COURT FILE NO.: FS 4832/12
DATE: 20141118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.C.
Ms Glenna McClelland, for the Applicant
Applicant
- and -
H.C.
In Person
Respondent
HEARD: October 27, 28, 29, 30, 31 and November 3, 4, 10, 12 and 13 2014
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION
[1] This is a family law case that has not been burdened with the kind of protracted litigation and seemingly endless motions that appear to have strangled some of the other family proceedings that this Court has dealt with.
[2] Credit is due to counsel and the parties for moving this matter along to trial in a relatively expeditious fashion. The children are the beneficiaries of that.
The Parties and Their Children
[3] The parties are both in their late thirties. They started living together in 1999. They were married in July 2007 and separated in June 2012. They are now divorced.
[4] There are two children of the union: T., an 11-year old daughter, and L., a 6-year old daughter.
[5] T. is in grade 6 at a school in Kincardine, Ontario. L. is in grade 1 at a different school in Kincardine. The girls must attend different schools as neither institution offers both grade levels.
[6] Prior to separation, the family lived in Kincardine.
[7] The Applicant father has worked for several years as a nuclear operator at Bruce Power. He currently works day shifts, Monday through Friday, 7:00 a.m. to 3:30 p.m. He has some flexibility in terms of his start and end times.
[8] The father lives in Port Clark, Ontario with his partner, Sheila. Sheila operates a day care out of the home. The father transitioned from Kincardine to Sheila’s home in Point Clark, with him there full-time by the end of 2013.
[9] The Respondent mother has worked for several years as a customer care representative at Bruce Telecom. She usually works 25 to 30 hours per week, although she has been off work since two to three weeks before the start of the trial, and she did not work between the end of June and mid-September of this year.
[10] The mother does not always work the same days in a week or the same shift when she does work, but generally the weekday hours worked are sometime between 9:00 a.m. and 5:00 p.m. She also works every other Saturday, when the girls are with their father. She earns $30.62 or $32.00 per hour, gross (she gave both figures during her testimony at trial).
[11] The mother lives in Kincardine. The children primarily reside with her. The current home is located very close to where the matrimonial home was. They moved in to the current home in late June 2013. Nobody else lives there except the mother and the girls.
[12] Fortunately, the mother’s current residence, the father’s current residence, the mother’s present place of work, the father’s present workplace, the residence of the paternal grandparents and the girls’ schools are all places that are within a twenty (20) minute radius of one another, maximum, by automobile. That is idyllic for a certain parenting arrangement.
[13] In his Financial Statement sworn in October 2014 (Exhibit 20), the father’s gross income for the year 2013 is noted as $96,648.00 (Exhibit 11, the father’s Notice of Assessment for the tax year 2013, shows a line 150 total income of $98,648.00).
[14] The father’s total annual income as of the date of the said Financial Statement reflects no material change. He testified that he thinks that his total income for the year 2014 will be about the same as it was last year. Exhibit 17, his recent pay stub from Bruce Power, indicates total earnings in 2014 up to September 17 of $78,413.05.
[15] In her Financial Statement sworn in October 2014 (Exhibit 49), the mother’s gross income for the year 2013 is noted as $48,584.94, although that must be an error as her Notice of Assessment for the 2013 tax year (Exhibit 46) shows a total income of $53,076.00. When I brought that discrepancy to the attention of the mother during her testimony, she stated that the Notice of Assessment is the more reliable document in terms of her gross annual income last year.
[16] According to Exhibit 49, the mother’s estimated total annual income for 2014 is $34,820.40 (excluding support).
The Parties Settle the Property Issues
[17] Fortunately, on the day that the trial was to commence, on October 27, 2014, both parties put their heads together and reached a comprehensive settlement of all property issues. A Final Order was issued by me in accordance with the Minutes of Settlement executed by the parties.
[18] I congratulate everyone involved for reaching that agreement.
The Positions of the Parties on the Contentious Issues: Custody and Access, Child Support and Spousal Support
The Father
[19] In his Application issued in November 2012, the father sought joint and shared custody of the children on an approximately equal basis; an Order that he pay child support and section 7 Guidelines expenses retroactive to the date of separation in amounts calculated on a set-off basis; and other relief.
[20] In his opening statement at trial through his counsel, the father raised the following substantive issues for determination: (i) custody and access; (ii) child support; and (iii) spousal support sought by the Respondent mother.
[21] On custody and access, the father’s proposal is for a shared parenting regime on an alternate, week-about schedule, with exchanges of the children taking place on Fridays.
[22] It is acknowledged by the father that the said proposal is not what was recommended in the custody and access assessment report completed by the London Custody and Access Project (the assessor recommended, among other things, primary residency of the children with the mother and access between the girls and their father). That report was released in late December 2013.
[23] Most of the other recommendations made by the assessor are agreed to by the father.
[24] For support purposes, the father seeks to have income attributed to the mother. The mother opposes that.
[25] The father submits that the mother is not entitled to receive any spousal support between the date of separation (June 2012) and the date that the Temporary Order for spousal support was made (July 2013).
[26] The mother’s entitlement to spousal support now is not really contested by the father, although it is argued that the mother ought to become self-sufficient by seeking full-time employment.
[27] The father’s position is that the mother is not owed any money for section 7 expenses.
The Mother
[28] In her Answer dated December 2012, the mother sought sole custody of the children, with access between the children and their father on alternate weekends and one evening per week; child support including section 7 Guidelines expenses payable by the father; spousal support payable by the father; and other relief.
[29] In her opening statement at trial, as a self-represented litigant, the mother outlined her position on the issues as follows. With regard to custody and access, she seeks sole custody of the children with access between the girls and their father along the lines of the status quo – alternate weekends and one evening during the week, plus special events and holidays.
