ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Moyer v. Moyer, 2015 ONSC 1524
COURT FILE NO.: FS-14-5341
DATE: 2015-03-10
B E T W E E N:
Kathryn Margaret Moyer,
Mr. S. Bachinski, for the Applicant
Applicant
- and -
Robert William Donald Moyer,
Mr. S. Lundin, for the Respondent
Respondent
HEARD: February 24 , 2015,
at Kenora, Ontario
Mr. Justice J.S. Fregeau
Decision On Motion
INTRODUCTION
[1] The Applicant (the “mother”) and the respondent (the “father”) were married on July 27, 2002. The mother and father are the parents of two girls, Kennedy Margaret Moyer, born December 3, 2007, seven years old (“Kennedy”) and Austyn Marie Moyer, born August 8, 2011, three years old (“Austyn”).
[2] The parties separated on June 6, 2013. On separation, the father remained in the matrimonial home and the mother and the two girls moved into a residence adjacent to the matrimonial home owned by the mother and the maternal grandmother. In August 2013, the mother purchased a home in Kenora, Ontario, where she has resided to date.
[3] Each of the parties has a motion before the court. Some temporary relief has been agreed upon. These matters have been reduced to a consent temporary order, the terms of which will be incorporated into this decision.
[4] The issues to be determined by the court on the parties’ respective motions are:
Temporary custody of the children;
The temporary division of care and control of the children and with whom the children should primarily reside;
Temporary child support and the proportionate sharing of s. 7 expenses; and
Whether income should be imputed to the mother for the purpose of calculating temporary child support and the parties’ proportionate shares of s. 7 expenses.
[5] The mother has requested an order asking that the Office of the Children’s Lawyer conduct an investigation into this matter and provide a report and recommendations to the court. The father submits that this is not necessary, but he is not opposed. I feel that it is appropriate that such an order be made. This temporary order shall issue in the usual form.
BACKGROUND
[6] The mother is 35 years old and has been employed as an O.P.P. officer in Kenora, Ontario since 2005. The mother worked on a full time basis until the births of the two children. She took approximately 12 months maternity leave after the birth of each child.
[7] After returning to work subsequent to her maternity leave with Austyn, the mother worked full time, four days on (two day shifts followed by two night shifts) followed by four days off. The parties employed a nanny from April to September 2013. The nanny’s schedule coincided with the mother’s such that the nanny worked when the mother worked and was off when the mother was on days off.
[8] The mother’s schedule continued as above up to and after separation. At the time this motion was heard, the mother’s schedule had been altered such that she currently works part-time. Her current part-time schedule requires her to work three 12 hour day shifts, followed by five consecutive days off. The mother deposes that she now works straight days “as (her) employer is dedicated to accommodate family.” The mother further deposes that she intends to remain working part-time until Austyn begins to attend school in the fall of 2015.
[9] The father is 37 years old and has been employed by the C.P.R. since 2003. He is currently a Conductor/Engineer. The father deposes that he is a senior employee holding a “pool position.” The father acknowledges that he is generally subject to being called for work on a 24/7 basis. However, he deposes that when in the pool position, an employee has an established “turn” (work shift) with predictability and regularity. An employee’s turn can be monitored over the internet providing rough predictability as to when an employee will be required to attend work.
[10] When called in for work, the father deposes that an average turn time is 24 hours. The father further deposes that he can and does book up to 24 hours “rest” following a turn at work. Time off between turns can be up to several days depending on a number of factors, many of which can be controlled by the employee, according to the father. The father can be contacted while at work by way of a 24 hour emergency contact line. The father deposes that he is never more than three hours travel time from home while at work.
[11] The parties have agreed on their respective incomes for support purposes. The mother’s current income on a part-time basis is $72,500.00/yr. If the mother were to work full-time her base salary would be $94,500.00/yr. The father’s 2014 income was $90,000.00.
[12] According to the mother, she was the children’s primary caregiver prior to separation. The live-in nanny was off work when the mother was on days off. The mother deposes that the nanny was hired and her schedule established as it was so that the father never had to primarily care for the girls.
[13] According to the father, the nanny was hired at the mother’s insistence because the mother was feeling overwhelmed and burdened by her work schedule and parenting responsibilities. The father denies that the mother was the primary caregiver prior to separation. The father deposes that he was involved in all aspects of child care and was in fact the primary caregiver to the girls during periods when he was laid off from work.
