COURT FILE NO.: 700/12
DATE: 2014/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dallas Ryan Bentien
Applicant
– and –
Kristy Lynn Bentien
Respondent
Steven Zap, for the Applicant
Matthew A. Giesinger, for the Respondent
HEARD: September 29 and 30, October 1, 2, and 3, 2014
REASONS FOR JUDGMENT
Minnema J.
[1] After a short marriage the parties separated. They have one child between them, Damien born February 20, 2012. They currently have an interim shared parenting order, with the father having the child every weekend and the mother having him during the weeks. Both live in Ontario, the father in Kingston and the mother in Trenton, about an hour’s drive apart.
Issues
[2] The main issue is where Damien’s principal residence should be. This is complicated by the geographical distances between households. The parties also cannot agree on custody, child support, and property.
Background Facts
[3] The husband Dallas Bentien works for the Canadian Armed Forces. The wife Kristy Bentien has a social work diploma, and is currently on social assistance. In the past she has worked in the food service industry and at a call centre.
[4] The husband was posted to Trenton in July of 2009. The parties met in a bowling league in September of 2009. The wife was working as a waitress at the time. They quickly started dating, and the wife soon started spending an increasing number of overnights at the husband’s home. The husband said that she moved her belongings in and resided with him full time around October of 2009, which the wife denied, asserting it was later.
[5] The husband was having access to a child of his from a previous relationship, Mataya, born July 31, 2002, currently age 12. In October 2009, by an agreement with Mataya’s mother, the child came to live with the husband. Those parents still share custody under a court order.
[6] Mataya’s mother was called to give evidence in this trial in support of the wife. She has regular access and text/phone contact with Mataya, but would like it to be more. She is not happy when access is missed, but she accepts it resignedly and without taking any action, appreciating that it is caused by the child’s conflicting activities, such as her ringette games. The child has input into those decisions. While Mataya’s mother is no longer content that the child lives full time with the husband, she has taken no steps to change the existing order and her evidence, indirectly and perhaps unintentionally, established that the husband has been a good parent to Mataya. That child is doing very well in school, she is actively involved in sports and extra-curricular activities, and he attends to her health and dental needs.
[7] Getting back to the parties here, as noted the wife denied that she moved in full time with the husband in October of 2009, around the time Mataya came to live with him. Her evidence was that she was only spending three nights a week there from October 2009 to February 2010. Starting in February 2010 the husband had a fourty-day deployment in Haiti, and there is no dispute that during that time the wife provided full time care for Mataya in the husband’s home, including meals, getting her to school, and taking her to gymnastics several times a week. Mataya was age seven. The wife claimed that after the husband returned from Haiti she began staying overnight at his home five nights a week and did not move in full time until June of 2010. There is no spousal support claim, so in my view nothing turns on these different accounts. However, the wife maintained and I accept that she took on a parenting role with Mataya throughout, given her presence in the home and the husband’s full-time employment.
[8] The parties both indicated that they had arguments early on, mostly related to domestic duties. The wife alleged that there were two incidents involving physical contact just before June of 2010, one involving her being thrown to the ground, and another regarding incidental contact from a chair. By her account she moved in full time with the husband after these.
[9] Around December of 2010, the husband’s brother Michael Bentien moved in with the family. He was unemployed at the time, and on social assistance.
[10] The parties had planned to marry in July of 2011. However, in April of that year the husband accepted a posting to Kingston. They therefore legally married earlier, on May 13, 2011, before a Justice of the Peace, so that the cost to transport the wife’s belongings to Kingston would be covered by the husband’s employer. They located a house in Kingston and it was purchased by the husband in his name, and they moved in July. They still had the ceremonial wedding as planned on July 23, 2011, in Prince Edward Island (“PEI”). The husband is from that Province and all of his mother’s side of the family still reside there.
[11] In between the legal marriage and the wedding ceremony the wife became pregnant. Damien John Bentien was born in Kingston on February 20, 2012. The labour was long and the wife suffered some trauma from the delivery that required medical attention and follow-up. She was unable to breast feed.
[12] The paternal grandmother Karen Praught had come to Kingston from PEI the week before the birth, and stayed six to seven weeks after before going back home. This was welcomed by the wife.
[13] Ms. Praught testified about the care of the child during those weeks. She said the wife was a completely incompetent parent, not a fast learner as a new mother, and showed no interest in the child. She claimed that during that first month and a half the wife did not do anything with the baby, would not hold him, and only changed and fed him a few times. This evidence was mirrored by that of her sons Michael Bentien and the husband. Other than a period of recovery following the birth, that account was completely denied by the wife. She indicated that she did the bulk of the feeding, changing, and getting up at night, but did acknowledge that Ms. Praught would help out in any way that she could, including at times taking the child at night so that she could sleep.
[14] Ms. Praught claimed that when she left to go back to PEI she had “grave concerns” about leaving the baby with the wife. She said that to address these concerns, arrangements were made that her son Michael and the wife would both care for Damien together during the day, and the husband would take over after work. However, the evidence did not support this. The brother Michael Bentien said that after his mother left for PEI the husband and wife took over care of Damien, not him. He did not profess to have ever taken on any significant parenting or caregiving role. Further, the husband was working full-time and Michael Bentien was also working scattered part-time shifts at Lowes Home Improvement by that time. The husband’s family also suggested that Mataya, then age nine, was given much of Damien’s care by the wife. However, the child was in school. Michael Bentien confirmed that Mataya did not get left alone with Damien. I find that while the paternal grandmother was selflessly and significantly involved in the care of Damien following the birth and during the mother’s recovery, she was assisting the wife. After she left for PEI in late March/early April of 2012, the primary caregiver for both Damien and Mataya during the day was clearly the wife. If the husband or any of his family had grave concerns about her parenting at that time, I do not accept that they did anything about it.
