ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F362/12
DATE: 2014-09-10
BETWEEN:
Matthew Timothy Young
Applicant
– and –
Staci Elizabeth Ludewigt
Respondent
Self-Represented
Mr. Jerry Chaimovitz
Counsel for the Respondent
HEARD: September 8th and 9th, 2014
the honourable mr. justice pazaratz
[1] This was a brief trial spanning portions of two days.
[2] The parties are both 20 years old. They never married and there is disagreement as to whether they actually lived together.
[3] They have a son Mason who is almost three years old. Mason has always remained in the Respondent mother’s care. He is doing well and there is no suggestion his placement should be changed.
[4] The issues:
a. The Applicant father wants joint custody. The mother wants sole custody.
b. The father wants liberal unsupervised access. The mother wants access to be supervised until the father completes anger management and parenting programs.
c. The father has never paid child support. He’s willing to start, but there’s no agreement on the amount or retroactivity.
[5] As it happens, during closing submissions the father conceded he would be prepared to take anger management and parenting courses, and that some gradual expansion of his timesharing would be appropriate. However, the parties were not able to agree on how to phase-in access.
[6] The evidence was brief. Only the parties and the father’s sister testified.
TIMESHARING
[7] I heard conflicting evidence about the extent of contact between the Applicant and his son.
a. The father says he used to have a lot of access, but in the last year he has only seen Mason about 12 times. He blames the mother for resisting or denying access.
b. The mother admits there were periods when the father had more regular access – although not nearly as much as he claims. She says during at least the past year he’s hardly seen the child at all. For example he had two visits in November 2013, one visit in December, and then access didn’t resume until the end of July 2014. There have been a couple of visits since then.
c. The father blames the mother for resisting or denying access.
d. The mother says she has always promoted access. She says there were extended periods when the father showed no interest, or made unreasonable last-minute requests for visits.
e. Both parties agree access dropped off dramatically following an incident which resulted in police intervention. The mother says the father became physically aggressive with her during a visit, and physically confined her while the child cried for up to two hours. The father admits there was an argument, denies physically restraining the mother, and emphasizes that the police elected not to lay any charges.
[8] No matter how the current father-child relationship arose, access must be addressed from the child’s current perspective.
a. The father’s access has always been fully supervised, usually by the mother. But she is no longer prepared to supervise because she says the father is aggressive and verbally abusive.
b. Visits have generally been brief – perhaps an hour or so.
c. Even if the father used to have more frequent visits, during at least the past year the father has had very little contact with Mason.
d. The mother admits sporadic, brief, fully supervised visits have generally gone uneventfully. But she says at this stage the father is virtually a stranger to the child. She says he is unfamiliar with the child’s needs, and still has difficulty controlling his temper.
e. Both parties agree consistent, liberal, and eventually unsupervised access is the appropriate goal.
f. But particularly with the father’s very-last-minute acknowledgement that he might benefit from anger management and parenting programs, implementing an access regime should be done slowly and carefully.
[9] I accept the mother’s position that initially access should continue to be supervised – but not by her.
a. The mother suggests using the YWCA supervised access facility, while the father gets counselling.
b. Her lawyer admits this has drawbacks. There is approximately a four-month waiting list, and thereafter the center might only accommodate visits for two hours every two weeks.
c. However the father admits the mother has been proposing anger management and parenting programs for years. The father steadfastly refused to consider any counselling because he didn’t think he needed it. But if he had simply taken those two programs long ago, by now he’d probably be having the alternate weekends he currently seeks.
d. Speaking plainly, the father has no one to blame but himself for lost opportunities to be active in the child’s life.
e. Nonetheless, a further four-month delay before institutional supervised access even starts is undesirable from the child’s perspective.
f. I canvassed with the parties the possibility of friends or family members acting as supervisors. They couldn’t agree on any individual, but ultimately they agreed that if necessary access could be supervised by two persons jointly: the maternal grandfather and the paternal grandmother. However, both of those individuals have their own scheduling issues, and neither attended trial to participate in the discussion.
CUSTODY
[10] The father’s request for joint custody is not in the best interests of the child.
a. The mother has been Mason’s exclusive caregiver. She is doing an excellent job. The father has had very little involvement.
b. The father has demonstrated very little commitment or insight with respect to Mason.
c. While he blames the mother for excluding him from the child’s life, I have no difficulty concluding from the evidence that the father had many, many opportunities to be more involved with Mason. He simply elected not to take those opportunities.
d. There is no history of co-parenting, and the evidence strongly suggests that the father’s aggressive, domineering, and inflexible personality makes co-parenting completely unrealistic.
[11] Supervision of the father’s access will hopefully be short-term. On a more indefinite basis, I accept the mother’s request that the child should not be left in the care of the paternal grandfather Timothy Young, with whom the Applicant currently resides.
a. The Applicant and his sister both acknowledged during their testimony that until about two years ago their father had a fairly serious drinking problem.
b. They agreed he was an alcoholic. They seemed non-committal as to whether he is an alcoholic.
c. But they admitted he still drinks, about once a week, consuming between five and eight beers.
d. Timothy Young did not testify. I accept the mother’s evidence that the paternal grandfather has had a significant substance abuse problem. I am not reassured that his problem is under control.
