OTTAWA COURT FILE NO.: FC-13-1423

DATE: 2014/09/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Tellier

Applicant

– and –

Dustin Tellier

Respondent

Debora Scholey, for the Applicant

Self-Represented, for the Respondent

HEARD IN OTTAWA: September 2, 2014

DECISION ON MOTION

PHILLIPS J.

[1] The Applicant Wife and the Respondent Husband were married on April 7, 2001 and separated on November 2, 2012. There are three children of the marriage: a boy, a girl and another boy, aged 13, 12 and 9 respectively. The Applicant brings a motion at this point for three reasons:

1. For an interim order that she be granted sole custody of the children;

2. For an interim order that the Respondent be compelled to pay child support at an amount commensurate with an imputed income rather than his declared one;

3. For an interim order permitting the Applicant to move with the children to Edmonton, Alberta.

Background Facts

[2] The particular circumstances surrounding the couple’s separation are highly relevant. The Respondent was arrested for assaulting the Applicant on November 2, 2012. He pleaded guilty to assault contrary to Section 266 of the Criminal Code on January 16, 2013. He was sentenced to a year of probation with conditions that he attend for domestic violence-related anger management counseling and that he not have any contact with the Applicant or attend at the matrimonial home. While the probation order ended January 15, 2014, I am told that the Respondent remains engaged in counseling services and continues to address alcohol addiction issues.

[3] All criminal justice system agencies engaged in addressing the Respondent’s rehabilitative needs report positively about his level of engagement in the discharge of his sentence. It is fair to say that a significant degree of positive change has been effected with respect to his lifestyle and attitude.

[4] That said, it is clear that the effects of the violent end to the marriage resonate to this day. The record is replete with text messages between the parties and other evidence showing the unfortunate way in which they communicate with each other. He is said to use insulting language when addressing her. She runs him down on her Facebook “wall” - a fact that is distressing to the court given that the children are included among her Facebook “friends” and see it all. I will resist assigning blame. For present purposes, I will say only that it is obvious on the record on the whole that this couple cannot get along even slightly about anything.

Issue One - Custody

[5] As mentioned, the Applicant Mother seeks sole custody of the children. For his part, the Respondent Father resists such an outcome, arguing instead for joint custody consistent with the status quo.

[6] An application in respect of custody of children shall be determined on the basis of the best interests of those children in accordance with Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12. One of the considerations enumerated in that legislation involves assessment of the ability of each person applying for custody to act as a parent. In performing such an assessment, the court shall consider whether either person has at any time committed violence against the other.

[7] Domestic violence is always serious. It involves breach of trust and is a crime against the vulnerable. The Respondent’s actions on November 2, 2012 are most troubling and it is proper that he stands convicted of a criminal offense arising therefrom. Having said that, however, I accept that the sentencing principle of rehabilitation has had its desired effect and that the Respondent is a different man from who he was that night. I draw that inference from the positive reports from New Directions as well as from the fact that he has maintained sobriety ever since. In any event, while the assault conviction will forever be a stain on the Respondent’s record, it ought not in my view permanently cast him as unable to parent his children in the eyes of the court. I am satisfied that even with the events of November 2, 2012, the Respondent Father is possessed of the ability to appropriately act in the best interests of his children.

[8] Notwithstanding the Respondent’s rehabilitation, however, the way in which the separation arose and unfolded - the violence aspect and all its attendant conflict and upheaval - continues to lay ruin to this couple’s ability to communicate. The Applicant’s position in that regard cannot be said to be unreasonable.

[9] Before making an award of joint custody, there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively and work together in the best interests of their children. Hoping that communication will improve is not a sufficient basis for a joint custody order (See: Kaplanis v. Kaplanis (2005) 2005 1625 (ON CA), O.J. No.275 S.C.J.).

[10] I find that as a result of the parties’ inability to communicate, joint custody is not in the best interests of the children. Moreover, because the children have been primarily with the Applicant Mother since separation, I find that a significant status quo has risen with respect to the decision-making applicable to their day-to-day life. It is toward maintaining stability in that decision-making and therefore in their lives generally that I grant the relief sought by the Applicant and order sole custody of the children to her on an interim basis. The Respondent Father shall have the right to access information from the children’s schools, medical service providers, counselors, tutors and coaches. As well, on consent of the Applicant, it is ordered that the Respondent have access to the children every second weekend from Friday after school to Sunday evening at 7:00 p.m. and one evening a week from after school until 8:00 p.m., provided that the Respondent can bring the children to their extracurricular activities.

Issue Two - Child Support

[11] The Respondent has not been paying any child support. Rather, with the acquiescence of the Applicant, he has been paying the mortgage on the matrimonial home while the Applicant has had it in her exclusive possession. Given that the matrimonial home is currently up for sale, and that it is in his name only, the Applicant seeks child support going forward.

