CITATION: Shawyer v. Shawyer, 2015 ONSC 3899
COURT FILE NO.: FD1258/14
DATE: June 17, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
B E T W E E N:
Gillian Shawyer
Applicant
- and -
Scott Shawyer
Respondent
William Clayton for the Applicant
Malcolm Bennett for the Respondent
HEARD: February 4 2015
Templeton J.
Background
[1] The parties were married on July 11, 1998. In 2002, they bought the matrimonial home located in Komoka. They have two daughters, Emma, who was born on […] 2004 and Keira, who was born on […] 2007. In 2012, the parties purchased a second property, a ski chalet, located in Collingwood.
[2] The parties separated on January 5 2014 but continued to live in the matrimonial home for a period of time thereafter.
[3] The Applicant is currently 44 years of age. She is self-employed as an interior designer and operates her own company known as Shawyer Design Inc.
[4] The Respondent will also be 44 years of age this year. He is the President and majority shareholder of JMP Engineering. The head office of this company is in London.
[5] Shortly after the separation, the Respondent was arrested and charged on the basis of allegations of current and historical incidents of assault reported to the police by the Applicant. It is highly unfortunate that the children were obliged to go to the police station while their mother was interviewed. The charges were ultimately withdrawn when the Respondent agreed to enter into a peace bond for twelve months. The Respondent moved to his parents’ home where he has since lived. The Respondent maintains his innocence with respect to the alleged events but declined to proceed to a trial of the issues and opted for this outcome.
[6] The breakdown of the relationship was and continues to be acrimonious. The Record already consists of four volumes of material none of which has been tested by way of cross-examination to my knowledge. They have made numerous efforts to resolve their differences but are unable to sufficiently set aside their own views to allow for resolution of the parenting issues.
[7] In the result, an assessment was ordered by the Court and was completed by Dr. Marlies Sudermann on January 22 2015. Recommendations have been made.
Analysis
(a) Custody and Access
[8] I have now had the opportunity to read all of the Affidavits before the Court and make the following observations:
• both parents are well educated and have much to offer their children in terms of their development of self-esteem; positive mental and emotional health; physical health; stability; motivation; and, the acquisition of educational and personal success;
• although the Applicant was the primary caregiver for the children during the course of the marriage, it is clear that the Respondent also loves the children deeply and that both parents are willing to make changes to ensure that they are able to participate actively and fully in the lives of their daughters;
• both parents are able to financially contribute to the support of their children;
• both parents are equally capable of parenting the children individually and independent of the other;
• the children love both of their parents and enjoy a positive beneficial relationship with each of them;
• both parents work outside of the home such that neither parent is able to care for the children without assistance from the other parent or elsewhere;
• the children are attached to both of their parents;
• the children have been exposed to the conflict between their parents.
[9] I have always found it to be ironic that well-informed and educated parents (such as these two parties) spend such time, energy and financial resources (to the detriment of their children) seeking to convince a court that he or she is a better parent for the children. What parents like these parties tend to forget is that they deliberately chose each other for each other and to be parents to their children, if they had any. If I am to rely on their negative assessments of each other now, I must also surely question their own ability to make sound and reasoned important decisions that have significant and life-altering impact.
[10] I also find it profoundly sad for these children that an extended family member and at least one friend and/or acquaintance have seen fit to become involved in this process. Firstly, each of the Affiants has a vested interest in the outcome in that they are friends or family members of the Applicant. A serious concern with respect to bias and their reliability therefore undermines any weight that might otherwise be attributed to their evidence. Secondly, their outspoken partisanship and participation in this proceeding removes any hope for the court that the Affiants will offer a neutral environment available for these children outside of school to feel relaxed and supported no matter the outcome.
[11] Further, the Applicant has claimed an order for a divorce. The legislative framework therefore for the court’s decision concerning custody and access is s. 16 of the Divorce Act (the ‘Act’). S. 16 (8) of the Act dictates that in making an order under s. 16, 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.
