COURT FILE NO.: FS-14-0056
DATE: 2014-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tonina Enns,
Eija Peltokangas, for the Applicant
Applicant
- and -
Trevor Douglas Enns,
Kevin Brothers, for the Respondent
Respondent
HEARD: September 4, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] The applicant, Tonia Enns, brings a motion for:
(a) custody of the parties’ three year old daughter, Elizabeth Mary Enns, born April 17, 2011;
(b) determination of access for Mr. Enns;
(c) child support;
(d) sale of the matrimonial home;
(e) return of certain of Ms. Enns’ personal belongings; and
(f) sale of the parties’ recreational trailer.
[2] During submissions on the motion, there was resolution of the issues related to the matrimonial home, Ms. Enns’ personal belongings and the trailer. The terms of the order in regard to those matters are set out at the conclusion of these reasons.
[3] On May 22, 2014, Justice Fregeau made an order at a case conference requesting that the Office of the Children’s Lawyer investigate and make a report and recommendations to the court concerning custody of and access to the child pursuant to s. 112 of the Courts of Justice Act. The parties each completed and forwarded the required intake forms to the Office of the Children’s Lawyer. However, the Office of the Children’s Lawyer advised by lettered dated June 27, 2014, that it had not received Mr. Enns’ form within the requisite 14 days and therefore closed its file. Both parties remain desirous of having the Office of the Children’s Lawyer involved. An order shall therefore go requesting the Office of the Children’s Lawyer to investigate and report on custody and access.
Background
[4] The parties were married on April 18, 2009. They separated on October 19, 2013.
[5] There is one child of the marriage, Elizabeth, age 3.
[6] Ms. Enns is a registered nurse. After Elizabeth was born, Ms. Enns took a one year maternity leave. Thereafter, she was employed part-time at St. Joseph’s Hospital where she works each Saturday and Sunday. Mr. Enns is an engineer. He is employed by Trans West Co. and works Monday through Friday.
[7] The parties have arranged care for Elizabeth around their respective work schedules. Mr. Enns has Elizabeth every Thursday after work until Friday morning at 7:30 am. He then has her every Friday at 5:30 pm until Monday morning. Exchanges take place at a coffee shop.
[8] Ms. Enns states that she has accommodated this schedule because it is what Mr. Enns demanded. She describes Mr. Enns as controlling. She says that during the marriage he was emotionally abusive, with a violent temper, and that he hit her on one occasion. Ms. Enns states that she is afraid of Mr. Enns and that he refused to communicate with her.
[9] Mr. Enns states that the schedule in place was arranged through the parties’ respective counsel (who are not the parties’ present counsel) and that it is designed to accommodate both their work schedules. He denies that he has a controlling or aggressive personality or that he has hit or abused Ms. Enns in any manner. He states that he has been able to discuss all matters with Ms. Enns in a calm and rational manner.
[10] Ms. Enns states that she has unsuccessfully attempted to negotiate a schedule which would enable her to exercise some time with Elizabeth during a weekend. She proposes that she have Elizabeth with her during the first weekend of each month. She also requests a change to the present schedule so that Mr. Enns will return Elizabeth at 8:00 or 8:30 Sunday night, rather that at 7:30 am on Monday. Ms. Enns states that Mr. Enns will not make any changes to the schedule unless he receives equivalent make-up time. She alleges that this is driven by Mr. Enns’ determination to “count hours” so that he has the child for 40 % of the time and thereby does not have to pay child support based on the shared custody provisions of s. 9 of the Child Support Guidelines.
[11] Mr. Enns states that he is willing to agree that Elizabeth spend one evening a month with Ms. Enns. He states that he has allowed Ms. Enns additional access when she has requested it and that, since June 2014 he has agreed that Ms. Enns have Elizabeth June 4, 14 to 15, 19, 22, July 1 to 7, 26, 27 and August 1 to 3 and August 23 for a birthday party from 1:00 pm to 3:00 pm). Mr. Enns states that if Ms. Enns has Elizabeth for a weekend each month he would like to have make-up time of three or four more weekday nights each month. Mr. Enns does not want to change the Monday morning drop-off time. He states that this drop-off time has been in place for approximately nine months.
