Editor’s note: Erratum released April 14, 2015. Original judgment has been corrected, with text of erratum appended.
CITATION: D.T. v L.T.2, 2015 ONSC 2062
COURT FILE NO.: FS-11-0360
DATE: 2015-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.T.
Paul Lesarge, for the Applicant
Applicant
- and -
L.T.2
Michael Cupello, for the Respondent
Respondent
HEARD: February 19, 20, and March 3, 4, 9 and 10, 2015, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons for Judgment
Issues
[1] This action under the Divorce Act concerns two issues: access and child support.
[2] The parties agree that the mother, L.T.2, is to have custody of the five children of the marriage. Previously, a temporary order was made for the father, D.T., to have supervised access. The father seeks unsupervised access.
[3] The mother seeks payment of child support and child support arrears.
Access
The Evidence
[4] Eight witnesses testified. Several volumes, including supervised access centre logs and Children's Aid Society (“C.A.S.”) records, were filed as exhibits.
[5] D.T. testified about the marriage breakdown and the access to date. Ronald Slusar, a child protection worker with the Children's Aid Society, testified about his involvement with the family and recommendations regarding access. N.M., D.T.'s current partner, also testified.
[6] Both parties called visit monitors from the access centre, Children's Centre Thunder Bay (CCTB). D.T. called visit monitor Sandee Manella. L.T.2 called visit monitor Betty Perreault. Both testified about the supervised access visits.
[7] L.T.2 also testified about the marriage breakdown, the access to date, and the children's current circumstances. Joe Houlten, a counselor at CCTB testified about his involvement with L.T.2 and the two oldest children. Mr. Holton has aproximately 18 years experience in dealing with the impact of separation and divorce on children. He also testified about the mediation and individual and family counseling services available at CCTB. K.H., L.T.2's niece and babysitter, offered evidence about the family before and after separation.
[8] My summary of the evidence based on the testimony and exhibits follows.
[9] It is necessary to review the details of the marriage and events leading to separation to understand the factors that have affected access to date and that may pose impediments to future access if not addressed.
The Marriage and Events Leading to Separation
[10] D.T. and L.T.2 began living together in 1998. They were married on October 2, 1999. They separated on October 30, 2011. They had five children: T.T.1, born […], 2000; K.T., born […], 2002; L.T.1, born […], 2006; and twins, A.T. and T.T.2, born […], 2008.
[11] At the time of separation, T.T.1 was almost 11. K.T. was 9 1/2. L.T.1 was 5. The twins were 3.
[12] During the marriage, there were issues with finances. At times, D.T. was underemployed but had income from a gravel pit on the property. By his own admission, he abused marijuana and, to a lesser extent, alcohol.
[13] By 2011 the marriage was in difficulty. D.T. suspected that L.T.2 was developing a romantic relationship with C.R.. D.T. discovered information on the family computer suggesting that L.T.2 had been reviewing information about divorce. When D.T. confronted L.T.2 about this she responded that she wanted out of the marriage.
[14] L.T.2, at D.T.'s suggestion, moved to a nearby loft. She slept there but returned early each morning to get the children ready for the day and do what was required of her as a mother. She would prepare dinner for the children and D.T.. When D.T. returned home from work she would go to work in the evening as a personal support worker at BISNO. After her shift, she would pick up one of the children who alternated spending nights with her at the loft. This continued for about four to five weeks.
[15] An incident on October 22, 2011, led to police and CAS involvement. That afternoon D.T. had returned from work and then L.T.2 left for work. D.T. called his stepmother, N., to look after the children so he could go shopping for groceries.
[16] Before N. arrived D.T. spanked L.T.1, then five years-old, for biting K.T.. He described it as one "hit on the bum". He denied striking the children before. When D.T. returned, N. confronted him about the "mark" on L.T.1. She told him that she was calling L.T.2 at work about his treatment of L.T.1 and that she was not leaving until L.T.2 returned.
[17] D.T. related that he had a very difficult relationship with his stepmother N.. He testified that she had abused him and that this abuse resulted in D.T. moving to live with his grandparents. D.T. regarded N.'s actions as undermining his parenting. He said that he reacted to N. that evening by simply going upstairs to get away from her. While upstairs he smoked a "joint" and drank a number of beers.
[18] L.T.2 returned. It was K.T.'s turn to go stay with her mother but T.T.1 also wanted to go. D.T. was opposed to T.T.1 going too. Added to this was the conflict between D.T. and N. about D.T.'s parenting.
