. Her parents were missionaries. C.C. described a fairly normal childhood, although she struggled at times with learning disabilities.
When C.C. was 23 or 24 years old, she met the Applicant. They dated for about one year before getting married in May 2004.
Once pregnant with Ch., married life changed. The Respondent felt isolated on the Paisley farm. She quit her part-time job. She felt relegated to the confines of the home, while R.C. had support from his close-knit family. The Respondent’s post-partum depression began in late September 2006 and persisted until after the parties separated.
R.C. was doing farm chores every morning before work for about 90 minutes and every evening (usually after the child(ren) went to bed) for one to two hours. He worked off the farm from 9:00 a.m. to 6:00 p.m. through the weekdays.
C.C. started a horse hobby business. It was never meant to be a career. She taught horseback riding lessons a few days per week, generally in the late afternoons before supper but sometimes after dinner as well. Child care during those times, if R.C. was at work, was done by R.C.’s mother or the Pastor and his wife or a babysitter.
R.C. handled the family finances, except the modest funds involved with the horse business.
Over time, C.C. became dissatisfied with the child care being provided by the Applicant’s mother. For example, the diapers were not being changed.
The Respondent was an emotional witness at trial. She cried when explaining that she “could not breathe” inside the house. She was “walking on eggshells”. She never felt good enough. Her opinions did not count. She was not a part of family decisions. She was never friends with her husband.
The horses were her relief, although she never felt supported by R.C. in that venture.
C.C. went to the Pastor for help with the marriage. After the parties received some counselling from the Pastor and later from another counsellor, it became evident that the marriage could not be salvaged.
The final straw was her decision that R.C. would not attend the celebration of her brother’s marriage. An argument ensued. C.C. left the farm.
After separation, C.C. stayed with her parents in Fenelon Falls for about nine months. The parties rotated care of the children on a week-about basis, with exchanges taking place on Saturdays.
During those nine months, the Respondent completed her high school.
In September 2010, Ch. started school in Barrie, and Co. was enrolled in day care.
At the same time, C.C. began a medical esthetics program in Barrie. The children began living primarily with the Respondent, with alternate weekend access between the boys and the father.
C.C. ran in to problems handling the children and her very busy, condensed study program. Thus, in December 2010, she contacted R.C. and suggested that he assume primary care of the children on a temporary basis, until her esthetics course was done. She never told the Applicant that she could not emotionally handle the boys.
As can be seen, the evidence of the parties as to that discussion in December 2010 is in conflict. I prefer the evidence of R.C. on this point. It makes no common sense that the Respondent intended to resume primary care of the children after her course was completed because we know that no concrete steps were taken by the Respondent to achieve that alleged objective until well after the program was done in May 2011. Instead, the Applicant retained primary care of the boys. Although it is true that a lawyer for the Respondent sent a letter about the proposed return of the children to C.C., that was not done until the late summer of 2011. Ultimately, it was the father, not C.C., who started the litigation.
If in fact the agreement was for the children to be returned to C.C.’s primary care after her school program was finished, then one would think that C.C. would have taken immediate steps to ensure that happened in May or early June of 2011.
The mother deserves a lot of credit for the improvements that she made in her life since the parties separated. She has accomplished a great deal. She testified that, currently, she is happier; she has the support of family and friends, her Church and life coaches; she completed her high school; she completed her personal support worker program at college and became certified to do that work; she found a good job which she loves; she no longer takes medication for depression; and she is “at peace” (her expression).
Of course, this begs the question as to why the Court would change the primary residence of the children, especially since the mother herself testified that she has a better relationship with the boys now than she did before. She further stated at trial that the children “have been doing very, very well”.
The following is C.C.’s plan if she is granted primary care of the boys. Her mother just sold her house in Fenelon Falls. Her mother will buy a home in Barrie. C.C. and the children will live in one part of the home, while her mother will live in a separate apartment, maybe in the basement. The boys will be able to spend time with C.C.’s sister and her family in Barrie. The boys can continue their same Church program in Barrie, and they can skate as well. C.C. will try to find the boys a school nearby. C.C.’s life coaches will be available to help the entire family, including the children, with the transition.
