ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-13-386499
DATE: 20140822

BETWEEN:

Aisha Umeya
Applicant

– and –

Humphrey Ndi Tebit
Respondents

Andrea Kim, for the Applicant
Katherine Robinson, for the Respondents

HEARD at Toronto: August 21, 2014

Reasons for judgment

C. hORKINS J.

1There are two long motions before the court. Since there is overlap between the motions I will deal with them according to the issues raised. These reasons apply to both motions.

background

2The parties met in 2005 and married on June 4, 2012. They separated on June 30, 2012. They have one child, a son, born February 8, 2013. Clearly this is a short term marriage. Prior to marriage, the evidence about their relationship is conflicting. The respondent father says that the applicant mother always had her own apartment before and during marriage and that they lived together. The applicant mother says that they lived together from January 10, 2011 (after their engagement) and until the date of separation.

3The applicant mother works part-time as a nurse. In April 2011, she completed her education and is a Registered Practical Nurse. The respondent father is self-employed as a clinical research consultant. The child is currently in daycare. The Office of the Children’s Lawyer (“OCL”) conducted an investigation and submitted a report (the “OCL report”) in June 2014.

Custody and Access

Custody

4The applicant mother seeks an interim sole custody order. This relief is denied for the following reasons.

5Custody is vigorously contested. The respondent father wants to increase access and play an active role in the child’s life.

6Currently and in the near future, there are no major decisions to be made for the child who is now 18 months old. He lives primarily with the applicant mother and the order of Stewart J. dated July 11, 2014 (“Stewart order”) provides the respondent father with access that will increase according to the order. The child attends a daycare that is acceptable to both parents. Aside from the usual illnesses that all children experience (i.e. colds and flu) he has no special medical needs. The evidence shows that he is a happy child who is developing as expected. In these circumstances, there is no expectation that significant decisions will have to be made before trial. I add that the parties should be ready to proceed to trial next fall.

7The respondent father seeks custody and wants to adopt shared parenting. It is in the child’s best interests that custody not be determined until trial. The child needs an opportunity to be parented by both parents as directed by the court. There are no decisions that need to be made for the child that require an interim custody order.

8The child shall reside primarily with his mother pending a final order dealing with custody. The respondent father’s access is as set out below.

Access

9Access was fully canvassed by the OCL investigation. The OCL report identified problems with father’s existing access schedule. These problems were addressed when the Stewart order implemented the OCL access recommendations. The order provides that the respondent father’s access increases when child is 20 months old, 2 years old and 2.5 years old. Overnight visits start when the child is 2 years old. The Stewart order was made on consent on July 11, 2014 without prejudice to either party seeking different access.

10On the motion before me, the applicant mother wants to delay the increase in the respondent father’s access and respondent father wants to speed up the increase.

11As well, respondent father wants the Saturday access to move to Sunday so he can take the child to church with him. The applicant mother does not agree. She typically works on Saturdays because co-workers who want Saturdays off will ask her to work. It is unclear whether the applicant mother could expect to work Sundays. Since there is an expectation that she work and focus on increasing her hours to full time, this court is not prepared to move the weekend access day. This request is denied.

12I am not prepared to adjust the access in the Stewart order. A variation either way is trivial and not necessary. The OCL access recommendations were made after a thorough investigation and are in the child’s best interests. This schedule must remain in place pending a final resolution of this dispute next year.

13There is one further access issue to consider. Access is currently done at the Access for Parents and Children in Ontario (“APCO”) or at daycare. The OCL report recommends access through an agreed upon third party at a neutral location.

14On occasion the APCO is closed (i.e. statutory holidays and Christmas). Using the APCO for exchange on the weekend is problematic because the hours on Saturday are 9 a.m. to 4 p.m. and respondent father has access from 9 a.m. to 5 p.m.

15The parents have been using Brayden Supervision Services for the exchange when the APCO is not open. Applicant mother insists that this continue indefinitely and respondent father disagrees. He prefers to use the Tim Hortons (near APCO) for all exchanges. He does not want to incur the expense of Brayden.

16I appreciate that there is a pending assault charge against respondent father flowing from an alleged incident between the parties. According to counsel it is not moving along. The bail terms require that the respondent father not come within a certain distance of the applicant mother subject to any order of the family court concerning access. The bail restrictions apparently expire in October 2014. There has been conflict between the parties. It is hoped that this will resolve now that access is directed by a court order. Respondent father appears to appreciate the need to avoid conflict for the sake of his son.