[15] The relationship between the spouses experienced some significant conflict in the sense of disagreements following Damien’s birth. One source that was mentioned was the husband’s expectation that the wife would be contributing financially to the household. The wife decided to look for employment. She quickly found a full-time job at a call center in Kingston in June of 2012. At the same time, the father was away on a leadership course for two and a half months in Petawawa, Ontario, which is about 280 kilometres north of Kingston and about a three hour drive. He was away for June, July and the first two weeks of August, 2012. He came home on most weekends. With the father gone, Ms. Praught, ever willing to help out, came back to Kingston from PEI to care for Damien and Mataya while the wife worked and they adjusted to her new full-time schedule. Ms. Praught arrived on June 7, 2012, and would stay until the end of July.
[16] On July 1, 2012, the husband was home for the weekend and the parties had a significant argument. They had different accounts as to what it was about. The husband told the wife to leave if she was unhappy. She said she would, but she wanted to take Damien with her, which the husband opposed. They agreed to let the police decide, so they were called. The wife also called her own mother Sherrie Francis, who lived in Trenton. The husband spoke to both Ms. Francis and her boyfriend Dean Potter. The husband indicated that he felt threatened by Mr. Potter. It was not disputed that when the police arrived they suggested that, as Damien was already in bed and there was another child in the home, it would be best for the wife to leave without Damien until things cooled down. She left for the night and stayed with a family friend in Kingston. There were no police records in evidence.
[17] The next day the wife came back. The parties discussed their relationship. They both indicated that a list was made of rules, or of things that they were going to do. The husband said they agreed to them; the wife said that they were imposed. The parties had different recollections as to what the conditions actually were. Whatever understandings they had at the time, I find that the parties themselves were not clear about them, and, with nothing in writing, the only finding I make is that the parties reconciled.
[18] Ms. Praught left for home in PEI at the end of July 2012 and took both children with her for the rest of the summer, which was planned. The husband came home from the noted course in the latter part of August, went out to PEI for a week, and then took Mataya back to Kingston with him so that she would be ready for school. Ms. Praught brought Damien back a week later and stayed for the weekend before returning home.
[19] The husband’s evidence was that starting in September 2012 his relationship with the wife remained difficult. He claimed that the parties talked about an orderly separation and even picked the day of November 4, 2012, but that the wife then asked to stay in the home for another week. He said that he provided the wife with a draft separation agreement. The wife denied these allegations, and there was no draft separation agreement in evidence. She said that following the reconciliation things were good at first, but then got worse with what she called verbal abuse. They had not utilized counselling although it was discussed. I find that the parties were certainly aware in the late fall of 2012 that their relationship still had challenges. However, in light of the father’s communications noted below, I do not accept that the parties had agreed to an orderly and planned separation.
[20] On the morning of Thursday, November 8, 2012, the wife texted the husband to confirm that he was at work. She then left the home taking Damien, his and her personal effects, the playpen, and not much else. She texted the husband later to say that she was leaving him because she didn’t think he loved her anymore. In his responses he seemed genuinely surprised, and asked where this was coming from. She refused his request to speak on the telephone. His concern immediately turned to Damien, and she said that she had taken him with her. He said that she was unsure of the relationship before, but with this move they were finished. He said this choice of hers “won’t end well.” The next day, a Friday, the husband texted the wife asking to have Damien that weekend as she was working and he was not. She did not respond. On the Sunday the husband texted to inquire how Damien was doing, as he had a cold. The wife did not reply until the next Wednesday indicating that Damien was doing great and the cold was gone. The husband said Mataya missed Damien, and asked for a compromise allowing for time with Damien until a hearing. He inquired about Damien’s tooth coming through. On Thursday, November 15, the week after the separation, the wife replied about the tooth, and the husband asked why he could not see Damien. There was no reply from the wife.
[21] The wife went to live with friends in Kingston. She would not answer the husband’s phone or texts. She had decided that she did not want Damien to see his father, indicating at trial that she was afraid that she would never see the child again. This was not rational; the husband was employed in the military and posted and living in Kingston.
[22] The wife would not tell the husband where she was living. She claimed that he would repeatedly call and text, although there is no evidence that she ever answered. She said that he would often “drive by”, although it was not clear where that was alleged to have occurred, and it is denied. She said she was informed by someone that he was seen near her work. He denied that, and there is no evidence it occurred. The wife said that she contacted the police several times, just wanting them to talk to him about not coming around. However, she said they made a decision to charge him with harassing her instead on November 27, 2012. When the police interviewed her she told them of three alleged historical physical altercations, and the husband was also charged with three counts of assault. As a condition of his bail release, he was ordered not to have any contact with the wife or Damien without a Family Court order.
[23] The father then brought this court application and a motion was heard on an urgent basis. The materials were served on one of the wife’s friends, where she had been living, on December 5, 2012. The husband was unaware that the wife had recently moved to Trenton. The wife indicated that she was told about the court materials, and obtained them from the friend on December 7, 2012. However, she chose not attend the urgent motion. She claimed she was confused about the return date which I do not accept, as it was clearly set out in the materials.