[12] I find that I am not satisfied on a balance of probabilities that the alleged conduct of the other parent by both parties is relevant to the ability of that other party to act as a parent to either or both of the children.
[13] In my view, the parties’ refusal to co-operate and to compromise reflects a refusal to place the interests of the children ahead of their own. For example, the Respondent complains that the Applicant refused to let him participate in birthday party planning for the girls and has not told him information about their activities. If true, the Applicant fails to maintain a child-centred approach in her dealings with the Respondent. On the other hand, he seeks an order prohibiting the Applicant from going to the Toronto Ski Club when he is there with the children; a request that would most surely deny the children to share a love of skiing with both parents. The parties, like many, fail to recognize that this attitude of exclusion and negative conduct toward each other is their problem, not the children’s. The children should not be deprived of the effective and natural participation of both parents in their lives when the activities, competitions, etc. are theirs. The simple and only answer in these circumstances is for the parents to find a way to communicate, co-operate, compromise and place the interests of the children ahead of their own.
[14] In addressing their differences and issues with each other, it is also important for the parents to realize that these challenges would exist even if they were still together. Problems with communication, control, differing value systems, respect, anger, resentment all exist within a marriage as well. The challenge is how to resolve them. The parties have chosen to separate from each other but the children have separated from neither of them.
[15] I wholeheartedly adopt the observations and findings of Madam Justice Benotto of the Ontario Court of Appeal when she wrote in a decision involving a toxic relationship between two parents released just recently,
For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized. It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.[^1]
[16] I have frequently stated that in family law matters involving children, there is no “winner” or “loser”; there is only ‘loss’. The challenge for the court is to determine how to immediately and effectively limit the degree to which the children will lose.
[17] An assignment of parental obligations and duties to each party will address the allegation of power imbalance between them. However, in the exercise of those responsibilities as awarded herein, neither parent is or will be entitled to act in isolation without notice to the other parent.
[18] Further, although a 50/50 division in the management of the children’s time outside of school may be perceived as in the best interests of the parents, there is no probative evidence before me that such a mathematical parsing of time is or would consistently be in the best interests of either or both of these children over the long term.
[19] The overarching concern of this court is to always ensure that the assignment of hours or days that the children are to spend in the care and control of either parent does (a) not interfere with the ongoing development of the relationship between each child and the other parent; and, (b) does not interfere with their academic and social development at school. I decline to interfere with stability at school to support or ensure a 50/50 division of time with each parent. Therefore, unless there is evidence from the school teachers that these children are able to withstand the stress and pressure of changing home environments, parenting styles and structures every week while simultaneously studying and attempting to achieve steady progress at school, I am loathe to accede to the Respondent’s suggestion as to time sharing. A child-centred continuum in the timeline to which both parents must ascribe is essential.
[20] The only home environment the children have known is located in London (Komoka). Until all issues between the parties have settled on a final basis and in recognition of the fact that both consistency and stability are essential for children for whom the nuclear family no longer exists, I find that both girls must live and attend school in London (Komoka) for the foreseeable future. I am also of the view that the children ought to maintain their routine and environment as far as possible with respect to their school, their friends and their summer and extra-curricular activities.
[21] For all of these reasons, I order the following:
(a) The parties will share the duties, obligations and benefits of parenting these children.
(b) During the months of July and August 2015, the children will reside with the Applicant for two consecutive weeks in each month and with the Respondent for two consecutive weeks in each month. Should the parties be unable to agree as to the weeks, the children will reside (i) in July 2015: with the Applicant from July 3 at 4:00 pm until July 17 at 4:00 pm and with the Respondent from July 17 at 4:00 pm until July 31 at 4:00 pm.; (ii) in August 2015: with the Applicant from July 31 at 4:00 pm until August 14 at 4:00 pm and with the Respondent from August 14 at 4:00 pm until August 28 at 4:00 pm.
(c) Commencing September 7 2015 at 4:00 pm, the children will reside with the Applicant during that first school week until Friday, September 11 2015 at 4:00 pm, at which time they will reside with the Respondent until the morning of Tuesday, September 15 2015, at which time the Respondent will deliver them to school. The Respondent will have them again in his care from after school on (i) Thursday, September 17 2015 until 7:00 pm that evening; and (ii) again on Monday, September 21 2015 from after school until 7:00 pm.