[19] While L.T.2, the two oldest girls, N., and D.T. were outside on the way to the vehicles, N. and D.T. continued to argue. D.T. said that N. was screaming at him. He retaliated by saying that he understood why one of N.'s children did not want to have anything to do with her. She responded by lunging at him and grabbing him either by the shirt or throat. She was described as a frail woman who used a walker at times. In turn, D.T. grabbed her hand and twisted it as he removed it. He used sufficient force to break a finger. Subsequently, D.T. was charged with assault causing bodily harm. He pleaded guilty and received a conditional discharge and 12 months’ probation.
[20] This event had a significant and traumatic effect on T.T.1 and K.T. who were present and L.T.1 who witnessed this through a window from inside the house. L.T.2 testified that T.T.1 fled into the nearby woods and had to be pursued to come back. L.T.2 said that T.T.1 said that was "all my fault" implying that this would not have happened had T.T.1 not wished to go with her mother that night. L.T.2 also testified that D.T. asked K.T. for a hug that night but that K.T. responded "how can I hug him after this" from which I infer she meant harming her grandmother. L.T.2 described D.T. as "completely out of control" at the time.
[21] There is another incident of domestic violence arising out of D.T. grabbing L.T.2 by the arm. He pleaded guilty and received a conditional discharge and 12 months’ probation for that incident also. Further, D.T. was charged with forcible confinement and sexual assault as a result of complaints by L.T.2. Those charges were withdrawn by the Crown.
[22] On October 30th, 2011, D.T. confronted L.T.2 about what he believed were "sexts" on her phone. They argued and L.T.2 left with the children, never to return. The criminal charges described above were laid, D.T. was arrested and the CAS was consulted.
Access to Date
[23] D.T. commenced proceedings under the Divorce Act in December 2011. He sought spousal support for himself and resolution of property issues. He did not make any claim for access at that time.
[24] L.T.2 delivered an answer and claim in February 2012 seeking, among other things, custody and child support.
[25] Christmas access for 2011 was resolved on consent on December 22, 2011. The minutes of settlement provided, on a without prejudice basis, that L.T.2 would have temporary custody of the children and that D.T. would have temporary supervised access. The latter provision was made without prejudice to D.T.'s right to argue that supervised access was not necessary. The access was to be supervised by a friend with whom D.T. was living at the time. Access to T.T.1 was subject to her wishes. Access was ordered for December 24 and 28, 2011, and for January 2 and 6, 2012. The parties were to return for a case conference on January 9, 2012.
[26] Unfortunately there were issues on the January 2, 2012, access visit. The particulars are set out in the endorsement of Justice Pierce dated January 26, 2012, as follows:
The parties entered into an interim agreement to have Christmas access supervised by a third party, who is his surety in connection with criminal charges that are pending involving the wife as a complainant. The father is on an undertaking that he not have contact with the mother except through a third-party to arrange access. On January 2, 2012 the father entered the mother's van during an exchange of the children despite his surety's warning to stay in the house. The surety states "I cannot control D.T.'s actions or his words." Consequently, I am not satisfied these individuals are suitable to supervise access, despite their good intentions. I am also of the view that access should be supervised in light of the pending criminal charges and the father's propensity to involve the children in adult issues..... Therefore, access shall be supervised on a interim basis… at the Supervised Access Facility.
[27] The CAS child protection worker, Ron Slusar, had provided a report dated January 6, 2012, to L.T.2, which stated:
As a result of the Society’s investigation, concerns regarding domestic violence have been verified. The Society is of the opinion that such incidents of violence pose a risk of harm to the children as named above.
The Society has addressed these concerns with you and D.T. as well as provided information on recommended community supports. This is intended to assist both parents to address concerns and minimize risk to the children by developing a more positive and cooperative relationship which is focused on meeting the children's needs and avoiding further conflict within the adult relationship.
As there continues to be ongoing concerns regarding D.T.'s behavior in his contact with yourself and the children, it is recommended that the supervised access program be utilized.…
[28] Supervised access began at CCTB in August or September 2012. T.T.1 did not wish to attend and only attended one session in the fall of 2013. K.T. stopped going in October 2013. Previously in the fall of 2012, K.T. had some difficulty in attending. Although brought to the visits by her mother, K.T. would change her mind and refuse to see her father. The visit monitors recorded K.T. saying such things as "I can't do this" and "I 'm just not ready". L.T.1 stopped attending in April 2014. A.T. stopped attending in July 2014. Ty stopped attending January 25, 2015.