[24] On December 12, 2012, the court granted the husband “custody” of Damien every weekend from Friday at 4:30 p.m. to Sunday at 5:00 p.m. starting on December 14, 2012. Ms. Praught had come back to Kingston to be a surety for her son, and the order indicated that “Pick up and drop offs … are to be arranged through Mrs. Karen Praught.”
[25] Around this time, but before court started, the husband had contacted the Children’s Aid Society (“CAS”) servicing the Kingston area. When the wife left her job and moved to Trenton, the Kingston CAS contacted its sister agency there to assist with its investigation. The latter’s records were in evidence, and I refer to them briefly. The husband alleged concerns to the CAS that the wife could not care for Damien adequately, and the wife alleged that the husband was financially and emotionally abusive. No protection concerns were noted with respect to the wife’s care of Damien. The child was observed to be well bonded to his mother, who was in tune to his cues and nurturing towards him. All that was said about the husband that he has “controlling and/or possessive tendencies”. However, this information apparently came from Mataya, and the CAS worker who recorded it was not called to explain what it meant or whether it was even a concern.
[26] The wife in her evidence indicated that she decided to move to live with her mother in Trenton in order to have the security and support of family, and that she had no intentions of moving back to Kingston. However, that is inconsistent with what she said at the time. As noted by a CAS worker following a December 20, 2012 meeting with the wife,
“I asked Kristie what her long-term plan is? She reported received a phone call yesterday from geared to income housing in Kingston stating she’s at the top of their priority list and is hopeful it won’t be long till she receives housing there. States that Damian’s [sic] father resides in Kingston and visitation would be easier for Damian [sic] once they move back to that area.”
[27] On January 7, 2012 the wife told the same worker that she was just waiting for confirmation of an address and date regarding housing in Kingston and her plan was still to return. The following day she told the worker that her employer in Kingston at the call centre advised her that she can have her job back at any time if she wants it. To date the wife still lives with her mother in Trenton. She is on social assistance. She has recently had positive job interviews, but indicated that she could not accept an offer of employment as she needed to be available to attend this trial.
[28] The husband complained to the CAS that the child had a severe diaper rash on the early access exchanges. While the wife confirmed a rash, the CAS investigated and determined that it was properly dealt with. Although I understood that there were further CAS referrals, no other records were in evidence.
[29] For the very first access visit after the separation, per the above noted court order, Ms. Praught drove to Trenton on December 14, 2012 to pick up Damien at Ms. Francis’ house where the wife lived. The father’s brother Michael Bentien, who doesn’t drive, came along for the ride. The wife tried to have a conversation with Ms. Praught, who declined to engage. There was no suggestion that either Ms. Praught or Michael Bentien, both of whom the wife knew well, were in any way threatening to her or to her mother. Michael Bentien stayed back by the vehicle and had a cigarette during the exchange. Without any evidence of intentionality or animosity on his part, he left his cigarette butt on Ms. Francis’ driveway. Ms. Francis indicated in her evidence that she doesn’t like smoking, and was upset about the cigarette butt. For that reason she and the wife decided they no longer wanted the exchanges to occur at her home. The wife therefore insisted that they be moved to the police station. As to why the police station was chosen, Ms. Francis said in her evidence it was because it would be “safe”. However, there was no evidence of any safety concerns involving the grandmother Ms. Praught.
[30] After a few visits at the police station the parties were in court again on January 16, 2013. The pick-up and drop off arrangements were addressed by court order as follows:
The Order of Justice Robertson, made on December 12, 2012 shall continue until further Order of this Court, with the following additions:
This Court Further Orders that the access exchanges shall occur at the Tim Horton’s located on Glen Miller Road, in Trenton, south of the 401 Highway, with the Respondent Mother, Kristy Lynn Bentien and the Paternal Grandmother, Karen Praught to facilitate the access exchanges, inside of the Tim Horton’s. All other persons travelling with the Respondent Mother and/or Paternal Grandmother shall remain in their vehicles.
[31] The parties were ordered to use a communications book. Despite this, there were still concerns raised about the access exchanges although, in my view, like the cigarette butt noted above, they were all were quite trivial. The husband’s family accused Ms. Francis’ boyfriend Mr. Potter of yelling obscenities at them through the car window while driving by, which he testified to and denied. Ms. Francis complained that she once saw Ms. Praught smoking outside of the vehicle when the children were inside with the windows down, and the proximity upset her given her view of smoking.
[32] On September 20, 2013, there was a court ordered interim variation to the above orders. Joint custody was ordered, including that the parties would have “the same input into any and all decision-making” regarding Damien’s health, welfare and education. The original pattern of the father having custody every weekend continued, however it was extended to start on Thursday at 4:30 p.m. and include any Monday statutory holidays that the husband was not required to work. It ordered that the child’s family doctor remain in Kingston. The new order also indicated as follows:
All access exchanges shall occur at the “Flying J” truck stop in Napanee.
Save for the change in location, all aspects regarding the access exchanges contained in paragraph 2 of Justice Trousdale’s Order dated January 16, 2013 remain in force and effect. …
This new access exchange location was at a mid-point along the 401 highway between Kingston and Trenton.
[33] On November 13, 2013, the husband’s criminal trial took place. He was acquitted of all charges.
[34] The maternal grandmother, Ms. Praught, had spent about a year in Kingston continuously since the separation as the surety and a support for her son. However, she was married, and she needed to go back to PEI. Following the acquittal, an order was made on consent on December 23, 2013 rescinding the requirement that she facilitate the access exchanges. The new provisions included the following terms:
All subsequent access exchanges may include the maternal grandmother Sherrie Francis and Sherrie Francis may attend for access exchanges in the place of the Respondent Mother.