(d) Thereafter the children will reside with the Respondent (a) from Friday at 4:00 pm until Tuesday morning every second weekend; and (b) from after school until 7:00 pm on the Thursday before the Applicant’s weekend with the children; and (c) from after school until 7:00 pm on the Monday after the Applicant’s weekend with the children.
(e) From 9:00 to 4:00 pm on all Professional Development Days during the school year, the parties will each take one child alternately such that commencing in October 2015 (and every second PD day thereafter), Emma will be with the Applicant and Keira will be with the Respondent and commencing in November 2015 (and every second PD day thereafter), Emma will be with the Respondent and Keira will be with the Applicant.
(f) Further, subject to the provision regarding Christmas below and save and except for the long weekend in July and the long weekend in August, both of which shall be incorporated into the division of time for the summer holidays, all civic and religious holidays will be shared equally by the Applicant and Respondent who shall take turns on an annual basis such that in odd years, the children shall be with the Applicant for the whole of March Break, Labour Day weekend and Thanksgiving weekend, and with the Respondent for the whole of Family Day weekend and Easter weekend and in even years, the children shall be with the Applicant for the whole of Family Day weekend and Easter weekend and with the Respondent for the whole of March Break, Labour Day weekend and Thanksgiving weekend.
(g) In odd years, the children shall reside with the Applicant from 4:00 pm on the last day of school until 10:00 am on December 26 and with the Respondent for the balance of the school holidays and in even years, the children shall reside with the Respondent from 4:00 pm on the last day of school until 10:00 am on December 26 and with the Applicant for the balance of the school holidays.
(h) Every year, the children will spend from 10:00 am until 7:00 pm with the Applicant on Mother’s Day and from 10:00 am until 7:00 pm with the Respondent on Father’s Day.
(i) In odd years, the children will be with the Applicant from 10:00 am until 7:00 pm on […]to celebrate Emma’s birthday and with the Respondent from 10:00 am until 7:00 pm on […] to celebrate Keira’s birthday. In even years, the children will be with the Respondent from 10:00 am until 7:00 pm on […] to celebrate Emma’s birthday and with the Applicant from 10:00 am until 7:00 pm on […] to celebrate Keira’s birthday.
(j) Both children shall have uninterrupted and unsupervised Facetime or Skype contact with the other parent once every 48 hours regardless of the parenting schedule and their location.
(k) The Applicant shall be solely responsible for the day to day medical and dental health of the children and shall make any and all appointments for the children as may be necessary regardless of the residence of the child(ren) at the time of the appointment. Not less than 7 days in advance of the appointment, the Applicant shall notify the Respondent by email of any medical and/or dental appointments she has made for the children. The Applicant will take the child(ren) to the appointment and return the children to the school if the appointment is during a school day or to the Respondent if the appointment is after school and they are residing with him at the time. In any event, both parents are entitled to either attend the appointment or to receive a report or information concerning the medical or dental health of the child. The consent of either party to obtain the information from the medical or dental caregiver is hereby waived.
(l) The Applicant is further responsible for any day to day counselling and/or religious instruction that she deems fit for the children. Not less than 7 days in advance of the appointment, the Applicant shall notify the Respondent by email of all appointments or meetings made for the children. The Applicant will take the child(ren) to the appointment or meeting and will return the children to the school if the appointment or meeting is during a school day or to the Respondent if the appointment is after school and they are residing with him at the time. In any event, both parents are entitled to either attend the appointment or meeting or to receive a report if the counsellor or religious instructor agrees to disclose any information. The consent of either party to obtain the information from the third party in this regard is hereby waived.