[30] The mother supports the recommendation by the assessor to discontinue the alternate overnight Thursday access between the girls and their father, although she testified at trial that she may be open to continuing the Thursday overnight access if the parties could iron-out the alleged difficulties with the children Friday mornings, before school.
[31] In terms of the summers, the mother is content with a week-about rotation between households (which arrangement was in place for the summer of 2014). She would prefer that the exchanges take place on Sunday evenings (which occurred this past summer) or Monday evenings. The summer schedule would commence on the first Sunday or Monday after the last day of school and would end on the Sunday or Monday of the Labour Day weekend. The mother would have the girls for Canada Day weekend in July, while the father would have the children during the long weekend in August.
[32] Regarding Christmas, the mother wants to have the children with her every Christmas eve and every Christmas day until before dinner time. The father would rather see the girls spend some time with him on those two days, at least on alternate years.
[33] The mother is adamant that exchanges of the children must always take place at her residence, even if a week-about regime is ordered.
[34] The mother is a fervent believer in what was referred to at trial as a “right of first refusal”. How depressing it is to have to use that term when speaking about children. It sounds like we are talking about a business transaction involving widgets. In any event, such a provision has been in existence for most of the time since January 2013. In the future, the mother, but not the father, wants to continue the requirement that in the event that a parent who has care of the children is unable to be with one or both of them for four hours or more (it has been two hours in the past), that parent shall be required to contact the other parent to inquire whether the other parent wants to take one or both children.
[35] In a nutshell, the mother is opposed to the father’s shared parenting, week-about proposal because, she says, it will not work given the level of conflict between the parties. Subject to some tweaking, the status quo since a Temporary Order was made in January 2013 ought to continue.
[36] Until late in the cross-examination of the mother at trial, I thought that the mother’s opposition to the father’s week-about proposal was based on two factors: (i) it being contrary to the continuity that has existed under the status quo arrangement in place since the Temporary Order was made in January 2013, and (ii) its alleged unworkability given the conflict between the parents.
[37] To my surprise, late in her cross-examination, the mother began to assert that the father may be unfit to parent. For example, she said that she was concerned about his judgment regarding the girls.
[38] Thus, it appears that there is a third reason why the mother opposes the father’s plan – he is not fit to parent the girls to that degree. Of course, that begs the question as to why, if that is true, the father should have even generous access with the children. After all, an unfit parent can ruin a child’s life in mere minutes of time.
[39] Regarding child support, the mother seeks payments by the father in accordance with the Guidelines, commencing on the date of Judgment, plus income-proportionate contribution from the father for section 7 expenses. In addition, for the period of time between separation (June 2012) and when the Temporary Order for child support was made (July 2013), the mother seeks child support from the father.
[40] With regard to spousal support, the mother seeks mid-range support from the father from the date of separation (June 2012) to the date that the Temporary Order for spousal support was made (July 2013), less some credit for what the father paid, post-separation, against the mortgage being carried on the matrimonial home. In addition, the mother seeks mid-range support from the father from the date of the Judgment.
[41] In terms of past section 7 expenses, the mother alleges that the father owes 68% of $9934.00 ($10,991.00 less payments made by the father of $145.00, $280.00, $345.00 and $287.00).
Matters Agreed Upon by the Parties regarding Custody and Access
[42] The parties appear to be in agreement with regard to (i) Easters (each parent would have the girls for half of the time), (ii) birthdays for the children (the child, on her birthday, would spend some time with each parent), (iii) birthdays for the parents (the children would spend some time with the parent on that parent’s birthday), (iv) Mother’s Day (the children would be with the mother), and (v) Father’s Day (the children would be with the father).
[43] The parties appear to agree that each be responsible for making day care arrangements for the girls when they are with that parent.
[44] The parties appear to agree that the children spend half of each March Break with one parent and the other half with the other parent.
[45] It appears that the parties concur that each shall be permitted to seek information from third parties concerning the children, such as schools, doctors, dentists, coaches and others, with the mother making medical and dental appointments for the children.
[46] The parties agree that each is permitted to attend extracurricular activities of the children, regardless of where or when they are.
[47] The mother has agreed to provide her current mobile telephone number to the father so that he can use that to call her (but not text her) about the children.
The Litigation History
[48] On January 11, 2013, a Temporary Order was made, on consent. That Order set out a very detailed regime for custody and access and directed that an assessment be done by the London Custody and Access Project.
[49] That Order was meant to prevail pending the results of the assessment (completed in December 2013), however, it remained the status quo as of the time of trial.
[50] That Order provides that the father shall have access with the girls on alternate weekends from Friday after school until Sunday at 7:00 p.m., and every second Thursday from after school until the children return to school Friday morning, and every Wednesday from after school until 7:00 p.m., and other access as arranged between the parties.
[51] On July 24, 2013, a Temporary Order was made, on consent, which set out summer access between the children and each parent. In addition, the father was ordered to pay monthly child support of $1647.00 total and monthly spousal support of $882.00, based on an annual income of $118,900.00.
[52] On April 16, 2014, a Final Order was made, on consent, for telephone and electronic access between the girls and each parent. Further, a Temporary Order was made, on consent, that the father pay monthly child support of $1394.00 total plus 64% of section 7 expenses (36% payable by the mother). Those figures were based on a 2013 annual income for the father of $98,215.00 and a 2013 annual income for the mother of $48,585.00.
[53] As of the time of trial, the Family Responsibility Office (“FRO”) was still enforcing the July 24, 2013 Order in terms of child support ($1647.00 per month). There is, I am told, quite a delay in having new Orders take effect at the FRO.
