ONTARIO
SUPERIOR COURT OF JUSTICE
ST. CATHARINES COURT FILE NO.: 557/12
DATE: 2014/09/08
BETWEEN:
JOSEPH RODNEY FOUGERE
F. Ololade, for the Applicant
Applicant
- and -
AMANDA FRANCIS FOUGERE
I. Pearson, for the Respondent
Respondent
HEARD: August 26 & 27, 2014
The Honourable Mr. Justice R.J. Harper
Issues
[1] Custody and access to two children, Victoria Fougere, born February 14, 2010 (now 4 years of age) and Ryan Fougere, born January 11, 2008 (now 6 years of age).
[2] Quantum of child support for the above-mentioned children.
[3] Fixing what arrears of support exist and if they do whether the arrears should be rescinded.
Background
[4] The Applicant, Joseph Fougere (Joseph), and the Respondent, Amanda Fougere (Amanda), were married on August 23, 2008. They separated on August 16, 2012.
[5] Joseph is 41 years old and has another child from a previous relationship, Morgan. She will be 16 years old in October of this year. She is presently residing with Joseph.
[6] Amanda is 37 years old. She has a child from a previous relationship, Brayden, who is 16 years old and is not presently residing with Amanda. There is an interim court order that Braden shall not be alone with either Victoria or Ryan.
[7] Joseph has a grade 11 education. He worked for many years in the marine related business. Throughout the marriage he was employed by Heddle Marine Services in Hamilton, Ontario. He testified that in 2012 he injured his back at work and was off for a period of time prior to separation. After separation, he stated that he re-injured his back and that he has been off from work since October 2013 as a result.
[8] His income for 2009 through 2011 according to his line 150 in his tax return is as follows:
[9] 2009: $51,434
[10] 2010: $46,290
[11] 2011: $48,446
[12] 2012: $39,989 (after deducting an amount of $3,143 for business loss. He gave no explanation for this deduction and he did not provide his T1 general to show what his gross earnings were and what the breakdown of the alleged deductions was. I would not allow this deduction from income for support purposes).
[13] 2013: $34,888.79 (after deducting approximately $5,644.60 for business loss).
[14] It should be noted that although Joseph showed a gross income from his side business as a parking lot line painter, he deducted almost $10,000 in expenses for tax purposes. He claimed that was mostly gas money but he agreed that he did not really know how his accountant arrived at that figure. I find the amount of loss, without proper evidence that gave a realistic explanation of this inordinate amount of loss vs the income made to be excessive. I would allow a deduction of half that amount. That would result on no business loss to be deducted from income. I attribute income for 2013 to be $34,888.79.
[15] Joseph claims that, since the end of October 2013, he has not been able to work due to back problems. He did not file any medical reports or records that provided any explanation for his disability other than a letter from his family doctor that said: “this patient was totally disabled on Monday February 24, 2014. Estimated time to return to work: 4 months.” That letter is dated February 14, 2014. The only other evidence that he filed was a Niagara Health Systems MRI Scan report. This report is not signed by anyone. It reflects “mild disc bulging” at certain disc sections. Other sections are noted as “no significant abnormality.” One other note indicates an extradural lesion at the level of L3. There is no explanation of what appears to be observations that range from no abnormality to mild narrowing or bulging.
[16] Joseph’s claim to Great West Life for short-term disability was rejected by letter of February 13, 2014. He appealed and filed the above noted MRI on this appeal. There was no further evidence filed other than Joseph’s evidence that he applied to Ontario Disability Support Program (ODSP) and has not heard from them as to whether he will receive a pension from them.
[17] I find that the evidence of Joseph’s inability to work is sadly lacking. At best, he can establish that he could not work on February 24, 2014 and was expected to be able to return to work by July of 2014. That represents a period of 4 months in 2014. Instead, he applied to the ODSP. They only received his application on August 13, 2014. He did not file a copy of his application in this trial. I have no idea what proof he submitted to ODSP, if any. I do not accept that Joseph is not able to work other than for the period set out above. I find that he is purposely under-employed and attribute income to him at his 2013 annual income level. His support obligation for March, April, May and June is suspended for those months.
