ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-866
DATE: 2014-01-23
B E T W E E N:
Marco Ramey Rayes
Self Represented
Applicant
- and -
Sahara Domingues-Cortes
Odette Rwigamba, for the Respondent
Respondent
HEARD: November 25, 26, 27 and 28, 2013 at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons For Judgment
[1] The Applicant, Marco Ramey Rayes (the “father”) commenced these proceedings against the Respondent Sahara Domingues-Cortes (the “mother”) in March 2012. They are the parents of Gael Rayes-Domingues born October 21, 2005 (“Gael”).
Background
[2] The parties had a brief romantic relationship in Ottawa, Ontario while the mother was an employee at the Mexican Embassy in Ottawa.
[3] Upon her return to Mexico in 2005 the mother discovered she was pregnant with Gael. She contacted the father and over the next few years, the father travelled to Mexico to visit with the mother and Gael. On August 31, 2010, when Gael was almost 5 years of age, the mother and Gael moved to Canada in order to be closer to the father and to provide better opportunities to Gael and the mother. This move was undertaken with significant planning by both the mother and the father.
[4] Until relocating to Canada from Mexico, the mother was Gael’s primary caregiver. In order for the mother to immigrate to Canada, the father undertook to Immigration Services that he would act as her sponsor and provide support for a period of at least 3 years. Gael was already a Canadian citizen.
[5] The father also committed to the mother that he would provide for them upon their arrival in Canada, and he did so.
[6] The father set the mother and Gael up in an apartment a short distance from his home in the Westboro area of Ottawa and paid all their expenses. He arranged a school for Gael and assisted the mother with the transition as best he could. For the first several months, the parties were able to work cooperatively in parenting Gael and in managing the mother and Gael’s integration into Canadian society. In the summer of 2011 the mother obtained her permanent residency status, which permitted her to obtain employment.
[7] It was a difficult transition for the mother. In addition to language obstacles, (the mother speaks Spanish and English, but not French), separation from her extended family and traditions in Mexico; the mother was also attempting to find employment and create her own circle of friends and community.
[8] Gael and the mother travel back to Mexico at least twice each year, for a large part of the summer and for part of the Christmas season. For the most part, the father has been supportive of this travel; however there has been conflict about the exchange of itineraries and travel letters as well as the length of time they stay, particularly if it involves Gael missing school.
[9] Within a year of their arrival in Ottawa, there were other sources of conflict that developed between the parties.
[10] The father claimed the mother was attempting to limit his access to Gael and that upon receipt of her permanent residency status the mother was planning to leave Ottawa and move to another city, possibly Toronto, with Gael.
[11] The mother found the father to be too controlling. She felt that because she was living in accommodation supplied by the father, in a home of close friends of his, that she did not have her privacy or the ability to retain control of her own affairs. She claimed that the father felt entitled to enter her apartment whenever he wished and expected her to advise him of her movements. She described the arrangements between the parties after her arrival in Canada in terms that suggested the father was directing all of her activities and her lifestyle.
[12] The father commenced this proceeding in early 2012 seeking in particular, joint custody and equal decision making power, increased access to Gael and an order preventing the mother from moving Gael to another school or away from the City of Ottawa. The parties were able to reach an agreement to regularize the father’s access so that in the fall of 2012 the parties were sharing the parenting of Gael on an alternating week schedule. Since then Gael has been in the mother’s care every Wednesday after school until Monday morning on week one and in the father’s care every Friday after school until Tuesday morning on week two. In essence, the parties alternate weekends with Gael and share the weekdays. In the spring of 2013, the parties consented to an extensive final order outlining the holiday time each parent has with Gael.
[13] At trial, the father claimed sole custody of Gael; however, he did not amend his pleadings to include these claims. The basis for the change in position is that he claims to be the more suitable parent to make the day to day decisions for Gael and foster the relationship between the mother and Gael.
