CITATION: Palomeque v. Escorcia, 2015 ONSC 2493

COURT FILE NO.: 1318/12

DATE: 2015/04/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jackeline Palomeque

Robert Cunningham, for the applicant

Applicant

• and –

Oscar Escorcia

Tom Granger, for the respondent

Respondent

HEARD: March 26, 2015

Raikes, J.:

Overview

1The applicant, Jackeline Palomeque, and the respondent, Oscar Escorcia, lived together for two periods in a common-law relationship. The first period was from January, 2006 until October, 2008. The second was from early March, 2011 until November, 2011. Their relationship ended in November, 2011.

2The applicant and respondent are the biological parents of two children, Gabriela and Rudy. Gabriela is eight years old and Rudy is six years old. Both children have resided with their mother, the applicant, since birth. During their cohabitation, the applicant was a stay-at-home mom. She has been the sole caregiver for her children throughout their lives.

3The trial of this matter addressed custody, access, ongoing and retroactive child support, extraordinary expenses, the provision of medical and health benefits, and mobility of the children to travel outside of Canada with the applicant. The applicant seeks an order that:

1. The applicant have sole custody of the children;

2. The applicant be free to obtain an updated passport and the requirement that the respondent sign the passport be dispensed with;

3. The applicant be permitted to travel with the children without the consent of the respondent;

4. The respondent have supervised access through Merrymount Children’s Centre for two hours on alternate weeks with the day of the week and times of access to be agreed between the parties or by further court order. Access to be reviewed by the court one year from the date of this decision;

5. The respondent pay child support commencing April 1, 2015 in the amount of $895 per month based on his 2014 income of $60,196;

6. The respondent pay retroactive support covering the period September 1, 2012 to March 31, 2015 in the amount of $13,212;

7. Child support be adjusted annually based upon updated disclosure of the respondent’s income;

8. The respondent contribute to the extraordinary expenses of the children in accordance with child support guidelines; and,

9. The respondent maintain the children on his medical and health benefit coverage available through his employer or union as the case may be.

Facts

Applicant

4The applicant, Ms. Palomeque, is 28 years of age. She was born in El Salvador and emigrated to Canada in 1996 at age 9. She has lived in Canada since then. She has resided in London, Ontario for the past 18 years. Her mother, four brothers, one sister and various aunts, uncles and cousins also live in the London area. Her father presently resides in Virginia, USA. She has other aunts and uncles who also live in the United States. She testified that one of the reasons why she wants to obtain passports for her children is to allow her to visit her father and other family in the USA. She denied any desire or intent to return with her children to El Salvador.

5The applicant has her grade 12 diploma and has completed one year in the RPN program at Fanshawe College. She has started the PSW program but has not yet finished that program. She intends to return to school in September, 2015 to finish the PSW program. In January, 2012, the applicant’s source of income was Ontario Works. She received that support between January, 2012 and February, 2013. In 2013, she started working. She returned to Ontario Works and has been receiving those benefits since October, 2013. She presently expects to start employment on a full-time basis with Food Basics in London in May 2015, which employment will carry her to the start of the school year in September, 2015. As mentioned, she expects to return to school at that time.

Respondent

6The respondent, Oscar Escorcia, is 33 years old. He was born in Nicaragua. He first came to Canada in 1996 with his mother, brother and sister. He had a disagreement with his mother and returned to Nicaragua. He came back to Canada in 2005 and, with the help of his mother, was able to stay. Initially, he was here illegally. He applied for and was ultimately granted landed immigrant status. He testified that he intends to apply for citizenship but has to wait five years to apply.

7The respondent has a grade 4 education which he obtained while in Nicaragua. Since returning to Canada, he has worked in various construction jobs as a general labourer. He strikes me as a hard-working individual who wishes to be a good provider for his family, including his children and mother.

8In October, 2008, the applicant and respondent were involved in an incident of domestic violence. The respondent was charged and pleaded guilty to a charge of domestic violence with a weapon (a knife). He was sentenced to 90 days jail time. In this trial, he testified that he pleaded guilty to get away from the applicant who was harassing him and that events were different than those to which he pleaded guilty. I do not believe him. It also concerns me that instead of accepting his past, he wishes to reinvent it.

