Court File and Parties

CITATION: Geadah v. Geadah, 2015 ONSC 2562

COURT FILE NO.: FD 193-15 (London)

DATE: 2015-04-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Holly Amanda Geadah, Applicant

AND:

Nadim Geadah, Respondent

BEFORE: Carey J.

COUNSEL: Robert Haas, Counsel, for the Applicant Brenda D. Barr, Counsel, for the Respondent

HEARD: March 11, 2015

Endorsement

[1] "Time is Money". That old adage takes on a new meaning in the context of family custody and access litigation. The parent that has the child or children for the most time gets paid the money. The other parent with the less time pays the money. While custody and access issues are clearly to be determined by the best interests of the children, classically the warring sides consistently allege that the other parent is motivated by money. Sadly, this family is no exception.

[2] Here we have two daughters, eight and four. They currently reside with their mother in the matrimonial home. The parties lived separate and apart in that family home until February of this year when the police were called and the mother left with the children. She claims the father is abusive, controlling and did not parent the children to the extent that he should. She maintains that she has always been the primary care giver throughout the lives of the two children and seeks an order for custody with access on weekends.

[3] The father argues that, as his work allowed him to be at home for much of the day while his wife was at work, he parented to the same degree as the mother. Continuing that shared parenting scheme would, he says, be in the best interests of the children. He denies any abusive or controlling conduct. He says the need to receive child support has motivated the applicant. He points out that the mother's own material indicates she would not be able to get financing to buy out his interest in the house if she was not paid child support. He argues the best interests of the children will be served by maximum time with both parents. He says that the "status quo" referenced here was the status quo prior to February 12th when the parties separated to different residences.

[4] The difficulties for a family law motions judge in deciding matters such as this are well-reviewed and discussed at length in the thoughtful reasons of Pazaratz J. in Coe v. Tope, 2014 ONSC 4002. The case before me shares many similarities with that case. Both parents present as fairly well-educated, generally reasonable, caring and sensible. The parents started living together in June 2006 and married after the birth of their first child that year in July 2007. They separated in January 2015 according to the mother and continued to live under the same roof until the police intervention on February 12, 2015. The father disputes the time of separation under the same roof but agrees that February 12th the mother left home with the children. The mother is 30; the father is 36. They both have responsible jobs. The children are described as happy and well-adjusted with no health or educational concerns. The applicant mother claims the respondent father "emotionally abused" her and exerted an unreasonable level of control in the relationship and was overly aggressive with the children. She cites occasions in September and November 2014 when the oldest child was grabbed by the arm when she was perceived as misbehaving by her father. The mother claims both incidents left the child frightened and unsettled. She does not allege injury. She alleges her partner was frequently derogatory, critical and verbally abusive, and controlling with respect to both money and the time she spent with male colleagues. These allegations are denied or explained in the father's affidavit material. She also says that the respondent smokes marijuana in the garage (about twice a month) and that on February 12th a laptop was "ripped" from her hands and thrown against the wall and eventually put under the couch by him. He also took materials she was using for a needlepoint project and ripped them up. He responded without justifying this incident, and points out his frustration at the applicant's refusal to speak to him about their separation. He does not deny occasional marijuana use outside of his time with the children.

[5] Here, as in Coe, the material before me has been recently prepared and is untested by examination or cross-examination. The facts are still evolving with the father recently relocated to a former family home occupied by his childless brother and his wife, and the mother attempting to arrange financing to purchase the family home. Both parties are arguing the status quo should be maintained but there is a disagreement as to what is the status quo here.

[6] I accept that the status quo should ordinarily be maintained until trial unless there is material evidence that the children's best interest demanded a change. As well, it is not contested that where parents live close to each other and travel arrangements are not an issue, time sharing and other parenting issues can be determined under s. 24 of the Family Law Act, R.S.O. 1990, c. F-3 on the basis of "best interest consideration". Maximum contact with both parents is presumed to be beneficial in the absence of any concern for the children's emotional or physical safety.