[14] On July, 3, 2013, the parties signed a separation agreement. Germane to this motion are paragraphs 7, 8 and 9 of the agreement which read as follows:
CHILD CUSTODY
The Husband and Wife agree that joint legal custody is in the best interests of the children. The Husband and Wife agree that both parents are fit and proper persons to have joint responsibility for the care of the dependent children.
The Husband and Wife agree that the children will reside with both parents.
The Husband and wife also agree that the Husband and Wife shall have the following visitation time with the children: (left blank)
[15] In her Application, the mother is challenging the validity of the separation agreement. The mother is not challenging the validity of the agreement, per se, on this motion. On this motion, the mother is relying on s. 56(1) of the Family Law Act (R.S.O. 1990, c. F.3, as am.) which provides that a “court may disregard any provision of a domestic contract pertaining to (the custody of or access to a child) where, in the opinion of the court, to do so is in the best interests of the child.” I will review the circumstances surrounding the preparation and signing of the separation agreement in general terms only.
[16] According to the mother, she was pressured by the father to sign the separation agreement and she did so without legal advice and under duress and undue influence. The mother deposes that the father forced her to download a “fill in the blanks” agreement from the internet and to complete it pursuant to his direct instructions. The mother further alleges that the father, in the period of time between separation and the date on which the agreement was signed, was continually and constantly berating her and threatening to kill himself and leave the children without a father if she did not prepare and sign the agreement as he wished.
[17] The mother deposes that she did not understand the custody regime set out in the agreement. According to the mother, she and the father had agreed, regardless of the actual wording in the agreement, that the children’s principle residence would be with her and that the father would have the children in his care as and when his irregular work schedule allowed. The mother deposes that this was to prevail as long as she did not pursue child support from the father. The mother also alleges that she and the father had agreed that the girls would reside full-time with her once the nanny’s term was completed on September 4, 2013.
[18] The father denies the mother’s allegations as to the circumstances surrounding the preparation and signing of the agreement. According to the father, the mother purchased a “Separation Agreement Kit” off the internet prior to their actual separation and revised the draft more than once without input or instructions from him. The father deposes that the mother advised him that she had received legal advice from her E.A.P. program with the O.P.P.
[19] The father denies that he pressured the mother to prepare or sign the separation agreement. He further denies that he “made threats.” The father alleges that the mother pressured him to sign the agreement in order that she could proceed to purchase her current residence.
[20] According to the mother, the girls were in her care the “majority of the time, being approximately five days out of eight days” from July 3, 2013 (the date the separation agreement was signed) to September 16, 2013. The mother deposes that the father “began taking the girls away from me and forcing them to stay 4 nights at each residence when I told him I was seeking legal advice regarding the agreement.”
[21] The mother alleges that, beginning September 16, 2013, despite having agreed earlier that the children would reside with her full-time after September 4, 2013 (the end of the nanny’s term) the father hired a replacement nanny and began to “enforce” a four on/four off alternating schedule of care and control of the children. The mother deposes that the father did so in order that he would not have to pay child support. According to the mother, the four day alternating schedule has been in place from September 2013 to the present date.
[22] The father deposes that his understanding of the separation agreement was that the parties would have joint custody of the children and their residency would be shared between the parties’ homes equally. According to the father, there was a “transitional period” following separation when the children’s schedule was not fixed. The father deposes that he and the mother have followed the intent of the agreement and have observed a four day alternating schedule of division of care and control since approximately mid-January 2014. According to the father, this schedule was agreed upon and followed because it coincided with the mother’s four on/four off work schedule which was in place before and after separation until reduced to her present part-time schedule.
[23] In the fall of 2013, the father began a relationship with Ms. K. Elke. Ms. Elke has a four year old daughter. Ms. Elke and her daughter moved into the father’s home in January 2014. The father and Ms. Elke have resided together since that date.
[24] According to the mother, Ms. Elke has assumed and actively exercised a parental role in relation to Kennedy and Austyn. The mother deposes that Ms. Elke has interfered with and “frustrated” her relationship with Kennedy and Austyn. Numerous specific examples of such alleged conduct have been provided.
[25] The mother further deposes that both Ms. Elke and the father have harassed her on numerous occasions, including filing multiple unfounded complaints with her employer, the O.P.P.
[26] According to the father, the Applicant has in fact been following and harassing him and Ms. Elke, often while in uniform. The father deposes that he and Ms. Elke have developed an “excellent” relationship which has been and will continue to benefit the children.