[29] It was D.T.'s position that L.T.2 was acting deliberately to discourage the children from attending the supervised access visits. However, both visit monitors from the Children's Centre and the counselor who treated T.T.1 and K.T. did not observe anything to support this position. The visit notes confirm that L.T.2 would bring the children and encourage them to visit D.T. and that L.T.2 was dealing with the children as instructed by the counselors.
[30] The access centre records show that 144 visits were scheduled. 46 of those visits were canceled with D.T. responsible for slightly more cancellations than L.T.2. D.T. testified that some of the cancellations related to health issues suffered by his new partner and her evidence confirmed this.
[31] In 2013, D.T. asked the CAS to reevaluate its position regarding supervised access. Ron Slusar, child protection worker, advised by letter dated October 18, 2013, that the Society would not oppose D.T.'s request for unsupervised access. Mr. Slusar testified that the Society changed its position because D.T. had completed the "Caring Dads" and the "First Step” (PAR) Program at the Catholic Family Development Center. In the same letter, Mr. Slusar encouraged D.T. to "continue to explore community counseling supports to assist you in your efforts to help your children adjust to current family dynamics and roles."
[32] Subsequently, D.T. brought a motion for unsupervised access which was heard June 26, 2014. At that time this action was on the September trial list and Platana J. concluded that a change in access was not in the best interests of the children given that the trial was then two months away.
[33] Therefore, by the time this action came on for trial D.T. had seen T.T.1 once in three and a half years. He had not seen K.T. for a year and a half. He had not seen L.T.1 for almost a year and A.T. for seven months. The last time he saw any of his children was his visit with Ty about a month before trial.
The Parties’ Current Circumstances
[34] Except for the access and child support issues, D.T. and L.T.2 appear to have moved on.
[35] D.T. has a new partner, N.M.. They had been cohabiting since September 2012. Ms. N.M. is a financial services representative with the CIBC. She has had some significant health issues over the last few years which have required surgery. Last year, she was unable to work and was on long-term disability. Although she is doing well at present her prognosis is guarded. She has one son, Taylor, 18, who is a full-time co-op student with the Lakehead School Board. Taylor lives with D.T. and Ms. N.M. in a two bedroom home in Thunder Bay. Ms. N.M. testified that they have sufficient room to host D.T.'s children occasionally. They have bunk beds, a pullout couch, and she said that D.T. is working on a "Murphy" bed.
[36] D.T. testified that he has learned a lot from the programs he has attended. D.T. acknowledged that he was different when he used to "smoke pot". He admitted that he was an abuser of marijuana and testified that he has not used drugs since October 28, 2011. D.T. told the Court that his current partner, Ms. N.M., is "dead set against drugs". D.T. further testified that he seldom drinks alcohol.
[37] Some of D.T.'s assertions have to be measured against what others have said about him and his conduct. The report from the Caring Dads program recommended that D.T. needed continued work in the areas of accountability and responsibility for past behaviors. Ron Slusar, who did the reports for the CAS, had similar concerns. On his initial contact with D.T., he found that D.T. was angry and that he did not accept responsibility for the incident involving N.. He blamed N. and described her as a "monster". He testified that D.T. was fixated on portraying N. as an "evil woman who was poisoning his kids." D.T. advised the CAS worker that the children were afraid of N.. Mr. Slusar testified that the children did not express any concerns regarding N. to him. In cross-examination, D.T. stated that he felt no remorse for harming N.. Mr. Slusar’s observations were not challenged.
[38] Although not relevant to the access issue, L.T.2 asserts that D.T.'s behavior with respect to his child support obligations demonstrates his failure to be accountable for his own actions. Notwithstanding a clear order regarding payment of support, D.T. paid what he chose to pay. Further, he made no payments in the last year claiming that he did not like to have to pay child support by attending at L.T.2's lawyer's office. D.T. did not make any attempt to vary the prior support obligations or the manner of payment. Although capable of paying at least something, D.T. chose to pay nothing.
[39] L.T.2 has also moved on. She and C.R. started to cohabit in February 2013. She and C.R. have two children: aged 2 and 2 months. C.R. is employed with an environmental company that works in the oil industry. He works three weeks in Alberta and then returns home for ten days. L.T.2 has given up her job as a personal support worker and is concentrating on raising her seven children. L.T.2 presents as a conscientious and protective mother. She testified that she believes that the children should have an opportunity to have a relationship with their father.
The Children Since Separation
[40] It is unfortunate that, although requested, the Office of the Children's Lawyer chose not to become involved. It would have been helpful to have the children represented.
[41] On the evidence, despite the circumstances, the children are doing well.