[54] On May 5, 2014, a Final Order was made, on consent, which set out special holiday access between the girls and each parent. In addition, that Order directs that neither parent shall move more than thirty (30) kilometres from his/her current residence without providing the other parent ninety days (90) written notice.
[55] On May 14, 2014, a Temporary Order was made, not on consent, setting out summer access between the children and each parent. That Order provided that each parent share summertime with the children equally, on alternate weeks.
[56] On October 1, 2014, a Temporary Order was made, on consent, varying the spousal support payable by the father to $403.00 per month. That was the mid-range figure based on these 2013 annual incomes: $97,597.00 for the father (excluding union dues) and $49,086.00 for the mother (excluding union dues).
[57] As of the time of trial, the FRO was still enforcing the July 24, 2013 Order in terms of spousal support ($882.00 per month).
The Trial
[58] This trial was held in Walkerton and in Owen Sound on October 27, 28, 29, 30, 31, November 3, 4, 10, 12 and 13, 2014.
[59] As indicated previously, the mother represented herself at the trial. At the outset, I explained the general trial procedure to her. I allowed her to speak with duty counsel about some procedural matters. I confirmed that she had, before the first day of trial, obtained from the trial office and reviewed the memorandum available to self-represented litigants in the Central West Region (as ordered by Justice Tzimas in July 2014). I told her that she could interrupt the proceeding at any time, politely, to ask me questions about procedure, although I made it clear that I cannot give her legal advice.
[60] At least once per day of trial, I gave the mother an opportunity to ask me any question(s) that she had.
[61] Having presided over many matters with self-represented litigants, I had no doubt throughout the trial that the mother understood what was happening and was able to participate effectively.
[62] On November 10, 2014, well in to the trial, the mother told me that she did not fully understand the rule in Browne v. Dunn, which I had explained to her earlier.
[63] Any uncertainty that the mother had in that regard was obviated by the fact that, although her evidence-in-chief had already concluded at the end of the prior day of trial, I allowed the mother further time to enter more exhibits and give more viva voce evidence before the cross-examination started. I also did not hold the mother as strict to the rule in Browne v. Dunn as I could have. I directed that I would entertain submissions later as to the weight to be attached to a few points of the mother’s testimony which appeared to violate the said rule and whether I should permit the father to address those few areas.
[64] At trial, there were four witnesses called by the father: (i) the Applicant himself, (ii) the Applicant’s mother (the paternal grandmother of the children), (iii) the Applicant’s father (the paternal grandfather of the children), and (iv) Sheila, the Applicant’s current partner.
[65] There were six witnesses called by the mother: (i) the Respondent herself, (ii) the assessor, Christine Smith, (iii) the mother’s co-worker, Shannon, (iv) the mother’s neighbour, Gemma, (v) the mother’s friend, Jeffrey, and (vi) the mother’s younger sister, Amber.
[66] There were dozens of Exhibits filed (more than sixty).
[67] There was expert evidence at trial. Ms. Christine Smith testified (out of order, by agreement of the parties) for the mother as an expert witness in the field of custody and access assessment. Ms. Smith is the author of the assessment report completed by the London Custody and Access Project.
[68] The parties agreed that Ms. Smith is qualified to give expert opinion evidence in the field of custody and access assessment. The parties agreed that her report is admissible.
II. THE ISSUES AND ANALYSIS
[69] Notwithstanding the length of the trial and the number of witnesses who testified and the density of the exhibits filed, the issues in this case are straightforward. And I have not found them to be particularly difficult to decide, although I recognize the solemnity and importance of charting a future path for this family.
[70] The reasons underlying a Judge's Order are most important to the party who is less successful on the issue in question, and therefore, the below discussion on custody and access focuses on the evidence adduced and the submissions made by and on behalf of the mother.
[71] The framework of my analysis is the legislation and what factors are considered in determining the best interests of children.
Issue Number One – Custody and Access
The Legislation
[72] Custody and access are issues that are determined with reference to the best interests of the children. Subsection 16(8) of the Divorce Act; subsections 19(a) and 24(1) of the Children’s Law Reform Act.
[73] Each party’s past conduct is not relevant unless it is related to that person’s ability to parent. Subsection 16(9) of the Divorce Act; subsection 24(3) of the Children’s Law Reform Act.
[74] A child should have as much contact with each parent as is consistent with the best interests of the child. The Court should take in to consideration the willingness of a parent who seeks custody to facilitate maximum contact with the other parent. Subsection 16(10) of the Divorce Act.
The Jurisprudence
[75] The suitability of a joint custody order depends on there being “some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another”. That evidence may exist notwithstanding one parent’s professed inability to communicate with the other. Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.), at paragraph 11.
[76] A Court may find that the parents could and had communicated effectively and put the interests of the children ahead of their own even where the relationship between the parents was, at times, conflictual and with strife. Ladisa v. Ladisa, 2005 1627 (ON CA), [2005] O.J. No. 276 (C.A.), at paragraph 16.
[77] Faced with a situation, as here, with a status quo argument being made by one parent, it is not enough for the Court to simply acquiesce to what has been in place as a Temporary Order. Even if the Court finds that the status quo would be just fine for the children, the Court should go on to consider whether a shared parenting arrangement would be in the best interests of the children. Lo v. Mang, [2011] O.J. No. 390 (S.C.J.), at paragraph 96.
[78] To help us assess what is in the best interests of the children, we look to the factors listed under subsection 24(2) of the Children’s Law Reform Act (“CLRA”).
Subsection 24(2)(a) of the CLRA – love, affection and emotional ties
[79] On our facts, this is a relatively neutral factor.