[27] The mother and father have each filed numerous supporting affidavits as evidence on this motion. The deponents of the mother’s supporting affidavits are her mother, her brother, various long term friends and the parties’ nanny.
[28] In general, these parties depict the father as insensitive, uncaring and unsupportive of the mother generally and particularly in her times of need. These parties depose that the mother was the primary caregiver to the children prior to separation and that the father was distant, uninvolved and generally uninterested in the children’s day to day lives.
[29] These parties are also generally consistent in describing the demeanour of the children in the period after separation. In the period immediately after separation when the children were alleged to be with the mother the majority of the time, these parties depose that the children were doing well and were characteristically happy, outgoing and engaged. In the period of time when the children have resided equally with the mother and father, these parties depose that the children are withdrawn and clingy, wanting to be with the mother all the time and expressing a reluctance to transition to their father’s home and care.
[30] Ms. S. Fisette was employed by the parties as a nanny from April 1, 2013 to September 4, 2013. In the period prior to separation, Ms. Fisette deposes that the mother was very involved with the girls on her days off and involved with them as much as possible on the days and nights when she worked. Ms. Fiseete further deposes that the father was “gone a lot due to his employment…sometimes…for 1-1 ½ days at a time…” When not working, Ms. Fisette deposes that the father generally pursued his own interests, leaving her to care for the children. When the father did care for the girls, Ms. Fisette deposes that she was always with him because he was “unable to manage or take care of the girls on his own.”
[31] Affidavits in support of the father have been sworn by Ms. Elke, Ms. Elke’s mother, friends of Ms. Elke and the father and a long term friend of the father.
[32] Ms. Elke has a Bachelor of Nursing degree and has been a registered nurse for 24 years. She describes herself as the father’s common law partner. At some point in time between January 2014 and January 2015, Ms. Elke took six months off work “to focus on our new blended family and to enjoy being home with the girls.”
[33] Ms. Elke deposes that the father is a dedicated and involved family man who arranges his work schedule such that he is at home the “majority of time” when the girls are in their care. In the father’s absence, Ms. Elke cares for Kennedy, Austyn and her own daughter.
[34] Ms. Elke denies the mother’s suggestion that she, and not the father, does the majority of parenting of Kennedy and Austyn when the girls are in the father’s home. Ms. Elke states that it is only approximately once in each of the four day periods of time with the girls that she cares for them in the father’s absence. At all other times Ms. Elke deposes that the father is extremely involved in the care of his children. She has provided numerous specific examples of activities involving the father and the girls.
[35] Ms. Elke deposes that the children are “flourishing” in the parenting and home routine that she and the father have established over the last 13 months. All of the girls are said to be getting along well and to be happy and well adjusted.
[36] According to Ms. Elke, she has suffered constant harassment from the Applicant since December 2013. She alleges that the mother became increasingly “aggressive, demanding and unreasonable” toward her and in fact began to “stalk” her in the spring of 2014. This is said to have been the reason for the complaints to the mother’s employer. Ms. Elke deposes that the mother’s conduct has also caused her and the father to minimize their contact with the mother.
[37] All other affidavits in support of the father state that Ms. Elke’s and the father’s families have integrated well. The parenting skills of Ms. Elke and the father are said to be complimentary. Both are suggested to be dedicated parents who provide appropriate structure, healthy routines and a loving, consistent environment for all three girls. The father is described as an involved, active and caring parent.
POSITIONS OF THE PARTIES
The Mother
[38] The mother submits that it is in the children’s best interests that she have sole temporary custody of the children and that the children reside with her five days of an eight day cycle. The five days the children would be in her care would correspond to her five days off pursuant to her current employment schedule. The children would otherwise be in the care of the father.
[39] The mother also seeks a temporary order requiring the father to pay child support pursuant to the Child Support Guidelines based on his 2014 income. For the purposes of this motion, the father’s 2014 income is agreed to be $90,000.00. Finally, the mother requests a temporary order requiring the father contribute to the children’s s. 7 expenses, proportionate to income. For the purposes of this calculation, the mother submits that income should not be imputed to her. If income is not imputed to the mother, it is agreed that her current income is $72,500.00. If income is imputed to the mother, it is agreed that her current income is $94,500.00.
