ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Tookenay v. Laframboise, 2015 ONSC 2898
COURT FILE NO.: FS-13-0093
DATE: 2015-05-04
B E T W E E N:
Annastasia Laura May Tookenay
Shannon Burkinshaw, for the Applicant
Applicant
- and -
Sean Daniel Laframboise
Respondent is self-represented
Respondent
HEARD: April 13, 14 and 15, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons for Judgment
Issues
[1] The issues in this action are custody/access and child support.
[2] The applicant, Ms. Tookenay, does not seek spousal support.
Overview
[3] Ms. Tookenay is 26. Mr. Laframboise is 28. They started living together on June 18, 2005. They separated on August 31, 2012. They were not married.
[4] They have two children: Owen James Laframboise, born August 22, 2006 and Wylde Guy Roger Laframboise, born March 1, 2011. Owen is 8. Wylde is 4. They were 6 and 1 1/2 at separation.
[5] Ms. Tookenay works part-time, 3 to 4 days per week, at 5 to 6 hours per shift in the call centre at Pizza Hut. She has worked there since December 2013. Mr. Laframboise is unemployed at present but works seasonally, usually as a labourer.
[6] Neither have completed high school. Ms. Tookenay is attempting to upgrade and wishes to go on to college.
Custody/Access
[7] Since separation, over two and one half years ago, the children have lived with their mother. For the most part, the father has had access on alternate weekends. Ms. Tookenay seeks sole custody with access as in the past. Mr. Laframboise seeks shared custody with the children residing with each parent on alternate weeks.
Evidence on behalf of Ms. Tookenay
[8] Ms. Tookenay testified that she has been the primary caregiver for the children since birth. Often, the father worked out of town. For the four months prior to separation, he was working away and was back in Thunder Bay about one day a week. According to the mother, even when the father was laid off he did not participate in household chores.
[9] At present, Ms. Tookenay and the children live in a house with a roommate. The boys share a bedroom. The house has a big backyard.
[10] Owen attends St. Bernard school. Wylde is registered to attend there this September. Ms. Tookenay says that Owen is doing "very well" at school. His report card from this spring describes him as a "polite and caring student who gets along well with all his peers." His average is B+. He has been absent from school because of illness but he always gets caught up with his school work. She assists him with his homework. Her mother and roommate also help with homework.
[11] Ms. Tookenay describes Owen as "reserved, smart" and "happy". She describes Wylde as "outgoing" and "happy".
[12] She has support from her mother, her roommate, and a very close friend, Shannon, who has children Owen's age.
[13] When she works it is usually from 3 p.m. to 8 p.m. While she is at work her mother, Shannon, or her roommate will look after the children.
[14] Ms. Tookenay testified that Mr. Laframboise is not involved in the decision-making with respect to children and said that once, when Owen was with his father, Mr. Laframboise did not take Owen to a scheduled dentist appointment.
[15] She also testified that, sometimes, Mr. Laframboise failed to show up for his access weekends. She said that this happens about once every three months. Also, often, she does not hear from Mr. Laframboise about access until the day he is supposed to pick up the children. She said that she will have to call his mother to find out whether he is coming because he does not respond to her text messages.
[16] The father did have access from Wednesday until Sunday every second week for several months when he was unemployed. She said that she offered to give that four-day access back to him after he stopped working but he has refused that increased access.
[17] Ms. Tookenay said that the longest that the father has had the children has been for 5 to 6 days once per year. This March break, for example, Mr. Laframboise had the children from Tuesday until Sunday. However, the children were with him and his mother from Thursday until Sunday and only in Mr. Laframboise’s sole care for two days.
[18] Mario Vona is Ms. Tookenay's roommate. He testified that he is the owner of the house where they reside. He has known her for over two years. He assists her with the care of the children and will help with babysitting from time to time. He describes Ms. Tookenay as a "great mom". He describes her as very caring.
Evidence on behalf of Mr. Laframboise
[19] Mr. Laframboise testified that he did take care of the children when Ms. Tookenay was taking classes and working. He said that both shared parenting duties.
[20] He testified that during his access he plays video games and superhero games with the children. He disagreed that he had been offered additional access by Ms. Tookenay.
