ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-5169
DATE: 2014-08-26
B E T W E E N:
KIRSTEN MOULAND
Cheryl Siran, for the Applicant
Applicant
- and -
STEFAN MOULAND
Unrepresented
RESPONDENT
HEARD: June 2,3,4, and 5 , 2014,
at Kenora, Ontario
Mr. Justice D.C. Shaw
Reasons On Judgement
[1] The issues on this trial are custody, child support and spousal support. The issue of equalization of net family property was resolved by way of order of Fregeau J. on April 3, 2014. A divorce was granted by Fregeau J. on May 13, 2013.
[2] In her application, Kirsten Mouland sought an order that the parties have joint custody of the two children of the marriage. At trial, on consent, the application was amended to permit a claim, in the alternative, for sole custody.
[3] Ms. Mouland was represented at trial by counsel. The respondent, Stephan Mouland was unrepresented.
BACKGROUND
[4] Ms. Mouland is 34 years of age. Mr. Mouland is 37 years of age. The parties began residing together in 2000. They married on December 31, 2005. They separated on April 12, 2012.
[5] There are two children of the marriage – Kailee Dinae Mouland, born December 13, 2006 (age 6) and Andrew Kristopher Mouland, born May 14, 2010 (age 4).
[6] The parties began dating in 1998 in Sioux Lookout. Ms. Mouland temporarily moved from Sioux Lookout in 1999 to take a 1 ½ year Rehabilitation Assistant program at Sault College in Sioux Ste. Marie. She returned to Sioux Lookout in 2000 and took a full-time position as a physiotherapy assistant at the local hospital.
[7] On Ms. Mouland’s return to Sioux Lookout, the parties moved in together. Mr. Mouland was working for McKenzie Forest Products. He left that employment to attend Police College. He then was hired by Nishnawbe-Aski Police Service, working in different remote fly-in reserves, returning to Sioux Lookout on his days off. The parties purchased a home in Sioux Lookout.
[8] In 2004, Mr. Mouland took a position with Treaty Three Police Service in Kenora. Ms. Mouland took a full-time position as a physiotherapy assistant at Lake of the Woods Hospital. The decision to move to Kenora was a mutual one. Ms. Mouland testified that she preferred to raise a family in Kenora and that the incomes of the parties were similar to their incomes in Sioux Lookout.
[9] In 2005, Ms. Mouland took a position as an occupational therapy assistant at Kenora Physiotherapy and Sports Injury Centre.
[10] The parties married in December 2005.
[11] Kailee was born in December 2006. Ms. Mouland took maternity leave from December 2006 to December 2007. She remained at home with Kailee for a further 4 months, returning to work in April 2008. At that time, she took a physiotherapy assistant position at Kenora Physiotherapy and Sports Injury Centre, working full-time, 7:30 am to 4:30 pm, Monday through Friday.
[12] Mr. Mouland joined the Ontario Provincial Police. Although his schedule varied, it always included day shifts and night shifts.
[13] Andrew was born in May 2010. Ms. Mouland took 11 months of maternity leave. Unlike the situation when Kailee was born, when Ms. Mouland received a top-up from her employer of her employment insurance benefits to 90% of her salary while on maternity leave, she received only employment insurance benefits while on maternity leave with Andrew. Mr. Mouland qualified for a top-up to 100% of salary if he went on paternity leave. He therefore took a month’s leave in April 2011 to care for Andrew after Ms. Mouland completed her 11 months of maternity leave.
[14] When Ms. Mouland returned to work in April 2011, Kailee was in kindergarten Mondays, Wednesdays and Fridays. The parties decided that Ms. Mouland would not work Tuesday and Thursdays so that she could care for both children on those days. Andrew was in daycare on Mondays, Wednesdays and Fridays.
[15] Ms. Mouland testified that during their marriage she cooked, did the household chores, took the children to school and arranged for and attended their appointments. She said that Mr. Mouland helped to look after the children on his days off, did the outside work on the house, attended appointments for the children and took Kailee to her sports, if his shifts permitted.
[16] During the marriage, Mr. Mouland was the primary income earner.
[17] In the Fall of 2011, Kailee began Grade 1, attending school five days a week. The parties decided that they would place Andrew in daycare five days a week and that Ms. Mouland would seek more days at work. Her employer was able to give her four days per week. That has continued to date. Ms. Mouland hopes to eventually move back to five days per week. Her employment income for 2013 was $38,243.