[40] The mother submits that paragraphs 7, 8 and 9 of the July 3, 2013 Separation Agreement (the “separation agreement”) are incomplete and ambiguous and do not clearly and finally stipulate that the parties intended to share joint custody of the children. The mother further submits that the agreement is silent as to the intended division of care and control of the children and/or with whom the children shall primarily reside and for what periods of time.
[41] If the court accepts the mother’s position as to the interpretation of the separation agreement, the mother submits that the court must determine the issues of temporary custody of the children and the division of their care and control pursuant to s. 16(1), (2) and (8) of the Divorce Act (R.S.C. 1985, c. 3, as am.). The parties are in agreement that the court may look to the more expansive s. 24(2) of the Children’s Law Reform Act (R.S.O. 1990, c. C.12, as am.) for guidance in determining the children’s best interests and their needs and circumstances.
[42] In the alternative, if the court finds that paragraph 7 of the separation agreement does establish that the parties intended to share joint custody of the children on a final basis, the mother submits that s. 56(1) of the Family Law Act provides the court with jurisdiction to disregard that provision of the separation agreement if to do so is in the best interests of the children.
[43] The mother further submits that it has been established that temporary joint custody is not in the best interests of the children and that I should disregard paragraph 7 of the separation agreement and award her temporary custody of the children, with the children residing primarily with her for five out of eight days.
[44] In support of her position, the mother submits that the evidence clearly establishes that she was the primary caregiver of the children prior to and following the separation of the parties on June 6, 2013. The mother took 12 months maternity leave after the birth of each child while the father chose to take no time off when the children were born. The mother submits that the work schedule of the nanny hired by the parties was established to dovetail with her work schedule such that she cared for the children on her four days off and the nanny, not the father, cared for the children when the mother worked.
[45] The mother submits that her evidence and the evidence contained in the supporting affidavits filed by her confirms that she assumed essentially sole responsibility for all aspects of the children’s lives, including infant care, medical and dental issues and appointments, physical and emotional nurturing, education and extra-curricular activities. The mother submits that the evidence establishes that the father was uninterested, uninvolved and not entirely capable of providing for the physical and emotional needs of the girls.
[46] The mother suggests that the children remained primarily in her care from the date of separation until September 2013. The mother submits that she had the children living with her five out of eight days during this period of time despite what the separation agreement said. The mother submits that this was the case because she and the father had agreed on this despite the wording of the separation agreement.
[47] The mother submits that this changed on September 16, 2013 directly as a result of her advising the father that she intended to obtain legal advice in regard to the validity of the separation agreement. At this point, the mother submits that the father insisted that the children reside an equal amount of time with each of them on a “4 on/4 off” schedule.
[48] The evidence of the mother as to her exact response to the father’s position in this regard is not clear. The mother does agree that the parties have shared care of the children on a 4 on/4 off schedule since the fall of 2013. However, the mother submits that this current schedule, and joint custody, is not currently in the children’s best interests.
[49] The mother submits that, despite the fact that the children are in the father’s home for four days at a time, he personally does not care for them during this entire period. It is the mother’s position that the father has, and will continue, to rely on third party caregivers to assist him in the care of the children. The mother’s submits that the father’s employment with the C.P.R. requires him to be available for work on a 24/7 basis. In the mother’s submission this results in a very irregular work schedule with the father out of town on a consistent basis for extended periods of time.
[50] The mother submits that the father is now reliant on Ms. Elke to care for the children during his time at work. The mother's affidavit evidence indicates that it is her position that Ms. Elke has, in addition to simply caring for the children in the father’s absence, and with the full support of the father, assumed an inappropriately active maternal role in relation to Kennedy and Austyn. The mother submits that Ms. Elke has consciously attempted to minimize her role as the natural mother of the girls, with the tacit consent of the father. The mother submits that this alleged behaviour of Ms. Elke and the father, considered collectively, is relevant to the father’s ability as a parent and contrary to the children’s best interests.
[51] The mother submits that it is in the children’s best interest that she, the biological mother of the children, be the primary caregiver to the girls, as opposed to the father’s recent common law partner. The mother submits that her current work schedule, which provides her with five consecutive days off on a regular basis, allows her to spend a very significant amount of time directly with the children, personally attending to the myriad physical and emotional needs of the two girls.
[52] The mother submits that the suggested status quo of a four day alternating schedule is, for all of the above reasons, not in the children’s best interests. The mother submits that the children have expressed a desire to spend more time in her care. According to the mother they also, on occasion, express a reluctance to return to the father’s care.