[18] In summary, my findings are as follows with respect to Joseph’s income for support from the date of separation:
[19] 2012: $39,989
[20] 2013: $34,888.79
[21] 2014: $34,888.79
[22] His child support payments from September 1, 2012 shall be $578 per month.
[23] His child support payments from January 1, 2013 and continuing shall be $519 per month with the exception of the 4 months as set out above for 2014.
[24] Amanda was not working at the date of marriage. She did not work during the marriage and she is not working presently. She has a grade 12 education. The last time she worked was sometime before marriage as a server at a fast food restaurant. She testified that when she talked to her husband about putting the children into day care in order for her to attempt to get a similar job, he told her that he would not agree to put them into day care. He also stated that he would care for the children instead as he did not intend to go back to work. Joseph did not give evidence in reply. Due to her lack of work during the marriage and the child care responsibilities she must continue to deal with, I accept that Amanda cannot work at this time.
Care of the Children During Marriage
[25] Amanda claims that she stayed at home during the marriage and was primarily responsible for the care of the children. Joseph states that she did stay at home but was often overwhelmed with one child who was hyper and another new born infant. He claimed that he would call his wife every day to check on her. He also stated that he had a friend go to the house to assist his wife with the children. Joseph also stated that when he came home from work, at approximately 5 p.m., he would take care of the children in order for his wife to be able to reduce the stress of being with them all day. He stated that he made many of the meals, interacted with the children and put them to bed. Once the children were sleeping, Joseph stated that he would then go to his second side job of painting lines in parking lots.
[26] Amanda states that Joseph did help with the children when he came home from work, however, nowhere near to the extent that he claimed. She testified that the children were definitely a lot to care for and agreed that Ryan was hyper and hard to deal with especially at the same time as caring for an infant.
Joseph’s Claims of Parenting Concerns of Amanda
[27] Joseph testified that Amanda has substance abuse issues. He states that she uses marijuana, cocaine and alcohol to excess. He testified that she would use marijuana to help her calm down. He assisted her in both obtaining marijuana and growing it in their house. When asked if he was simply enabling his wife to partake in something he felt impeded her parenting ability, he stated that if she did not take it, she would become intolerable.
[28] Amanda admitted that she smokes marijuana. She claims that the marijuana helps calm her under stress and that she would rather take that than any of the prescription medications the doctors gave her in the past. She stated they made her sleepy and nauseous and she did not want to take them.
[29] She denies that she has ever taken cocaine or abuses alcohol. Although Joseph made a number of requests for her to submit to drug testing and she refused as she did not agree she had a problem, he never brought a motion to the court to seek an order for her to submit to drug testing.
[30] Amanda testified that she cared for the children primarily and it was not until she was home alone with a new born infant and Ryan who was a hyper active child that she became stressed and asked her husband to become more involved with the care of the children. She states that Joseph worked long hours before that period at his work at Heddle Marine and his side job painting parking lots in the evenings and on weekends. She stated that she did get help from him in caring for the children until she insisted that he help after her son Brayden made false allegations against Joseph of sexual abuse and she was feeling the stress of that along with caring for Ryan who was hyper and her very young child, Victoria.
Events following Separation
[31] Amanda left the matrimonial home on August 15, 2012. She took the children to a shelter. On August 16, 2012, Joseph brought an application to the court claiming custody of the children. Joseph did get custody and, in fact, he consented to an order that gave Amanda primary residence with the children on September 4, 2013. Joseph was to have access to the children alternating weekends from Friday at 3:45 p.m. until Sunday at 6 p.m. This order was made on consent despite Joseph claiming that Amanda had substance abuse problems with cocaine, marijuana and other prescription and non-prescription drugs. He had also claimed that Amanda was neglectful of the children. He claimed that she did not properly supervise them and provide for them.