T.T.1
[42] T.T.1 is fourteen. She is in grade nine and taking advanced classes. L.T.2 expressed pride in T.T.1's academic achievements. L.T.2 said that T.T.1 is well connected with her teachers. She describes her as a "wonderful, very mature sweetheart" who always thinks about family.
[43] Ron Slusar, of the CAS, met with T.T.1 and K.T. within a few weeks of the incident involving their grandmother, N.. He testified that T.T.1 was quite upset by this incident. He noted that T.T.1 expressed distress over D.T. calling L.T.2 "bad names" and was frightened by D.T. grabbing and injuring her grandmother's fingers.
[44] Five months later T.T.1 was still so distressed that her school contacted the CAS. The school social worker advised the CAS that T.T.1 was fearful of her father and concerned that her father might come to the house and take her or her siblings away. The social worker's assessment was that T.T.1 continued to be impacted emotionally as her sense of safety was affected. It was reported that she had nightmares.
[45] T.T.1 did not attend any of the supervised access visits except the visit of September 8, 2013. She did not interact very much with her father. At one point D.T. said to her "you cannot even look at me when you talk." According to the visit monitor, T.T.1's face reddened but she said nothing. The visit monitor observed T.T.1 trembling. After the visit T.T.1 spoke to the visit monitor and said that she felt insulted when her father said that to her. She told the visit monitor that she wanted her father to say that he was sorry for how he treated her in the past. She also said that she was worried about her father making broken promises to the younger children.
[46] D.T.'s view of this incident was that T.T.1 did not want to talk to him because she was ashamed that she had lied about him.
[47] By December 2013, L.T.2 had referred T.T.1 for counseling at CCTB. T.T.1 was treated by Joe Houlton (MSW, RSW) beginning December 2013. He defined the presenting problem as follows:
T.T.1 reported the need to talk with someone regarding the impact of her parent's separation which was compounded by a recent supervised access visit with her father. T.T.1 had refused to attend all visits prior to this. At this visit, she described an immense amount of anxiety, and a great deal of disappointment regarding her father as she reports feeling dismissed by him. She states that she will no longer attend these visits. T.T.1 described being witness to domestic abuse, and recalled situations in which her father had harmed her grandmother (broke her finger), sister (spanking), and herself (been locked in a closet, yanked her wrist). She states her father was an alcoholic, and she was often responsible for taking care of her siblings due to his incapacity.
[48] In counselor Houlton's opinion, T.T.1 had made the decision not to see her father in a very responsible, balanced manner by weighing the advantages and disadvantages of further contact. He described T.T.1 as being very worried about her siblings and he testified that T.T.1 said that she did not want her siblings to go through what she had experienced. From her perspective, she did not feel that her father took responsibility based on her sense of what is right and what is wrong.
[49] Counselor Houlten described T.T.1 as somewhat "parentified" meaning that, on her own, she would take on a parental role with respect to her younger siblings. It was his opinion that T.T.1 was not influenced by any adult and that she was not a "mouthpiece" for her mother.
[50] Although the counseling was helpful in providing T.T.1 with strategies to alleviate some anxiety, T.T.1 continued to be concerned. In March 2014, she called the CAS asking questions about the Office of the Children's Lawyer. Those CAS notes indicate that T.T.1 had been doing some research on her own, that she was worried about her younger siblings who had nightmares, and that she was worried that her younger siblings would have to see their father unsupervised. That prompted the CAS worker to call L.T.2 to review T.T.1's situation.
K.T.
[51] K.T. is twelve and in grade seven. Her most recent report card confirms that she is doing very well. Her teacher describes her as a "truly a special child whose ability to collaborate with others and her desire to achieve will serve her well in the future.” She is musical and plays guitar with C.R.'s father.
[52] Prior to her parents' separation, K.T. was diagnosed with ADD. L.T.2 and D.T. took the Triple P program at CCTB in early 2011 to help them deal with this challenge. Subsequently, K.T. started on medication and has improved significantly.
[53] D.T. regards K.T. as his favorite, perhaps because he also has ADD. K.H. confirmed that K.T. was D.T.'s favourite.
[54] Mr. Slusar, who investigated on behalf of the CAS shortly after separation, noted that K.T. missed her father but was upset by the conflict.
[55] As noted, when supervised access began in the fall of 2012, K.T. had some difficulty in committing to see her father in supervised access.
[56] The September 8, 2013, supervised access visit involving T.T.1 seems to have also caused some distress for K.T. too. She stopped attending supervised access in October 2013.