[14] The father alleged that the mother was not willing to provide him with the parenting role in Gael’s life that he wanted and he was fearful that she would leave the area with Gael, preventing his continued access.
[15] The mother has always sought sole custody of Gael. It was the mother’s position that she has always been the primary care-giver for Gael and that she is more suited to this role than the father.
[16] By the time of trial, the mother also sought to change the father’s access by reducing it from the time sharing arrangement they had reached in September 2012 to more limited but still substantial access. It was her opinion that this would be better for Gael than the current arrangement where Gael spends half of each week with each parent. The mother also claimed child support from the father and asks the court to impute income to the father, alleging that he has under-reported his income or has claimed deductions from his income that while allowable for income tax purposes are not proper deductions for the calculation of child support.
[17] The mother obtained her own apartment in Nepean, another area of Ottawa in July 2013. She testified that she had attempted to find an apartment in the Westboro area, closer to the father’s home, but could not afford to live in that area and as such was forced to look at places further away. The mother recently married a man who lives and works in Mexico. The issue of this marriage did not factor into the issues between the parties with respect to custody, access and child support.
[18] The mother has yet to find employment that provides sufficient income by which she is able to support herself and Gael adequately. She does, however, acknowledge that the father’s obligation to provide for her support is at an end. She currently works in a flower shop and has started attending school with the expectation of obtaining a placement in a university programme. She has a bachelor’s degree in International Trade from a Mexican university and after her term with the Mexican Embassy in Ottawa ended in 2004 she worked with a bank in Mexico until she immigrated to Canada.
[19] The mother’s new apartment is in a different school catchment area and as a result the mother seeks to move Gael’s school to one nearer her home. She has submitted that it is in Gael’s best interests that he resides with her during the week, with alternate weekends and one overnight per week with the father. Her proposal provides that Gael would spend one less night per week with the father. She testified that the current arrangement was causing anxiety for Gael.
[20] Gael has had some difficulties learning, particularly with reading and writing skills. He has recently been assessed by professionals through a referral from his current school. The results of that assessment were not available at the time of the trial.
[21] The father had been seeking repayment of the funds he paid on the mother’s behalf for her housing and other expenses after their arrival in Canada. At the conclusion of the evidence at trial, the father informed the Court that he was abandoning that position. The father has proposed to pay child support based upon his line 150 income as reported in his income tax returns, less any set off to which he might be entitled if the parties retain the shared parenting arrangement.
[22] Both parties are therefore in agreement that child support would commence as of August 1, 2013. They disagree on the quantum of child support to be paid.
[23] The father argued that his income should be calculated based upon the amount he declares at line 150 of his income tax returns, which in 2012 was just over $40,000.00. Between August and November 2013, the father has paid a total of $1,820.00 in child support.
[24] The mother claims she will earn approximately $6,000.00 in 2013 although she confirmed she earned $13,000.00 in 2012. She also claims that child support should be calculated based upon the father earning $70,000.00 and asked that income of $30,000.00 be imputed to him in addition to the $40,000.00 he declares in his income tax returns at line 150.
Analysis
[25] Notwithstanding the conflict between the parties there is no doubt that both parties are good parents and both believe they are acting in Gael’s best interests in taking the positions they have put forward.
[26] It has been a significant transition for the mother to leave her home in Mexico and adjust to life in Canada away from her family and community. Similarly, Gael was moved from the only home he knew when he was almost 5 years of age, and was introduced to a new family, new way of life in a new culture and language.
[27] It is not surprising that conflict developed when the mother was expected to relinquish much of the time that she had been accustomed to spending with Gael to the father and his extended family and community.
[28] Equally, the father was anxious to become an involved parent and make up for lost time with Gael which included ensuring Gael spends time with the father’s extended family. To that end, the father has pushed for as much time with Gael as he is able and he has become very involved in Gael’s school in the Westboro area. He volunteers at the school and has taken an active role in the parenting association. He and Gael have formed a strong bond and enjoy spending time together. Gael has also developed some close friendships with his classmates.