Access with Children

9The parties have two children, Gabriela and Rudy. The respondent has had very limited access to the children since final separation from the applicant. The applicant testified that between October, 2008 and February, 2011, the respondent had almost no contact with his children. He came to her home usually in the middle of the night after he had been drinking. She refused him access on those occasions. The respondent testified that he did come to her home to see the children at night after he had been drinking but claimed he did so only because he received calls from her telling him that if he wanted to see the children he had to come then. Frankly, I find the respondent’s evidence on this point to be not credible and prefer the evidence of the applicant.

10After their final separation, the respondent had limited contact with the children between December, 2011 and April, 2012. They visited with him on an unsupervised basis for a couple of hours. It is not clear from the evidence whether that access was every week or not. In any event, the applicant testified that she stopped access by the respondent to the children in April, 2012 after her daughter reported that the respondent had hit Rudy with a belt. The applicant also testified that she had concerns about the quality of the access that her children were having with their father given reports by her daughter that the respondent was consuming alcohol which he called “apple juice”, and bruise marks found on Rudy.

11The respondent denies that he struck Rudy with a belt but does admit that on one occasion, when Rudy was doing what he had been told not to do, the respondent hit him on his diaper. He denies any other occasions of striking his children. He testified that Rudy hurt himself jumping from bed to bed during a visit which left some bruises but these bruises were not the result of any discipline by the respondent.

12The respondent is now in a new relationship although they are not presently residing together. He has a 17 month old daughter, Catolina, from that relationship. He testified that he cares for that daughter frequently on his own. He takes her to doctor appointments and spends time with her.

13The respondent has had limited visitation with Rudy and Gabriela through Merrymount Children’s Centre. These visits are supervised with the Centre’s staff sitting 3-4 feet away from the children. As part of that access, he is not permitted to discuss any issues he may has with the applicant; he cannot use his cell phone; and, he is not permitted to speak Spanish to the children – everything must be in English so that the workers can ensure that the rules are being followed.

14The child access visits through Merrymount began in 2013. They were for 2.5 hours every other weekend on Sundays as agreed with the applicant. The applicant has cancelled some appointments and asked that days be switched to accommodate children’s activities, for example, Gabriela’s Spanish classes. This has proven problematic for the respondent who works in construction. Simply put, his employer will not and does not accommodate his parenting schedule. Sundays are the only consistent day that he can reasonably expect to be available for visits.

15This matter was commenced by Application issued August 22, 2012. The respondent made no payments of support for the children after separation and before this application was issued even though he was employed for most of that time period. He filed a sworn Financial Statement dated November 5, 2012 in which he left the income section blank. He attached his 2010 and 2011 Tax Assessments which show gross income of $45,988 and $48,744 respectively. He also attached a Service Canada statement of employment insurance payments which he was receiving in 2012 covering the period July 15 through October 27, 2012 inclusive. He was then receiving $852 bi-weekly.

16The respondent is currently a member of a union. He is employed by Concrete Forming. He works 44 hours per week on average. He sometimes stays late as required. He is sometimes laid off when the weather is too cold for concrete work to be done. If he does not work during such weather, he does not get paid. Likewise, if the lay-off is longer in duration, he must apply for EI benefits.

17In November, 2012, the respondent was then on EI benefits and that fact clearly influenced the support which was ordered by Justice Mitrow in the amount of $371/month. That amount was based on his estimated annualized EI income of $24,862. The order also provided that he was to advise the applicant within 10 days of receiving other sources of income beyond employment insurance, and that he provide supporting documentation such as a pay stub. He started back to work in May, 2013 and has been working steadily since then.

18The respondent earned the following gross income before deduction of union dues:

2012- $39,920

2013- $50,301

2014- $60,196 ($63,454 including $3,257 in RRSP income).

19His 2015 pay stubs show that he makes approximately $1,295 gross weekly pay; that annualizes to approximately $67,340.