17While applicant mother says that the respondent father has breached his bail term by approaching her, this is denied by the respondent father. The court is not prepared to accept that this occurred based on mother’s evidence alone.

18There is no basis for ordering that the supervised exchange indefinitely. The OCL report notes that because the police reports were not available it was unclear if the respondent posed any risk to the applicant’s physical safety. Out of an abundance of caution they recommended a third party be at the access exchange. Based on the evidence before this court, I question the need to continue a supervised exchange after the bail terms end.

19For as long as a criminal court order imposes a restriction on the respondent father being within a certain distance of the applicant mother, I make the following orders regarding the access exchange.

20The access exchange shall take place at the daycare or the APCO centre at Victoria Park and O’Connor. If neither is available then the parties can agree on a neutral third party to facilitate the exchange. Failing an agreement, the neutral third party shall be Brayden Supervision and the respondent father shall pay for this expense. To avoid this expense on Saturdays, the access shall start at 9 a.m. and end at 4 p.m.

21When the access exchange is at APCO, the applicant mother consents to the respondent taking his other child with him to the APCO. Such consent is required by the APCO and the mother has not consented in the past. On this motion she advised the court that she consents to the other child’s presence.

22When the respondent father is no longer restricted by a criminal court order (i.e. approaching the applicant mother) all access exchanges will take place at the daycare or at the Tim Hortons located at 1 Eglinton Square, Unit 121 in Toronto.

Restraining order

23The applicant asks this court to issue a restraining order directing that the respondent stay 200 meters away from her except for the purpose of exchange and that he not communicate with her except to discuss access and the best interests of the child. I decline to make this order. The bail term remains in place until October. I see no need for any ongoing order. These parents need to focus on their child and start building a healthy and safe relationship that will be in the child’s best interests. They must continue to communicate through Family Wizard as previously ordered.

Child Support

24The respondent father currently pays $500/month pursuant to the Stewart order. There is a dispute regarding his income. Applicant mother seeks to impute on income of $207,284. Respondent father agrees that certain expenses should be added back into income and grossed up for tax purposes. He offers to pay child support based on an income of $60,000 or $546/month.

25Applicant mother wants retroactive child support. This is disputed by respondent father who says he has paid about $10,000 to buy various things that the child requires. He has provided numerous receipts. The parties cannot agree on how much the respondent father has actually spent and such amount should be considered when calculating retroactive child support. Given the conflicting evidence, I am not deciding the retroactive issue on this motion. This relief is denied without prejudice to the applicant claiming it at trial.

26The respondent father’s income tax returns have been produced. His gross income varies each year. In 2013, the gross income was $99,985.42 and net income was $17,337.76. The following expenses are personal and should be added back into income pursuant to the Guidelines:

Use of the house
$11,921.45

Cell phone
$3,172.50

Motor vehicle
$10,942.88

Meals and entertainment
$8,771.20

Telephone and utilities
$3,180.29

Total
$37,988.94

Grossed up 25% for tax
$9,497.24

$47,486.18

Add back net income
$17,337.76

Net total
$64,823.94

27The 25% gross up is an estimate as counsel could not tell the court the exact tax rate. The respondent father operates his business out of his house. For this reason it is fair to add back all of the house related expenses. Arguably some portion of meals, entertainment and car should not be added back. The above table adds back 100%. Given the lack of specific evidence from the parties, I am rounding off the total imputed income at $62,000/year for 2013. This requires the respondent father to pay child support of $565 a month pursuant to the Federal Child Support Guidelines.

28The applicant mother points to the deposits in the respondent father’s business bank account that exceed his gross sales in 2012 by $18,472. The respondent says that this additional amount represent the HST payments and accounts for the difference. The respondent father’s explanation appears reasonable and for this reason, I refuse to impute a higher 2012 income as a result of this banking information.

29Aside from the 2012 banking records, the applicant mother argues that because the respondent father drives a Mercedes Benz and owns a house, I should impute an income of $207,284.

30The applicant mother has not provided a sufficient evidentiary base to support an imputed income of $207,284. Her approach is speculative at best. She is not precluded from pursuing this position at trial on a better evidentiary record.

31The parties shall continue to exchange income tax returns and notices of assessment by June 30 each year. Each year, child support shall be adjusted taking into account the expenses to be added back (100% or otherwise). Going forward, the parties are encouraged to agree on a formula for the exact percentage of each expense to be added back to income with the required gross up.