[12] While the parties are in agreement that the Respondent should henceforth pay child support, there is disagreement about the Respondent’s income. He works as a commission salesperson at a carpet store. His income fluctuates along with the economy. As recently as 2011 and 2012 he earned roughly $90,000 per annum. In 2013 he earned over $73,000. The Respondent indicates that his income for 2014 will be reduced to $36,000 as the company he works for is not doing well.

[13] The Applicant asserts that the Respondent is understating his income. Among other lifestyle related observations, she points out the fact that he drives a brand-new pickup truck worth over $50,000 despite the fact that he works indoors. The Applicant asks this court to impute income to the Respondent of $60,000 pursuant to section 19 of the Child Support Guidelines, O.Reg. 391/97.

[14] The issue of the pickup truck was canvassed extensively during the oral hearing of the motion. It would appear that the Respondent is locked into a payment plan that pre-exists the separation and that he is trying to get out of it. The other issues relating to a cruise and a diamond ring purchase were adequately accounted for. In any event, in my view, issues relating to the way in which the Respondent spends his money are outside the scope of Section 19. As I read it, that legislation is meant to deal only with determining the extent of income as it arrives into a support payor’s hands rather than an assessment of the appropriateness of the support payor’s spending.

[15] I accept that the income of a commission salesperson will fluctuate. I have no reason to disbelieve the Respondent when he indicates that his income has dropped due to declining activity in the residential construction and renovation sectors. There is no connection between him and his company’s head office and I accept the documents tendered by him in the record supporting his drop in income. I therefore make an interim order for child support at his apparent 2014 salary of $36,000 per annum. On an interim basis, commencing September 1, 2014 the Respondent shall pay the Applicant the sum of $703 per month. In addition, the Respondent shall pay a share of the extraordinary expenses calculated on his $36,000 per annum income. Accordingly, his share of these expenses to date for 2014 is $3,605.

[16] Of course this child support award is subject to revision should the Respondent’s 2014 income not turn out as expected. Toward that end, I order that both parties annually exchange all information relating to annual income, including Notices of Assessment, within 30 days of receipt of same.

Issue Three - The Applicant’s Move to Alberta

[17] The Applicant grew up in Edmonton, Alberta. She has family and friends there that she could use for support as she navigates her new circumstances. As well, the Applicant is not bilingual and says the job market in Alberta is more forgiving than the one in Ottawa for those who cannot speak French.

[18] The Supreme Court of Canada decision in Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27 sets out the governing principles on the issue of mobility. That case makes clear that mobility issues are to be determined on a case-by-case basis in accordance with the best interests of the children. A number of factors are to be considered in determining the children’s best interests in this context:

• the existing custody arrangement and relationship between the children and the custodial parent;

• the existing access arrangement and the relationship between the children in the access parent;

• the desirability of maximizing contact between the children and both parents;

• the views of the children;

• the custodial parents reasons for moving, only in the exceptional case where it is relevant to the parent’s ability to meet the needs of the children;

• disruption to the children of a change of custody;

• disruption to the children consequent on removal from family, schools, and the community they have come to know.

[19] I have some sympathy for the Applicant on this subject. I can see how she would want to surround herself with friends and family during this emotionally stressful transition period. However, I note that the Applicant has lived in Ottawa for over a decade. I infer from that fact that she has built up an adequate comfort zone of familiarity and a circle of friends here too.

[20] While I agree it is easier to get a job in Ottawa if one is bilingual, I cannot accept that unilingualism is an insurmountable obstacle to employment. A very significant percentage of Ottawa residents would also not be able to function in French. In my view, the Applicant’s point in regard to her diminished employment prospects arising from her language abilities does not tilt in favour of a move several thousand kilometers away.

[21] The move in question would decimate any access arrangement and relationship between the children and their Father, the Respondent. Preservation of that relationship is in the children’s best interests. Maximizing contact between the children and both parents is desirable in the circumstances. I agree with the Office of the Children’s Lawyer that a move to Alberta is contrary to the best interests of the children at this time. I also accept and consider that the children themselves do not want to move. They have simply been in Ottawa for so long that they have entrenched themselves in their schools and social circles. A move to Alberta would be unduly disruptive and is not in their best interests even when considered against the potential upshot of the custodial Mother being better able to meet their needs via enhanced employment prospects and other supports.

[22] The Applicant’s motion for permission to move with the children to Edmonton, Alberta is denied.

[23] Given the mixed results on this motion, there will be no costs.

The Honourable Mr. Justice Kevin Phillips

Released: September 9, 2014

OTTAWA COURT FILE NO.: FC-13-1423

DATE: 2014/09/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Tellier

Applicant

– and –

Dustin Tellier

Respondent

decision on motion

PHILLIPS J.

Released: September 9, 2014