[32] After the interim order, Joseph’s claims of substance abuse and neglect continued. He contacted the Family and Children’s Services of Niagara (FACS) and the police on a number of occasions to cause those institutions to conduct various investigations. None of the investigations resulted in either institution taking any action. Joseph told the police that his wife was using cocaine and marijuana and other drugs. They attended at the home and did not find anything. He told the CAS the same thing and they attended the home multiple times. Amanda testified that she asked FACS not to close their case as she felt that Joseph would just continue to make such allegations. She wanted to have them involved as a protection from these continuous allegations and investigations. She testified that a FACS worker would come to her house at times every two weeks and sometimes they appeared at her home unannounced. FACS always ended their investigations with the determination as unfounded.
[33] Joseph made numerous requests to get Amanda to submit to drug tests. She refused as she did not feel that she had a problem. Joseph never sought an order form the court to compel Amanda to submit to such tests.
[34] Joseph made multiple requests to have Amanda consent to have FACS disclose all of their records. She did not consent to this. Joseph never asked the court to order such disclosure.
[35] Joseph made all of the allegations as set out above regarding his concerns for substance abuse and neglect to the investigator conducting a s. 112 investigation on behalf of the Office of the Children’s Lawyer (OCL). Despite all of these allegations, the OCL report recommended sole custody to Amanda with specific terms of access to Joseph. The OCL also set out recommended counselling and methods of communication in order to reduce the conflict and allow the children to have maximum contact with each parent with minimum exposure to adult conflict. Joseph did not file a dispute to the OCL report nor did he seek an order that the author give evidence at this trial. Her report remains uncontested.
[36] Amanda denied that she ever used cocaine. She stated that she even stopped using the medications that the doctor was prescribing for her anxiety due to the stressors in her life. She felt that they made her sleepy. She testified that she did smoke marijuana as it relaxed her without having the same side effects as the other medications. She stated that her anxiety was a culmination of stressors due to her older son Brayden making false allegations of sex abuse against Joseph and other seriously concerning conduct exhibited by Brayden. While all of this was going on she was the primary caregiver for Ryan who was hyperactive and to her daughter, Victoria, who was a very young child. She claimed her husband worked long hours and she started to insist that he help her out more. She also stated that her husband did start to help after he returned to work. However, he would turn his involvement around to make it look like she was neglectful and a bad parent.
[37] I found Amanda to be a credible witness. She was forthright and admitted that she did have some challenges that she was working on. She has a counsellor to help her deal with this marriage breakdown. She also uses the resources of FACS Niagara on a voluntary basis. She denies that she has a problem with alcohol. She stated that she did put Irish Cream in her tea when her friend comes over for morning tea. She stated that this was for flavor and not for alcohol. There is no evidence other than the unsupported allegations of Joseph that this is a problem.
[38] FACS subjected Amanda to two different urine drug tests. There was no drug or alcohol other than cannabis. Amanda admitted to using marijuana but not to the extent that it would impair her parenting ability. She smokes marijuana and cigarettes outside of the presence of her children. She does it sometimes in her own bedroom that has an exhaust fan in the window as she does not want to exacerbate any problems her son Ryan has with allergies and breathing.
[39] When Joseph was not working in the winter of 2014, Amanda agreed that Joseph could take Ryan to school in the morning. This would allow her to stay with Victoria and not have to bring her outside in the cold. Joseph tried to assert in his testimony that Amanda was responsible for some 22 episodes of Ryan being late noted in the February report card of Ryan. Amanda stated that she was responsible for some but not all of the times of the child being late. She stated that Joseph was responsible for some as he arrived late. She also stated that some of the visits by FACS caused the lateness. Joseph did not mention the fact that the late recordings were at a time when he was responsible for taking the child to school.
[40] Joseph simply did not take responsibility for any of the problems that occurred in this family. His testimony was replete with accusations and criticisms of Amanda that were not supported by any other evidence. He related half stories of incidents that would cast dispersions on his wife if the whole story was not known. A prime example of this is his testimony that his wife could not manage the household finances to the detriment of the children. He stated that her hydro had been cut off as she did not pay the bills. Amanda pointed out in her testimony that it was cut off for a short period of time. She did not have enough money to juggle all the bills as the gas bill was exceptionally high. When this was looked into, it was discovered that there was a gas leak and that caused excessive gas bills. This is presently being looked into in order to make the necessary adjustments.