[7] Here, I have not been persuaded that the father is a violent, controlling, uninterested parent who needs anger management and as well as has to be restrained from rampant drug use. The material relied upon by the mother and the submissions made by her counsel have taken two incidents of grabbing the eight-year-old's arm, separated by a couple of months and paired them with a one-time incident involving throwing a computer tablet. This, it was argued, creates a picture of an angry, controlling, unrestrained father. I was not impressed by counsel's attempt to turn the tablet incident into five separate examples of violence. As well, I was not convinced that the 10 pages of BBM text conversations as selected by the mother show that all issues except support had been agreed to by the parties and that failure to get his way on support had led to an unjustified claim for shared parenting by the father. I am satisfied that prior to the mother leaving the home for a short period of time after the police intervention on February 12th that a shared parenting arrangement existed where both parents were more or less equally involved. I am therefore satisfied that the shared parenting schedule as proposed by the respondent husband best satisfies the criteria as set out in s. 24 of the Children's Law Reform Act , R.S.O. 1990 c. C-12. Given the father's schedule of the family history and the current short distance between residences, it is in my view preferable that the children be in the care of the father after school until pick up by the mother on her days. I accept this arrangement as preferable to other alternatives, including daycare.

[8] Accordingly the following order will issue:

1. The applicant and respondent shall share the custody of the children, Desiree Amira Geadah, born October 23, 2006 and Ciara Ellyanna Geadah, born April 19, 2010 on the following timesharing schedule;

Timesharing will be a two-day-on two-day-off schedule and alternate weekends as follows:

i) Week 1:

The children will be in the respondent father's care from Monday after school until the end of the school day on Wednesday.

The children will be in the applicant mother's care from Wednesday after school until the end of the school day on Friday.

The children will be in the respondent's care from Friday after school until Monday end of school day.

ii) Week 2:

The children will be in the applicant mother's care from Monday after school until the end of school day on Wednesday.

The children will be in the respondent father's care from Wednesday after school until end of school day on Friday.

The children will be in the applicant mother's care from Friday after school until the end of the school day on Monday.

2. In addition to the times set out above the children shall be in the care of the respondent father each day after school until approximately 5:45 p.m. The applicant mother is responsible for picking the children up from the respondent's residence at 133 Rembrandt Place or such further and other residence that he may advise;

3. Each party may telephone and/or communicate by e-mail with the children on a reasonable basis while they are in the care of the other parent and each parent shall facilitate these calls which shall not take place on a speaker phone;

4. Commencing March 1, 2015 to satisfy each party's obligation to pay child support, the applicant owes the respondent child support in the amount of $579 per month, based on her current income of $40,000 for the support of the children. The respondent owes the applicant support in the amount of $1,059 based on an income of $71,530 (2014 income) for the support of the children. With the offset, the amount owing from the respondent to the applicant is the amount of $480 per month for support of the children, Desiree Amira Geadah, born October 23, 2006 and Ciara Ellyanna Geadah, born April 19, 2010, pursuant to s. 9 of the Child Support Guidelines;

5. Any change in the respondent's on-call schedule from the current rotation of one week first call per month and one week second call per month shall be deemed to be a material change in circumstances which the respondent may rely on to seek an order adjusting his child support obligation in accordance with his based income and the income based on a new call schedule;

6. The parties shall maintain the children as beneficiaries on the benefits plans available to the parties through their employment;

7. After application of any benefits available to the parties through their employment the respondent shall pay to the applicant his proportionate share of the children's special and extraordinary expenses pursuant to the Child Support Guidelines. The following expense will fall within s. 7 of the Child Support Guidelines and be shared by the parties proportionate to their income:

a) Medical/dental expenses not covered by the parties' respective insurance providers; and

b) Care for the children during March break and during the summer if required;

8. Each party is entitled to one-half of the Canada Child Tax Benefit, the Universal Child Care Benefit and the refundable children's GST/HST credits for the two children. The parties will complete any application necessary to effect this one-half sharing of these benefits/credits. These benefits/credits will not affect the table amount for child support;

9. The applicant may claim the eligible dependant credit for Desiree and the respondent similarly for Ciara. These benefits will not affect the table amount of child support payable;

10. The respondent's motions for sale of the home shall be adjourned to a date agreeable to the parties to be set by the trial coordinator. Pending the adjournment the applicant shall have interim exclusive possession of the matrimonial home and its contents;

11. For as long as child support is to be paid, the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Child Support Guidelines.

12. If the parties are unable to agree to costs they shall file written submissions on the following timeline:

a) The party seeking costs shall serve and file submissions within 21 days;

b) The responding party shall serve and file submissions within 14 days of receiving the initial costs claim;

c) Any reply costs submissions shall be served and filed within 7 days thereafter.

d) Costs submissions should be no more than 3 pages doubled-spaced per submission.

Original signed "Carey J."

Thomas J. Carey

Justice

Date: April 17, 2015