[80] The evidence at trial, particularly the testimony of the father and that of his mother and the assessment report authored by Ms. Smith (especially the interactions observed between the Applicant and the children), demonstrates much love, affection and emotional bond between the girls and their father.
[81] Further, although it is still a fairly new relationship, there is the beginning of something healthy and positive between the children and the father’s current partner, Sheila. I accept the evidence of the father and Sheila in that regard.
[82] And I accept the evidence of the father and his parents that there is a long-standing and deep relationship between the girls and their paternal grandparents.
[83] That there is love, affection and emotional ties between the girls and their mother is without question. There is not a shred of evidence adduced at trial to suggest otherwise. The testimony of the father, the testimony of the mother, the testimony of the mother’s co-worker, Shannon, the testimony of the mother’s neighbour, Gemma, the testimony of the mother’s friend, Jeffrey, the testimony of the mother’s sister, Amber, and the assessment report authored by Ms. Smith all point to a very close and positive relationship between the children and the Respondent.
[84] I am not in any way dismissing the importance of the relationship between the girls and their Aunt Amber, however, Amber does not live in the area and is not expected to be involved in the care and upbringing of the children to the extent of the other persons mentioned. That applies, as well, to the maternal grandmother.
Subsection 24(2)(b) of the CLRA – views and preferences of the children
[85] On our facts, this, as well, is a relatively neutral factor.
[86] The only admissible evidence of the children’s views comes from the assessment report authored by Ms. Smith. The youngest child said nothing about whether she preferred the current status quo or something else. The older girl said only that she was “okay” with the current arrangement.
Subsection 24(2)(c) of the CLRA – stable home environment
[87] In our case, this factor tips in favour of maintaining the status quo.
[88] The girls have lived primarily with their mother since separation in June 2012. By all accounts, whether in the former matrimonial home or in the newer home in Kincardine, the children and their mother have enjoyed a stable home environment.
[89] We must remember, however, that Temporary Orders, even if made on consent, are not designed to be, de facto, permanent. That is why we have trials, where all of the evidence can be presented.
Subsection 24(2)(d) of the CLRA – guidance and education, necessaries of life and special needs
[90] On our facts, this, as well, is a relatively neutral factor.
[91] These children do not have special needs.
[92] There is not a morsel of evidence adduced at trial to suggest that either parent is incapable of or unwilling to provide the children with proper guidance, education and the necessaries of life.
[93] Having listened to and watched the parties testify at trial, they both appear to me as intelligent, thoughtful and compassionate parents.
[94] The assessment report authored by Ms. Smith suggests that these parents are equally capable and equally willing to provide what the children need. I accept that evidence.
Subsection 24(2)(e) of the CLRA – the parents’ plan
[95] In our case, this factor weighs heavily in favour of a joint custody, shared parenting regime.
[96] The father’s plan much better recognizes the principle of maximum contact between the children and both parents. That is not absolute, but it is important as long as it is in the best interests of the girls.
[97] The father’s plan is much more reasonable than that of the mother. In short, it is a kinder, more generous and less self-centered proposal compared to that of the mother.
[98] As just one example, the father wants to share time with the children on Christmas eve and Christmas day, with each parent having the girls with him/her during that time on alternate years. The mother’s plan for Christmas is, frankly, unheard of. She would have the children with her every 24th and every 25th (until dinner), forever. That is awfully selfish.
[99] The father’s plan, Exhibit 41, is a model of what a healthy parenting plan should look like.
Subsection 24(2)(f) of the CLRA – permanence and stability of the proposed family unit
[100] On our facts, this, as well, is a relatively neutral factor.
[101] The father and Sheila are in a committed relationship of some length and with the potential for permanence. They have lived together for nearly one year. I accept that evidence given by the father and Sheila.
[102] The mother lives alone. She has a stable home which she and the girls have been in for nearly 1.5 years. I accept that evidence given by the mother.
Subsection 24(2)(g) of the CLRA – parenting ability
[103] On our facts, this, as well, is a relatively neutral factor.
[104] As Ms. Smith put it at page 20 of her assessment report, “[t]hough sometimes different in parenting styles, it would seem that each parent has much to offer the children”. I accept that evidence.
[105] In cross-examination at trial, Ms. Smith testified that the parties have equal parenting abilities. I accept that evidence.
Subsection 24(2)(h) of the CLRA – relationship by blood or through adoption
[106] This is a neutral factor in our case. The parties are the natural parents of the girls.
Subsection 24(3) of the CLRA – past conduct of the parties
[107] In our case, this factor tips in favour of a joint custody, shared parenting regime.
[108] The ability to act as a parent includes an openness to even the idea that the other parent may have something valuable to offer the children.
[109] On her last day of testimony, on the second last day of the trial (November 12, 2014), things went very badly for the mother.
[110] Up until then, I thought that the mother was being relatively fair to the Applicant. That all changed on November 12.
[111] First, the mother started to make baseless and silly accusations, such as the allegation that the father was lying about having problems reaching the children by telephone while they are at their mother’s house. There is no reason for the father to lie about that.
[112] Second, the mother became irrational. She stated that the father did not need her mobile telephone information because, in an emergency, he could email her at her home. That is absurd.
[113] Third, suddenly and for the first time in the trial, the mother testified that she had concerns about the father’s basic judgment. That is groundless.
[114] Fourth, generally, the mother demonstrated a kind of rigidness that is beneath her potential. For example, she insisted that she must have the girls with her every single Christmas morning.
[115] Fifth and finally, the mother showed some resentment and malice towards the father that I had not seen before and which was definitely not present the other way around.
[116] I suspect that what I heard and saw from the mother on November 12 is illustrative of her past conduct since separation.