20The respondent failed to pay the child support ordered by Justice Mitrow and significant arrears built up. He admitted that that was a mistake. The applicant was not letting him see the children so he decided not to pay rather than to address her conduct by motion. A Consent Endorsement Request was signed by the parties and an order made by Justice Leach dated December 10,2013 by which the respondent was to pay ongoing support of $371 per month and $229 per month for arrears. He did not do so and a further order was made by Justice Leach on April 30, 2014 that the respondent pay $371 per month and arrears of $800 per month until the arrears were paid in full.

21The respondent has paid up all outstanding arrears and has been paying the monthly support fixed at $371. That amount is based on very different circumstances, i.e. a much lower estimated income. The applicant seeks child support based on his 2014 income in the amount of $60,196, to be adjusted annually in each subsequent year based on the previous year’s gross income as is commonly done. The applicant also seeks retroactive support to September 2012 given that the support paid to date is based on earnings well below what the respondent earned each year.

Benefits Coverage

22The respondent has dependent group insurance benefits through his union. He pays $35/week for that coverage. He signs for the benefits. He is willing to add Ruddy and Gabriela to those benefits but needs some information from the applicant to do so. They are not presently enrolled on the plan.

Travel outside Canada

23With respect to travel by the children out of Canada, the respondent opposes the order sought. He fears that the applicant intends to take the children back to El Salvador, “her country” as she said in her testimony, where her husband currently resides. The applicant married Jose Hernandez in November 2012. He was deported to El Salvador in November 2013. They remain legally married but she denies any contact with him since he was deported. She testified that their marriage was adversely affected by his family and their fights over money. She claims that she has no idea what Mr. Hernandez has been doing since they separated and he was deported. She acknowledges that she continues to have aunts and uncles who still live in El Salvador.

24Counsel for the parties agreed that while U.S. Immigration requires a signed permission note from the non-custodial parent to facilitate entry into the U.S., no such requirement exists for travel to El Salvador. Likewise, once in the U.S., it is unknown whether a note would be required for a flight from a U.S. airport to El Salvador. In short, if the applicant’s request for unrestricted leave to obtain passports for the children were granted, it is likely that she would be able to remove the children from Canada to El Salvador or elsewhere with little difficulty.

Extraordinary Expenses

25There is no evidence of extraordinary expenses. The applicant submits that child support tables contemplate a comparative allocation of responsibility for extraordinary expenses even where there are no such expenses incurred or anticipated. The respondent submits that the parties should address that issue between them if and when they arise. If they cannot resolve the issue, they can bring the matter before the court with attendant exposure to costs.

Positions of Parties

26The applicant submits, inter alia, that:

1. Custody is not in issue. The applicant should have sole custody of Rudy and Gabriela;

2. Access should be supervised for a year through Merrymount given the respondent’s past violent behaviour and the very limited time spent to date with the children. Counsel acknowledges that the respondent completed the Changing Ways programme while in jail but submits that the best interests of the children require a cautious approach especially given his previous indifference and unwillingness to compromise;

3. His ongoing support should be based on his 2014 income as stated above;

4. The respondent should pay retroactive child support based on his reported income for earlier years and notes his unwillingness to pay voluntarily. The retroactive amount is $13,212 as of March 31, 2015;

5. I should not speculate about her intentions for travel with the children. She denies any intent to go to El Salvador. His lack of cooperation will hinder any attempt to travel anywhere outside of Canada with the children, even visits to their grandfather in Virginia; and,

6. There is no dispute with respect to benefits coverage and an order should go in the usual terms.

27The respondent submits, inter alia, that:

1. There is no dispute with respect to custody. The applicant’s request for a final order for sole custody of Rudy and Gabriela should be granted;

2. Likewise, there is no issue with respect to ongoing child support based on his 2014 gross income, to be adjusted annually based on the previous tax year’s reported income;

3. His client will add Rudy and Gabriela to his benefits provided the applicant cooperates and supplies him with the information necessary to complete enrollment;

4. Supervised access is not a long-term solution and the year proposed by the applicant is far too long. The best interests of the children dictate that they be allowed to engage in a normal, unsupervised access arrangement with their father as soon as possible. The custodial parent’s fears and feelings are not determinative;

5. Giving the applicant unfettered discretion to obtain passports for the children and to travel is too great a risk to the respondent’s access to the children; and,

6. Retroactive child support should be reduced here because it will result in hardship to the respondent . I should consider all of the circumstances of the parties and have greater discretion where retroactive child support is sought. The respondent’s new daughter should be considered as part of his circumstances.