Section 7 expenses

32The applicant mother wants the respondent father to contribute to a wide range of expenses that have not yet been incurred. This order deals only with known incurred expenses.

33There are two current s. 7 expenses. It is agreed that the respondent father shall pay his proportionate share of the child’s daycare (net subsidy) and any prescribed medication. Applicant mother is to provide respondent father with receipts and details regarding the daycare subsidy. She has not yet done so. Applicant mother’s 2013 income was $32,104.74. His imputed income is $62,000. The respondent father’s proportionate share of these s. 7 expenses is 66% and applicant mother’s proportionate share is 34%.

34The applicant mother also asks that the respondent pay his share of a cord blood storage fee. The court does not have sufficient evidence to decide if this is a s. 7 expense. The request is denied without prejudice to the applicant being able to request a contribution from the respondent at trial on better evidence.

Child’s Birth Registration and Name change

35There is no dispute that the respondent is the child’s father. Due to the conflict between the parties, he was not noted on the child’s birth registration. This must be corrected. According to Service Ontario, an order is required as follows.

36I direct that the child’s father Humphrey Ndi Tebit and his information (as required by Service Ontario) be included on the child’s Birth Registration and\or Notice of Live Birth.

37It is not clear to this court if the Birth Registration and the Notice of Live Birth are separate documents and if so if they both need to be corrected. The parties shall cooperate and correct both if required Service Ontario.

38The respondent father wants the child’s name changed to Rashard Umeya-Tebit. The applicant mother disputes this request for cultural reasons. I deny this request without prejudice to it being raised at trial. This is an issue best resolved by the parties, failing which further evidence is required to determine what would be in the child’s best interests.

Mother’s request for restriction on father’s access

39The applicant mother wants an order that the respondent father not be allowed to leave the child with any third party during his access time. This request is too restrictive and is denied. A situation could require the respondent father to leave the child with another responsible person in a situation of emergency. One cannot predict when this might occur. That said the respondent father should avoid leaving the child with another adult person when he has access to the child unless circumstances require him to do so. It is expected that he will be present with his son during the access time. This is important so that father and son can develop a bond and father can develop his parenting skills.

travelling with child

40The applicant mother wants an order that she be permitted to travel with the child outside Canada and renew the child’s passport without the respondent father’s consent.

41The respondent father agrees that applicant mother may travel with the child within North America. The terms are as follows:

(a) travel will not intervene with respondent father’s access unless he consents to missing his access or they agree to make up lost access;

(b) no trip shall last more than 7 days and will not be outside North America;

(c) applicant mother shall notify respondent father of travel plans in advance to allow for any change in access that may be required due to the travel; and

(d) if child requires a passport or renewal, the parties shall cooperate in obtaining the passport. The applicant mother will be the one to apply for the passport and hold it in safe keeping.

42Respondent father has no plans to travel with the child pending trial next year.

spousal support

43The applicant mother seeks interim spousal support of $3,326 per month based on the imputed income at $207,284 (that I have rejected).

44I have considered and followed s. 15.2 of the Divorce Act. Based on the evidence, the applicant mother’s request for interim spousal support is denied for the following reasons.

45This was a very short term relationship. There is a dispute as whether the parties ever lived together. The applicant mother is educated and employed. There is no reason why she cannot return to full time nursing and earn $51,814 (what she earned before her maternity leave). She works part-time now because she continues to breast feed her son. While admirable, this is not necessary. The income differential between the parties is not significant when the applicant’s full income potential is compared to the respondent father’s imputed income of $62,000. There is no evidence of economic hardship or disadvantage arising from the marriage breakdown. Child care is arranged with daycare and the respondent father is eager to help.

46The circumstances of this case do not justify an interim spousal support order. The applicant mother has not made out a prima facie case for entitlement. I adopt and apply the law that is thoroughly set out by S.B. Sherr J. in Samis (Guardian of) v. Samis, 2011 ONCJ 273, at para. 43-44.

life insurance

47The respondent father has a policy of insurance to cover his child support obligations for the child and a child from another marriage who lives in the United States. The face value of the policy is $200,000 and the respondent father’s relative holds the policy in trust for both children.

48It is not clear how this policy would be fairly divided between two children from different marriages. The child support needs of the other child who lives in the United States are not known. It is unknown if the face value of this policy is sufficient. This court questions how the respondent’s relative will divide the policy fairly between two children.