[117] I am very concerned that maintaining the status quo would serve to only further marginalize the father in the lives of these children.
Subsection 24(4) of the CLRA – violence and abuse
[118] On our facts, this, as well, is a relatively neutral factor.
[119] There is no evidence that either parent has been violent or abusive with the children or either of them.
[120] There is no evidence that either parent is violent or abusive, generally.
[121] There is evidence that both parties were charged by the police for assaultive conduct stemming from the same incident, at the time of separation, with both parents signing peace bonds.
Conclusion on Custody and Access
[122] Courts do not make decisions by simply going through section 24 of the CLRA and adding up checkmarks in each parent’s column.
[123] We make decisions on the totality of the evidence. We step back and ask ourselves, what would be best for the children?
[124] I think it would be in the best interests of these two girls to spend equal time with both of their loving, stable, fit parents.
[125] Joint custody and a shared parenting regime are in the best interests of these children.
[126] I am not unaware that this decision is not what was recommended by Ms. Smith in her assessment report. But (i) that report was time-limited (it says so right on its face and Ms. Smith stressed that at trial, almost a year after the date of the report); and (ii) Ms. Smith testified that the recommendation to maintain the status quo was based primarily on the conflict between the parties (which we know has not always been present, as elaborated on below) and the fact that the father was transitioning between homes at the time of the assessment (which has changed now).
[127] So the recommendation of Ms. Smith to maintain the status quo must not be overemphasized. Ms. Smith, herself, was careful in her testimony at trial to not foreclose the possibility that things could have changed considerably since the date of the report.
[128] On the alleged conflict issue, this case fits neatly in to what the Court of Appeal for Ontario described in Kaplanis, supra - “some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another”, and what the Court of Appeal for Ontario observed in Ladisa, supra - the parents could and had communicated effectively and put the interests of the children ahead of their own even where the relationship between the parents was, at times, conflictual and with strife.
[129] Beyond the fact that the parties settled the property issues without a trial, the record is replete with examples of these parents being able to communicate effectively and resolve issues concerning the children: Christmas 2013 was entirely or almost entirely settled between the parents, at the invitation of Ms. Smith; the parties have agreed on what activities the girls have participated in; the parties have agreed that the mother makes the medical and dental appointments for the children; Exhibit 56 at trial is proof of positive communication between the parties about the oldest child’s birthday last year; Exhibit 57 at trial is proof of the same regarding Easter in 2014; and so on.
[130] Even the mother acknowledged in her testimony at trial that the communication between the parties is “up and down”. It is not all doom and gloom.
[131] There is simply no evidentiary foundation to support the mother’s bald assertion that communication between the parties has actually worsened since separation to the present time.
[132] It is true that the assessment report authored by Ms. Smith speaks about some conflict and poor communication between the parties, but Ms. Smith was unaware of most of the examples provided above. And Ms. Smith was relying heavily on what the mother had told her.
[133] These parents can work together in a cooperative manner and in the best interests of the children. As they did throughout the trial, they can treat each other with respect. They can compromise. They have proven that many times in the past. And they will work even harder at it in the future. Their relationship is not perfect or absent any conflict at all, but it is conducive to a joint custody, shared parenting arrangement.
Issue Number Two – Child Support, including Section 7 Expenses
Current Child Support
[134] The parties will calculate the base child support amount payable by the father on a go-forward basis (from the date of the Judgment). To make that calculation, the 2013 tax year Notice of Assessment line 150 total income figures shall be used for each party. There is no reason to believe that the gross incomes for 2014 will be materially different. Of course, the calculation shall be done on the basis of joint custody and a shared parenting regime.
[135] The child support payments shall commence on December 1, 2014 and shall continue on the first day of each month thereafter.
[136] The child support payments shall be enforced through the Family Responsibility Office, unless both parties consent, in writing, otherwise.
[137] On a go-forward basis, each parent shall be responsible to pay for section 7 expenses that he or she incurs on behalf of the children. Either before or after payment, that parent may (but does not have to) seek reimbursement from the other parent. If reimbursement is sought, and if the item is a proper section 7 expense, then the other parent shall provide the reimbursement in proportion to the parties’ respective incomes based on their last year’s Notices of Assessment line 150 total income figures. Reimbursement shall not be unreasonably withheld. It may be withheld only on the bases that the item is not a proper section 7 expense or the parent who is being asked to provide the reimbursement was not aware of the expense in advance and would not have approved of the expense in advance if s/he had been aware of it.
Past Child Support
[138] Regarding the mother’s claim for base child support between June 2012 and July 2013, that claim is granted.
[139] I have considered the evidence on this issue – confined, really, to that of the parties. I acknowledge that the father paid some amounts during those months, for the benefit of the girls (such as day care expenses). But that is not a substitute for base child support. The two are different kettles of fish.
[140] The parties will calculate the total base child support amount payable by the father over those twelve months (it is 12 and not 13 months because of the wording of the July 2013 Temporary Order). To make that calculation, the 2012 tax year Notice of Assessment line 150 total income figure shall be used for the father. The mother’s income is immaterial to the calculation.
[141] Whatever the total amount is shall be paid by the father to the mother in twelve equal instalments commencing on December 1, 2014 and shall continue on the first day of each month thereafter.
[142] Those child support payments shall be enforced through the Family Responsibility Office, unless both parties consent, in writing, otherwise.
[143] The mother’s claim for further section 7 expenses contributions from the father for the period of time between June 2012 and July 2013 is dismissed.
[144] First, I cannot make any sense of how the amount claimed was calculated by the mother.
[145] Second, I agree with the father that the exhibit evidence proves that the mother, for the period of time in question, received more in tax refunds on account of child care expenses than what the mother has shown in the documentation that she actually paid. The mother was not out-of-pocket any money.