[21] Kimberlie Simmons is Mr. Laframboise 26-year-old sister. She testified that Mr. Laframboise has a very good relationship with the children when he has access. She said that she lived with Ms. Tookenay and Mr. Laframboise from June to early September 2012. She testified that she never noticed any unacceptable behavior from either parent. She confirmed that, when her brother was working out of town, Ms. Tookenay was the primary caregiver.
[22] Christopher Cuyler is Kimberlie's boyfriend. He has observed Mr. Laframboise parent the children. He testified that he has not observed any questionable parenting. He says that discipline consists of "timeouts".
[23] Tina Simmons is the paternal grandmother. She sees the children every second weekend when Mr. Laframboise has access. She describes him as an "excellent father". She says that there is a very strong bond between the children, their father, and the grandmother. She also described Ms. Tookenay as a "really good mom". In cross-examination she confirmed that she has never been denied access by Ms. Tookenay. She confirmed that when Mr. Laframboise has access he brings the children to Red Rock to her house and that he stays there with the children and she assists with their care.
The Positions of the Parties on Custody and Access
[24] Ms. Tookenay argues that sole custody is in the best interest of the children.
[25] She proposes the following plan of access:
a) Mr. Laframboise to have access every second weekend from Friday after school until Sunday at 8 p.m;
b) Mr. Laframboise is to have further reasonable access upon reasonable notice;
c) Mr. Laframboise is to have access one week in each of July and August annually for total of two weeks;
d) Mr. Laframboise is to have access for one week at Christmas on alternating years;
e) Mr. Laframboise is to have access at March break on alternating years; and
f) Mr. Laframboise is to have access at Thanksgiving and Easter and that each parent would have access on one of those holidays annually.
[26] She argues that she has been the primary caregiver for the children since birth and has been solely responsible for their care especially since the separation. She argues that even prior to separation there was little parenting by Mr. Laframboise.
[27] She argues that the children are very attached to her and happy. She argues that the children have had a stable environment with her since the separation over two and one half years ago and that Mr. Laframboise has not participated in their education or medical care. She argues that Mr. Laframboise has left those decisions to her. She argues that Laframboise has not cared for his children for more than a few days at a time and that, in fact, it is his mother who is providing much of that care.
[28] She argues that joint custody is not appropriate as it requires that the parties have the ability to communicate. She points out that she has difficulty contacting Mr. Laframboise with respect to access and that he often does not communicate with her until just before he is to exercise access.
[29] Mr. Laframboise argues that it is in the children's best interest to have shared custody with the children residing with each parent on alternating weeks. He filed a detailed child custody – parenting plan as part of exhibit number 11.
[30] He argues that he actively parented when Ms. Laframboise was working and in school. He relied upon the testimony of his witnesses that confirm that the children are happy when with him.
Analysis
[31] Section 24 of the Children's Law Reform R.S.O 1990, c. C.12, as amended directs that custody and access shall be determined on the basis of the best interest of the children.
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[32] I conclude that both Ms. Tookenay and Mr. Laframboise love their children very much. Also, I am glad to observe that, apart from some communication issues, there is little animosity between them.
[33] In this case, I note that the children have lived in a stable home environment for over two and one half years. On the evidence, both children appear to be doing quite well. On the evidence, I conclude that Ms. Tookenay has, since birth, been the primary caregiver who has made the important decisions regarding the children. It is quite evident that she is a capable parent.
[34] Although I have no concerns with respect to Mr. Laframboise's intentions I conclude that he is less engaged in parenting. I note that when he has exercised access, access is usually at his mother's home in Red Rock. I conclude that he is not genuinely parenting the children as expressed in s. 24.
[35] For joint custody to be ordered I must be satisfied that the parties could work together. Given the communication issues between the parties I conclude that it is in the best interests that Ms. Tookenay have sole custody of the children.
[36] Similarly, I do not conclude it is in the children's best interests to order an access schedule other than what has been in place to date. I reach that conclusion based on the length of time that the children have lived in a stable environment in which they appear to be thriving and the relative ability of each party to parent the children. I therefore order access as proposed by the mother as follows:
a) Mr. Laframboise is to have access alternate weekends from Friday after school until Sunday at 8 p.m;
b) Mr. Laframboise is to have further reasonable access upon reasonable notice;
c) Mr. Laframboise is to have access for one week in each of July and August annually for total of two weeks summer access;
d) Mr. Laframboise is to have access for one week at Christmas on alternating years;
e) Mr. Laframboise is to have access for one week at March break on alternating years; and
f) Mr. Laframboise is to have access at Thanksgiving weekend and Easter weekend such that each parent would have access on one of those holiday weekends annually.