[18] Mr. Mouland continues to work with the OPP. He works shifts of four days on, comprised of two day shifts and two night shifts, and four days off. His day shifts run from 7:00 am to 7:00 pm, although he generally starts work at about 5:30 am. His night shifts run from 4:00 pm to 4:00 am. His employment income in 2013 was $94,314.
[19] In September 2014, Kailee and Andrew will both be in full time attendance at Ecole Ste. Marguerite Bourgeois School in Kenora. Kailee will enter Grade 3 and Andrew will begin Junior Kindergarten.
[20] In April 2012, Mr. Mouland told Ms. Mouland that he no longer wanted to be in the relationship. Ms. Mouland said that they had previously had some arguments but that this news “came out of the blue” and that she never received a satisfactory answer as to why it happened. She was very upset by the news. Mr, Mouland testified that Ms. Mouland would have known the breakdown of their relationship was going to happen because they had not spoken in the two previous weeks.
[21] Ms. Mouland remained in the matrimonial home with the children. Mr. Mouland moved into an apartment.
[22] Mr. Mouland initially visited the children in the matrimonial home because the gas and hydro had not been hooked up at his apartment at the time.
[23] Ms. Mouland suspected that there was another woman in Mr. Mouland’s life. Through tracking applications on their respective iPhones, Ms. Mouland was able to determine where Mr. Mouland’s cell phone was at a particular time.
[24] One evening after Mr. Mouland had put the children to bed at the matrimonial home, he and Ms. Mouland got into a heated argument about Mr. Mouland being followed and his association with a female OPP officer. Ms. Mouland told him to leave. Mr. Mouland refused. Ms. Mouland said she would call the police if he did not leave. Mr. Mouland then left the home. Following that incident, Mr. Mouland told Ms. Mouland that the only way he would communicate with her was by e-mail or texting and that all meetings between the two of them would have to be public. Mr. Mouland testified that he took that position because he feared his job with the OPP would be jeopardized if Ms. Mouland called the police. He said that his guard was up. He said that the parties’ ability to communicate face-to-face ended when he learned that he was being followed by way of the iPhone tracking application. This led him to put his guard up even more.
[25] Mr. Mouland said that after separation Ms. Mouland was always very emotional when they had communicated, using foul language, while he responded in almost an emotionless manner.
[26] Mr. Mouland said that after Ms. Mouland accused him of being a liar during one of the access exchanges, when the children were present, he began to record all of their exchanges. He said that after he advised Ms. Mouland that he was doing this, the conversations about the children then became much calmer. For her part, Ms. Mouland said that she felt intimidated by the fact that at every meeting between her and Mr. Mouland to exchange the children, she observed that the first thing Mr. Mouland did was turn on his recording device.
[27] Ms. Mouland brought the within application in June 2012.
[28] On September 26, 2012, Justice Herold granted a temporary order that the children were to have their primary residence with Ms. Mouland. They were to be with Mr. Mouland on his days off. Mr. Mouland was to pick up the children at Ms. Mouland’s residence within 15 to 30 minutes after his shift ended and return them within 15 to 30 minutes before resuming his work shift. Ms. Mouland testified that she was happy to have a set schedule because it was otherwise frustrating to deal with access, but that she was unhappy with the fact that the 15 to 30 minute provision was disruptive. She said that notwithstanding the order, she and Mr. Mouland worked out an arrangement whereby she dropped off Andrew at 8:30 am on Kailee’s way to school and on weekends Mr. Mouland picked up the children mid-morning.
[29] Ms. Mouland acknowledged that she was “defiant to the court order” and told Mr. Mouland that they should not follow it.
[30] Ms. Mouland testified that it took some time to get Mr. Mouland’s schedules. Mr. Mouland also went away for police training one to two times per year, ranging from two or three days to two weeks. These training sessions were not on Mr. Mouland’s schedule. This caused difficulties for Ms. Mouland who had to care for the children in the absence of Mr. Mouland.
[31] At first, the parties did not have any set drop off times when they were returned by Mr. Mouland. Ms. Mouland said this upset their bedtime routine.