[53] The mother submits that this court should not impute income to her for the purpose of calculating child support or the parties’ proportionate shares of s. 7 expenses. The mother submits that the father, in order for income to be imputed, bears the onus of establishing that the mother is intentionally under employed.
[54] While acknowledging that she was employed full time before and after separation and is now working part-time and earning approximately three-quarters of her full-time salary, the mother submits that there is no direct evidence from any source as to why this is the case. Without such evidence it is submitted that the father has not discharged the onus of establishing intentional under employment.
The Father
[55] The father notes that the application in this matter was issued 9 months after separation. The motion for temporary relief was heard 20 months after separation and 19 months after the separation agreement was signed. In these circumstances the father submits that significant regard must be had to the status quo.
[56] The father submits that it is obvious from a common sense reading of paragraphs 7 and 8 of the separation agreement that he and the mother intended that they would have joint custody of their children and further agreed that the children would “reside” with both parents. It is suggested to be implicit in these provisions that the residence of the children would be divided equally between the homes of each of the parents. Any alleged verbal agreement to the contrary is denied.
[57] As the separation agreement provides for both joint custody and a division of the residency of the children, the father submits that this court cannot disregard those provisions unless the mother persuades me that to do so in in the best interests of the children on a temporary basis until trial.
[58] The father submits that the parties have shared the care and control of the children over this period of time in a manner consistent with both the letter and spirit of the separation agreement. The father submits that the parties have honoured an equal division of care and control of the children on an alternating 4 day basis since September 2013. At that time, the mother was working on a four on/four off basis. It is submitted that the division of care and control of the children was based on her work schedule and that she either agreed to it or has acquiesced in it since that time.
[59] The father submits that there is no evidence before this court on this motion to suggest that the arrangements which have been in place since September 2013 are not in the children’s best interests. To the contrary, the father submits that there is objective, recent evidence showing that both the girls are thriving at the present time. In support of this submission, the father directs the court’s attention to Kennedy’s report cards for the 2013/2014 school year and her interim report card for the fall of 2014.
[60] The father submits that these report cards represent objective evidence from elementary school teachers and that they should be given significant weight. The father submits that Kennedy’s report cards are excellent and without a single negative comment as to either school performance or behaviour. The father submits that both he and Ms. Elke depose that Austyn is also thriving under the present arrangement. It is submitted that there is no evidence to contradict their evidence on this point.
[61] The father submits that he is now involved in a long term relationship with Ms. Elke. Ms. Elke, who has a four year old daughter living with her, is said to be an educated, intelligent professional who is a committed and caring parent. The father submits that his new partner should not be considered as a negative factor in the family dynamics. It is submitted that she assists the father in parenting Kennedy and Austyn when required and that she does so in an appropriate manner.
[62] The father submits that the mother is distorting the demands of his employment schedule to depict him as a parent who is generally unavailable to personally parent his children, requiring him to delegate that responsibility to his new partner. The father submits that, given his seniority, he can and does arrange his schedule to be personally available the majority of the time the children are in his care.
[63] In addressing the respective availability of each of the parties to personally care for the children, the father questions the change in the mother’s work schedule to part-time. The father submits that the mother worked full time up to and for 8 months after separation. In or about January 2014 the mother’s schedule changed to part-time, three day shifts followed by five consecutive days off. The father submits that no evidence has been provided to show why this change occurred. The mother now presents herself as a parent available to personally care for the children five consecutive days out of an eight day cycle.
[64] The father submits that it is obvious that the mother decided, in January 2014, to reduce her work schedule for tactical reasons. In any event, the father submits that the mother has deposed that she intends to work part-time until Austyn attends school in September 2015. The father submits that the logical inference to draw from this evidence is that the mother will then resume her full time, four on/four off schedule. At that time, the present four day rotating schedule of care and control will once again coincide with the mother’s work schedule such that the children would be in her care for her four consecutive days off.
[65] The father submits that it is appropriate that income be imputed to the mother for support purposes. The father asks this court to find that the mother voluntarily reduced her hours and income effective January 2014. It is submitted that there is no evidence of any inability on the part of the mother to work full time. It is submitted that there is no evidence that the mother’s employer imposed a reduced schedule on her. The mother worked full time for a substantial period of time following separation. The father submits that it logical to assume that the mother simply chose to reduce her hours.