[37] However, I encourage the parties to work together to allow Mr. Laframboise to have greater access as circumstances permit.
Child Support
[38] Mr. Laframboise completed grade 10 and has worked predominantly at seasonal labouring jobs. When not working, he collects employment insurance benefits. He also receives a monthly annuity pursuant to a structured settlement from an personal injury action. At issue is whether any, some or all of that monthly annuity should be imputed as income.
[39] Ms. Tookenay does not seek spousal support. Her income, based on her 2014 income tax return, is $9,806.64.
i) Earned Income
[40] Mr. Laframboise testified that he worked as a labourer during the construction of the local Walmart in 2010. Following completion of the construction he worked as a tire and "lube" technician at Walmart for about 1 1/2 years. After Walmart, he and Ms. Tookenay moved to Marathon because he got a better paying job as a labourer with Boreal Drilling. When that job ended he secured employment with Pioneer Construction on road construction projects starting in April 2012. He worked again seasonally for Pioneer Construction from May to October 2013. In 2014 he worked as a labourer on bridge construction projects during the summer and from October to December at a local tree nursery. He has been unemployed since December 2014. He expects to be employed as a laborer again this spring.
[41] His line 150 income including employment income and employment insurance benefits for the last four years is summarized as follows:
2011 $23,619
2012 $41,703
2013 $34,168
2014 $17,932
[42] Mr. Laframboise's current financial statement discloses employment insurance income of $1,240 monthly.
ii) Structured Settlement
[43] In 1989, when he was just a little over two years old, Mr. Laframboise was injured in a car accident. He fell out of a car and the car ran over him. Documents relating to the action arising from this incident including the Statement of Claim, Judgment approving the infant settlement, medical reports and correspondence from counsel representing Mr. Laframboise were filed as exhibits.
[44] The Statement of Claim sought non-pecuniary and pecuniary general damages and other monetary relief exceeding $2 million. The pecuniary general damages claimed included loss of future income and cost of future care.
[45] A medical report dated February 8, 1993, from Dr. McKee noted that Mr. Laframboise would have a permanent hearing deficit that was described as "mild and most likely involving mainly the mid and higher frequencies in the right ear". It was reported that hearing on the left was normal.
[46] A medical report dated March 22, 1993, from Dr. Chaudhuri, a neurological surgeon, described that Mr. Laframboise "has suffered from a severe head injury including fractures of the vault and base of skull, cerebral contusion, intracranial hemorrhage and multiple cranial neuropathy." Cranial nerve dysfunction was noted in the 5th to the 8th cranial nerves. This was considered permanent and would result in impairment of facial and corneal sensations, and weakness of the facial muscles on the right side with difficulty closing the right eye. It was also noted that, "so far, the mental development and speech have been quite good, though this can be decided only on long-term follow-up." No other medical information was provided.
[47] Mr. Laframboise testified that he has no ongoing care or medical needs associated with this accident except for dental expenses which he did not quantify.
[48] The correspondence from counsel in the personal injury action sets out the basis of the settlement. As the involved vehicle had no insurance this was a claim to the Motor Vehicle Accidents Claim Fund. The maximum amount that could be paid was $200,000 and Mr. Laframboise's claim was settled in exchange for the payment of those limits plus costs.
[49] The Judgment does not apportion the award between various heads of damages. The reporting letter from counsel says only "general damages". There is no breakdown between pecuniary and non-pecuniary damages.
[50] The judgment approving the settlement provided for a small payment into court with the balance of the settlement paid into a structured settlement in the form of a non-assignable, non-commutable and non-transferable annuity. The annuity provides for guaranteed monthly payments to Mr. Laframboise for his lifetime. Payments are guaranteed for 25 years. Payments commenced on February 20, 2006. Payments increase annually by 3% on February 20 of each year. The current monthly payment is $2,221.03. The annuity contract also provides for the following lump sum payments:
February 20, 2011 $15,000
February 20, 2016 $20,000
February 20, 2021 $25,000
February 20, 2026 $35,000
February 20, 2031 $50,000
All payments are non-taxable.