[146] Third, these parties need a clean slate. It is not in the best interests of anyone to get bogged down in a microscopic examination of every receipt issued and every cheque written two to three years ago.
[147] Fourth and finally, it is obvious to me that this was not an important matter to the mother at the time. The July 2013 Temporary Order appears to have been made absent any contemplation of a future claim for section 7 expenses that were incurred pre-July 2013. That is likely because the mother was satisfied with the father’s contributions to expenses for the children during that time period from the date of separation to the date that the said Order was made.
Issue Number Three – Spousal Support
The Law
[148] The objectives of a spousal support award, relevant to the discussion in this case, include (i) recognizing economic advantages and disadvantages to the spouses of the marriage and its breakdown, (ii) relieving economic hardship caused by marriage breakdown, and (iii) the promotion of self-sufficiency of separated spouses within a reasonable period of time. Subsection 15.2(6) of the Divorce Act.
[149] There are three distinct conceptual bases for entitlement to spousal support: on the basis of need [Bracklow v. Bracklow, (1999) 1999 715 (SCC), S.C.J. No. 14], on a compensatory basis (Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813) and on a contractual basis. The third basis is not relevant here.
[150] “Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership”. Gray v. Gray, 2014 ONCA 659, at paragraph 27.
[151] In determining need, we are guided by the principle that the recipient spouse is entitled to maintain the standard of living that (s)he was accustomed to just prior to the time of separation. Marinangeli v. Marinangeli (2003) 2003 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at paragraph 74.
[152] As outlined in Moge, supra, the principle underlying the compensatory model of spousal support is, in part, that a spouse who foregoes educational and employment opportunities to care for the children and maintain the household may very well enhance the earning potential of the other spouse in pursuing his or her economic goals (paragraph 70).
[153] The test for imputation or attribution of income to a spouse is set out at paragraph 23 of the decision of the Court of Appeal for Ontario in A.M.D. v. A.J.P., 2002 41868 (ON CA), [2002] O.J. No. 3731:
Application of Section 19(1)(a) of the Guidelines
[23] In my view, in applying this provision, the trial judge was required to consider the following three questions.
Is the spouse intentionally under- employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question 2 is negative, what income is appropriately imputed in the circumstances?
Short Conclusion
[154] The mother’s claim for spousal support for the twelve-month period post-separation is denied.
[155] The mother’s claim for spousal support on a go-forward basis is granted.
[156] The father’s request to have income imputed or attributed to the mother is rejected.
Current Spousal Support
[157] Presently, the mother is entitled to spousal support on both bases – compensatory and by virtue of her need.
[158] The mother’s sacrifices during the union helped the husband earn greater income from shift work at Bruce Power. That shift work, in turn, led to the father having a good pedigree at the plant and eventually moving to days. The evidence to support that comes from both parties’ testimony at trial. This is precisely the situation described in Moge, supra – the mother put aside employment opportunities to care, not exclusively but primarily, for the children and to maintain, not exclusively but primarily, the household, and doing that enhanced the earning potential of the father. The father continues, today, to reap the benefits of that.
[159] After separation, the respective incomes of the spouses reveal that the economic consequences of the marital breakdown were not in fact shared in a reasonably equitable manner. The mother, with the children, took a bigger hit. Despite the Temporary Orders in place since 2013, that overall disparity, though not nearly as gross as what we see in some cases, has continued to the present time.
[160] I am not at all suggesting that the father was living like a king, post-separation. He was not. It is likely that both parties experienced a decline in their standard of living upon separation.
[161] And I am not at all criticizing the father for the fact as found by me that the mother had a greater role (though certainly not an exclusive one), pre-separation, in caring for the children and maintaining the household, day-in and day-out. That is just the way it was – somebody had to earn money to feed the family.
[162] On a go-forward basis, the wife’s claim for spousal support is granted. Entitlement has been established on a balance of probabilities. The father has the ability to pay.
Past Spousal Support
[163] Regarding the period of time between separation and July 2013, the mother, having regard to what the father was paying during those months, was not entitled to spousal support. She had no need for it, given what the father was paying, and she was adequately compensated by what the father was paying.
[164] What was the father paying? According to the mother herself, he was paying well more than $2000.00 per month: the mortgage and taxes on the matrimonial home, some payments on the couple’s line of credit, some day care payments, a water bill for the matrimonial home, the payments on the Honda Civic being driven by the mother, and some of her cell phone bills.
[165] The mother claims that she never expressly agreed to accept any of that money in lieu of spousal support. That is likely true. But there was at least a tacit agreement that most of those payments being made by the father were for the direct benefit of the mother herself, until the matrimonial home sold and the Temporary Order was then made in July 2013.
[166] In all of the circumstances, I cannot find that the mother was entitled to spousal support for the twelve months post-separation, given what the father was paying, known to the mother and for her benefit.
[167] Thus, the mother’s claim for past spousal support is denied.
Imputation/Attribution of Income to the Mother
[168] That leaves the issue of imputed income. The father has not met the test. I do not find, on balance, that the mother is intentionally underemployed.
[169] I accept the mother’s evidence that, since separation, she has applied to many full-time jobs at Bruce Telecom, without success.
[170] I agree with the mother that it makes no sense for her to take a full-time job elsewhere that pays less than her very high-paying job at Bruce Telecom.
[171] I accept the mother’s evidence that she has looked for full-time jobs elsewhere and even applied to one at Westario Power.
[172] The mother does not strike me as a louse. She strikes me as a hard worker who is doing her best to become self-sufficient.
