Ferreira v. Ferreira, 2015 ONSC 3602
CITATION: Ferreira v. Ferreira, 2015 ONSC 3602
BARRIE COURT FILE NO.: FC-12-1263-00
DATE: 20150603
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LUCINDA MARIA FERREIRA Applicant
– and –
JOSE EDUARDO FERREIRA Respondent
Self-Represented
Self-Represented
HEARD: May 21 and 22, 2015
REASONS FOR DECISION
McGEE J.:
Brief Background
[1] This trial primarily determines the parenting schedule for two children, Sydney aged 10 and Fabio aged 16. Their older sister Nicole is 24 years of age and is independent. The issues of support, and equalization are also addressed.
[2] The parents were married 22 years and separated on March 4, 2012. Each agrees that the marriage was over for a number of years prior to the formal date of separation.
[3] I accept the father’s evidence that for financial reasons he deferred leaving the home prior to March of 2012. The couple was heavily in debt, with insufficient cash flow for the first and last month’s rent necessary for him to move out.
[4] The long period prior to separation wore down the parents and clearly affected their health and well-being. They argued frequently and vociferously.
[5] In April of 2010 the police had been called to the home after a particularly difficult night which ended with the mother and daughter going into a room in the basement.
[6] The general occurrence report of that night records that the mother told the police that she had only called them to scare the father. The police observed a hole in a basement door which the police concluded was of very low quality, easily injured by the father’s excessive knocking. No charges were laid. The parties were given advice regarding their relationship.
[7] The relationship continued to deteriorate. The father worked two jobs and the mother focussed on the household routines and parenting of the children. At some point it was simply no longer workable for the parties to reside together. The father left the home on March 4, 2012. They have agreed to use this date as the formal date of separation.
[8] Over the summer of 2012 the father had minimal contact with the children. He continued to deposit his earnings into the joint account.
[9] When the parties exchanged pleadings in September of 2012, each was represented by counsel. It was a difficult period, during which their already thin budget was stretched even further.
[10] The mother resisted an early sale of the home. She used up her remaining savings to try and maintain the residence. The sale of the jointly owned matrimonial home closed on August 29, 2014. It was not an easy process of sale. There was a significant shortfall, with certain debts having to be negotiated in order for the sale to close.
[11] Ultimately the father found himself unable to maintain the debt load accumulated during the marriage and made an assignment in November of 2014. The trustee has not been given notice of this proceeding.
[12] The mother has not made an assignment, despite advice to consider doing so. To this day she blames the father for the entirety of her personal and financial circumstances.
[13] Within her September 11, 2012 Application (drafted by prior counsel) the mother seeks orders for custody, child support, spousal support and equalization. The father seeks an order for time with the children. This is the trial of those issues.
Parenting Issues
[14] On consent, custody was granted to the mother on a final basis on April 28, 2015. At issue in this trial is the father’s parenting time.
[15] Fabio is not seeing his father. He is almost 17 and neither parent wishes to force his schedule. Sydney spends four hours with her father on alternative Saturdays with pick up and drops offs at a supervised site.
Order Sought by the Mother
[16] The mother seeks an order terminating any obligation of the children to see their father. She refuses to recognize any father-daughter relationship, or the need for one. At best, she views her daughter’s relationship with her father to be a disruption. At worse, she sees her daughter’s father as a threat to their otherwise stable and healthy life.
[17] The mother’s assertions escalate and are disproportionate. For example, during the course of this two day trial, the April 2010 incident referred to above was blown into claims of one door being broken by the father, then two doors. At another point in the mother’s evidence she stated that five doors have been broken. She does not accept, or explain the police report of the incident. She treated a relatively minor incident over five years old as if it was a very recent, catastrophic event.
[18] Fabio has already rejected his father, although he can imagine a time when they will see each other again, “after he is 18.”
[19] Sydney is currently the mother’s focus. The mother consistently states that it is ten year old Sydney who is rejecting the father. The mother’s assertions are so extreme that she says Sydney is angry with her for even suggesting father-daughter contact.
[20] The mother’s evidence during this trial has unquestionably demonstrated a fixed intention to sever any relationship between father and children. The earlier agreement granting her custody has done nothing to diminish her fears of the children spending time with their father.
Order Sought by Father
[21] The father has had very little time with the children. It bothers him that he is not able to spend time with them, to show them and teach them things. He wonders how tall Fabio has grown. He would like to take the kids to a movie.