[29] Both parties present as fit and capable of sharing the parenting of Gael. In spite of their differences it was apparent that both have the ability to communicate with the other about Gael and his best interests. Both parties wish to have the control and when they do disagree, they are unable to resolve matters. They have also asked for clarification of some of the holiday scheduling to which they have already consented due to different interpretations of the schedule.
[30] The most significant issues that presented themselves in the evidence at trial in addition to the issues of custody and child support were:
a) The school that Gael will attend,
b) Clarification of certain holiday periods,
c) Ease of travel for the mother to and from Mexico with Gael, and
d) Which parent should have final decision making power if they do not agree.
[31] The evidence at trial showed that the current school, Elmdale Public School has been very beneficial for Gael in that the teachers and school professionals took an active interest in Gael’s learning difficulties and have engaged with both parents in having Gael tested and in offering support systems. Similarly, Gael has formed a number of strong friendships with his classmates at Elmdale. The mother seeks to move Gael to a new school, St. John the Apostle Elementary School in Nepean which is closer to her new home.
[32] The mother moved to Nepean because it was the only part of the greater City of Ottawa where she was able to find affordable housing. She also testified that she drives an older, unreliable car and has concerns about having to transport Gael back and forth from the school in Elmdale from Nepean when Gael is with her.
[33] It was apparent that the father appears to feel the need to control most aspects of Gael’s life, using his perception of what is in Gael’s best interests to advance his position. This has often left the mother disheartened and frustrated. On the father’s behalf, it is not surprising that he would fear that the mother might attempt to move from the Ottawa area with Gael now that she has permanent residency status in Canada. For her part, the mother has relinquished a significant amount of time and control over Gael in favour of the father, understanding the need for Gael to have a strong bond with his father.
Custody
[34] In spite of their differences, there was nothing presented by either parent at trial adducing any objective evidence to suggest there would be a negative impact by continuing to maximize Gael’s contact with both parents. To the contrary, the evidence supports that maximum contact with both parties is in Gael’s best interests as per s. 24 of the Children's Law Reform Act.
[35] I am satisfied therefore that the best interests of Gael would be met by the parties having joint custody with a shared parenting arrangement on the same schedule as they now maintain or some other schedule, such as a week and week about schedule (should the parties feel it to be preferable for this type of schedule). Subject to the conditions set out below, the current schedule is to be maintained unless the parties agree otherwise or there is a further court order based upon a material change in circumstances.
[36] In making this finding I am mindful of the conflict that has arisen between the parties with respect to Gael and the differences in the parties’ respective perspectives of what is in Gael’s best interests. I accept the mother’s position that the father has a tendency to attempt to control her and Gael. I have struggled with her request to reduce the father’s access, but in the absence of objective evidence that there is a problem, I am not prepared to do that at this time.
[37] It is hoped that the rulings I make in this decision will address some of those issues. Should the father continue to attempt to control the mother’s travel and holiday and other time with Gael or attempt to control other aspects of her life, this may constitute a material change in circumstances that might be sufficient to warrant a re-examination of the current schedule.
[38] Notwithstanding the joint custody and shared parenting order, if the parties are unable to reach agreement on any issue, the mother shall have the final decision making power with certain exceptions set out as follows:
a) Gael’s school shall not be moved for this current school year (ending June 2014) or thereafter unless both parties agree or a court orders the school may be changed. The issue of Gael’s school location may be renewed by either parent after the end of the current school year provided that if either parent wishes to commence proceedings to change Gael’s school they must do so a minimum of 3 months prior to the beginning of the school term for which they seek the change. If seeking a change in his school, the parties shall provide a comprehensive plan for Gael at the new school in terms of his education plan particularly as it pertains to any learning difficulties he may have; access to the extra-curricular activities Gael enjoys; the quality of the education Gael would receive as well as any other factor that would assist the court in ascertaining if the change would be in Gael’s best interests.
b) The mother may not move with Gael to a home that is more than a maximum of 30 kilometers from the father’s current home without the father’s consent or a court order.