28I have already outlined the parties’ position on extraordinary expenses above.

Analysis

29In this section, I will address only those matters in dispute; namely, passports/travel mobility, access by the respondent, retroactive child support and extraordinary expenses.

Passports/Travel Mobility

30I decline the applicant’s request that she be allowed to apply for passports for the two children and be permitted to travel outside of Canada without the permission or consent of the respondent. The children are young such that if the applicant moved with them to another country, they would be unlikely to have the ability to contact their father to make their whereabouts known. The applicant still has significant ties to family in El Salvador including her husband. It may well be that she has no intention to return to that country or to leave Canada; however, she has in the past acted to prevent the respondent’s access to the children. This relief is unnecessary to the applicant’s care of the children. Its denial provides a measure of protection to the respondent from arbitrary denial of access occasioned by a sudden move. It is in the best interests of the children that their relationship with their father be fostered, which will best be accomplished by ensuring that the children’s access is safeguarded.

Access by Respondent

31I am satisfied that the respondent has a sincere desire to re-connect with his children. The issue here is how that can best be accomplished having regard to the best interests of the children. I agree with respondent’s counsel that supervised access is not a long-term solution per Justice Miller in Baldwin v. Baldwin, 2015 ONSC 1743 at paragraph 20. However, I share the applicant’s concern that the respondent’s previous displays of anger and his very limited prior access to his children warrant a cautious approach. Their re-engagement with their father must be carefully nurtured to ensure, to the extent possible, a viable long-term relationship.

32To that end, I find that some period of supervised access is necessary to allow the respondent to re-establish his relationship with the children. He has had very limited and sporadic visitation in the past. It is in the best interests that they first spend time with their father in a safe, supervised environment; one with which they have some past experience. In my view, access should be 3 hours every other Sunday through Merrymount Children’s Centre for a period of 6 months. Provided the respondent attends these access sessions and there are no reported issues by Merrymount evidencing concern with the safety or well-being of the children, the respondent should thereafter be entitled to increasing unsupervised access as follows:

1. Alternating weekends on Sundays from 1 to 4 p.m. for 3 hours for the next 2 months;

2. Alternating weekends on Sundays from 10 a.m. to 5 p.m. for the following 4 months; and

3. Thereafter, alternating weekends on Sundays from 9 a.m. to 7 p.m., and access every Wednesday from 5:30 p.m. to 8:30 p.m.

33In setting these time parameters, I am mindful of the respondent’s work schedule. It is, of course, open to the parties to agree to different times and days, and to expanded periods of access beyond that granted above. I order that the matter be reviewed by the court at the end of 2 years from this date to consider what further access, if any, is warranted if the parties cannot agree between them.

34If supervised access above does not occur or there are concerns expressed by Merrymount, then that part of my order for unsupervised access on an increasing basis should be reviewed by this court on motion brought by the applicant.

Retroactive Support

35In my view, the respondent has enjoyed a support holiday of sorts since May, 2013 when he started his new employment with Concrete Forming. At that point, his income jumped significantly but his support payments did not. The extra amounts he paid in 2014 resulted from his own failure to pay as required which no doubt caused some hardship to the applicant and children. His income in 2013 and 2014 warranted increased support for his children in those years following his employment at Concrete Forming.

36The order of Justice Mitrow took into account the respondent’s then unemployment status which continued until May, 2013. I decline to award retroactive support for the period September 2012 to April 30, 2013 as:

1. The respondent was then unemployed. The amount awarded by the court was fair and reasonable having regard to his then income ;and,

2. The applicant was receiving Ontario Works. Had the respondent paid more at the time, her payments from Ontario Works would have been correspondingly reduced. As it stands now, a retroactive payment will not give rise to a claw back by Ontario Works per the applicant, so that she would actually be better off than if the support had been adjusted in May 2013.