[22] He acknowledges that he was not around much during earlier years because of the parents’ division of roles. The mother was home with the children. He was working two jobs to maximize the family’s income.
[23] He asks that Fabio contact him so that they can speak. He recognizes that Fabio is of an age of independence. He seeks more time with Sydney: alternative weekends, or at least a full day each week. He seeks an order on these terms, because he believes that without an order, Sydney will have no ability to resist her mother. He very much enjoys his visits with Sydney and would like to do more with her. He believes that Sydney equally enjoys the visits, but is frightened of her mother’s reaction should her mother find out.
[24] He is worried that the longer he goes without seeing the children, and the longer that they are exposed to the mother’s hatred of him, the harder it will be on the children to reconnect.
The Law
[25] The test for determining access is the best interests of a child.
[26] The best interests of a child are always met by having a loving relationship with both parents.
[27] It is the legal responsibility of a custodial parent to support and foster a child’s relationship with the other parent. The Divorce Act encourages maximum contact between parents and children.
[28] Not only is maximum contact a legal prerogative, it is consistent with children’s best outcomes following their parents’ separation. Maximum involvement of parents in children's lives after separation is supported by a large body of research on outcomes of divorce for children.
[29] To make a child fearful of his or her other parent is a form of child abuse.
[30] The combined effect of the legal obligations and the research underscores a presumption that regular access by a non-custodial parent is in the best interests of children.
[31] The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar 1992 8642 (ON CA), [1996] 42 R.F.L. (3d) 349 (Ont.CA). The party who seeks to reduce normal access is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 52807 (ON CJ), [2003] O.J. No. 2946.
[32] A child’s relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children’s physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. Ct. (Gen. Div.).
The Evidence
[33] Having reviewed the totality of the evidence in this proceeding, I find no circumstances that would support a restriction on the father’s access. The mother can demonstrate no harm to the children, but for the harm that she misperceives to have been occasioned to her. She then projects those fears on to the children, engaging them as allies.
[34] Counsel for the Office of the Children’s Lawyer provided extensive evidence of the children’s views and preferences as they have developed over time, and within the context of this proceeding.
[35] On the surface, the children’s views and preferences accord with the mother’s views. While under the mother’s control, each child has rejected the father and ongoing contact with him.
[36] For example, when Sydney has time with her father on alternate Saturday, her behaviour has been noted to change dramatically when she believes that her actions are being observed by the mother, or the supervised access staff who have contact with her mother.
[37] Sydney is not allowed to express affection, interest or love towards her father while in her mother’s care. The OCL indicated that Sydney was very closed when reflecting on her time with her father. She hesitates to discuss “a moment of joy,” even when playing games with him.
[38] I find that both children have been denied the opportunity to normalize their relationship with their father. They have been pressured to fear him and to blame him.
[39] The rejection of the father by each child is so well developed that this justice questions whether the children have been emotionally harmed, or are at risk of emotional harm. I find that the children have unjustifiably rejected their father, and that the mother is primarily responsible for the breakdown in the father-child relationships. Her fears of the father are so intense, that the children risk losing their mother’s love should they acknowledge their other parent.
[40] Sydney, in particular, would benefit from counselling. She has been encouraged by her mother to believe that she has witnessed violence. At the same time, her mother has never taken her for counselling to deal with, or heal from her experiences. It is as if the mother’s intention is to keep her children forever wounded.
[41] Both children have expressed a desire that their parents would get along better.
[42] Had there not been an earlier agreement to sole custody, I would have considered an order for joint custody. In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Andrade v. Kennelly, 2007 ONCA 898, 2007 ONCA
[43] Had there been a plan proposed by the father for residency of the children, I might have considered a change in their primary residence. Throughout the trial the father was respectful and complementary of the mother. He demonstrated flexibility and compromise. The court has confidence that the father could discharge the legal obligation to make certain that the children have a good relationship with their other parent (their mother.)
[44] In contrast, the mother could not separate her views from her children’s needs. She maintains a rigid and distorted view of the father as a dangerous outsider.
[45] It is essential that normalcy be brought to Fabio and Sydney’s experience of their parent’s separation. The separation was unfortunate, not unusual, and possibly for the best. It does not change the fact that each child has two parents.