[39] Both parties shall consult with the other on all extra-curricular activities for which they enroll Gael. Neither parent shall unilaterally cancel any of the activities in which Gael is presently enrolled, nor refuse to continue those same activities in the future unless Gael is no longer interested in pursuing them. This includes the educational tutoring and other activities the parties have already agreed upon.
[40] The parties shall ensure that Gael speaks with the other parent at least once every second day when Gael is in their care and custody.
[41] In terms of clarifying the access arrangement, on school holidays, PD days or other long weekends, the pick-up and drop off shall be at 3:30 on Friday. If the holiday is a long weekend with a holiday Monday, the person who has access that weekend, whether under the regular access schedule or the vacation schedule as set out in the April 12, 2013 Order, shall have Gael for the Monday holiday until 7:00 pm, unless the parties agree otherwise.
[42] The March break school holiday shall be alternated between the parties so that the mother shall have Gael for the March break in even numbered years and the father shall have Gael for the March break in odd numbered years. This access will begin immediately after school on the last day of school until the start of school on the first day that classes resume.
[43] Gael shall spend his birthday with the parent on whose time his birthday falls, unless the parties agree to some other arrangement.
[44] The father shall cooperate fully with the mother’s travel plans to Mexico at Christmas and in the summer as well as any other time that might be appropriate (for example a family emergency, etc.). It is in Gael’s best interests to spend time with his extended family in Mexico and to that end the mother is entitled to travel with Gael in the summer as set out in the consent order of April 12, 2013 as well as during the Christmas season and/or spring break, provided it does not interfere with the father’s designated holiday time with Gael. In order to accommodate her travel plans and to do so in a cost effective manner, it may on occasion be necessary for the mother to extend her time in Mexico on the Christmas and Spring Break periods by a few days resulting in Gael missing some school. The mother is entitled to make arrangements on that basis and the father shall cooperate with the mother in these arrangements even if it means his regular access is interrupted as a result.
[45] The father shall provide a travel letter to the mother consenting to her travel with Gael to Mexico no later than 30 days prior to her departure, or as soon as the mother has provided the father with the dates of her travel plans, whichever is earlier, regardless of whether or not the mother has yet provided her airline itinerary. The mother shall provide the airline itinerary showing her travel dates and times together with contact information and proof of travel health insurance for Gael to the father no later than 10 days prior to her departure.
[46] Should the father fail to provide the travel consent letter as directed, the mother may bring this matter back before this court in the form of a Motion to Change a Final Order, to require the father to provide a permanent travel consent letter without restriction, seek recovery of any additional expenses to which she was subjected as a result of the delayed or lost travel opportunities and/or seek to vary the custodial arrangement, as the case may be. Any decision on these issues would be at the discretion of the judge hearing the Motion to Change.
[47] All other provisions in the final order of April 12, 2012 shall remain in full force and effect.
[48] In the event of any other material change in circumstances, either party may seek a variation of this order and/or the order of April 12, 2012.
Child Support
[49] The father, who is self-employed, acknowledged he is entitled to certain deductions from his gross income for personal expenses related to the use of his home for his office, motor vehicle expenses, and other deductions that those who are not self-employed are not entitled to make. In addition, the father owns 7 rental properties, five of which he owns solely and 2 in which he is a one-third owner. He earns rental income in each of these properties and is entitled to deduct a variety of expenses including Capital Cost Allowance that essentially eliminates any income for tax purposes. By my calculation in reviewing the schedules attached to his 2012 income tax return, the father claimed approximately $16,000.00 in Capital Cost Allowance deductions alone which in turn reduced any taxable income from the rental income to nothing.