[51] Mr. Laframboise testified that the monthly payments from the annuity were deposited directly into a bank account in the name of his father, Guy Simmons. Mr. Simmons is also Mr. Laframboise's "power of attorney". Mr. Laframboise testified that he did not know exactly what Mr. Simmons did with the money that was deposited into this account from the annuity but assumed that his father paid Mr. Laframboise's bills. By that he meant expenses like groceries and other related expenses. He said that if he did not have enough money coming in from employment then his father would pay his bills from that account. Among the payments made from that account are payments for a truck that is owned by both Mr. Laframboise and his father. Mr. Laframboise lives in Thunder Bay and his father lives in Red Rock. The vehicle is parked at Mr. Laframboise’s residence.
[52] When asked in cross-examination about the expenses on his financial statement that were twice his stated income he said that he did not know if those expenses were paid by his father from the annuity proceeds.
[53] Mr. Simmons did not testify.
[54] Ms. Tookenay testified that the annuity was a "big part" of the family income. She testified that they always used that to "live off" and it was used to pay their mortgage. She says that when they were together it was deposited into their bank account.
Positions of the Parties on Child Support
[55] Mr. Laframboise submits that he should pay child support based on his employment insurance earnings.
[56] He submits that none of the structured settlement annuity should be imputed as income. He argues that the settlement used to fund the structured settlement relates entirely to the general damages for pain and suffering and that there was no pecuniary component to the settlement. Further, he argues that those funds were not used to fund family expenses when he and Ms. Tookenay lived together.
[57] Ms. Tookenay argues that, based on Mr. Laframboise's own admissions, Mr. Laframboise will secure, at least, seasonal employment. She argues that a fair measure of Mr. Laframboise's earning potential is his average earnings.
[58] With respect to the structured settlement, Ms. Tookenay does not seek that any of the lump sums that Mr. Laframboise has received or is to receive in the future should be imputed as income. However, she seeks that all, or some, of the monthly annuity benefits that are received be imputed as income. She argues that a portion of the settlement funds would be an award for pecuniary general damages and that, since the funds were used by the family for basic needs, the funds should still be available for child support.
[59] Following Zoldy v. Zoldy, 2007 ONCJ 24, [2007] O. J. No. 171 she asserts that the onus is on Mr. Laframboise to prove all aspects of the settlement including the allocation of the settlement funds to various heads of damages. Ms. Tookenay also relies upon Rivard v. Hankiewicz, 2007 ONCJ 180 and Fequet v. Fequet, [2008] O. J. No. 2455 as authority that the Court may impute income from a structured settlement.
Analysis
i) Employment Income
[60] Section 17 of the Family Act Child Support Guidelines provides as follows:
- (1) If the court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. O. Reg. 446/01, s. 5.
[61] Mr. Laframboise's income for 2014 was $17,932. His average annual income over the last three years was the $31,267.
[62] In argument, counsel for Ms. Tookenay candidly submitted that a four year average may be fairer to Mr. Laframboise's since his 2012 income of $41,703 was unusually high. She suggested that a four year average annual income of 29,355 may represent a more realistic income given Mr. Laframboise's work history. I agree.
[63] I conclude that the employment income component for the child support calculation shall be $29,355.
ii) Structured Settlement
[64] I agree with this statement from Rivard v. Hamkiewicz:
In my view, the respondent had an obligation to provide the court with the evidence about this annuity that may be required to allow a reasonable determination of whether the payments are income of the guidelines in whole or in part.
[65] There was no evidence from Mr. Laframboise suggesting that there was any significant ongoing care expense or medical expense, other than an unquantified dental expense, as a result of the car accident.
[66] As summarized in Rivard, income has been imputed from structured settlements when a portion of the settlement funds has been allocated to future economic loss. In those cases, only the component for future economic loss has been imputed as income. In other cases, where there has been no allocation between various heads of damages, courts have imputed income without reference to amounts paid in settlements.
[67] Since the Motor Vehicle Accident Claims Fund limits of $200,000 were paid to fund the settlement it was unnecessary to apportion the settlement funds between pecuniary and non-pecuniary general damages. It is clear from the documentation provided that a claim for future loss of income or loss of earning potential was being advanced and I conclude that the settlement would have included a component to compensate for loss of earning potential. I accept that there is some disfigurement caused by the right-sided facial paralysis and his problems with his right eye. Fortunately, any cognitive impairment appears limited. Notwithstanding, Mr. Laframboise limited education he represented himself very effectively. He was articulate and appropriate in his presentation of his evidence and argument.