[32] On February 15, 2013 Justice Fregeau varied the order of Justice Herold, on consent. The order set the return times as 4:30 pm on week days and 6:30 pm on weekends. The order provides:
i) STEFAN MOULAND shall, when he completes a four day/night work shift on a Sunday or weekday, assume care and control of Andrew Kristopher Mouland, born May 14, 2010 when KIRSTEN MOULAND drops Andrew off at his home in the morning. STEFAN MOULAND shall assume care and control of Kailee Dinae Mouland, born December 13, 2006 after school ends that day;
ii) STEFAN MOULAND shall, when he completes a four day/night work shift on a Friday or Saturday, assume care and control of both children when he picks them up at KIRSTEN MOULAND’S home at 10:00am the next morning.
iii) If STEFAN MOULAND’S period of care and control ends on a Sunday or a weekday, he shall return the children to the home of KIRSTEN MOULAND at 4:30pm on the day prior to the start of his first day shift;
iv) If STEFAN MOULAND’S period of care and control of the children ends on a Friday or Saturday, he shall return the children to KIRSTEN MOULAND at 6:30pm on the evening prior to the start of his first day shift.
[33] The parties made a change to the pick-up time set-out in Justice Fregeau’s order. Mr. Mouland picks the children up at 8:30am. Mr. Mouland said that although she agreed to the change, there is a problem because Mr. Mouland, who lives outside of Kenora, is late at times for pick-up, which makes it difficult to get Kailee to school on time and makes Ms. Mouland late for work.
[34] Ms. Mouland proposes that in September 2014, when both Kailee and Andrew are in school full-time, five days per week, on the day that Mr. Mouland is to pick up the children that she drop them off at school, following which she would go to work and Mr. Mouland would either pick them up from school at the end of the school day or the children would come to his house on the school bus. Ms. Mouland said that the advantage of this arrangement would be that she would know the children were getting to school on time and there would be one less interaction between her and Mr. Mouland.
[35] Ms. Mouland proposes that the current schedule, as modified above, remain in place during the summer, with the exception that each party have the children for a week during the school summer vacation, on advance written notice. She proposes alternating March Break, and alternating Christmas Eve, Christmas Day and Boxing Day, with the exchange at 1:00 pm on Christmas Day.
[36] The order of Justice Herold of September 26, 2012, required Mr Mouland to pay child support of $920.00 per month, “based on a shared custody regime.” The parties acknowledge that in fact Mr. Mouland does not have the children 40% of the time over the course of a year and that the existing schedule is not a “shared custody” regime within the meaning of s.9 of the Child Support Guidelines. The order also required Mr. Mouland to pay spousal support of $1,132.00 per month.
[37] Ms. Mouland has incurred day care expenses. Mr. Mouland fell behind significantly in contributing to those expenses. Mr. Mouland said that the problem for him was that the daycare receipts were provided to him in groups of three to four months at a time, which made it difficult for him to come up with large lump sum payments. As of the trial, Mr. Mouland had paid off most of the day care expenses arrears.
[38] Mr. Mouland testified that on separation he took on most of the debt load. He said that there was a problem in having his support payments, which were enforced by the Family Responsibility Office, properly deducted by his payroll department. This resulted in arrears of about $4000.00. When the arrears were enforced, Mr. Mouland’s net paycheques were reduced to approximately $750.00 every two weeks. Mr. Mouland fell behind a number of other bills and in 2013 he entered into bankruptcy.
[39] Mr. Mouland has formed a relationship with Sandra Adams, a fellow OPP officer. They have purchased a home together.
[40] Mr. Mouland proposes that the existing schedule be changed so that he delivers the children on the day that he goes back to work, instead of on the evening before he goes back to work. Because Mr. Mouland goes into work at about 5:30 am on his day shifts, he proposes that the children be cared for by Ms. Adams until they take the bus to school. The children would then be dropped off by the school bus after school at his home, to be met by Ms. Adam.
[41] Both Mr. and Ms. Mouland agree that communications between them are poor.
[42] There are a number of examples of poor communication brought up by each party. These include communications when Andrew had bedbug bites and Kailee had head lice, a dental appointment for Kailee and Mr. Mouland’s proposal to have the children visit Newfoundland. Mr. Mouland’s police training and vacation schedules have also been issues.
[43] Mr. Mouland had suggested that the parties use a written communication book. However, Ms. Mouland said that she refused because of her concerns that entries could be altered, that the children might read the entries and that the proposed exchanges of the books could be a potential problem. Ms. Mouland suggests that the parties use texts and e-mails, which are secure and which cannot be altered.