[57] At L.T.2's suggestion, K.T. also saw counselor Houlten at CCTB between February and May 2014. Mr. Houlten related that K.T. loves her father but was concerned over mixed messages from him. Mr. Houlten said that it was her impression that her father lacked appreciation for his behavior. The closing notes indicated that K.T. was concerned over her father's differential treatment of the children and moved from anger, to worry for the younger siblings and on to acceptance.
L.T.1
[58] L.T.1 is eight and in grade three. Her mother describes her as the comedian in the family but says that she is also very emotional. L.T.2 says that L.T.1 gets worried when people do not "follow the rules."
[59] Her teacher describes her as "positive and friendly" and that she "arrives each day with a smile." Her marks are very good.
[60] L.T.1 stopped attending supervised access in mid-2014. Although L.T.2 brought her to the visit, she refused to see her father then and told the visit monitor that she was upset by her father speaking about the children visiting with his new partner at the last visit.
[61] L.T.2 testified that she spoke to the staff at CCTB and to Mr. Houlten about strategies to encourage the children to attend and followed their recommendations but was unable to persuade L.T.1 to re-attend.
A.T. and Ty
[62] A.T. and Ty are six. According to L.T.2, they are inseparable. They are both in grade one but in a separate classes as the teachers felt that this would be best for them. A.T. is in a straight grade one class and Ty is in a grade one/two split.
[63] L.T.2 described A.T. as having a strong personality and said that she is loved by her teachers. Her teacher described her as a "wonderful girl to teach". L.T.2 testified that Ty is a really energetic boy who is doing well at school. This is confirmed by his report card. The twins share what they have learned with each other at the end of the day.
[64] According to L.T.2, A.T. stopped supervised access visits because she was afraid that her father was going to take her away and not bring her back. L.T.2 explained that this would not happen. Ty also stopped going. L.T.2 called Mr. Houlten for advice again regarding Ty. At his last access visit, Ty slid down against a wall and refused to move.
Positions of the Parties
[65] D.T. seeks immediate unsupervised access. He proposes that, initially, he would have the children from noon until 6 pm on Saturday and Sunday on alternate weekends. After his fourth access visit, he would have the children from Friday afternoon after school until 6 pm Sunday on alternate weekends. He proposes that access to T.T.1 and K.T. would be at their option.
[66] L.T.2 does not oppose access but seeks the assistance of CCTB to reintroduce access through individual and family counseling and a gradual transition from supervised to unsupervised access as directed by CCTB. Specifically she proposes that:
A) all five children are to first begin individual counseling through Mr. Houlton and/or other counseling staff at CCTB;
B) D.T. and L.T.2 may also seek out individual counseling;
C) family counseling will start between the children and D.T. when Mr. Houlton recommends this based on participation level of both D.T. and the children;
D) that the parties utilize the family mediation service of Mr. Houlton through CCTB to develop a plan for access and reconnection between each child and D.T.. The goal is that the access plan for each child is to be child focused and would ensure a better outcome during access visits with a view to transitioning to unsupervised access;
E) that the parties use the supervised access centre until recommendations for unsupervised access can be made;
F) that D.T. complete a parenting capacity assessment through CCTB and that this report be disclosed to the family mediator and to the Court;
G) that the Court order the appointment of the Office of the Children's Lawyer to prepare a report with respect to how access should be structured for each child; and
H) that the Court remain seized of this matter and that parties attend before the Court in six months to review the progress of access at that time, and, to determine whether unsupervised access is appropriate at that time.
The Law
[67] The Divorce Act, R.S.C., 1985, c. 3, provides:
- (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.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Factors
(8) 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 condition, means, needs and other circumstances of the child.
Past conduct
(9) 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.
Maximum contact
(10) 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.
[68] The application of the best interests test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3. McLachlin J. (as she was then) stated that the “best interests” test is the only test and the test is, necessarily, broad. The only specific factor that the judge must consider is the “maximum contact” principle set out s.16 (10) (para. 201-204).
[69] Section 24(2) of the Children's Law Reform Act, RSO 1990, c. C.12, also provides helpful guidance:
Best interests of child
(2) The court shall consider all the child’s needs 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 lived 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.
Past conduct
(3) 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.
Violence and abuse
(4) In assessing a person’s 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.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[70] Indefinite supervised access that does not provide for transition to unsupervised access or for a fixed review date should be ordered only in rare circumstances. See for example Merkand v. Merkand, [2006] O.J. No. 528 (C.A.).
[71] Trial judges have broad discretion in making orders for access, supervised access and the transition from supervised access to unsupervised access.