The parties shall ensure that there is at least one third party present for all access exchanges and that, except in extraordinary circumstances, they shall communicate at least 24 hours prior to the access exchange to confirm for each other who shall be in attendance for the access exchange. …
The parties shall not communicate during exchanges except through a communication book or to exchange brief civil communications on non-substantive issues for the benefit and comfort of the child.
[35] The schedule and the requirement that the exchanges occur at the Flying J did not change. I was taken through the difficulties regarding the access exchanges afterwards.
[36] For one visit the father had a work conflict. He was going to be a few hours late to pick-up of Damien. He texted the wife about this the night before, saying that he was going to send a work colleague Ben Tremblay and have Mataya go along so that there would be no any problem with identification. The wife had met Mr. Tremblay before, but did not remember him. Mr. Tremblay and Mataya arrived, but the wife refused to proceed with the exchange and called the police indicating that she did not feel comfortable. Mr. Tremblay, on the husband’s instructions, also called the police. The police took well over an hour, and the husband arrived before they did. The wife still refused to exchange Damien without the police.
[37] A few weeks later the father had another scheduling conflict and could not drop off Damien in person to the mother. He enlisted Mr. Tremblay again. This time Mr. Tremblay had the child’s baby-sitter with him. The husband texted the wife in advance to advise who would be attending the drop off. Mr. Tremblay, Damien, and the baby sitter arrived, then the wife arrived, and then the police arrived shortly after. The wife indicated that she called the police as she did not know the baby-sitter, and it was for her own safety. While I had trouble understanding why she felt the need to call the police in the previous exchange with Mr. Tremblay, the wife completely lost me in explaining why she felt there was a need for police to be present at a drop off, or why she felt that the young female babysitter would be a threat to her safety in a public location. Mr. Tremblay was involved in one more drop-off when he took Michael Bentien with him. While the wife did say that this was a problem because husband was not there as required by the court order, this time she received Damien without calling the police.
[38] The wife had other complaints regarding the drop-offs, such as the father having other people in the vehicle, and that he allowed Mataya to get out of the car. She had one complaint that was valid, namely that after taking an asthma inhaler for Damien a few times the husband then refused it, he was of the view that the child did not need it although he did not clarify that with the doctor.
[39] Prior to separation, during even the most tumultuous stages of their relationship, the parties had been able to communicate. They had long discussions following their brief separation on July 1, 2012. However, it appears that any trust was broken when the mother left with the child and afterwards avoided any contact between the husband and the child until it was court ordered. The timing of the criminal charges is also created a further wedge. The wife did not seem to understand what kind of reaction these events would cause. She seemed genuinely slighted when Ms. Praught was not interested in having a conversation with her on the first post-separation access visit. After Ms. Praught went back to PEI the last time, the maternal grandmother Ms. Francis said that the access exchanges became more stressful because the wife would try to tell the husband things and he would just walk away. I’m not sure what she expected, particularly given that the court order limited communication at the exchanges. One of a number of volumes of the Communication Book in evidence, however, showing that the parties can and do communicate in writing for the child’s benefit.
[40] The wife tried to suggest generally, without specific evidence, that because the husband is in the military he has a precarious living situation and is likely to be posted elsewhere or deployed at any time. The husband’s evidence, to the contrary, was that he is in charge of certain base operations in Kingston, meaning that he will not be moved unless the base itself shuts down, which is highly unlikely. He indicated that there is no real possibility that he will have to move within the next five years. He also indicated that he has designs on becoming an officer, which would involve attending at the Royal Military College, which is also in Kingston.
[41] Despite the above, all the evidence points to Damien being a well-adjusted and well-functioning child. The only developmental concerns he ever had, related to his speech, have waned. The evidence was that he is thriving in the current split parenting arrangement.
Custody and Access
Law
[42] As the parties were married, custody and access is governed by section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended. Subsection 16(8) indicates that in making an order I am to only take into account the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. Per subsection 16(10), I am to give effect to the principle that the child should have as much contact with each spouse as is consistent with his best interests.
[43] Regarding best interests, Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at paragraph 49-7 sets out a number of factors for me to consider. As noted in MacIntosh v. MacIntosh, [2007] O.J. No. 5695 (S.C.J.) at paragraphs 64 to 67, the factors summarized at subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as amended, are also relevant in determining best interests in a Divorce Act proceeding.
Analysis
Existing Arrangements
[44] Damien is two and a half years old. Obviously he is not in school, and he sees both parents for several days weekly under the existing interim order, close to equal time, the wife a bit more. The husband works full time, which currently dovetails well with the current arrangement of him having all the weekends.
Plans/Stability/Disruption
[45] The mother’s plan at this point is essentially that the existing time sharing arrangements continue, except she would like to have one weekend out of every four to herself, with no make-up or adjustment to the husband. She also wants sole custody, taking the position that the conflict and inability to communicate makes joint custody unworkable. She takes no ownership for that conflict. She has changed her mind from the position that she took in the first few months following separation, in that she now wants to remain in Trenton. However, she does not want to stay in her mother’s home, and is seeking full-time employment.
[46] The father took the position at trial that there should be a joint custody shared parenting order. He says that the mother has created the conflict that she is now relying on to deny him any custody rights, and that it was calculated by her for that very purpose. There is evidence to support this. The wife’s overreactions around the access exchanges were out of proportion to the purported safety concerns she alleged.