Order
[46] The mother is to provide to Fabio his father’s telephone number and email address. Fabio is to confirm by email to his father that he has received the contact information.
[47] The mother is to immediately enrol Sydney in a course of individual counselling to develop her emotional wellbeing as a child of two parents.
[48] The father is entitled to all health, medical, dental and educational records of the children, subject to any usual restrictions based on a child’s age.
[49] Neither parent may disparage, or allow others to disparage the other parent in any manner that might come to either Fabio or Sydney’s attention. The mother shall assure Fabio and Sydney that their father loves each of them.
[50] Commencing Saturday June 6th the father shall pick up Sydney on alternate Saturday mornings at the supervised access centre and return her Sunday evening at 7:00 p.m. to her residence. Sydney is not to be returned early. The parties may agree to use Nicole’s residence, or an agreeable alternate location for the return. In the absence of an agreement the drop off shall be at the mother’s residence.
[51] Commencing on the first alternate weekend in September, the father shall pick up Sydney after school on Friday, and return her to school on Monday morning.
[52] The father shall have one week of holidays with Sydney during the months of July or August, to be chosen by June 26th.
[53] Fabio is encouraged to spend the weekends and vacation with Sydney when she is at her father’s.
[54] Both children shall have unlimited telephone, email, text and other electronic communication with their father. They may invite their father to attend their school, music, sporting and other events.
[55] If for any reason the terms of this order are not met by the mother, the father is encouraged to:
(a) Bring the matter to the attention of the Children’s Aid Society, with reference to the terms of this endorsement questioning whether the mother’s actions have occasioned emotional harm to the children, and /or
(b) Return this matter to the Superior Court Family Division for a variation seeking a change in the children’s residence, or other appropriate order.
Child Support
[56] There have been two temporary orders for support within this proceeding:
(a) June 25, 2013: Effective June 1, 2013, father to pay child support of $1,210 and spousal support of $1,290 based on income of $84,194.[^1]
(b) March 26, 2015: Effective January 1, 2015, father to pay child support of $892 and spousal support of $202 based on income of $59,880.
[57] The latter order was clearly endorsed as a temporary, without prejudice order to be ultimately determined by the trial justice. Prior to June 1, 2013 the parties’ finances were sufficiently intermingled that there was no clear claim for support. None was sought at trial.
[58] The father is employed within the high rise construction trades. The hours available to him are often weather dependent.
[59] He went through a significant change in employment in early 2014 when his prior employment with Avenue Building Corp terminated in January. The record of employment states that his termination resulted from “shortage of work/end of contract or season.” He was then on Employment Benefits for a period, before beginning employment with Yukon Cor. Total earnings from all three sources in 2014 was $59,880.[^2]
[60] The father’s income to date in 2015 and the terms of his employment demonstrate current income of $60,000.
[61] The temporary order of March 26, 2015 recognized his change in income effective January 1, 2015. Unrecognized was the period of February 1, 2014 to December 31, 2014 during which time he was paying support based on income of $84,194 but only earning $59,880. This final order shall correct that period.
[62] The mother returned to work in 2014. She did not file a financial statement in 2014. Her T4 for that year shows earned income of $12,010. She does not state her 2015 income in her financial statement sworn March 16, 2015, but acknowledged in closing submissions that her annual income for this year will be $24,000.
[63] The period of support prior to February 1, 2014 has been in enforcement with the Family Responsibility office and is not in arrears. Thus, the period relevant to this final order is February 1, 2014 to present. Neither party makes a claim to impute income for section 19 of the Federal Child Support Guidelines.
[64] The incomes of the parties are summarized below, with the relevant table child support amount, and range of spousal support per the Spousal Support Advisory Guidelines.
Year Applicant Respondent Table SSAG Range
2014 $12,000 $ 59,880 $892 $99-260-425
2015 $24,000 $ 60,000 $892 $ 0- 0- 37
[65] The applicant provides no submissions on a claim for support, only “what is fair.” Her financial statement shows a clear need for support, some of which results from debt accumulated during the marriage. For both of the relevant years, her percentage of combined net disposable income in the mid-range would be over 50% (53% in 2014 and 56% in 2015.)
[66] The mother has an obligation to become self-supporting.