[12] Ms. Enns seeks an order for sole custody. She is prepared to describe it as joint custody, but on the basis that she would have final decision making authority. She states that because she cannot communicate with Mr. Enns, and because he is controlling and she is fearful of him, joint custody is not appropriate. Ms. Enns states that she believes that there is a bond that must be maintained between Mr. Enns and Elizabeth and that she encourages access for Elizabeth with her father.
[13] Mr. Enns seeks an order for joint custody. He submits that the parties have had de facto shared control of Elizabeth since the parties separated in October 2013. He states that he has been able to reach agreement with Ms. Enns on many issues, including access. He states that he has a strong and loving bond with Elizabeth. He states that Ms. Enns is a good mother.
Decision
[14] For the past 11 months since the date of separation, Elizabeth has resided extensively with each party in their shared care and control. There is no evidence that raises concerns about how the child is doing, physically or emotionally. The parties have been able to agree on the child’s residence arrangements. I appreciate Ms. Enns position that the present arrangements were demanded by Mr. Enns. However, I also note that this arrangement was proposed on an interim, albeit without prejudice basis, by Ms. Enns’ lawyer.
[15] Elizabeth is only three years of age. Over the short run, there will likely be few major decisions that will have to be made concerning her welfare.
[16] Both parties agree that the Office of the Children’s Lawyer should become involved. It remains to be seen whether the Children’s Lawyer will agree to investigate and make recommendations. However, in my view, in the circumstances of this case, with the long standing status quo and no evidence that the status quo has adversely affected Elizabeth’s best interests, it would be premature to make an order that significantly changed the present arrangements pending receipt of the position of the Children’s Lawyer.
[17] The parties may have difficulties communicating but they have been able to agree to date on the care arrangements for Elizabeth and to certain changes to those arrangements to accommodate Ms. Enns’ requests. They have agreed to the involvement of the Children’s Lawyer and, as of the hearing of the motion, they have agreed on the sale of the matrimonial home, the sale of the trailer and the return of certain of Ms. Enns’ belongings.
[18] Each party appears to be a loving parent and there is an acknowledged bond between Elizabeth and each parent.
[19] I will not make an order at this time for either sole custody or joint custody. Rather, Elizabeth shall continue to reside in the care and control of both parties. The parties shall consult with one another and share equally in all major decisions affecting the child’s health and welfare. If they are unable to agree upon such major decisions, either of them may return to the court, on motion, to have the court make a determination on the issue including making an order for custody. Otherwise, a trial judge will be in the best position to make determinations of credibility and fact and to decide whether the long standing status quo of shared custodial decisions should be altered in the best interests of the child.
[20] With respect to the residence arrangements for Elizabeth, I see no compelling reason to change, on an interim basis, the times that the parties have been observing for many months, apart from giving Ms. Enns time with the child on the first Saturday and Sunday of each month. Mr. Enns has agreed to accommodate this request, if he receives other times to make up for that weekend. I have determined that it would be reasonable for Mr. Enns to have Elizabeth on the Monday following the weekend that Ms. Enns has the child, from after work until 7:30 on Tuesday morning. I agree with counsel for Ms. Enns that the exercise should not be one of “counting hours”.
[21] With respect to child support, Mr. Enns takes the position that s. 9 of the Child Support Guidelines is applicable because he has care and control of Elizabeth for not less than 40% of the time over the course of a year. Mr. Enns calculates his time with Elizabeth at 42%. Ms. Enns did not provide any calculation disputing this number. If one does a mathematical comparison of the number of hours which Elizabeth has resided in the care and control of each party, Mr. Enns appears to pass the threshold of 40%. If one looks at the spirit and reality of shared custody since separation, the physical custody of Elizabeth has been shared by the parties such that Mr. Enns’ assertion of having had Elizabeth for 40% of the time seems reasonable. In the letter of December 5, 2013, from Ms. Enns’ counsel to Mr. Enns’ counsel, reference is made to joint and shared custody of the child and the goal of each party having as close to equal time as possible with the child.