C.C. will continue her current employment as a personal support worker. She works between 30 and 40 hours per week, at $14.77 per hour. Her employment has full benefits for her and the boys.
The Respondent is not prepared to move back to the Paisley area because she has no support there.
Access between the boys and R.C. would continue in a similar way that the Respondent has been seeing the children since the end of January 2011.
Exchanges have been hard on the children (she once saw Co. hit his father and spit at him), but they are necessary. She will not make the same mistakes that she alleges have been made by R.C. in, for example, threatening to call the police when she asked for more time with the boys around the Christmas holidays in 2011.
At the conclusion of her direct examination at trial, C.C. was asked by her counsel why she thinks that the primary residence of the children should be changed. She, in my view, had no good answer to that. She commented that their current school in Paisley is small and has not much to offer. I fail to see how the size of the school is relevant, and I think that the comment about programming is pure speculation on the part of C.C. She said that the children deserve better, but she did not elaborate on that except to say that they need a parent. I suppose that was a reference to what C.C. alleges is too much involvement in child care by R.C.’s mother. I do not concur.
In my view, the complaints by C.C. boil down to her dislike and distrust of R.C.’s mother. I have some concerns about the Applicant relying too much on his mother, but I do not see that as a reason to conclude that it would be in the best interests of Ch. and Co. to move to Barrie.
In cross-examination, the credibility of the Respondent was damaged considerably. I do not say that because of the focus in cross-examination on her frequent moves after separation, culminating in C.C. now living in a one-bedroom apartment in Innisfil, Ontario. And I do not say that because of the mother’s history of depression which did not come under control until mid-2010, at the earliest. I say that because, suddenly, she started to take cheap shots at the father.
First, she called R.C. a “half decent father”. That was uncalled for. By all accounts, he is a very good father.
Second, she said that she is concerned about R.C. watching pornography. That was never mentioned previously in her evidence as a reason for wanting to have primary care of the boys. And, if it is a real concern, why would C.C. have ever agreed to send the boys to live with R.C. in late January 2011? And why would she be consenting to joint custody now? I reject any suggestion that pornography is a problem for the Applicant.
Third, she stated that the father’s frequent naps on the weekends place the children at risk. That is absurd. These children are not infants. That was never mentioned previously in her evidence as a reason for wanting to have primary care of the boys. And, if it is a real concern, why would C.C. have ever agreed to send the boys to live with R.C. in late January 2011? And why would she be consenting to joint custody now, with weekend access between the father and the boys? The mother is being silly, to say the least.
F. The Evidence of David Halse
Mr. Halse was called as a witness at trial by the Respondent mother.
He and his wife are life coaches who counsel couples at their home in Oshawa, Ontario. They are retired teachers. Although not an accredited counsellor, Mr. Halse is a very educated man with a lot of experience in the counselling business.
Mr. Halse and his wife have been life coaches for the Respondent.
Mr. Halse confirmed that he and his wife are available in the future whenever the mother needs them.
The Respondent has worked very hard to better herself over the last few years. She has done “amazingly well” in “standing on her own two feet”.
I agree with that assessment by Mr. Halse.
G. The Evidence of B.J., the Respondent’s Mother
This witness was called at trial by the mother.
Ms. J. is 67 years old and fairly healthy. She is a widow. She is the maternal grandmother of the children.
She confirmed the plan of care testified to by C.C. Ms. J. just sold her home in Fenelon Falls. The deal closes at the end of May 2014. By then, Ms. J. will be retired from her job managing a seniors’ apartment complex. She will then purchase a home in Barrie (she is starting to look immediately). The home will be shared, with separate quarters, by C.C., B.J. and the boys.