[66] If the court is persuaded to draw this inference, the father submits that it has been established that the mother is intentionally under employed. The father submits that income commensurate with full time employment be imputed to the mother. This income figure is agreed to be $94,500.00/yr. If the status quo of a four day alternating schedule remains in place, the father is not requesting the mother pay him child support. He is also content with an equal sharing of s.7 expenses.
[67] If the court determines that it is in the children’s best interests, at this time, to disregard the terms of the separation agreement as to custody of the children and to grant the mother temporary custody of Kennedy and Austyn with the girls in their mother’s care for five out of eight days, the father acknowledges his child support obligation based on his $90,000.00 income.
DISCUSSION
[68] The legislative provisions to be applied in the determination of the issues before the court are found in the Divorce Act, the Children’s Law Reform Act and the Family Law Act.
- ORDER FOR CUSTODY – (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(2) INTERIM ORDER FOR CUSTODY – Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
(8) FACTORS – In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.
(9) PAST CONDUCT – In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) MAXIMUM CONTACT – In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
- MERITS OF APPLICATION FOR CUSTODY OR ACCESS
(2) BEST INTERESTS OF CHILD – The court shall consider all the child’s needs and other members of the child’s family who reside with the child, and circumstances including,
a) the love, affection and emotional ties between the child and,
i. each person entitled to or claiming custody of or access to the child,
ii. other members of the child’s family who reside with the child, and
iii. persons involved in the child’s care and upbringing;
b) the child’s views and preferences, if they can reasonably be ascertained;
c) the length of time the child has lives in a stable home environment;
d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
f) the permanence and stability of the family unit with which it is proposed that the child will live;
g) the ability of each person applying for custody of or access to the child to act as a parent; and
h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3) PAST CONDUCT – A person’s past conduct shall be considered only,
a) in accordance with subsection (4); or
b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) VIOLENCE AND ABUSE – In assessing a persons’ ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
a) his or her spouse;
b) a parent of the child to whom the application relates;
c) a member of the person’s household; or
d) any child.
[69] The more expansive definition of “child’s needs and circumstances” found in s. 24(2) of the Children’s Law Reform Act is commonly used as a helpful guideline in applying the more restrictive terminology found in s. 16(8) of the Divorce Act.
- CONTRACTS SUBJECT TO BEST INTERESTS OF CHILD – (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.
[70] The mother and father separated on June 6, 2013. The mother and the two children temporarily resided in a residence next to the matrimonial home. In August 2013, the mother purchased a home in Kenora and she and the girls have resided in that home since that time. The father has remained in the matrimonial home. The children have divided their time between their parents’ homes.
[71] The parties signed a detailed and comprehensive separation agreement on July 3, 2013. There is conflicting and contradictory evidence as to the preparation of the agreement and the circumstances under which it was signed. The mother’s application asks that the separation agreement be set aside. This relief is not sought by the mother on this motion. For the purposes of this motion, I am therefore assuming that the separation agreement dated July 6, 2013 is a valid domestic contract.
[72] The mother’s submission as to how the court address paragraphs 7, 8 and 9 of the separation agreement on her motion seeking sole temporary custody is in the alternative. First, the mother submits that the relevant provisions of the separation agreement do not definitively establish that the parties intended to and agreed that they would have joint custody of the children and an equal division of care and control.
[73] Given this alleged ambiguity as to custody and the division of care and control in the separation agreement, the mother submits that I am free to determine temporary custody and the appropriate division of care and control without reference to the separation agreement.
[74] In the alternative, if I find that the parties did in fact intend to share joint custody pursuant to the separation agreement, the mother submits that I can and should disregard that provision in the agreement because it has been established on this motion that joint custody is not in the children’s best interests on a temporary basis.
[75] I do not accept the mother’s primary position. In my opinion, the relevant terms of the separation agreement clearly establish that it was the intent of the mother and father that they would have joint custody of Kennedy and Austyn and that the girls would “reside” with both of them:
The Husband and Wife agree that joint legal custody is in the best interests of the children. The Husband and Wife agree that both parents are fit and proper persons to have joint responsibility for the care of the …children. (emphasis mine)
The Husband and Wife agree that the children will reside with both parents. (emphasis mine)
[76] At the time the agreement was signed, the mother had been a police officer for approximately eight years. While she alleges that she was under significant stress and subject to duress in June and July 2013, the mother indicates in her affidavit evidence that it was her that printed the separation agreement from the computer. She then signed it.