CHILD SUPPORT
[12] I accept the mother’s proposal in relation to child support and retroactivity.
a. The father has paid virtually no child support during these past almost three years.
b. He says it was because no support order or agreement had ever been created. I reject that explanation.
c. According to the father’s own evidence, during most of Mason’s life he was working either full or part-time.
d. He knew how much he was earning at various times (even though the mother didn’t know because the father didn’t make ongoing financial disclosure). He knew he was supposed to be paying something. He knew the mother was requesting child support. He knew the mother had a lawyer he could contact to try to determine the appropriate amount of child support to be paid.
e. The father testified that 2013 was his first year of full-time employment. He earned between $30,000 and $32,000. He didn’t disclose that income, and didn’t pay a penny of support that year.
f. He said in 2012 he earned half that amount.
g. He testified that in February 2014 he quit his employment with a food and beverage company (after more than three years) because he didn’t like his job anymore. He said he wanted to find something more suitable, but gave a vague and unconvincing explanation as to efforts he has made to actually find replacement employment.
h. His sister testified that since about May 2014 the Applicant has spent his days babysitting her child, for virtually no remuneration.
i. Under cross-examination the father bristled at the suggestion that perhaps he should have kept his old job until he found alternate employment more to his liking. He responded: “Why would I stay at a job that I do not feel appreciated at, that I do not like, that I do not want to go to work every day?”
j. He said he had no concerns about quitting his job because at the time there was no child support order or agreement in place.
k. Notably, even his sister agreed under cross-examination that “he should have thought about his obligations first.”
l. The father said he is looking for work in the construction industry, but doesn’t feel the need to actually go out to contact potential employers, because there are hundreds of job openings posted on internet websites. Nonetheless, he said he has not been able to find a single job among those hundreds of postings.
m. The father is young, healthy and employable. He said he has received some training, such as learning to operate a forklift. He rejected the suggestion that he further upgrade his skills if he truly can’t find employment with his current qualifications.
n. I am satisfied that the father deliberately quit secure and relatively well-paying employment, at a time when he knew he had an outstanding obligation to pay child support; that he deliberately created his own financial hardship either to avoid support obligations or disregarding his support obligations; and that he has not made diligent or appropriate efforts to generate an income in order to meet those child support obligations.
o. I am satisfied that pursuant to section 19 of the Child Support Guidelines income should be imputed to the father at the rate he was earning when he quit his job.
p. I am further satisfied that the mother’s request for retroactivity back to January 1, 2013 is reasonable, given the fact that the father failed to disclose his significant earnings. Even a January 1, 2013 commencement date means the father will still escape financial obligation for paying child support during the first 15 months of Mason’s life.
THE ORDER
[13] The Respondent mother shall have sole custody of the child Mason.
[14] The Applicant father shall have access as follows:
a. Pending further order all access shall be supervised.
b. The parties shall register at the YWCA Supervised Access Centre forthwith, and as soon as it can be arranged the father shall have fully supervised access at the centre as frequently as the facility may be able to arrange. It is anticipated this will entail two hours every two weeks, but the Applicant shall be entitled to weekly two hour visits if the YWCA can facilitate it. The Applicant shall be responsible for any related expenses.
c. However, the Applicant shall have the option of arranging weekly access supervised jointly by the maternal grandfather and the paternal grandmother, for two hours per week (or such times and in such circumstances as the supervisors may agree to).
[15] The issue of access shall be reviewable, by way of motion before me after:
a. The Applicant provides written confirmation that he has successfully completed an anger management course and a parenting course; and
b. The Applicant has had at least 12 non-institutional supervised visits, or five institutionally supervised visits.
[16] Pending further order, the child Mason shall not be left in the care of the paternal grandfather Timothy Young at any time.
[17] The parties shall keep one another fully informed as to their residential addresses, telephone numbers and contact information.
[18] Both parties shall be equally entitled to communicate with third parties and agencies involved in the child’s life, such as schools, doctors, and recreational facilities. The Respondent shall keep the Applicant informed as to the identity of all such service providers. As the sole custodial parent, the Respondent shall have final decision making authority in dealing with such third parties.
[19] The Respondent shall keep the Applicant informed as to any major events or issues in the child’s life, including complete disclosure with respect to health and educational issues. Each party shall notify the other immediately if the child comes to require emergency health care.
[20] The Respondent shall be entitled to obtain a passport for the child without the consent or participation of the father.
[21] The Applicant shall pay to the Respondent support for the child in the sum of $245.00 per month commencing January 1, 2013, based upon an imputed income of $30,000.00 per year. Arrears of support shall be repaid at the rate of $75.00 per month.
[22] The parties shall share future section 7 expenses in relation to the child, pursuant to the provisions of the child support guidelines.
[23] The Applicant shall notify the Respondent immediately upon obtaining any employment and he shall provide full particulars in writing. In any event, the Applicant shall provide the Respondent with copies of his tax returns and notices of assessment on an annual basis, by June 30th in each year.
[24] For any period when the Applicant claims to be unemployed or employed on a less than full-time basis, the Applicant shall maintain a daily written diary of his job search efforts (and any communication with prospective employers), and he shall provide this written summary to the Respondent on January 1st and June 30th in each year.
[25] The Applicant shall maintain for the child such health care coverage and life insurance coverage as he may obtain in the future, through employment or otherwise. He shall provide written confirmation to the Respondent as to the availability and status of such coverage by January 1st and June 30th in each year.
[26] Support Deduction Order to issue.
[27] If any residual issues need to be addressed other than costs, the parties should arrange through the trial co-ordinator to have the matter placed on a court list before me.
[28] If only costs remain to be determined, the party seeking costs shall serve and file written submissions within 21 days; the responding party shall serve and file their submissions within 10 days; and any reply submissions shall be served and filed within 7 days thereafter.
Pazaratz, J.
Released: September 10, 2014
COURT FILE NO.: F362/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MATTHEW TIMOTHY YOUNG
Applicant
-AND-
STACI ELIZABETH LUDEWIGT
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice Pazaratz
Released: September 10, 2014