49The respondent has not produced the policy to the applicant mother. He shall do so immediately. If the above problems are not resolved in writing to the satisfaction of the applicant mother within 30 days, the respondent father is ordered to obtain life insurance in his name to secure his obligation to pay child support for the child in this matter alone and to maintain the applicant mother as an irrevocable beneficiary.

Future scheduling

50The parties confirm that there is no claim for equalization of property. All of the issues between the parties have been decided on an interim basis as set in these reasons. Absent a change in circumstances or an emergency, there should be no need to return to court until the parties are ready to discuss a final settlement.

51Over the next year, the parties should devote their time to parenting their son rather than building conflict and attending in court. This requires them to build mutual trust and respect for each other. It is obvious that once the child starts school, the access schedule will have to be changed.

52The parents are using Family Wizard to communicate with each other and this is a positive step toward effective parenting. The respondent needs time to experience the increase in access that has been ordered and build a bond with this son before a final resolution is decided.

53Counsel will book a date for a final settlement conference that will take place late in 2015. If the parties do not settle custody, the OCL should be requested to update their report in advance of a trial.

summary

54I have the following interim orders

1. The primary residence of the child Rashard Umeya born February 8, 2013 (“child”) shall be with his mother, the applicant.

2. The applicant’s request that the respondent never leave the child with a third party is denied.

3. The respondent father’s access to the child shall continue as set out in the order of Stewart J. dated July 11, 2014 subject to the following changes:

(i) For as long as a criminal court order imposes a restriction on the respondent father being within a certain distance of the applicant mother, the access exchange shall take place at the daycare or the APCO Centre at Victoria Park and O'Connor. If neither is available then the parties can agree on a neutral third party to facilitate the exchange at Tim Horton’s located at 1 Eglinton Square, Unit 121 in Toronto. Failing an agreement, the neutral third party shall be Brayden Supervision and the respondent father shall pay for this expense. To avoid this expense on Saturdays, the access shall start at 9 a.m. and end at 4 p.m.

(ii) The applicant mother consents to the respondent taking his other child with him to the APCO center.

(iii) When the respondent father is no longer restricted by a criminal court order (i.e. approaching the applicant mother) all access exchanges will take place at the daycare or at the Tim Horton’s located at 1 Eglinton Square, Unit 121 in Toronto and the Saturday access will end at 5pm rather than 4 pm. A third party need not be present at the exchange.

4. The respondent father shall pay child support based on an imputed income of $62,000. Pursuant to the Guidelines, he shall pay $565 a month in child support commencing September 1, 2014.

5. The claim for retroactive child support is denied without prejudice to the applicant claiming it at trial.

6. The respondent father shall pay his proportionate share of the s.7 expenses that include the cost of daycare (net subsidy) and any prescribed medications. The applicant mother must provide respondent father with receipts and proof of the subsidy. He shall pay 66% and the applicant mother shall pay 34% of these expenses. This is without prejudice to the applicant’s right to seek a contribution for the cord blood storage fee at trial on a better evidentiary record.

7. The respondent and his information (as required by Service Ontario) shall be included on the child’s Birth Registration and the Notice of Live Birth.

8. The respondent father’s request to change the child’s name to Rashard Umeya-Tebit is denied. This is without prejudice to it being raised at trial.

9. The respondent father consents to the applicant mother travelling with the child within North America. The following terms apply:

(i) travel will not intervene with respondent father's access unless he consents to missing his access or they agree to make up lost access;

(ii) no trip shall last more than 7 days and will not be outside North America;

(iii) applicant mother shall notify respondent father of travel plans in advance to allow for any change in access that may be required due to the travel; and

10. If the child requires a passport and/or a renewal of a passport, the parties shall cooperate in obtaining the passport. Applicant mother will make the application and hold the passport for safekeeping.

11. Applicant mother’s request for interim spousal support is denied.

12. Respondent father shall immediately provide applicant mother with a copy of the existing life insurance policy that he obtained to secure his child support obligation for the child. If within 30 days the applicant has not agreed in writing that this policy is sufficient to secure the respondent’s child support obligation, the respondent father shall obtain a policy solely for his obligation to pay child support for the child and maintain the applicant mother as the irrevocable beneficiary. Respondent father shall provide applicant mother with proof of such insurance.

13. If costs are being requested, the parties will exchange brief written submissions and deliver them to the court by September 22. 2014.

___________________________ C. Horkins J.