B.J. also confirmed that C.C. is doing “much better now” than at the time of separation from the Applicant.
H. The Evidence of D.N.
This witness was called at trial by the Respondent.
Ms. D.N. has known C.C.’s family for about forty years. She is a retired, long-time elementary school teacher. She is a Chaplain with a master’s degree in theology.
Ms. D.N. spent some time, recently, with C.C. and the boys, at Ms. D.N.’s home. B.J. was also there. Ms. D.N. witnessed nothing but comfort, politeness, respect and positive interaction between the Respondent and the children.
I have no hesitancy accepting the evidence of Ms. D.N.. I have no doubt that C.C. is a loving and devoted mother.
I. Decision on Custody and Access
What is in the best interests of the children? That is the question to be answered.
It is not a difficult determination to make, on the evidence before me.
It is in the best interests of these two young boys to remain in the primary care of their father, R.C. A Final Order shall issue for joint custody of the children with their primary residence being with the Applicant.
There shall be access between the children and their mother on the schedule and arrangement that is in place currently – alternate weekends on the terms ordered by Langdon J, as amended by the following terms.
The parties shall share equally transportation responsibilities for access exchanges.
The location of exchanges shall be where the parties agree, whether at the current location in Flesherton or elsewhere. The times of exchanges shall be at 7:00 p.m. and 5:00 p.m. on Fridays and Sundays, respectively, on alternate weekends, as adjusted when applicable for long weekends (dealt with immediately below).
If there is a long weekend during the mother’s access as a result of a holiday or a professional activity day when the boys are not in school, then the access period shall be extended to include the holiday or the professional activity day.
Summers, while the boys are not in school, shall be shared with the Respondent mother having the children in her primary care for two weeks in July and two weeks in August.
March Breaks shall be shared as per the current arrangement between the parties – half of each week with each parent.
Christmas holidays, the period between December 24 and January 1, shall be shared equally, similar to March Breaks, except that Christmas day itself (December 25) shall be rotated between the parties year to year.
In addition to the above, the mother shall have reasonable telephone access with the children.
The Applicant father shall be flexible in permitting access between the mother and the children over and above the minimum parameters set out above, so long as the additional access is in the best interests of the boys and is desired by the Respondent.
The Applicant father shall adjust his work schedule, including any farming, so as to maximize his contact with the boys and not rely too heavily on the assistance of alternate child care. If the Applicant’s work requires him to be away from home for longer hours than usual, then the Applicant shall consider asking for assistance from the Respondent.
To facilitate access, the mother shall reside within 200 kilometers of the father’s residence, currently in Paisley, Ontario.
I am convinced that the children ought to reside primarily with the Applicant for several reasons, including the following. I am not concerned about the mother’s frequent moves after separation (they were mainly for educational purposes and in part because she had to relocate, financially). Nor am I concerned about her history of depression (it appears to be well managed currently).
First, even on the evidence of the mother, the boys are doing very well.
Second, the totality of the evidence at trial reveals that the children have a loving and a stable life with the father, where they have lived now for more than three years. They attend the same school. Their doctor is in the area. Their dentist is in the area. Their Church is in the area. Their friends are in the area. They have other family support in the area. There is no good reason to disrupt that stability and consistency at this time.
Third, the only independent evidence as to what would be best for the children, that of Ms. Garbutt, supports primary residency of the children with their father.
I agree with counsel for the mother that I must be careful not to place undue weight on the recommendations of Ms. Garbutt. Her evidence is just one piece of the puzzle. I have treated it as such, although I repeat that I was impressed with Ms. Garbutt’s experience, her credentials, the thoroughness of her report and the clarity of her testimony at trial.
I disagree with counsel for the mother that Ms. Garbutt’s evidence should be discounted because it is based on a false assumption that the Applicant has been the primary caregiver for the children. I accept R.C.’s evidence that he has been. Although I suspect that he likely does more farming than a few hours on alternate Saturdays, there is no doubt in my mind that he, not his mother, spends the majority of the time with the boys when they are in Paisley and not in school.