[44] Ms. Mouland testified that Mr. Mouland’s failure to contribute to the children’s daycare costs until after significant arrears accrued and his cutting off the utilities at the matrimonial home after separation had angered and disgusted her.
[45] Mr. Mouland said that he only stopped paying the utility bills when Ms. Mouland informed him that she had retained a lawyer and that he would have to pay support. He said he could not pay both the utility bills and support.
[46] Ms. Mouland’s sister testified. She described Ms. Mouland as outgoing, strong-willed, caring and loving. She said that Ms. Mouland was devastated when Mr. Mouland left. She described Mr. Mouland as a good natured father, loved by the children. However, she said that Mr. Mouland seemed to take care to present himself to others in a good light.
[47] Katherine Marks, a child protection worker, testified about her experiences working with Mr. Mouland when the OPP were required to assist with child apprehensions. She described him as very fair and respectful to all parties in what could be very emotional situations. She said that she had never seen him raise his voice.
[48] Jodi Jenner, a fellow OPP officer testified. She said that in her work with Mr. Mouland, both as a Treaty Three officer and as an OPP officer, she observed that he had an incredible amount of patience. She said that Mr. Mouland preferred to talk to de-escalate situations rather than use force.
[49] Ms. Jenner described Kailee and Andrew based on her observations of the children at gatherings at her home and at Mr. Mouland’s home. She said that Kailee was a sweet, well-adjusted girl who was very affectionate towards Mr. Mouland. She described Andrew as very happy. She said that she had never heard Mr. Mouland raise his voice to the children. She said both children appeared normal and well adjusted, that they got along well with each other and that they interacted well with other children.
[50] Kailee’s Grade 2 teacher testified. She said that although Kailee had some difficulty at the beginning of the school year, she had progressed well. She described Kailee as very pleasant, polite, kind hearted and loving. She testified that Kailee spoke fondly of her mother, her father, her brother and the new parties in her parents’ lives.
[51] On consent, a letter was filed at trial from an educational assistant who worked with Kailee in Grade 2. The educational assistant said that although there were some concerns at the beginning of the school year, Kailee’s reading, writing and mathematical skills steadily improved. Kailee was described as kind and considerate and well-liked by her classmates, never complaining and of an optimistic nature.
SUBMISSIONS
a. Ms. Mouland
[52] Ms. Mouland submits that on the issue of sole versus joint custody, the parties agree that they have a limited ability to communicate. Ms. Mouland points to Mr. Mouland’s inability to trust Ms. Mouland which has led him to record all conversations between the two of them. Ms. Mouland contends that the parties cannot agree on whether something is an issue, such as head lice or bedbugs and that Mr. Mouland appears to believe that when Ms. Mouland shows concern about these matters she is blowing everything out of proportion.
[53] Ms. Mouland submits that it is not Mr. Mouland’s parenting time with the children that makes a joint custody arrangement difficult but rather his lack of respect for her.
[54] Ms. Mouland says that Mr. Mouland’s recording of their conversations, in the context of his position as a police officer, is intimidating.
[55] Ms. Mouland submits that although Ms. Jenner testified that Mr. Mouland always tried to de-escalate situations by “talking people to death”, he was unresponsive in his relationship with her.
[56] Ms. Mouland acknowledges that there are presently no issues concerning the children’s school, health or religion. However, she is concerned that if those issues do arise, the parties will be unable to resolve them and more conflict will be created.
[57] Ms. Mouland submits that there is no evidence that she has restricted Mr. Mouland’s time with the children, shut him out of appointments or that she has made decisions which have adversely affected the children.
[58] Ms. Mouland requests that the present schedule, built around Mr. Mouland’s work hours, continue, subject to the modification mentioned above, namely that during weekdays, Mr. Mouland pick the children up at the end of the school day rather that at 8:30 am that day.
[59] Ms. Mouland submits that there is no demonstrated reason to make the change in the schedule proposed by Mr. Mouland. This change would require Ms. Adams to care for the children before they left for school. Ms. Mouland notes that there was no evidence about Ms. Adams as a caregiver and that Ms. Adams did not testify.