[72] In V.S.J. v. L.J.G., [2004] O.J. No. 2238 (S.C.), Blishen J. observed:
[140] In my view, supervised access, whether short, medium or long term, should always be considered as an alternative to a complete termination of the parent/child relationship. Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O’Laughlin, supra; Worthington v. Worthington (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra. If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be viable option. See Pavao v. Pavao, supra; Gorgichuk v. Gorgichuk, supra.
[73] In V.S.L, Blishen J. ordered that the father's access continue to be supervised, that the father undergo psychological or psychiatric assessment, and the father follow any treatment recommended. Further, the order stated that, prior to any further motion to change access, the father was to provide to the mother the assessor's report and a status report from the therapist regarding treatment. Blishen J. further recommended that any further motions to change access were to be brought before her.
[74] In Lidder v. Lidder, [2009] O.J. No. 2896 (S.C.), Price J. ordered supervised access to continue without prejudice to the father's right to reapply for variation following completion of an anger management program and a parenting program. The court further ordered a referral to the Office of the Children's Lawyer.
[75] In Hayes v. Goodfellow, 2011 ONSC 6556, McKinnon J., after trial, found that the parents had important work to do to improve their situation for their child's sake and therefore ordered the parties and the child to undergo counseling. She found that an equal access living arrangement was premature at that time. However, she ordered that she was to remain seized of the case and that the arrangements imposed by her order could be reviewed by her after counseling had been completed.
Analysis
[76] I conclude that it is in the children's best interest to have a relationship with their father. This is keeping with the “maximum contact” principle under the Divorce Act. Although troubling, I do not find that the prior domestic violence and abuse should deprive the children of the opportunity to have a relationship with their father.
[77] However, I also conclude that it would not be in the children's best interests to attempt to reestablish a relationship with their father by starting with unsupervised access immediately. Given the history of access to date and, in particular the refusal of the children to attend access, I conclude that the best strategy to promote a healthy and lasting relationship between the children and their father is a strategy that reintroduces access gradually with involvement of trained professionals. These professionals can work with the parties and the children to attempt to integrate D.T. back into the children's lives. I further conclude that without such professional assistance, access will fail and that setting up for failure is not in the children's best interest, nor in the best interests of either party.
[78] Mr. Houlton, the counselor and mediator at CCTB, testified that such assistance was available through CCTB. This would start like a mediation and involve individual and family counseling.
[79] The evidence does not support the need for the father to undergo a parenting capacity assessment.
[80] While the Office of the Children's Lawyer would have been of assistance at trial, given what I propose with respect to the involvement of CCTB, I concluded that such service would not be necessary.
Custody and Access Plan Ordered
[81] With respect to custody and access it is ordered:
L.T.2 is to have sole custody of the children of the marriage, namely T.T.1 born […], 2000, K.T. born […], L.T.1 born […], 2006, A.T. born […], 2008, and T.T.2 born […], 2008, who will reside with her in the District of Thunder Bay, Ontario.
The parties shall follow the following parenting principles with respect to the children:
a) the parties shall encourage the children to develop a strong and nurturing relationship with both parents.
b) the parties shall not denigrate or undermine the other parent by making derogatory comments to one another or to the children about the other parent, nor will the parties allow other individuals to do so.
c) the parties shall not speak to or speak in front of the children in a critical or disparaging way about the other parent.
Communication for the purpose of parenting matters shall be conducted by email. An email address for this purpose will be provided by each of the parties along with home phone numbers in case of emergency.
D.T. shall be entitled to receive copies of school reports and such medical/dental records with respect to the children as he requires, at his cost.
Subject to the direction of the assessors at Children's Centre Thunder Bay, the parties are each to attend for individual counseling, the primary purpose of which will be to facilitate access.
After individual counseling the assessors at Children's Centre Thunder Bay shall determine whether family counseling is appropriate to attempt to reintroduce the father's access to the children. If so, family counseling is to be arranged.
Access to the children by the father is to be supervised at Children's Centre Thunder Bay but may transition to unsupervised access as recommended by Children's Centre Thunder Bay.
Following completion of individual counseling and family counseling, if family counseling is directed, either party may seek to change this order on application before me, and upon delivering reports summarizing the individual and/or family counseling.
T.T.1's participation in access will be at her option.
Any costs associated with counselling for the parties shall be borne by that party. Any costs associated with family counseling shall be split equally between the parties.
I am to remain seized of this matter for a period of one year.
Child Support
Facts
[82] In her answer and claim, L.T.2 sought child support retroactive to the date of separation, November 1, 2011.