[50] Based upon my review of his income tax return in 2012 and in considering the deductions the father has made, I assess the father’s income for the purposes of calculating child support as $65,000.00, I assess the mother’s income as $10,000.00. As such child support in accordance with the Federal Child Support Guidelines shall be $594.00 per month payable by the father to the mother commencing August 1, 2013, less the sum of $1,820.00 already paid by the father.
[51] For the period of August 1, 2013 until January 31, 2014, the father’s child support obligation is $3,564.00 less the $1,820.00 he has paid, leaving a balance owing for that period of $1,744.00 that is payable immediately. Regular child support of $594.00 shall commence on February 1, 2014 and every month thereafter.
[52] If the father has made any other payments for child support that he can verify and the mother accepts since August 2013, those amounts shall also be deducted from the amount owing.
[53] The father shall also be responsible for 100% of Gael’s s. 7 (extraordinary) expenses including all sports activities and tutoring.
[54] Both parties shall provide the other with all information about their respective incomes from all sources, including their complete income tax returns and all attachments no later than May 31 of each year.
[55] For the period commencing July 1, 2013, the parties shall declare to the Canada Revenue Agency and the Ontario Ministry of Finance that they share custody of Gael. They shall each claim the Ontario Child Benefit and the Canadian Child Tax Benefit or any other eligible tax benefit or deduction related to Gael in whatever amounts to which they may be entitled based upon a shared parenting regime.
Summary
[56] The parties shall have joint custody with shared parenting of Gael. If the parties are unable to agree on any issue, except the school that Gael attends, the mother shall have the final decision making power.
[57] The parties shall ensure that Gael speaks with the other parent at least once every second day when Gael is in their care and custody.
[58] In terms of clarifying the access arrangement, on school holidays, PD days or other long weekends, the pick-up and drop off shall be at 3:30 p.m. on Friday and 7:00 pm if the holiday falls on a Monday.
[59] The March break school holiday shall be alternated between the parties so that the mother shall have Gael for the March break in even numbered years and the father shall have Gael for the March break in odd numbered years. This access will begin immediately after school on the last day of school until the start of school on the first day that classes resume.
[60] Gael shall spend his birthday with the parent on whose time his birthday falls, unless the parties agree to some other arrangement.
[61] The father shall provide a travel letter to the mother no later than 30 days prior to the mother’s travel dates and the mother shall supply an itinerary of her travel to the father no later than 10 days prior to the travel.
[62] The father shall pay child support of $594.00 per month commencing August 1, 2013 less any amounts he can prove he has paid for child support.
[63] The father shall pay 100% of Gael’s s. 7 expenses including sporting activities and tutoring.
[64] Both parents shall declare Gael as a dependant in a shared parenting capacity for all tax deductions and benefits to which they may be entitled.
Costs
[65] At the conclusion of the trial I asked both parties to provide me with their written submissions on costs in a sealed envelope for my review after having reached my decision on the substantive issues in this proceeding. I have reviewed both parties’ submissions on costs and note that there were no offers to settle that conform with the Family Law Rules.
[66] In considering each party’s position at the outset of the trial and the result of my findings, I find that the mother was more successful than the father and as such is entitled to some recovery of her costs. Her counsel has submitted a bill of costs claiming $17,721.69 as her full indemnity costs.
[67] I find the mother is entitled to her costs in the amount of $7,500.00 payable by the father. Because a significant portion of this trial was about the father’s income for the purposes of calculating child support I find that $6,000.00 of the costs award relates to the payment of support and shall be collected by the Family Responsibility Office as support. The remainder is payable by the father forthwith.
[68] Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
[69] Outstanding amounts owing will bear interest at the post-judgment interest rate set out in the Courts of Justice Act. A payment in default bears interest only from the date of default.
Madam Justice B. R. Warkentin
Released: January 23, 2014
COURT FILE NO.: FC-12-866
DATE: 2014-01-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARCO RAMEY RAYES
Applicant
- and –
SAHARA DOMINGUEZ-CORTES
Respondent
REASONS FOR JUDGMENT
Warkentin J.
Released: January 23, 2014