[60] Ms. Mouland submits that Mr. Mouland should pay Guideline child support of $1,373 per month and spousal support of $453, at the mid-range of the Spousal Support Advisory Guidelines based on their respective 2013 incomes of $96,490 and $36,244. She proposes that spousal support end in six or seven years. She proposes that child care expenses of $4,550 per year be shared pursuant to s. 7 of the Child Support Guidelines. Using Ms. Mouland’s calculations, if spousal support was set at the mid-range of $453, Mr. Mouland’s contribution to daycare expenses would be $96 per month. However, the figure of $96,490 that MS. Mouland uses in her Divorce Mate calculations includes $2,176 in non-recurring RRSP income. Mr. Mouland’s employment income in 2013 was $94,314.
[61] Ms. Mouland submits that the child support of $992 per month presently being paid by Mr. Mouland under the September 26, 2012 order of Justice Herold is based on a shared custody arrangement on the incorrect assumption that Mr. Mouland has the children 40% of the time. However, she does not request a retroactive adjustment. She also does not seek an order with respect to arrears of daycare expenses. She requests that all new support amounts commence on July 1, 2014.
[62] Ms. Mouland also requests that Mr. Mouland designate her and the children as beneficiaries under his life insurance policy through his employment – 50% for her and 50% for the children.
b. Mr. Mouland
[63] Mr. Mouland submits that he and Ms. Mouland should have joint custody of the children. He acknowledges that communication has been difficult. However, he submits that they are still able to communicate even though Ms. Mouland can be emotionally charged.
[64] Mr. Mouland requests that his time with the children be extended from that under the present arrangement so that instead of returning the children to Ms. Mouland at 4:30pm on the days before his shift begins, the children leave for school from his home at 8:30am on the day his shift begins, with Ms. Adams caring for the children after he leaves home at 5:30am and getting the children on their school bus. He also proposes that the children be bussed that day back to his home from school, with Ms. Adams meeting the bus. He acknowledges that the parties would have to “figure out” when Ms. Mouland would get the children after they had got off the school bus at his house. He submits that the advantage of this arrangement would be that the children would get to spend a maximum amount of time with each parent, that is they would spend additional time with him, from 4:30pm until bedtime on the day before his shift begins, rather than being returned to their mother’s at 4:30pm on that day.
[65] Mr. Mouland submits that child support should be paid on a shared custody basis, calculated on the parties’ incomes for 2014.
[66] Mr. Mouland does not dispute that he has an obligation to share daycare expenses, pursuant to s.7 of the Guidelines. He also does not dispute that the children should be named as beneficiaries of 50% of his life insurance policy.
[67] Mr. Mouland submits that he should not be required to pay spousal support. He submits that he should not be required to designate Ms. Mouland as a beneficiary of his life insurance policy.
DISCUSSION
Custody
[68] The provisions of the Divorce Act relevant to the issue of custody are:
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[69] Unlike many cases where custody is in dispute, each of the parties in this case acknowledges that the other is a loving, capable, dedicated parent.
[70] The children appear to be thriving in the present arrangements. Kailee’s teachers described her as polite, kind, loving, considerate and well-liked by her fellow students. Ms. Jenner, who observed the children in her home and in Mr. Mouland’s home described Kailee as sweet and well-adjusted and described Andrew as very happy and well adjusted.
[71] The children quite clearly love both parents. Ms. Mouland’s sister spoke of how Mr. Mouland was loved by his children. Ms. Jenner described Kailee as being very affectionate towards Mr. Mouland. Kailee’s Grade 2 teacher said that Kailee spoke fondly of her mother, her father, her brother and the new parties in her parent’s lives.
[72] Kailee is doing well in school, both academically and socially. Andrew will join her full time in the same school in September.
[73] There are no physical health issues affecting the children, apart from a couple of incidents of head lice which Kailee picked up at school and an incident of bedbugs biting Andrew. Both the head lice and the bedbugs, while understandably aggravating to Ms. Mouland, have not placed the children at any risk. Kailee’s Grade 2 teacher testified that there are cases of head lice in the whole school, every year, Winter, Spring and Fall. I do not fault either Ms. Mouland or Mr. Mouland for this problem or for the bedbug bites on Andrew.
[74] In short, there is nothing in the evidence that raises any concerns about how the children are doing, emotionally, physically, socially, or in the case of Kailee, academically.
[75] The present arrangement of sharing the care of the children has been in place, with small modifications, for approximately two years. Because the evidence shows that the children have been doing so well in that arrangement, there would have to be good reason to change the arrangement in the best interests of the children. In my view, there is no demonstrated reason to change the status quo.