[173] I do not fault the mother for taking some time off work to prepare for trial. I am a little perplexed as to why she had to take so much time off in the summer of 2014, but I am not about to impute income to her on that ground alone.
[174] I am not imputing any income to the mother.
[175] Thus, the father shall pay spousal support to the mother commencing December 1, 2014 and on the first day of each month thereafter. The payments shall be enforced through the Family Responsibility Office, unless the parties agree otherwise, in writing.
[176] To calculate the monthly amount of spousal support payable by the father, the parties shall use the mid-range figure and the respective line 150 total incomes for the parties as shown on their 2013 tax year Notices of Assessment.
[177] The spousal support award is for an indefinite duration.
[178] To address the father’s concern that there is no impetus for the mother to seek more employment income, I direct that this discrete issue return to Court, before me, in December 2015, for an update on the mother’s employment situation.
III. FINAL ORDER
Custody and Access
[179] On the totality of the evidence at trial, testimonial and by way of exhibits, I am satisfied on a balance of probabilities that a joint custody, shared parenting arrangement is in the best interests of these two children.
[180] A Final Order shall issue accordingly.
[181] Specifically, the parties shall each have care of the children on a week-about rotation schedule commencing at 7:30 a.m. on Friday, November 21, 2014 (at which time the children, after their overnight visit with the father, shall be dropped off at the mother's residence) until after school on Friday, November 28, 2014 (at which time the father shall assume care of the children); and the next transfer of care shall take place at the mother's residence at 7:30 a.m. on Friday, December 5, 2014; and so on.
[182] In the event that Thursday, November 20, 2014 is not a scheduled overnight visit for the father under the terms of the January 2013 Temporary Order, the above shall be modified only to the extent of eliminating the transfer of the children from the father to the mother the morning of November 21 (the girls will already be in their mother's care on that day).
[183] If a Friday is not a school day, then, for consistency, the times of the transfers shall remain as indicated above - 7:30 a.m. and the time that school normally ends in the afternoon (I assume around 3:15 p.m.).
[184] There shall be no change to the above arrangement during the summer.
[185] There shall be no special provision for which parent has the children in his/her care for the long weekend in July and for the long weekend in August. Given the number of weeks between Canada Day and the Civic Holiday, it should always work out that neither parent has the children for both holidays.
[186] Regarding Christmas, in 2014, the mother shall have care of the children on December 24 until 6:00 p.m.; the father shall have care of the children from then until 3:00 p.m. on December 25; the mother shall have care of the children from then until noon on December 26, at which time the normal schedule will resume (the children simply stay with the mother if it is "her week" or be transferred to the father if it is "his week").
[187] If December 24, 2014 is not a day that the mother would have the children in her care according to the week-about rotation schedule, then the children shall be transferred to her at 7:30 a.m. that day.
[188] In 2015, the opposite of the above schedule shall apply.
[189] In 2016, the 2014 Christmas schedule shall apply, and so on.
[190] I have deliberately stayed silent on the place of transfer of the children during Christmas. The parties may wish some flexibility on that to accommodate travel and visiting family and friends. Surely, the parties can work that out.
[191] The parties, as agreed, shall share time with the children during each March Break, evenly. I was not asked to provide any further detail, and thus, I decline to do so.
[192] The parties, as agreed, shall share time with the children from Good Friday to Easter Monday of each year, evenly. I was not asked to provide any further detail than that, and thus, I decline to do so.
[193] The parties, as agreed, shall share time with the children on each parent's birthday. I was not asked to provide any further detail than that, and thus, I decline to do so.
[194] The parties, as agreed, shall share time with each child on that child's birthday. I was not asked to provide any further detail than that, and thus, I decline to do so.
[195] On consent, the children shall be in the care of the mother on Mother's Day of each year. If they would otherwise be in the care of the father that day, then the father shall drop the children off at the mother's residence at 7:30 a.m. that day.
[196] On consent, the inverse shall apply on Father’s Day of each year.
[197] I was not asked to address Halloween, and thus, I decline to do so.
[198] I was not asked to address other specific days of the year, and thus, I decline to do so.
[199] I was not asked to address Thanksgiving, however, I think it is important to cover that long weekend holiday. It shall be treated the same as Easter, except that the Friday is not part of the holiday.
[200] As indicated, the parties shall have joint custody of the children. The parties shall consult with each other on all major decisions affecting the children - educational, medical, dental, religious, and otherwise. In the event that the parties cannot agree, the mother shall decide.
[201] It is necessary to have a final decision-maker named to avoid impasse and the risk of yet more litigation. For the sake of consistency, that person will be the mother.
[202] Non-major decisions, including day to day decisions referenced in a prior Order made in this proceeding, shall be made by the parent whose care the child(ren) is/are in at the time.
[203] The mother shall make all regular (non-emergency) medical and dental appointments for the children. The mother shall use her best efforts to make those appointments on dates and at times that the father is available to attend, if he chooses to do so.
[204] There shall be no "right of first refusal". Although the parties are free to practice that, making it mandatory is more disruptive than it is good.
[205] Regarding extracurricular activities for the children, each parent shall be at liberty to arrange what s/he wants to schedule during his or her own time. In the event that the activity is every week, then the written approval of the other parent, in advance of registration, is required.
[206] On consent, either parent shall be at liberty to attend any extracurricular activity or school event of the children or one of them.
[207] On consent, each parent shall be permitted to seek information from third parties concerning the children, such as schools, doctors, dentists, coaches and others.
[208] As agreed, with regard to day care and before and after school programs for the children, each parent shall be at liberty to have his/her own account(s) and arrange what s/he wants to schedule during his or her own time.