[83] On September 20, 2012, an interim, interim order for child support payable to L.T.2 was made for $1,018 per month based on Mr. D.T.'s imputed annual income of $38,000. The basis of that imputed income was correspondence from Mr. D.T.'s then lawyer dated July 24, 2012. This order provided that the amount of support was subject to variation, without proof of material change, upon receipt of further income information for Mr. D.T.. Mr. D.T. testified that he did not authorize his prior lawyer to agree to impute income at this amount. Although aware of the correspondence and the order, Mr. D.T. did not move to change the interim, interim order.
[84] Based on exhibits filed at trial, Mr. D.T.'s reported annual income was $27,605 in 2012, $21,967 in 2013, and $23,326 in 2014.
[85] In his financial statement filed a trial, Mr. D.T. affirmed that he had been employed by H. […] Enterprises since August 2014 and that his income was $4,730 monthly or $56,760 annually.
[86] Notwithstanding the interim, interim order Mr. D.T. never paid $1,018 monthly. For a time he paid $800 per month. Sometimes he paid $850 and once he paid $700. He testified that he paid what he thought he could afford. Further, Mr. D.T. did not make any payment at all from December 2013 to date of trial (15 months). He testified that he did not like the humiliation of having to attend at his wife's lawyer's office to make these payments. He admitted that he did not make any attempt to change the manner of payment. Counsel agreed that Mr. D.T. has paid $13,150 toward support since separation.
The Positions of the Parties
[87] Mrs. L.T.2 seeks retroactive child-support based on the father's actual income as reported on his income tax returns from November 2011 to the date of the interim, interim order. She also seeks arrears for the amounts owing under the interim, interim order from September 20, 2012, to August 2014. Thereafter, she seeks support based on Mr. D.T.'s income as disclosed in the financial statement going forward.
[88] Mr. D.T. seeks to have the arrears calculated based on his average annual income for 2012, 2013, and 2014 and seeks rescission of the arrears. Mr. D.T. argues that the support should be payable from January 1, 2012, to March 1, 2015, at $571.23 per month based on an average annual income of $23,342.07 for total support obligation of $22,277.97. I arrived at a different average annual income of $24,299 for which the guideline amount would be $612 monthly. Using that calculation the total owing under this theory would be $23,868.
[89] Mr. D.T. relies on Difrancesco v. Couto, [2001] O.J. No. 4307 (C.A.) and, in particular, para. 23 with respect to rescission of arrears:
[23] The decision to rescind arrears involves consideration of a variety of factors. In Filipich v. Filipich (1996), 26 R.F.L. (4th) 53, this court noted that some of the factors a court may consider are set out in Gray v. Gray (1983), 32 R.F.L. (2d) 438 (Ont. H.C.J.) at p. 441. They are as follows:
(1) the nature of the obligation to support, whether contractual, statutory or judicial;
(2) the ongoing financial capacity of the respondent spouse;
(3) the on-going need of the custodial parent and the dependent child;
(4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;
(5) unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and
(6) where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.
Analysis
[90] Only factors (2) and (5) from Difrancesco are relevant in this case. There was no evidence led to allow me to assess the ongoing need of the custodial parent and the dependent children. On one hand, we have actual returns confirming income. On the other, we have an unreasonable and unexplained delay of over two years in seeking to change the interim, interim order.
[91] However, the court in Difrancesco also stated at para. 25:
Mr. Couto's apparent failure to make any voluntary efforts at compliance is a factor that militates against even partial rescission of arrears at this time. Wilful non-compliance with the terms of a support order should not be condoned or rewarded by the court. [Emphasis added]
[92] If I recalculate the support and arrears to reflect Mr. D.T.'s actual income then the amounts to be paid for support for the children will be reduced. The custodial parent with five children with a support order has a right to plan and budget on the basis of that order being honoured unless otherwise varied. Although unfair to Mr. D.T., he had the ability to move to change the interim, interim order but chose not to.
[93] In the circumstances, I conclude that it is appropriate to begin by calculating the arrears based on the interim, interim order and not the actual income so as to not adversely impact the financial circumstances of the custodial parent with five children.
[94] Therefore, the arrears are calculated as follows:
From November to December 2011, based on income of $11,034 the guideline amount is $103. For two months that equals $206.
From January to September 2012, based on income of $27,605 the guideline amount is $760. For nine months that equals $6,840.
From October 2012 to July 2014, based on the interim, interim order the monthly amount is $1,018. For 22 months that equals $22,396.
From August 2014 to and including March 2015, based on Mr. D.T.'s recent financial statement, based on income of $56,760 the guideline amount is $1,465. For eight months that totals $11,720.
[95] The total amount that should have been paid on these calculations is therefore $41,162.