[76] I am not persuaded that Mr. Mouland’s submission to change when the time to return the children when his shift begins should succeed. Although maximum contact with each parent is a consideration, there is already meaningful contact between Mr. Mouland and his children that would not be significantly enhanced by having them remain with him for a few more hours on a couple of days each month, weighed against the fact that it would require Ms. Adams, not Mr. Mouland, to care for the children both before they were picked up by the and after they were dropped off by the school bus. This would result in more contact for Ms. Adams, which is not a consideration, at the expense of contact with Ms. Mouland, which is a consideration. I also acknowledge the validity of Ms. Mouland’s submission that there was no evidence at trial from Ms. Adams.
[77] I am also not persuaded that the arrangement should be changed as proposed by Ms. Mouland, namely that Mr. Mouland should pick the children up at the end of the school day rather that at 8:30am that day. Although Ms. Mouland said that this would ensure that the children arrived at school on time, Kailee’s teacher did not indicate that lateness has been an issue.
[78] In my view, a joint custody order would be in the best interests of the children. Each party is a capable, loving parent. The children love both parents. The children are doing well, in all respects, in an arrangement which has been in place for two years where neither party has had sole decision making authority. Each party has had meaningful input into the children’s lives. There are no education or religious issues outstanding or imminent. The parties have been able to agree that the children will attend a French Immersion school in the Roman Catholic School System. There have been no unresolved health issues, apart from some differences on treatment of head lice and bedbug bites. Although oral communication has been difficult, the parties have communicated through texts and e-mails, including making arrangements and concessions where one or the other may be running late.
[79] Both parties have been actively involved in taking the children to medical appointments and extracurricular activities and both have attended meeting with the children’s teachers.
[80] If, after two years of joint decision making, sole custody is awarded to Ms. Mouland, I have concerns that it might adversely affect Mr. Mouland’s very positive relationship with the children. Ms. Mouland was described by her sister as loving and capable, but also as “strong willed”. This trait showed itself in some of her texts to Mr. Mouland. In connection with head lice found on Kailee, she texted Mr. Mouland “I just found head lice on Kailee tonight fuck!!!!! I have nothing to treat it now. She can’t go to school now. I can grab something in the morning, maybe even just meet me at Walmart or Shopper’s instead of school.” and on another occasion: “Just fucking great!!! Do u still want to have them at your house??” Ms. Mouland agreed that she was “defiant” of a court order. After the order was granted, she texted Mr. Mouland:
“That stupid judge ordered something that all 4 of us said was not going to work and then he said oh well mom and dad can figure out the fine details. Meaning the times.”
[81] Ms. Mouland was also determined to track down the whereabouts of Mr. Mouland and to confirm her suspicions that he was seeing another woman by using the tracking application on their respective iPhones.
[82] Her anger at Mr. Mouland showed on a number of occasions during her testimony in her responses to questions from Mr. Mouland in cross-examination.
[83] Although Ms. Mouland says she finds Mr. Mouland’s recording of their conversations to be intimidating, I do not see Ms. Mouland as someone who would be easily intimidated. I accept Mr. Mouland’s evidence that after separation, Ms. Mouland’s communications with him were often emotionally charged and that she did use foul language. Having said that, I also accept that Ms. Mouland was understandably hurt by Mr. Mouland’s decision to end the marriage and to begin a relationship with Ms. Adams. I also accept that Mr. Mouland’s decision to terminate utility payments for the home and falling into arrears in his support obligations would be upsetting. I also note Mr. Mouland’s description of Ms. Mouland as a good mother, good at arranging the children’s lives and activities and that he has no concerns about the children being in her care.
[84] In short, the decision in this case on joint custody and residency arrangements for the children is one which in my view carries the least risk of impairing the relationship which each parent has with the children and of impairing the positive outcomes that both children have enjoyed over the past two years following the separation of their parents.
Periodic Child Support
[85] Ms. Mouland requests that child support be based on the parties’ 2013 incomes. Mr. Mouland submits that support should be based on their projected incomes for 2014. In my view, in this case, support should be based on their known 2013 incomes which I understand will likely be similar to their projected 2014 incomes. The parties shall exchange income tax returns by May 1 of each year, commencing May 1, 2015 and support shall be readjusted on June 1 of each year, commencing June 1, 2015, based on incomes of the previous year.