[67] In considering the range of spousal support, I also consider the father’s additional costs for supervised access, which have been occasioned by the mother’s hostility towards his relationship with the children. For this reason, I place the amount of appropriate amount of spousal support just under the mid-range. No such balancing is available in 2015 with the range being $0.
Order
[68] Commencing February 1, 2014 the father shall pay table child support of $892 per month.
[69] Commencing February 1, 2014 and terminating December 31, 2014 the father shall pay spousal support of $200 per month.
[70] No spousal support shall be payable by the father after December 31, 2014. The mother’s claim for spousal support remains open to review upon a material change in circumstances.
[71] Any costs for supervised access shall be paid in equal shares by the parties. The father shall pay for the costs of June 6, 2015 supervised pick up and every second supervised pick up thereafter (drop offs no longer being supervised.) The mother shall pay for the costs of the June 20, 2015 supervised pick up and every second supervised pick up thereafter. The mother may cancel the need for a supervised pick up by:
a. giving written notice to the father with a proposal for an alternative pick up location,
b. receiving the father’s written consent to the pickup location, or agreeing to an alternative that he may propose, and
c. then giving the centre 7 days’ notice.
[72] The children’s Section 7 expenses shall be paid by the parties:
(a) 70% by the father
(b) 30% by the mother
(c) Provided the expense is agreed in advance by the father, in writing. The father’s consent is not to be unreasonably withheld. Such expenses shall include counselling for one or both of the children, uninsured health, medical and dental costs.
[73] Each party shall maintain the children on any available health, medical and dental expenses.
Equalization and Pension
[74] At trial the mother was unable to articulate any basis for her claim for, or the calculation of an equalization payment.
[75] Again, she asks the court to do what is “fair.” Despite the best efforts of the case management justice in requiring the documentation necessary to crystallize the claim for equalization, and the best efforts of this trial justice to inform the parties of their methodology, the mother case was confused and disorganized.
[76] It is acknowledged by both parties that on the date of separation each had a negative net family property, but for the father’s pension. The relevant sections of the Family Law Act are:
Net family property not to be less than zero
4(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).
Equalization of net family properties
5.(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).
[77] The father’s subsequent assignment vests any claim for equalization with the trustee. For the mother to make a claim, she must give the trustee notice. None has been given.
[78] The only asset giving rise to a positive net family property is the father’s employment pension. The pension is an exempt asset (from the bankruptcy.) Section 10.1 of the Act states that:
Imputed value for family law purposes
10.1 (1) The imputed value, for family law purposes, of a spouse's interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 of that Act. 2009, c. 11, s. 26.
Same
(2) The imputed value, for family law purposes, of a spouse's interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 of the Pension Benefits Act with necessary modifications. 2009, c. 11, s. 26.
Order for immediate transfer of a lump sum
(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse's interest in the plan. 2009, c. 11, s. 26.
Same
(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:
The nature of the assets available to each spouse at the time of the hearing.
The proportion of a spouse's net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
Any contingent tax liabilities in respect of the lump sum that would be transferred.
The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources. 2009, c. 11, s. 26.
[79] In considering the position of the parties on date of separation, the assignment, and the lack of notice to the trustee, the claim for equalization is dismissed.
[80] In considering the nature of the assets available to each spouse at the time of the hearing, I do make an order assigning and transferring the amount of $56,089 to the applicant from the respondent’s interest in the Labourer’s Pension Fund of Central & Eastern Canada per section 10.1(3) of the Family Law Act.
[81] This amount is one half of the full Family Law Act value as of the date of separation. The whole of the interest accrued during marriage. The pension is not assignable in bankruptcy and survives as the only asset of the marriage.
Order
[82] The claim for equalization is dismissed.
[83] The amount of $56,089 is assigned and transferred to the applicant from the respondent’s interest in the Labourer’s Pension Fund of Central & Eastern Canada per section 10.1(3) of the Family Law Act.
Divorce
[84] Either party is free to apply for a Divorce.
Restraining Order
[85] The mother made an oral motion at the conclusion of trial, after the close of evidence seeking a restraining order. There is no basis for the order sought. No order is made.
Costs
[86] Given the modest means of the parties, and the results achieved, there shall be no order as to costs.
Justice H. McGee
Released: June 3, 2015
[^1]: $86,992 less union dues of $2,798.
[^2]: $5,224 from Avenue Building Corp., $4,831 from E.I. benefits and $49,824 from Yukon Cor.