(m) The Respondent shall be solely responsible for the day to day educational welfare of the children and shall make any and all appointments with school officials as may be necessary regardless of the residence of the child(ren) at the time of the appointment. Not less than 7 days in advance of the appointment, the Respondent shall notify the Applicant by email of any educational appointments he has made for the children. The Applicant may attend any and all appointments with any and all educational officials and participate in the discussions or to receive a report or information concerning the educational welfare of the child(ren). The consent of either party to obtain the information from the school officials is hereby waived.
(n) No decision may be made that alters the course of the child’s health, welfare or education (such as surgery, mind or mood altering medication or special education classes) without the written consent of the other parent.
(o) During the school year, each parent may choose one extra-curricular activity for each child so that each child is involved in no more than two extra-curricular activities at any one time. The activities shall not interfere with the other parent’s time with the children save and except with the written consent of the other parent.
(p) During the summer months, each parent may choose such activities for the child(ren) as they see fit provided that the activities either (a) do not interfere with the residence of the child(ren) with the other parent; or (b) the other parent consents in writing to the child(ren)’s involvement in the activities while the child(ren) is/are in his/her care.
(q) On the first day of each month commencing July 1 2015, the parties will complete and exchange by email a calendar of all appointments, practices, games, camps or activities involving either or both children for the entire month. Any amendments or changes to the calendar must be made in writing and on immediate notice to the other parent. The information on the calendar is to include the time, date and location for each appointment, practice, game, camp or activity.
(r) Both parents may attend all practices, games, competitions, races, presentations and concerts involving either or both children regardless of time, date or location.
(s) At all times, both parents shall acknowledge each other and speak to each other with respect in the presence of or within hearing distance of the children.
(t) Both parties are restrained from speaking disparagingly about the other parent or any and all members of his/her family in the presence of or within hearing distance of the children.
(u) Both parties are restrained from discussing any aspect of this court proceeding, its participants or the litigation with the children or either of them, in their presence or within their hearing distance.
(v) The children alone shall have exclusive use of the chalet in Collingwood at 141 Snowbridge Way during all seasons throughout the year and to the exclusion of the parent in whose care they are not residing at the time. For clarity, the children alone have the right to the use of the chalet at all times; the right of the Applicant or Respondent to occupy and/or use the chalet is restricted to the timesharing set out herein when the children reside with that parent. Neither parent shall attend at the chalet or on Snowbridge Way when the children are at the chalet and in the care of the other parent. Neither parent shall allow a third party to occupy or use the chalet when the children are not there. Nothing shall be removed from the chalet at any time by either party save and except personal clothing.
(w) If the Respondent is required to travel out of town for more than 24 hours, the children shall be placed in the care of the Applicant. If the Respondent is required to travel out of town for less than 24 hours, the Respondent may call upon his parents or a sibling to look after the children, but no other third party without notice to the Applicant, who shall be given the right of first refusal.
(x) The residence of the children with the Applicant and the residence of the children with the Respondent shall not be changed from the City of London or Komoka by either party without an order of the Court.
(b) Support
[22] As I have indicated, the Respondent is the owner of JMP Engineering Inc. This business has offices throughout Canada and the US. According to the company’s financial statement for the fiscal year end December 31 2013, the business had retained earnings in excess of $2 million. The company owes a debt of approximately $280,800 to the Respondent. The corporate debt ranges between $1 and $2 million dollars.
[23] The Respondent retained an expert to prepare an income report. According to the report, the Respondent’s average income for 2011 to 2013 inclusive was $281,812. His average income for 2012 and 2013 was $340,971. I accept the evidence of the Respondent that his income in 2013 reflected draws to repay his shareholder loan as a result of the purchase of the chalet in Collingwood and the Applicant’s horse in 2012. His income for 2014 will be fixed at $364,188.00[^2].
[24] The Applicant’s income is fixed at $30,400 which was her Line 150 Income for the year 2013.
[25] There is little doubt that during the course of their marriage the parties pursued an extravagant lifestyle including (a) membership in private golf clubs and a private ski club; (b) extensive international and domestic travel; and (c) international and domestic purchases (such as the horse from Holland) etc. Many of these expenses were paid by the Respondent’s company.