Despite the financials related to R.C.’s farm that were put to him in cross-examination, I do not find it implausible that the Applicant’s father has picked up the slack caused by R.C.’s significantly reduced farming work when the children are in his care. I accept that evidence of the Applicant.
Fourth, it is unknown whether the Respondent’s remarkable growth since the separation of the parties, for which she should be commended, will continue with the re-introduction of the children to her care on a primary basis. I am not prepared to venture in to the unknown.
Fifth, it is unknown whether the Respondent’s improved relationship with the children will continue with the re-introduction of the children to her care on a primary basis. Again, I am not prepared to venture in to the unknown.
Finally, although the mother has a plan for the care of the children, that plan depends upon many variables which are not certain to occur in the near future.
Those variables include the retirement of her mother, her mother’s house deal closing, her mother buying a new house in Barrie, that house in Barrie being suitable for the Respondent and the two boys, arrangements being made for the children’s schooling, and so on. The plan of care is a reasonable one but also an uncertain one.
In summary, what is best for these boys? To stay where they are.
I have considered subsection 16(8) of the Divorce Act, as informed by subsection 24(2) of the Children’s Law Reform Act. In particular, although many of the factors listed in subsection 24(2) are neutral on the facts of this case, I am persuaded on balance that items (c) – the length of time that the boys have lived in a stable home environment, (e) – the proposed plans of care on behalf of each parent, and (f) – the permanence and stability of the family unit, all weigh substantially in favour of the children residing primarily with the Applicant.
Courts should be wary of simply rubber-stamping the status quo, however, it is clear to me that the current regime is indeed best for these boys.
Child Support
The resolution of this issue is simple and flows from the decision to grant primary care of the children to the Applicant.
A Final Order shall issue that the Respondent mother pay child support for the two children, calculated using the base amount as per the Guidelines and her total annual income as reported on her most recent Financial Statement marked Exhibit 10 at trial.
Those child support payments shall commence on May 1, 2014 and continue on the first day of each and every month thereafter for so long as child support is payable.
The only exception shall be in the summer months. Because the mother will have the children in her primary care for close to half of the summer, the formula for offset Guidelines child support shall govern for the months of July and August each year.
Each year, the parties shall, promptly upon receipt thereof, share with each other any Notice of Assessment and Notice of Re-Assessment received from the Canada Revenue Agency. For so long as child support is payable, the quantum shall be adjusted annually on the basis of the payor’s line 150 total annual income as indicated on the Notice of Assessment or Re-Assessment.
A Support Deduction Order shall issue for enforcement of child support payments through the Family Responsibility Office.
Reasonable section 7 expenses for the children shall be shared by the parties in proportion to their respective incomes.
Effective immediately, I fix any arrears of child support owing by the mother at zero (nil). After making what I believe to be a reasonable deduction of about $800.00 for the child support that had been ordered previously but which the Respondent could not pay because she was attending school and had no income for the eight months between January and August 2013, the actual child support arrears owing by the mother would be about $2500.00 ($3300.00 less $800.00, approximately). I am satisfied that to fix the arrears at zero will not prejudice the children in any way; they are supported well, financially, by the Applicant. And it will give the mother a fresh start with her current employment.
Conclusion
On consent, a divorce is granted. It takes effect immediately.
Final Order to go as per these Reasons for Judgment.
Normally, the Applicant would be entitled to his costs.
If the parties are unable to settle the issue of costs, they may contact the Trial Coordinator in Owen Sound to schedule a further Court attendance of thirty minutes in length to hear submissions and consider filings in that regard. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by the parties within two weeks of the release of these Reasons for Judgment.
The Honourable C.J. Conlan
Released: April 2, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.G.C. v. C.L.C.
REASONS FOR JUDGMENT
Conlan, J.
Released: April 2, 2014