[22] Mr. Enns’ income is shown as $60,000.00 per year in his Financial Statement. Ms. Enns’ income is shown as $61,135.80. Neither party presents any calculations as to the increased costs of the shared custody arrangements on the conditions, needs and means of each party and of the child which would enable an analysis in accordance with Contino v. Leonelli-Contino 2003 SCC 63, 2003 S.C.C. 63. In the absence of those calculations, because the incomes of the parties are virtually identical, there will be no order requiring Mr. Enns to pay periodic child support.
[23] Section 9 contemplates that the parties will have similar expenses for the child while the child is in his or her care. Ms. Enns states that she buys all of Elizabeth’s clothes. Mr. Enns should share equally in all expenses related to Elizabeth. If Mr. Enns fails to pay his share of expenses, Ms. Enns is at liberty to renew her claim for child support on the basis of material that enables an analysis to be done under the criteria set out in Contino.
[24] Ms. Enns states that she has paid $1,675.00 for daycare costs from the date of separation to July 17, 2014 and that Mr. Enns has contributed $449.00. Because their incomes are basically the same, the parties are obligated under s. 7 of the Child Support Guidelines to contribute equally to Ms. Enns’ daycare expenses incurred as a result of employment or illness, taking into account any income tax deductions or credits related to the expense. If Ms. Enns seeks contribution from Mr. Enns, she shall provide him with her calculations of the after-tax costs of those daycare costs that fall within s.7 of the Guidelines and Mr. Enns shall pay 50% of those after-tax costs.
Conclusion
[25] An order shall go:
(a) If the parties are unable to agree on the terms of sale of the interest of one of them in the matrimonial home to the other by September 26, 2014, the matrimonial home located at 133 Egan Place, Thunder Bay shall forthwith be listed for sale with a mutually agreed upon real estate agent or agents at a price recommended by the agent or agents;
(b) Mr. Enns shall forthwith deliver to Ms. Enns the following items belonging to Ms. Enns:
• university books
• her clothes and shoes
• potted plants in the shed of the matrimonial home
• sentimental items belonging to the child Elizabeth which were given to Ms. Enns
• all other personal items, including knickknacks and photographs.
(c) The Coachman Recreational Vehicle Trailer shall forthwith be listed for sale and each party shall pay equally the deposit required by Recreational Word to effect the sale of the trailer;
(d) The Office of the Children’s Lawyer is requested to cause an investigation to be made and make a report and recommendations to the court concerning custody of and access to the child, Elizabeth Mary Enns, born April 17, 2011. The parties shall deliver to the Office of the Children’s Lawyer all necessary intake forms and other documents as required and within the times prescribed by the Office of the Children’s Lawyer;
(e) The child shall reside with each of the parties as follows:
(i) with Mr. Enns:
• every Thursday after work until Friday morning at 7:30 am;
• every Friday at 5:30 pm until Monday morning at 7:30 am, except for the first weekend of each month when Ms. Enns shall have the child from Saturday at 9:00 am until Monday at 5:30 pm, following which Mr. Enns shall have the child from that Monday at 5:30 pm until Tuesday at 7:30 am;
(ii) with Ms. Enns at all other times:
• Unless the parties otherwise agree, the exchanges of the child shall take place at a public location.
(f) The child shall continue to reside in the care and control of both parties. The parties shall consult with one another and share equally in all major decisions affecting the child’s health and welfare. If the parties are unable to agree upon a major decision, either of them may return to court, on motion, to have the court make a determination of the issue, which may include the court making an order for custody;
(g) The parties shall share equally expenses referred to in s. 7 of the Child Support Guidelines, including the after-tax costs of any daycare costs which fall within the criteria of s. 7 of the Child Support Guidelines;
(h) Ms. Enns shall be at liberty to renew her claim for child support if Mr. Enns does not contribute equally to all expenses incurred for the child, including clothing expenses, and, if she does so, she shall file material to enable an appropriate analysis to be done under s.9 of the Child Support Guidelines.
Costs
[26] There shall be no order as to costs in light of the mixed success of the parties and the agreements reached to resolve issues relating to the matrimonial home, Ms. Enns’ belongings, the trailer and the Office of the Children’s Lawyer.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: September15, 2014
COURT FILE NO.: FS-14-0056
DATE: 2014-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tonina Enns,
Applicant
- and -
Trevor Douglas Enns,
Respondent
DECISION ON MOTION
Shaw J.
Released: September 15, 2014
/mls