[77] In paragraph 28 of the mother’s November 13, 2014 affidavit, she deposes that she “signed the Agreement providing for joint custody…” because of pressure from the Respondent. Later in the same paragraph, the mother deposes that “I did not understand the custody regime that I was agreeing to.” I find this evidence contradictory.
[78] I do not accept the mother’s submission that the separation agreement as drafted fails to establish that the parties contracted for joint custody of their children. The mother has acknowledged that she signed an agreement which provided for joint custody. In my opinion, on a plain reading of the agreement, the mother and father agreed that joint custody was best for their children and that it was appropriate that they share joint responsibility for the children’s care.
[79] The more difficult issue, as I see it, is the mother’s suggestion that I should disregard the fact that she and the father agreed to joint custody on July 3, 2013 because it has been shown, over the course of the last 18 months, that joint custody is not in the children’s best interests.
[80] The resolution of this issue requires findings of fact as to the parenting and general care of the children both before and since separation. In deciding what is in the children’s best interests going forward, I am required to consider all of the children’s needs and circumstances, including the eight enumerated factors set out in s. 24(2) (a) to (h) in the Children’s Law Reform Act.
[81] For the purposes of this analysis, I am not satisfied that the father’s conduct toward the mother, either individually or collectively with the conduct of Ms. Elke, is relevant to the father’s ability to act as a parent. Nor am I satisfied that this conduct amounts to “violence or abuse” against the mother. Pursuant to s. 16(9) of the Divorce Act and sections 24(3) and (4) of the Children’s Law Reform Act I do not take such allegations into account in this decision.
[82] That is not to say that I do not believe the mother or that I accept the father’s blanket denial of such conduct. I am persuaded that the father has, in the past and perhaps less so recently, acted petulantly and insensitively toward the mother in the pursuit of his own interests. In reviewing all the evidence as to all circumstances over the last 18 months since separation, I am simply not satisfied that the father’s conduct reaches the threshold required (his ability to act as a parent) for it to be relevant on this motion.
[83] I am persuaded that the mother was the primary caregiver for Kennedy and Austyn prior to separation in June 2013. The evidence as to this point is substantial and not directly contradicted by the father. The mother continued to be a primary caregiver to the children for a short period of time immediately following separation. However, it is not disputed by the mother that, beginning shortly after separation, the care and control of the children has been divided more or less equally between her and the father. This is a significant period of time in the lives of these two young girls. The division of care and control of the children over this span of time and how the children have responded to that new regime is directly relevant on this motion.
[84] In that period of time, the father has entered in to a new relationship. His new partner and her daughter reside with him. Ms. Elke has assumed an active role in the lives of Kennedy and Austyn. This has occurred because Austyn and Kennedy reside in their home for alternating four day periods and because of the particular demands of the father’s work schedule. It is logical that this would occur over time. I have no doubt that this has exacerbated the tension and conflict between the mother and the father.
[85] I do not accept the mother’s submission that the father is an “absentee” caregiver, delegating his role to his new partner. On all of the evidence, I find that the mother’s submissions attempt to distort the reality as to the time the father is available to be at home personally parenting Kennedy and Austyn. As noted by the father’s counsel, Mr. Moyer has worked for the C.P.R. since before the children were born. They would have grown to understand his work schedule on a basic level. The father has provided evidence that he is, within certain parameters, able to control his schedule to some extent. It is simply too much of a stretch to suggest that a C.P.R. employee, because of his employment schedule, is not in a position to actively and meaningfully parent his children.
[86] There is little evidence before me to support the proposition that the children have not and are not doing well in the custodial and residential arrangement which has been in place for 18 months. The mother’s affidavits and those filed in support of her position attest to the children being withdrawn and clingy on occasion. There is also evidence that the children have expressed reluctance to be away from the mother and a reluctance to transition to the father’s care. However, such evidence is dated, with the majority of such incidents being shortly after separation, in the fall of 2013 and early 2014. Given the age of the children and the timing of these incidents, I am not satisfied that this is evidence of the children’s views and preferences as to which parent they would rather reside with.
[87] I find that each of the parties has presented a stable home environment for the children over the last 18 months and that each of the mother and father are able and willing to provide for the children’s emotional and physical needs.