[47] The husband argues that regardless of any other decision, I should order that the child’s principal residence be in Kingston. I was told that Damien was to start Junior Kindergarten full-time in September of 2015. However, given when he turns four, my understanding is that he will not actually start until September of 2016.
Child’s Relationships
[48] The evidence from the father, supported by all his witnesses, is that he and Damien have a close bond. The mother’s statement that she does not believe the father loves the child and that she believes this litigation and the conflict is all directed at controlling her, has no evidentiary basis. In a similar way, the father’s accusation that the wife lacks parenting skills is unfair, as it fails to recognize her caregiving role to date. The wife’s bond with the child and her ability to read his cues was definitively confirmed by the CAS. I find that Damien has a good relationship with each parent. Indeed, the parties’ legal positions were inconsistent with the rather outrageous things they said about each other. The wife’s position was that she was content with the father having liberal access and shared holidays, and the husband was content to have shared equal parenting.
[49] In the husband’s home Damien has a very close relationship with his sister Mataya, and he is entitled to have it continue. His paternal grandmother, Ms. Praught, visits often and they also have a close relationship; she has very involved in Damien’s care for long stretches. Uncle Michael Bentien, while not a significant caregiver, also has a relationship with Damien as he continues to reside in the husband’s home.
[50] In the wife’s family, the child would now have a relationship with the maternal grandmother given that they share the same home. However, she works a midnight shift and sleeps part of the day, so with Damien at his father’s on the weekends Ms. Francis indicated that she does not see the child for a whole day except on the Mondays that are not statutory holidays. The wife asserted that Damien has a close relationship with her mother’s boyfriend Mr. Potter and with his children. However, I was not convinced. Mr. Potter does not live in the home, and given the Ms. Francis’ own schedule she would not see the child that often herself. Mr. Potter has access to his older children every other weekend, but again Damien is with the husband every weekend. Those relationships seemed a bit tenuous.
[51] In summary, other than the parents, I find that the most important relationships for Damien are Mataya, Ms. Praught, and Ms. Francis, in that order, and with some distance between each one.
Child’s Views and Preferences
[52] Given his age, I have not taken much stock in what the parties have said about what Damien wants. Again, he was noted to be doing well overall, which suggests a positive environment in both households.
Maximizing Contact Consistent with the Child’s Best Interests
[53] The current interim order is a joint custody shared parenting arrangement. There is nothing to suggest that this roughly equal time with his parents would not continue to benefit Damien.
[54] Both parties seemed to share the view, and I grant that it is rather obvious, that the child needs to reside in one community where he will have his day-care and eventually go to school. Frequent driving an hour each way is not optimal for a young child. Further, Damien can expect to form bonds to friends and to know other children in his community through day-care, school, and his extracurricular activities.
Ability of Each Parent
[55] As noted, despite the attacks, there appears to be at least a tacit agreement that each party has the ability to adequately parent the child. Each party’s position contemplates the other in a significant caregiving role.
[56] The father has a proven track record as a parent. He has done a very good job as the sole primary parent of Mataya for the past five years. This is acknowledged by that child’s mother. He arranged counselling for Mataya when there were major changes in her life. Even Ms. Francis, the wife’s mother, acknowledged that when she was more frequently in the parties’ home in Trenton she observed the husband doing homework with Mataya. This still occurs, as reflected in the child’s recent positive report card. The husband has been caring for Damien every weekend for close to two years, plus holidays, and Damien is doing well overall.
[57] Similarly, Damien has been in the weekday care of his mother for close to two years, and she has also had a significant role in Damien thriving. The initial concerns raised by the husband about the mother’s parenting were investigated by the CAS and not substantiated.
[58] The wife’s initial decision to leave the relationship and then both deny the husband access and avoid his wish to deal with the matter in court, was in my view a very aggressive move that made this litigation unavoidable at the outset. Interestingly, both the wife and her mother, when challenged about this decision, alleged that the wife contacted a supervised access center but was advised that a court order was needed for its service. So they said they decided to wait for court. The wife did not bring an application. Further, she did not tell the husband how to serve her or provide the name of her lawyer, despite the husband asking almost right away. She did not make herself easy to locate for service.
[59] I find that the wife’s decision to move the access exchanges to the police station was another aggressive move. So too was her calling the police almost indiscriminately. Having the child wait in the car for an hour and a half until the husband and police arrive when it was only delaying the inevitable exchange that would follow, was not a child focussed decision.
[60] There was only one example of a poor decision by the husband, namely his refusal to take the asthma puffer with the child. His decision caused the child’s Kingston physician to write the CAS on his own initiative to give it a ‘heads up’ that there may be a safety issue.
[61] The wife’s allegations of domestic assault were denied by the husband and not treated as significant by the wife or her mother when they were alleged to have occurred. By the wife’s own account after the first two she moved in to live full-time with the husband. Regarding the third, the maternal grandmother Ms. Francis claimed to have known about it at the time. She said that Mataya told her that “mommy threw a book and daddy hit mommy”, and that upon hearing this she lost her breath. If it were true that the statement was made - the statement itself is hearsay - Mr. Francis’ reaction was curious. She said she told Mataya that mommy and daddy will talk it out. There was no evidence that she felt a need to protect her daughter or that, if she felt it was true or serious, she acted on it. Nothing was mentioned to the police about any alleged assault when they attended the home in July of 2012. As noted, criminal charges were laid only after the separation despite the incidents occurring well before, and were dismissed following a criminal trial. The reasons of the Ontario Court of Justice in that proceeding were not in evidence. While this court has a different burden of proof, I am not satisfied on the evidence before me that the assaults have been proved on a balance of probabilities. I note that following the acquittal, the wife agreed to a variation of the interim court order that would allow direct access exchanges between the parties in person, as long as it was in public and a third party was present. In her reactions around the access exchanges she seemed more fearful of Mr. Tremblay, Ms. Praught, and the baby sitter, than of the husband.