37As for the period between May 1, 2013 and April 1, 2015, I find that it is appropriate to award retroactive child support payable by the respondent as follows:

May 1/13 to December 31/13 -$377/month x 8 months = $2,416

January 1/14 to December 31/14 - $524/month x 12 months = $6,288

January 1/15 to March 31/15 - $ 524/month x 3 months = $1,572.

38The total retroactive support payable is $10,276. The respondent shall pay an initial payment of $676 on May 1, 2015 and thereafter $400 per month until the balance is paid in full. No interest will accrue on the balance payable in recognition that some minor adjustments to these figures may have resulted from the deduction of union dues from his annual income in past years. The amounts payable shall be deducted by FRO unless the parties agree otherwise.

39I am not satisfied on the evidence before me that the respondent will suffer hardship from this order of retroactive child support. He managed in 2014 to pay arrears of his own making at the rate of $800 per month. His weekly income after deductions is $774 according to his February 19, 2015 pay statement. That should leave sufficient funds to meet his needs and obligations including those to his new daughter.

Extraordinary Expenses

40Section 7 of the Child Support Guidelines (Ontario) permits an award of an amount to cover all or a portion of extraordinary expenses for a child, which expenses may be estimated. The division of responsibility is governed by the relative incomes of the parents. Extraordinary expenses are to be examined having regard to, inter alia, the means of the parties.

41In this case, there are no extraordinary expenses before the court to consider. There are no activities in which the children are engaged which one might anticipate will continue such that a reasonable projection could be made. The lack of evidence compels me to conclude that this issue is premature.

Conclusion

42Therefore, I order as follows:

1. The applicant, Jackeline Lisseth Palomeque, shall have sole custody of the children, namely Gabriela Gonzalez Palomeque born January 26, 2007, and Rudy Gonzalez Palomeque born March 23, 2009 (“the children”).

2. The respondent shall have access to the children as follows:

(a) On a supervised basis for a period of six months immediately following this order, through Merrymount Children’s Centre in London, Ontario, for 3 hours on alternating Sundays ;

(b) On an unsupervised basis for a period of 2 months next following (a) above on alternating Sundays from 1 p.m. until 4 p.m.;

(c) On an unsupervised basis for a period of 4 months next following (b) above on alternating Sundays from 10 a.m. to 5 p.m.; and,

(d) Thereafter, on an unsupervised basis on alternating Sundays from 9 a.m. to 7 p.m. together with access on every Wednesday evening from 5:30 p.m. to 8:30 p.m..

(e) Pick up and drop off locations shall be coordinated between the parties. If they cannot agree, arrangements may be made through Merrymount Children’s Centre for that purpose;

3. Nothing in paragraph 2 shall be taken to restrict the parties from agreeing to different times and days. The extent of any increased unsupervised access by the respondent with the children is to be reviewed by this court in two years unless the parties agree otherwise.

4. The respondent shall pay ongoing child support to the applicant for the children commencing April 1, 2015 in the amount of $895 per month based on his 2014 gross income of $61,196 such payments to be made on the first day of each month.

5. The respondent shall pay retroactive support to the applicant in the amount of $10,276 payable as follows: an initial payment on May 1, 2015 in the amount of $676, and thereafter monthly in the amount of $400 until the balance is paid in full.

6. No interest will accrue on the balance of retroactive support so long as payments are being made.

7. Child support payments will be enforced by FRO unless the parties agree otherwise.

8. For so long as child support is payable, the respondent shall provide the applicant with a copy of his income tax return for the preceding year by April 30^th.

9. Child support shall be adjusted annually upon disclosure of the respondent’s income in accordance with the Child Support Tables for Ontario.

10. The respondent shall enroll and maintain the children on his medical and health benefit coverage available through his employer or union and shall provide written proof of such coverage if reasonably requested by the applicant. The respondent shall notify the applicant in writing of any changes or updates to the coverage as he receives notice of them.

11. The applicant shall provide to the respondent whatever information he requires to effect the enrollment of the children into his medical and health benefits.

12. All other orders herein shall be vacated save for any outstanding costs orders.

13. All other claims in the Application and Answer shall be dismissed.

43The parties may make brief written submissions with respect to costs if they are not able to agree between them, those submissions not to exceed 5 pages.