[96] The support paid totals $13,150, leaving an outstanding balance of $28,012.
[97] Counsel for Mrs. L.T.2 holds the proceeds of the sale of the matrimonial home in trust. It is agreed by the parties that Mr. D.T.'s share of the proceeds are to be applied to the outstanding arrears. Mr. D.T.'s share of the proceeds is $12,465.16 and therefore Mr. D.T. is entitled to a credit for that amount leaving a balance owing on arrears of $15,546.84.
[98] To reflect the fact that Mr. D.T.'s actual income was less than the court found on an interim basis, I order that the further outstanding arrears are reduced by one half to $7,773.42. This adjustment recognizes that Mr. D.T. had an obligation to come to court and change the interim, interim order and must bear responsibility for not doing so.
[99] I may be spoken to with respect to any computational errors by appointment arranged through the trial coordinator within 10 days from the release of these reasons.
[100] I find that the child support payable by D.T. to L.T.2 going forward is $1,465 per month based on the annual income of $56,760 as disclosed in Mr. D.T.'s financial statement.
Child Support Order
[101] With respect to child-support it is ordered that:
Commencing April 1, 2015, the applicant shall pay child support for the children of the marriage, T.T.1, born […], 2000; K.T., born […], 2002; L.T.1, born […], 2006; and twins, A.T. and T.T.2, born […], 2008, to the respondent in the amount of $1,465 per month based on the annual income of the applicant of $56,760 in accordance with the Child Support Guidelines (Ontario).
For so long as child support is payable, the parties shall exchange annually a copy of their respective income tax returns and notices of assessment by June 1st each year, commencing June 1, 2015, and child support payments and contribution to s. 7 expenses shall be adjusted as of June 1 annually based on their incomes in accordance with the Child Support Guidelines. For the purpose of these expenses, the applicant's income shall be $56,760 and the respondent's income shall be nil at present.
In the event that either party has a change in employment income, they shall forthwith notify the other party in order to determine the appropriate amount of child support and any contribution to s. 7 expenses.
The parties shall maintain the children as beneficiaries of any extended benefits for medical, dental or other benefits provided through their employment.
Arrears for child support are fixed at $20,238.58 and, on consent, funds held in trust by counsel for the respondent representing the applicant's share in the proceeds of the matrimonial home in the amount of 12,465.16 are to be transferred to the respondent leaving the balance of the arrears owing by the applicant in the amount of $7,773.42.
The arrears in the amount of $7,773.42 shall be paid at the rate of $350 per month until paid.
Conclusion
[102] Judgment shall issue for custody, access, and support as outlined in paragraphs 81 and 101 of these reasons.
Costs
[103] If the parties are unable to agree on costs they may, within 15 days from the date of release of this judgment, contact the trial coordinator to arrange an appointment to speak to costs. Five days in advance of the cost hearing the parties are to exchange cost outlines and written submissions on costs of no longer than three pages.
___”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: March 30, 2015
CITATION: D.T. v L.T.2, 2015 ONSC 2062
COURT FILE NO.: FS-11-0360
DATE: 2015-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.T.
Applicant
- and –
L.T.2
Respondent
REASONS FOR JUDGMENT
Newton J.
Released: March 30, 2015
/cs
CITATION: D.T. v L.T.2, 2015 ONSC 2062
COURT FILE NO.: FS-11-0360
DATE: 2015-04-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.T.
Paul Lesarge, for the Applicant
Applicant
- and -
L.T.2
Michael Cupello, for the Respondent
Respondent
HEARD: February 19, 20, and March 3, 4, 9 and 10, 2015, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Erratum to Reasons for Judgment
Issues
[104] Further to my Reasons on Motion, released on March 30, 2015, paragraph 101 sub 1 shall be deleted and replaced with the following:
[101] With respect to child-support it is ordered that:
- Commencing April 1, 2015, the applicant shall pay child support for the children of the marriage, T.T.1, born […], 2000; K.T., born […], 2002; L.T.1, born […], 2006; and twins, A.T. and T.T.2, born […], 2008, to the respondent in the amount of $1,465 per month based on the annual income of the applicant of $56,760 in accordance with the Child Support Guidelines (Ontario).
_
The Hon. Mr. Justice W.D. Newton
Released: April 14, 2015
CITATION: D.T. v L.T.2, 2015 ONSC 2062
COURT FILE NO.: FS-11-0360
DATE: 2015-04-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.T.
Applicant
- and –
L.T.2
Respondent
ERRATUM TO REASONS FOR JUDGMENT
Newton J.
Released: April 14, 2015
/cs