Conclusions
Custody
[62] The following passage from Lawson v. Lawson, 2006 26573 (ON CA), [2006] O.J. No. 3179 (Ont. C.A.) at para. 15, helps focus the discussion here:
Joint custody is not appropriate where parents are unable to co-operate or communicate effectively. See Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.). However, one parent cannot create problems with the other parent and then claim custody on the basis of a lack of co-operation.
[63] The wife relies on Kaplanis, asserting that the joint custody would be inappropriate as the parties are unable to communicate effectively with each other. Face to face, I agree that there are problems. However, it was the wife’s actions that created the difficulties. The parties are demonstrably able to communicate effectively in writing both by text and by using the Communications Book. They have been operating under a joint custody order since, effectively, the separation, and this was crystalized by the interim a joint custody order of September 20, 2013. Interestingly, other than the asthma puffer issue, there has been no conflict to date over custodial related decisions. I heard no evidence about disputes over language, religion, or activities.
[64] Along with the analyses under the above headings, I have also considered the husband’s reasonable and respectful behaviour in this litigation. He relied on the court process to determine his rights to see his child. The criminal charges could have had a potentially huge impact on his employment and career aspirations. However, he patiently waited for the legal process to take its course, as appropriate. Juxtaposed to that, I have considered the wife’s less than appropriate behaviour in these proceedings. She orchestrated the separation to her advantage, denied the father access for five weeks until it was court ordered, and then ran interference during the access exchanges with exaggerated concerns. All considering, if her argument - that the level of conflict in this case precludes joint custody - had prevailed, she was presumptuous to have assumed that the role of the sole custodial parent would have fallen to her.
[65] As requested by the husband, the parties shall have final joint legal custody as set out in paragraphs 1 and 6 of the interim order of September 20, 2013. This is subject to the further orders that I make below regarding certain incidents of custody, namely residence, daycare, and schooling.
[66] The mother, in a rather bold opening submission through her counsel, asserted that the “defacto status quo” up to the start of trial was that she had been operating as if she had sole custody. While the husband did not make this an issue, I find it was tantamount to an admission that she was disregarding the interim court order. If the wife fails to faithfully abide the joint custody order going forward, she may find herself in jeopardy of losing all of her custodial rights.
Residence/Parenting Schedule
[67] Regarding residence of the child, the Divorce Act gives the court considerable latitude to craft a solution that is in Damien’s best interests. Section 16(5) reads as follows:
16(5) The court may make an order under this section for a definite or indefinite period or until the happening of a specific event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
[68] The mother repeated a number of times in her closing argument that the child has “flourished” under the existing interim arrangement. However, that arrangement includes almost equal contact between the husband and child that she now wants to cut back.
[69] In my view it would be best for Damien if his parents lived in the same city, so that he would reap the benefits of close contact and continued strong relationships. However, I cannot order one of them to move. As the mother put it in her closing submissions, the court is left to decide between the two plans.
[70] The child’s family doctor is still in Kingston. Damien’s sister lives in Kingston. The husband has a steady full-time job in Kingston. The wife is planning to momentarily obtain a full-time job and eventually move from her mother’s residence. A change on her end is certainly coming for Damien. Immediately following the separation the wife’s plan was to move back to Kingston. She says her plan to stay in Trenton is because all of her supports are there. However, when she left the home on July 1, 2012, she stayed with a family friend in Kingston, not in Trenton. Following the final separation she also stayed with supports in Kingston before eventually moving to her mother’s home, and even that was expected to be temporary. No supports for the wife other than her mother and her mother’s boyfriend testified. The father, on the other hand, has supports, including his brother, Mr. Tremblay, his mother when needed, and military services and resources.
[71] It is abundantly clear to me that Damien should reside in Kingston. While I make this finding solely looking at his best interests, it is certainly a fair result as between the parties. The wife should not be allowed to benefit by her self-serving decisions upon separation. These decisions resulted in Damien being a frequent traveller on Highway 401 between Trenton and Kingston. The wife stated to the CAS at the outset that her living in Kingston would be best for Damien, as it would allow easy access with his father, and that was her plan. Yet she changed her mind despite housing and a job being available for her here, without a compelling reason.
[72] In the context of the wife’s employment and housing uncertainties, she will need time to explore and decide what she wants to do. I am mindful of the time of the year, approaching Christmas. I note that there was no disagreement between the parties to an equal sharing of vacation and holiday time. Considering all the above, I make the following orders:
The existing orders for times with the child and exchanges shall continue until February 1, 2015.
Regarding the Christmas holiday 2014 only, the wife shall have the first choice as to her half of the Christmas period, per paragraphs 4 and 12(v) of the order of September 20, 2013, subject to a contrary agreement between the parties.
Following February 1, 2015, the exchanges of the child shall take place in Kingston at a mutually agreed upon location, Failing an agreement, they shall occur at the A&W on Highway 38 just south of the Highway 401.