[86] Mr. Mouland’s employment income in 2013 of $94,314 results in Guideline child support for the two children of $1,346 per month.
[87] The residency arrangements for the children ordered herein, do not result in “shared custody” within the meaning of s.9 of the Child Support Guidelines.
Spousal Support
[88] In my opinion, Ms. Mouland is entitled to spousal support for a fixed duration. The parties decided in April 2011 that Ms. Mouland should remain at home on Tuesdays and Thursdays so that she could care for the children, because Kailee was in kindergarten only three days a week – Mondays, Wednesdays and Fridays. When Kailee entered Grade 1 in the Fall of 2011 and the parties placed Andrew in daycare five days a week, Ms. Mouland’s employer was only able to give her employment of four days per week. On this basis alone Ms. Mouland is entitled to compensatory spousal support, based on the roles the parties assumed, the economic disadvantage to her arising from the marriage and its breakdown and to fairly apportion between the spouses the financial consequences to her arising from her care of the children, over and above the child support obligations of Mr. Mouland.
[89] The Spousal Support Advisory Guidelines (SSAG), based on respective incomes of $94,314 and $36,244, and deductible child care expenses of $4550 per year paid by Ms. Mouland, suggest a range of spousal support of zero at the low end, $344 per month at the mid-range and $836 per month at the high end. Without child care expenses, the range is zero, $388 and $860.
[90] Ms. Mouland seeks spousal support at the mid-range, albeit her calculations include Mr. Mouland’s RRSP income in 2013 which, as a one-time payment from cashing in his RRSP, I do not believe is appropriate.
[91] I am of the view that spousal support of $400 per month is appropriate. The SSAG calculations suggest a minimum duration of 6.5 years and a maximum of 14 years from the date of separation. Mr. Mouland has been paying spousal support since October 1, 2012 pursuant to Justice Herold’s order of September 26, 2012. In my view, given the ages of the parties, the length of cohabitation, and the differences in income, Mr. Mouland should pay spousal support for a further five years.
Daycare Expenses and other Section 7 Expenses
[92] As of the date of the trial, Ms. Mouland was incurring daycare expenses of approximately $4550 per year. The SSAG calculations show that if Mr. Mouland was paying spousal support at the midpoint of the suggested range his contributions to daycare expenses of $4550 would be $108 per month.
[93] However, it is unclear what effect if any, Andrew’s full time attendance at school beginning in September 2014 will have on Ms. Mouland’s daycare expenses. If Ms. Mouland seeks contribution for daycare expenses after August 2014, her counsel may make arrangements with the Trial Coordinator to speak to me on the issue, by way of teleconference, on 10 days notice to Mr. Mouland before October 15, 2014. Verification of daycare expenses should be served and filed prior to the teleconference. If the issue has not been spoken to by October 15, 2014, it shall be deemed to have been settled. The parties shall share any other expenses covered by s.7 of the Child Support Guidelines in proportion to their respective incomes.
Life Insurance
[94] Mr. Mouland shall maintain the children as beneficiaries of 50% of the face amount of the policy of insurance on his life available through his employment.
[95] To secure the payment of spousal support in the event of his death, Mr. Mouland shall name Ms. Mouland as a beneficiary of the above life insurance policy in a percentage of the face amount of the policy equal to not less than $20,000.
Conclusion
[96] For the reasons given, it is ordered that
The parties shall have joint custody of the children of the marriage, Kailee Dinae Mouland, born December 13, 2006 and Andrew Kristopher Mouland, born May 14, 2010. The parties shall consult one another and jointly make all major decisions concerning the children’s health, education, religious upbringing, major recreational activities and general welfare.
The children shall have their primary residence with Ms. Mouland:
a. When Mr. Mouland completes a four day/night work shift on a Sunday or weekday, he shall assume care and control of the children when he picks the children up at Ms. Mouland’s home at 8:30 am and, if it is a school day, he shall take the children to school.
b. When Mr. Mouland completes a four day/night work shift on a Friday or Saturday, he shall assume care and control of the children when he picks them up at Ms. Mouland’s home at 10:00 am the next morning.
c. When Mr. Mouland’s period of care and control ends on a Sunday or weekday, he shall return the children to Ms. Mouland’s home at 4:30 pm on the day prior to the start of her first day shift;
d. When Mr. Mouland’s period of care and control of the children ends on a Friday or Saturday, he shall return the children to Ms. Mouland’s home at 6:30 pm on the evening prior to the start of his first day shift.