[41] It is significant that Amanda has been living on a minimal amount of money that she receives from Ontario Works with no child support payments made by Joseph.
[42] Joseph took no responsibility for any inappropriate conduct. He stated that on one occasion while he was on his way to visit a friend, he was “set up by police”. He was stopped and his car had what Joseph said was a leaf from a marijuana plant. He told them that there were marijuana plants in his home and he accompanied the police to his home. Amanda stated that she was shocked to learn that the police were not going to lay any charges for the marijuana; they were simply going to remove the plants but they were going ahead with charges against Joseph for soliciting a prostitute. Joseph claims that he only plead guilty to avoid the police taking the children away from them. He denied that he solicited the prostitute, despite his guilty plea.
[43] Although Joseph claims that he and Amanda can cooperate sufficiently to share custody, I do not feel that sole custody to him is appropriate. I do not find that the evidence allows me to conclude that they are able to communicate and make joint decisions. In my view, Joseph only acts if it conforms to what he dictates. An example of his inability to discuss and possibly compromise is the evidence relative to returning the children after access. Amanda stated that he was consistently late. He would never bring the children at 6 o’clock despite the fact that the court order stated that his access was from 3:45 until 6 p.m. Joseph testified that 6 o’clock meant he had the children until that time and not that he had to return them by 6 p.m. He felt it was perfectly alright for him to start to travel back for their return at 6 o’clock. He never budged from that position.
[44] Joseph testified that his child, Victoria, was hit by a car while in the care of Amanda. He claimed that Amanda was in her garage and not looking after the children when Victoria was hit by one of the neighbours backing out of her driveway. Amanda stated that she was on her driveway and she saw the neighbour starting to back up while playing loud music. She shouted for Victoria to stop riding her bike toward the driveway. The car merely bumped the child. She was not hurt in anyway. This is an example of an accident that was turned into some sort of neglectful act by Joseph in order for him to gain an advantage in these proceedings.
[45] It is not in the best interests of the children to be constantly involved in investigations of neglect and abuse that are unfounded. This conduct must stop.
[46] I find that Joseph is more concerned with achieving his goals regardless of whether it is in the best interests of the children. He seeks to have the children every Wednesday, Thursday and Friday, in addition to alternating weekends and half of all holidays. He does not advance a plan for the care of the children. He did not describe his house, neighborhood or the children’s ties to his neighborhood. He spent very little time in his evidence even talking about his children, their character and their needs.
[47] In contrast Amanda describes a neighbourhood that the children have lived in for some time. They have many children friends in the neighborhood and they play all the time at Amanda’s home. She states that the children enjoy this very much. She described many events and outings she goes on with the children. I find that it is in the best interests for the children to remain in the sole custody of their mother. I accept all of the recommendations of the OCL. She did a thorough investigation that was not contested. Her analysis is thoughtful and her recommendations seek to achieve maximum contact with each parent with minimum ability to expose the children to adult conflict.
[48] The only consideration for me is what is in the best interests of the children. Joseph has not advanced credible and cogent evidence that would allow me to conclude that this long standing status quo should be changed.
[49] There shall be a custody and access order in accordance with the recommendations of the OCL.
[50] If the issue of costs cannot be resolved, I direct the party seeking costs to deliver written submissions to my office in Brantford within 15 days of the release of these Reasons with responding submissions to be delivered within 15 days thereafter. The written submissions are not to exceed three typewritten, double spaced pages, excluding the Bill of Costs and Costs Outline. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Harper J.
Released: September 8, 2014
ST. CATHRINES COURT FILE NO.: 557/12
DATE: 2014/09/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEPH FOUGERE
Applicant
- and -
AMANDA FOUGERE
Respondent
REASONS FOR JUDGMENT
Harper J.
Released: September 8, 2014