Commencing May 29, 2015, Damien shall spend time with his parents on an alternating weekly schedule, with a mid-week evening visit for the non-residence parent. The child shall be picked up on Fridays after daycare or day camps or school, as applicable, by the parent with whom the next week’s access is to be with. For all other times when there is no daycare, or camps, or school, and provided that both parties reside in Kingston, the child shall be dropped off at the home of the parent whose week is to commence by the parent who had access the previous week, by no later than 5:00 p.m. on the Friday. This schedule shall start with Mr. Bentien having the first seven-day period commencing May 29, 2015. If Ms. Bentien does not reside in Kingston, para. 3 above shall govern the non-daycare/daycamp/school exchanges.
Ms. Francis, Ms. Praught, Michael Bentien, and Mr. Tremblay may pick-up or drop-off the child for access or at the school/daycare/camp without the other parent’s consent.
The child shall spend a continuous period of two weeks uninterrupted time with each parent during the school summer holiday or equivalent. The parents shall agree to the time periods in advance in writing by March 1 of that year.
Each parent shall be responsible to ensure appropriate daycare during their weeks of access throughout the school summer holiday (even when Damien is not school age) and shall be responsible for the cost of the same. They shall register Damien in summer camps on their weeks only.
In the Fall of 2015, weekly day-care for Damien shall be chosen by Mr. Bentien in consultation with Ms. Bentien. Similarly, for the beginning of school in Jr. Kindergarten in the Fall of 2016, Mr. Bentien shall choose the school in consultation with Ms. Bentien. The day-care and school shall be in Kingston. Thereafter, neither parent shall move Damien to another school without the express written consent of the other, subject to a court order.
Starting in 2015, Damien shall spend December 25 from 2:00 p.m. to December 26 at 4:00 p.m. with the non-access parent each year. However, if this results in one party having back-to-back Christmas Eves, the non-access parent shall have the option of taking the child for the second Christmas Eve from 7:00 p.m. on December 24 to noon on December 25 in lieu of the above. The party must provide written notice of their intention to exercise this option by December 1st.
Regardless of whose access week it is, Damien shall spend Mother’s Day with the wife from 10:00 a.m. to 7:00 p.m. each year, and shall spend Father’s Day with the husband from 10:00 a.m. to 7:00 p.m. each year.
When applicable, once in school, Damien shall spend his spring school break with whichever parent would usually have access that week, with the requirement for the mid-week visit for the non-residential parent being suspended. That parent is responsible at their own expense to enroll Damien in a day camp or to provide appropriate daycare if unable to take time off work. However, if this results in one party having back-to-back March breaks, the other party shall have the option of taking the child for the second March break. This party must provide written notice by December 31st. In that event, the parties shall exchange weeks such that each party will get two weeks in a row.
The parent with whom the child is with shall ensure that Damien is available to be called by the other parent on his birthday each year, between 7:00 p.m. and 8:00 p.m., for a minimum of 15 minutes or shall make alternate arrangements that are suitable and reasonable.
The parties shall communicate by e-mail. Each parent shall choose the e-mail address they wish the other to use and this shall be respected by the other parent. Both parties shall refrain from using derogatory or belittling language in their communications. The communication shall be restricted to Damien’s needs only. Each party shall check for e-mails daily and respond promptly as is appropriate. The maximum is one respectful e-mail each per day.
The parties shall exchange emergency telephone contact numbers. Unless agreed otherwise in writing, no calls are to be made other than for a medical emergency affecting the child.
Both parties shall consider attending counseling together to assist them in co-parenting. Any costs incurred shall be paid jointly by the parties as if it were an s. 7 extraordinary expense, pursuant to the Child Support Guidelines.
Each parent shall discuss with the Damien his interest in extracurricular activities and the parties shall each consider his views and cooperate in agreeing to any such activities for his benefit. The parties shall consult before registering Damien in activities. Mr. Bentien’s address shall be used for registration purposes. Unless agreed otherwise, they shall restrict major extracurricular activities such as team sports to two per season. Both parties shall support and insure attendance at extracurricular activities, no matter who is providing care.
Both parties shall be able to attend sports and leisure activities involving Damien as long as there is sufficient room for a reasonable boundary to be maintained. They shall be permitted to volunteer and participate as required but not at the same activity. If the parties are in the same physical space at an event in which Damien is involved, he shall be allowed to greet the non-residential parent in as natural a manner as possible.
Canada Day shall be spent with the parent who is scheduled to provide care on that day.
Both parties shall provide the other with timely permission letters with respect to travel beyond Canada. They shall insure some way of reaching Damien during the absence and provide a general itinerary.
[73] The above orders are designed in part to repatriate Damien to Kingston over time. I do not contemplate the child being driven to day-care or school one hour each way on the mother’s weeks. If the parties still reside one hour apart in six months, on motion before me, the time sharing shall be revisited. One possibility I will consider is a more traditional arrangement, such as the mother having the child in Trenton every other weekend.
Child Support
[74] The support requests were brought pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, with reference to the Federal Child Support Guidelines, SOR/97-175, as amended (“Guidelines”).
[75] The evidence is that the mother quit her full time job soon after the separation. She is employable. With the above parenting schedule I have in effect given her until May 29, 2015 to find full-time employment and sort out where she wants to live.