(Note: It is intended that the present arrangements for care and control as set out in the Schedule entered as Exhibit 3 at trial shall continue. If the wording of this order fails to reflect the present arrangements, the parties shall forthwith contact the Trial Coordinator to make an appointment to settle the appropriate wording to reflect those arrangements.)
e. In even numbered years, Ms. Mouland shall have the children from Christmas Eve Day until Christmas Day at 1:00 pm and Mr. Mouland shall have the children from Christmas Day at 1:00 pm and Boxing Day. In odd numbered years, Mr. Mouland shall have the children from Christmas Eve Day until Christmas Day at 1:00 pm and Ms. Mouland shall have the children from Christmas Day at 1:00 pm and Boxing Day.
f. Ms. Mouland shall have the children during March school vacations in odd numbered years and Mr. Mouland shall have the children during March school vacations in even numbered years. The March school vacation shall be deemed to include the weekend at the beginning and the weekend at the end of the March school vacation.
g. The parties shall each be entitled to one week of uninterrupted vacation time with the children during the school summer vacation, to be agreed upon in writing by June 1 of each year.
h. The parties may have other holiday time with the children as they may agree in writing.
Mr. Mouland shall forthwith provide Ms. Mouland, in writing, with complete details of his shift obligations and any police training days as soon as they are available to him.
Mr. Mouland shall pay Ms. Mouland support for the children in the sum of $1,346 per month, commencing July 1, 2014, based on his 2013 employment income of $94,314 and the Child Support Guidelines.
Upon Ms. Mouland wishing to incur expenses referred to in s.7 of the Child Support Guidelines and to have those expenses shared in accordance with s.7 of the Child Support Guidelines, she shall forthwith consult with Mr. Mouland with respect to the expenses and provide verification. If the expenses fall within s.7 of the Child Support Guidelines, the spouses shall then share the expenses in accordance with the provisions of s.7 of the Child Support Guidelines. Notwithstanding the above, Mr. Mouland shall pay to Ms. Mouland the sum of $100 for each of July and August 2014 for daycare expenses for the children. If Ms. Mouland seeks contribution by Mr. Mouland to daycare expenses after August 2014, her counsel may make arrangements with the Trial Coordinator to speak to the issue by way of teleconference, on 10 days notice to Mr. Mouland, before October 15, 2014. If this issue has not been spoken to by October 15, 2014, it shall be deemed to have been settled, subject to the right of Ms. Mouland to bring a future application in that regard.
Until the obligation to pay child support terminates with respect to both children, the amount of the child support shall be reviewed and adjusted annually on June 1, of each year, commencing on June 1, 2015. Commencing May 1, 2015 and on May of each subsequent year, each party shall deliver to the other a copy of his or her income tax return and accompanying T-4 and T-5 slips for the previous calendar year.
Mr. Mouland shall pay to Ms. Mouland spousal support of $400 per month, commencing July 1, 2014, up to and including June 1, 2019 when spousal support shall terminate.
Mr. Mouland shall maintain coverage for the children under his existing extended health plans for so long as coverage is available to him through his employment and the children are eligible for support.
Mr. Mouland shall designate the children as beneficiaries of 50% of the face amount of the policy of insurance on his life available through his employment and file the designation with the insurer. Mr. Mouland shall designate Ms. Mouland as a beneficiary of the said policy in a percentage of the face amount of the policy equal to not less than $20,000 and file the designation with the insurer. He shall give Ms. Mouland a copy of the said designations within 14 days of this order. Mr. Mouland shall maintain the children as beneficiaries for so long as he is required to pay support for the children. Mr. Mouland shall maintain Ms. Mouland as a beneficiary for so long as he is required to pay spousal support to her.
Costs
[97] Success at trial has been divided. If costs are sought, the Trial Coordinator shall be contacted within 30 days to arrange a date to speak to the issue, failing which the issue of costs shall be deemed to be settled.
“Original Signed By”
The Hon. Mr. Justice D.C. Shaw
Released: August 26, 2014
COURT FILE NO.: FS-12-5169
DATE: 2014-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KRISTEN MOULAND
Applicant
- and –
STEPHAN MOULAND
Respondent
REASONS ON JUDGMENT
Shaw, J
Released: August 26, 2014
/nf