[209] The mobility restriction placed on the parents by the Final Order made on May 5, 2014 (in terms of where they may live) is not varied or extinguished by anything herein. Neither parent has any intention of moving. If that changes, the parent shall advise the other, forthwith, and no move shall take place without the other party’s written consent or a Court Order.
[210] On consent, the mother shall forthwith provide to the father her current mobile telephone number. The father shall use that number for telephone calls only (not texts or any other form of communication), regarding the children.
[211] Either party shall be free to contact the children or one of them while in the care of the other parent. Such contact may be by telephone or electronic means (email, text, direct message, Facebook, other social media, etc.). Such contact shall be respectful of the other parent's time with the children: it shall not occupy more than fifteen (15) minutes of the child's time per day; it shall not be too early or too late in the day; and it shall, except in emergency situations, be at predetermined times mutually agreeable to both parties.
[212] In the event that a parent intends to take the children or one of them outside of Ontario, that parent shall advise the other parent of that plan, forthwith and in advance of the trip. And the travelling parent shall ensure that the other parent has the means of contacting the travelling parent during the trip.
[213] The mother shall retain possession of all original documents regarding the children, such as passports, health cards, social insurance cards, and other such documentation. The mother shall be responsible for renewing those documents when necessary, with any renewal fees divided equally between the parents. The mother shall ensure that the father has photocopies or duplicates, where available, of all such documentation.
[214] The assessment report authored by Ms. Smith contains recommendations about counselling for the girls. I am not including any such provisions in the Final Order. There is insufficient evidence before me that such counselling is necessary in the best interests of the children.
[215] The assessment report authored by Ms. Smith contains recommendations about the parents respecting each other’s privacy and them and their families refraining from speaking negatively about the other parent in front of the children. I am not including any such provisions in the Final Order. There is no evidence before me that these have been problems in the past. It is time for these parents to take some self-responsibility. Courts are not in the business of micro-managing every facet of a family’s life. What a sad state of affairs that would be.
[216] If anything ordered herein conflicts with the Final Order made on April 16, 2014 or the Final Order made on May 5, 2014, then this Judgment shall prevail.
[217] I am not ordering the involvement of a parenting coordinator. This Final Order is detailed. Any missing pieces can be worked out between the parties - I am confident of that.
[218] I have considered the decision of T.B.M. v. C.J.M., [2009] B.C.J. No. 1456 (BCSC), where, at paragraph 42, it was decided that a parenting coordinator was necessary to help make final decisions regarding the children given the history of conflict between the parents. That is not the case here. These parents will be able to cooperate on most things. Day to day matters will be handled by each parent alone. Major decisions, in the event of a rare impasse, will be made by the mother.
[219] Either party that proves my confidence misplaced and forces further litigation to resolve what reasonable adults ought to be able to settle on their own runs the serious risk of an adverse result at Court.
[220] I wish both parties and their children the very best going forward.
[221] To the mother, I cannot leave this matter without saying the following. The mother is not the loser here. There is no loser. The parents and the girls will all benefit from what is being ordered. There is no need for the mother to feel defeated or devastated, as her sister predicted at trial.
[222] The mother is devoted, loving and genuinely committed to the children. She has provided them with a stable and healthy home environment. She should be proud of her accomplishments and welcome the opportunity to have the father share a greater burden of child-rearing responsibility.
[223] The father has a lot to offer his daughters. And they deserve to receive it
Child and Spousal Support
[224] On child support, on consent, the parties shall divide evenly the current RESP account. The parties shall govern their future contributions to RESP account(s) as per the agreement outlined by counsel for the father in closing submissions at trial.
[225] Commencing on December 1, 2014 and the first day of each month thereafter, the father shall pay child support in the amounts calculated by the parties as per the directions above in these Reasons (there are two amounts – one for the twelve-month period of time post-separation and the other for the present time and going forward).
[226] The child support payments shall be enforced through the Family Responsibility Office, unless both parties consent, in writing, otherwise.
[227] On a go-forward basis, each parent shall be responsible to pay for section 7 expenses that he or she incurs on behalf of the children. Either before or after payment, that parent may (but does not have to) seek reimbursement from the other parent. If reimbursement is sought, and if the item is a proper section 7 expense, then the other parent shall provide the reimbursement in proportion to the parties’ respective incomes based on their last year’s Notices of Assessment line 150 total income figures. Reimbursement shall not be unreasonably withheld. It may be withheld only on the bases that the item is not a proper section 7 expense or the parent who is being asked to provide the reimbursement was not aware of the expense in advance and would not have approved of the expense in advance if s/he had been aware of it.
[228] On spousal support, the father shall pay support to the mother commencing December 1, 2014 and on the first day of each month thereafter, as calculated in accordance with the above Reasons. The payments shall be enforced through the Family Responsibility Office, unless the parties agree otherwise, in writing.
[229] The issue of spousal support shall return to Court, before me, in December 2015, for an update on the mother’s employment situation.
IV. COSTS
[230] Final Order to go as per these Reasons for Judgment.
[231] As the more successful litigant at trial, the Applicant father would normally be entitled to an award of costs.
[232] If the parties are unable to settle the issue of costs, they may file written submissions. I will accept written submissions from the Applicant father up until 4:00 p.m. on Friday, November 28, 2014. I will accept written submissions on behalf of the Respondent mother up until 4:00 p.m. on Friday, December 5, 2014. There shall be no reply submissions from the Applicant father.
[233] In each instance, the written costs submissions shall not exceed two pages, excluding supporting documents such as a Costs Outline, Bill of Costs and Offer(s) to Settle.
Conlan J.
Released: November 18, 2014
COURT FILE NO.: FS 4832/12
DATE: 20141118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.C.
Applicant
- and -
H.C.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: November 18, 2014