[76] The husband shall pay child support based on the full Table amount. The September 20, 2013 order has already dealt with the child support arrears. Upon the wife obtaining employment the parties shall re-assess the support obligation pursuant to s. 9 of the Child Support Guidelines. If the wife has not obtained employment by May 31, 2015, income shall be imputed to her of $22,000, being the rough equivalent of a full-time position at minimum wage. This would be based of her being intentionally unemployed or underemployed (Guideline s. 19(1)(a)). There shall be an automatic set-off between each parties’ Table support amounts until a determination by the court or an agreement is made regarding Guideline s.9, at which time ongoing and past payments back to May 31, 2015 shall be adjusted.
[77] Lastly, I heard no argument on Guideline section 7 expenses and it was not a trial issue. I simply note that obligation. The parties shall share section 7 expenses for the child in proportion to their respective incomes.
Property
[78] The husband maintained that he had a zero net family property (“NFP”). He did not make a property claim. The wife sought an equalization of NFPs in her pleadings. In her written opening statement she asked for an equalization payment of $90,308.75, “plus half of a deployment bonus that he received as income as reported his (sic) income tax in 2013. The Respondent is seeking full equalization of the Applicant’s pension.” I heard nothing further re the pension or the deployment bonus. If Mr. Bentien has a pension, and I suspect that he does, there was no evidence of what value accumulated between May 2011 and November 2012. Notwithstanding the above, in his opening statement, the wife’s lawyer said she was seeking an equalization payment “of likely $90,000 … it is likely to go down to $24,000.” Her NFP Statement indicated that a $26,499.32 equalization payment was owing to her.
[79] Looking at the NFP Statements each party provided, there are only three significant differences: (1) the value and treatment of the matrimonial home, (2) the values for general household items and vehicles, and (3) the accounting of valuation date debts.
[80] Regarding the matrimonial home on Milford Drive in Kingston, as noted the husband bought it in his name in July of 2011. His evidence was that he paid $267,000, and it had a $262,000 mortgage. There was no evidence what it was worth on November 8, 2012, the date of separation. A real estate agent’s estimate dated November 19, 2013, almost a year later, was between $262,000 and $267,900. There was no suggestion that this person was qualified to give an opinion, however his estimate was in evidence on consent and I have therefore considered it. The husband asserted the lower end figure. The wife in her Financial Statement and NFP Statement asserted a separation date value of $295,000; however I heard no evidence to support that number. The parties agreed that the mortgage on the valuation date was $255,237.82.
[81] Given the above, and with no other information to go on, I set the value of the matrimonial home as its purchase price of $267,000. I do not deduct any notional costs of disposition; they were not requested and no sale is contemplated. The wife’s NFP figure for the husband, which used the $295,000 number, was therefore $28,000 too high on that line item alone.
[82] I heard no specific evidence on general household items and vehicles. The husband set his as $4,300 and the wife’s at $3,200. The wife set his as $12,825, and her own as $900. Without proper evidence I can only rely on these admissions. I therefore use the values of $4,300 and $900 respectively.
[83] In his NFP statement Mr. Bentien lists a number of valuation date debts. He provided supporting documentation. Even if I ignore the loan from his mother and an $8,279 debt for a 2009 truck that did not show up as a valuation date asset on the other side of the ledger, the remaining debts are still quite substantial. They total over $50,000. The husband was given some break on the child support in respect of these debts, per paragraph 9 of the interim order of September 20, 2013, which reads “[a]ny arrears of child support shall be fixed at zero (0) to reflect the family debts that have been shouldered by the Applicant alone.” It raises the question of whether this adjustment related to the principal debt, at least in part, or only to the ongoing costs of servicing the debt. The wife seeks an order, per her written opening statement, that the husband “pay full retroactive child support from the date of separation should the court include the debts listed on Mr. Bentien’s financial statement ...” The past child support up until the September 20, 2013 court order would only be $6,140. Looking at the statements, which include a number of credit cards and a Line of Credit, it is clear to me that the court order was directed at the cost of servicing the debt, and not intended to extinguish the principal amounts for the purposes of the NFP statement. To do so who be grossly disproportionate.
[84] I find that Mr. Bentien’s valuation date debts have been established per the above. It would only take about $18,000 of the total $50,000 debt to reduce Mr. Bentien’s NFP to zero. As he is not seeking an equalization payment, I find that there is no equalization payment required by either party.
Occupation Rent
[85] The wife’s counsel claimed occupation rent re the matrimonial home. He provided a case, Guziolek v. Guziolek, [2006] 10740 (S.C.J.), standing, he said, for the proposition that occupation rent may be raised at trial even though it is not pled. However, in Guziolek the claim was allowed to proceed because there was no prejudice as the other party was prepared to respond to it, and the claim was being used as a shield and not a sword. It was not explained to me how that applies in this case.
[86] The wife is not on title. Other than the reference to Guziolek, I heard no evidence or argument as to what law to apply, when the request was first made if not at trial, why it would be reasonable and equitable to make an order, or what quantum of rent was being claimed and how it was calculated. Not only has the wife failed to prove her case on a balance of probabilities, I am left wondering whether a claim has been made at all. If it has been, it is dismissed.
Decision
[87] Orders to go as set out above. If the parties cannot agree on costs, I will accept brief written submissions within 20 days.
Mr. Justice Timothy Minnema
Date: December 15, 2014
COURT FILE NO.: 700/12
DATE: 2014/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dallas Ryan Bentien, Applicant
– and –
Kristy Lynn Bentien, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Steven Zap, for the Applicant
Matthew A. Giesinger, for the Respondent
REASONS FOR JUDGMENT
Mr. Justice Timothy Minnema
Released: December 15, 2014