[26] But the expectation that the company ought to continue to finance such an extravagant lifestyle even at this juncture is, in my view, ill-placed. There is an expectation on the Applicant to become self-reliant. Both children are in school. There is no evidence before me that would result in a finding that she is unable to work on a fulltime basis. That said, the Applicant is entitled to time to take such steps as may be necessary to expand her business market or retrain for a career that is more lucrative. I am not prepared therefore on an interim basis to impute income to her. I am not satisfied that she is currently intentionally under-employed.
[27] I am also not prepared to impute an income greater than $364,188 to the Respondent. There is no probative evidence before me that he is intentionally underpaid particularly in light of his Line 150 income during a number of years prior to the separation. He certainly is not intentionally under-employed. I decline to require him to take a greater draw from the company to maintain a lifestyle for the Applicant and the children which must inevitably change. I am not prepared to find that he is intentionally diverting funds to defeat a higher claim.
[28] In my view, both of the parties must be required to analyze yet again and in detail their corporate expenses and deductions and, while doing so, apply a much more stringent interpretation of the test of “reasonableness” with respect to their deductions. The allegations flowing back and forth between the parties reflect their refusal to apply the “reasonableness standard” referred to in s. 19(2) of the Federal Child Support Guidelines.
[29] In all of these circumstances, I therefore make the following child and spousal support order on an interim basis:
(a) Commencing July 1 2015 and on the first day of each month thereafter the Respondent shall pay to the Applicant child support for the two children in the amount of $4454 per month in accordance with the Federal Child Support Guidelines on the basis of an annual income of $364,188 for the year 2014;
(b) Commencing July 1 2015 and on the first day of each month thereafter the Respondent shall pay to the Applicant spousal support in the amount of $7575 per month in accordance with the mid-range suggested by the Spousal Support Guidelines;
(c) Commencing July 1 2015, the parties will share the costs of the children’s extraordinary expenses on a prorated basis in accordance with their incomes. The Respondent will pay the costs at the outset and once per quarter will send a calculation and statement to the Applicant with proof of expenses and payments. The first statement will be forwarded to the Applicant on September 30 2015. The expenses will be limited to the following: (a) camp fees; (b) the cost of lessons for a physical activity or sport; (c) music lessons; (d) medical and health costs not covered by insurance; and (e) educational costs such as tutoring and books.
(c) Repairs to the Matrimonial Home
[30] It is unreasonable to seek funding to complete repairs or undertake further renovations on the matrimonial home at this time. The home has been described as having a listing value in excess of $600,000. There is no probative evidence that further financial investment would increase the purchase price to the extent that return on further investment for repairs would be guaranteed.
(d) Sale of the Matrimonial Home
[31] The issue with respect to disposition of the matrimonial home and the chalet is adjourned sine die returnable on ten days’ notice. It would be premature to order a sale of either property until such time as (a) the equalization payment that may be due and owing by one party to the other is determined on a final basis; and (b) the issue of whether the Applicant will be entitled to remove the children from this geographical area on a permanent basis has been decided.
(e) Miscellaneous
[32] In my view, the parties need to move forward for the protection of the mental and emotional health of their children. In the result, I also order the following:
(a) The parties are to undertake and complete forthwith a parenting program that provides a skills-based education for parents in conflict;
(b) All disclosure must be completed by both parties within 90 days;
(c) All questioning and the satisfaction of undertakings must be completed within 120 days;
(d) The parties shall not change or vary these timelines without leave of the Court;
(e) The parties are to arrange a combined Settlement Conference/Trial Management Conference which is to take place before November 30 2015.
Order
[33] An interim order shall issue in accordance with these reasons.
[34] Each party may make written submissions with respect to costs within 45 days provided a written formal Offer to Settle has been served in accordance with the Rules failing which issue of costs is adjourned to the judge finally disposing of this matter.
Justice L. Templeton
Released: June 17, 2015
[^1]: M. v. F. 2015 ONCA 270
[^2]: Information received by FAX on February 3, 2015 from McKenzie Lake LLP and marked Ex. 2 indicating that the gross pay was $364,188.48