[68] The other argument advanced by Ms. Tookenay for imputing the structured settlement annuity as income is based on the use of those funds. Both the Fequet and Rivard cases conclude that it is appropriate to determine the use of the annuity funds in determining whether the annuity should be imputed as income. When the funds are not used for rehabilitation purposes or other medical expenses relating to the accident but rather for ordinary living expenses then it is appropriate to impute those funds as income.
[69] I conclude that Mr. Laframboise was at least naïve with respect to the use made of the structured settlement annuity funds that are deposited into his father's bank account. Mr. Laframboise testified that his father would know more about the use of those funds and I draw an adverse inference from the failure of Mr. Laframboise to call his father to testify about the use of those funds.
[70] I conclude, on both the evidence of Ms. Tookenay and Mr. Laframboise, that the funds were used for ordinary family expenses to be drawn upon when their income was insufficient for their needs. Indeed, that is the only explanation for the living expenses set out in Mr. Laframboise's financial statement. Given the level of those expenses and his current income then the only explanation is that the annuity payments are used to pay his usual living expenses. That is especially so since the bank statement for that account indicates that the monthly deposits are offset by the truck payments and many email transfers. The only conclusion I can come to is that these email transfers are to pay Mr. Laframboise's ongoing living expenses.
[71] Given that the lump sums that Mr. Laframboise receives under the structured settlement annuity are to be excluded I conclude that it is appropriate to impute one half of the monthly annuity payments being received as income. I conclude that at least one half of the settlement would have been allocated to non-pecuniary general damages (pain and suffering). Since the lump sum payments totalling $145,000 are excluded and, further, since the funds were used from time to time for living expenses, I conclude that one half of the annuity is the appropriate amount to input as income.
[72] The current monthly payment under the annuity is $2,221.03 or $26,652.36 annually. 50% of that amount is $13,326.18. Since the annuity is received tax-free this sum must be grossed up for determination of the correct child support guideline amount.
Child Support Payable
[73] I find that the child support payable for the children Owen James Laframboise, born August 22, 2006, and Wylde Guy Roger Laframboise, born March 1, 2011, is $693 per month based on annual employment income of $29,355 plus one half of the non-taxable monthly annuity of $13,326.18 for a total annual income for guideline purposes for Mr. Laframboise of $46,803. I further conclude that Ms. Tookenay's annual income is $9,907 and that therefore any special expenses are to be apportioned 82.5% to Mr. Laframboise and 17.5% to Ms. Tookenay.
[74] Any computational errors may be addressed by the parties in writing within 15 days of the release of these reasons.
Review
[75] 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, 2016, 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. Further, Mr. Laframboise will advise Ms. Tookenay of the of the increased annuity amount by March 1 of each year.
Conclusion
[76] I order custody to Ms. Tookenay and access on alternative weekends to Mr. Laframboise as outlined in paragraphs 35 and 36.
[77] I order child support payable at $693 per month for both children as outlined in paragraphs 73 and 75.
[78] I want to thank Ms. Burkinshaw, counsel for Ms. Tookenay, and Mr. Laframboise for their efforts in presenting this case. As a self-represented litigant, Mr. Laframboise conducted himself appropriately and fairly in presenting his evidence and argument. I also appreciate the assistance of Ms. Burkinshaw in the presentation of this case and, in particular, for her candor and fairness during argument.
Costs
[79] If the parties cannot agree on costs then within 30 days of this decision either party may contact the trial coordinator to arrange a time for costs submissions. If no appointment is arranged within 30 days then costs shall be deemed to be settled.
__ _“original signed by” ____
The Hon. Mr. Justice W.D. Newton
Released: May 4, 2015
CITATION: Tookenay v. Laframboise, 2015 ONSC 2898
COURT FILE NO.: FS-13-0093
DATE: 2015-05-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANNASTASIA LAURA MAY TOOKENAY
Applicant
- and –
SEAN DANIEL LAFRAMBOISE
Respondent
REASONS FOR JUDGMENT
Newton J.
Released: May 4, 2015
/cs