[88] Kennedy’s report cards for the 2013/2014 school year and for the fall of 2014 are before the court. To the credit of both parties, Kennedy’s teachers describe her in glowing terms throughout this entire period. As noted by the father’s counsel, there is not a single negative comment about either Kennedy’s behaviour or her academic performance during this time. Examples of some of the teachers’ comments include:
(a) Kennedy has had a fantastic start to Grade one. She is a courteous, happy student who is ready to start each school day with a smile. (November 2013);
(b) Kennedy has had a very successful year in Grade 1. Kennedy is very responsible…very organized…very kind and always treats students of varying abilities with respect. (June 2014);
(c) Kennedy comes to school every day demonstrating confidence…Kennedy takes responsibility for her behaviour at school. She is respectful to all adults…to her peers and other students. (November 2014).
[89] The father and Ms. Elke depose that Austyn has also adjusted and been doing very well over the last 18 months. This is not directly contradicted by the mother.
[90] It is difficult to determine the issues before the court on the basis of voluminous and contradictory affidavit evidence. The focus of the affidavit evidence filed in support of the mother is on the father and Ms. Elke and their alleged conduct toward the mother. There is little substantive evidence to contradict the submission that Kennedy and Austyn have adjusted well to the current situation. These children have been in the care of both parents equally since shortly after separation. The level of conflict and antagonism between the mother on the one hand and the father and his new partner on the other is extremely unfortunate. However, I am persuaded that each of the parties loves their children deeply and that each is able and willing to provide for all of the children’s needs and circumstances while the children are in their respective homes.
[91] I am not persuaded, based on the record before me, that on a motion for temporary relief it is in the children’s best interests to disregard the joint custody agreement of the parties as set out in the separation agreement of July 3, 2013. Nor do I feel it is in the children’s best interests to disrupt the four day rotating schedule of care and control which has now been in place for 18 months.
[92] As requested by the mother, the father not being opposed, an order will issue requesting the assistance of the Office of the Children’s Lawyer. Should the O.C.L. choose to become involved, an investigation will occur and a comprehensive report and recommendations will be provided to the parties and to the court. This, in conjunction with the evidence of the parties at trial, will provide a complete and fulsome review of all the children’s needs and circumstances for the purpose of a final order.
[93] In regard to child support, it has been agreed that the father’s income is $90,000.00 and that the mother’s current income, based on part-time employment without any income being imputed to her is $72,500.00. If income is to be imputed to the mother based on full time employment, it is agreed that her income would be $94,500.00.
[94] The mother has not provided evidence as to when or why her work schedule was changed from full- time, four days on, four days off to part-time, three 12 hour day shifts followed by five consecutive days off. From the evidence before me on this motion, including information as to the mother’s past and current income and her evidence that she now works straight days because her employer is dedicated to accommodate family, I infer that the change in the mother’s work schedule occurred early in 2014. I also infer that it was changed at her request, to accommodate her family circumstances post separation.
[95] In these circumstances, I find that the mother has intentionally chosen to reduce her hours and thus her income. I am persuaded that she is intentionally under employed. Income shall be imputed to the mother as if she was employed on a full time basis. I therefore find the mother’s income to be $94,500.00 for the purposes of this motion.
[96] Given the incomes of the parties, the equal division of care and control of the children and the father’s position on this issue, no child support shall be paid by either party. Qualifying s. 7 expenses shall be shared equally.
SUMMARY
[97] A temporary order shall issue as follows:
Requesting the involvement of the Office of the Children’s Lawyer;
Incorporating the terms of the consent temporary order as filed at the hearing of this motion;
Granting the parties joint custody of the children Kennedy Margaret Moyer, born December 3, 2007, and Austyn Marie Moyer, born August 8, 2011;
Requiring that the parties share care and control of the children on a four day on/four day off schedule;
Requiring the equal sharing of qualifying s.7 expenses;
No order as to child support.
COSTS
[98] The father has been successful on this motion. If the parties cannot agree on costs they shall file written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The father’s cost submissions shall be filed within 14 days of the release of this decision; the mother’s within seven days thereafter.
___”original signed by”
Justice J. S. Fregeau
Date: March 10, 2015
CITATION: Moyer v Moyer, 2015 ONSC 1524
COURT FILE NO.: FS-14-5341
DATE: 2015-03-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kathryn Margaret Moyer
Applicant
- and –
Robert William Donald Moyer
Respondent
REASONS ON MOTION
Fregeau, J.
Released: March 10, 2015
/mls