Endorsement
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jeffrey Charles Joseph Dion, Applicant
AND
Crystal Amy Glasgow, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Lisa Sharp, Counsel, for the Applicant
Robie Loomer, Counsel, for the Respondent
HEARD: June 30, 2015
ENDORSEMENT
Background
1The applicant moved for several items of relief. The respondent objected to the motion going forward because a settlement conference had been conducted by Justice Blishen on December 3, 2014. She endorsed the record to the effect that the access arrangements needed more time to stabilize and the settlement conference should come back before her in about three months’ time. The respondent’s objection was that the applicant had not resumed the settlement conference as directed, rather had brought a motion. She also submitted that the case should go to a trial rather than to a motion, at this stage of proceedings. I was directed to a motion heard by Justice Phillips in October 2014, and the submission was made that the motion before me was an attempt to vary a temporary order, which should be discouraged.
2The case has not been listed for trial. The settlement conference has not been completed. Justice Phillips’s access order was made on a without prejudice basis. There were three time sensitive issues which I determined should be heard. These were:
What arrangement should be made for summer holiday access for the parents and child?
Should child support be changed on a go forward basis having regard to the change in the father’s income?
Should the child be registered for Junior Kindergarten for this September or not?
3In addition the respondent added an issue, namely her request that the OCL be asked to update its report dated October 9, 2014, for trial purposes. This issue was brought on short notice. The applicant objected strongly to my deciding it at this time. After hearing submissions and in view of the extensive material before me in the continuing record I decided that I could in fairness to both parties properly adjudicate this issue at this time. In addition, I determined that in the interests of the child and proportionality I ought to do so.
Summer Holiday Access
4Ultimately the parents agreed during the course of oral argument that the respondent would have uninterrupted summer holiday time with the child during the weeks of July 27 to August 3, and August 17 to August 24. They also agreed that the applicant would have uninterrupted holiday time with the child during the weeks of July 20 to 27 and August 3 to August 10. The return times are all on the Monday mornings. This order is made on consent.
Child Support
5In 2014 the father worked three different part time jobs, earning a total of $49,900. Some of this work took place in what we would consider regular office hours. Other work was on call, overnights and weekends. As of December 2014 he obtained a ten month, full time contract from one of his part time employers, namely the Ottawa Carleton School Board. His remuneration for the ten months will be $37,200. Although the term of his contract follows the school year, the applicant is not a teacher and his remuneration does not include anything on account of July and August.
6The respondent says the choice to take on this full time contract position at a reduced salary amounts to voluntary underemployment. Further, the respondent says the applicant can still avail himself of work from his other two former part time employers, such that his income should be considered to be $49,900. In fact the current support order was based on the applicant’s self-stated income of $48,000 and so, the respondent feels support has been underpaid all along.
7I accept that obtaining full time employment during regular weekday, office hours, together with the employee benefits that form part of the compensation, provides a reasonable explanation sufficient to answer the allegation of voluntary underemployment. I do not accept that having obtained a ten month contract that the applicant should accordingly not work at all during the summer months. I find he can and is able to obtain a reasonable amount of work during those two months, and still reserve to himself a satisfactory summer holiday period. I have determined it reasonable to add one twelfth of what he earned last year from his most significant part time employer to his current income, producing a total of $40,542 on an annual basis. Child support for one child based on that income shall commence as of July 1, 2015, in the monthly amount of $365. Other adjustments are left to final determination.
Junior Kindergarten Registration
8The child has recently turned 4 years of age. Her father is an educational assistant and he strongly favours enrolling her in a JK program for September. In fact, he went so far as to register her in January at a school near to where he lives without the mother’s agreement, so that a spot would be saved for her before the registration deadline passed by. He set this motion down on April 16.
9The mother is strongly opposed. I find she has not looked into schooling for her daughter, rather she prefers to continue her attendance at playgroups for the time being. The mother gives two reasons. She enjoys the extra time with her daughter and feels her daughter also benefits from it. She believes her daughter is still experiencing difficulty adjusting to the access arrangements, and that introducing another significant change as full day attendance at JK would entail, is not best for the child at this point in time.
10There is no temporary order or agreement addressing legal custody or decision making for this child. The child has resided primarily with her mother since the parental separation in February 2014. The OCL report is disputed. It does recommend the mother have custody and decision making of the child. Other factual disputes exist between these parents. The father did file material from the Ontario Government outlining the benefits of JK attendance for children in general; nonetheless I have nothing specifically addressing the needs of this child.
11Given the disputed factual motion record before me, including that the parents do not agree whether their child should be registered for what is non-compulsory school attendance, and the fact that there is no order yet with respect to legal custody or decision making, I have determined not to make an order in this regard. For better or for worse, the child will therefore not attend JK until at earliest the parents agree, or the case proceeds to trial and a final determination as to decision making authority is made.
OCL Report Update
12The father strongly opposes the request for an update of the OCL report. He felt the individual who prepared the first report was biased against him, and formed an unreasonable, stubbornly held view that he had inappropriately touched his daughter while bathing her. Justice Phillips very clearly found that no such impropriety had been established and held supervised access was not required. I understand and accept that an update should not be prepared by this same individual. Nonetheless this case is about what is in the best interests of the child. Much has changed since the first report was released in October 2014. The child has embarked on unsupervised access with her father. The father has re-partnered and his partner also has a young daughter residing with them. Justice Blishen noted that access was still in the adjustment phase in December 2014 and wanted more time to pass to see how it progressed. Now the parents disagree as to whether their child is or is not doing well under the current regime. The mother describes significant changes in the child’s behaviour on return from her father’s home, taking a day or two to overcome. The father describes his relationship and time with his daughter as very good indeed. The trial judge will be much better off having an updated report from a different clinical investigator as part of the evidentiary record at trial.
13For these reasons I do request the OCL to provide an updated clinical investigation and assign a fresh clinical investigator. Once the parties know whether the OCL will do so, and if so, when the report is available, they should forthwith return the settlement conference to Justice Blishen for completion and trial scheduling.
Costs
14If costs are requested and cannot be agreed to by counsel, they should make written submissions to me, to include brief submissions, any relevant offers to settle and bills of costs, exchanged between them, and in my office by July 31,2015.
J. Mackinnon J.
Date: July 3, 2015
COURT FILE NO.: FC-14-433
DATE: 20150703
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jeffrey Charles Joseph Dion, Applicant
AND
Robie Loomer, Counsel, for the Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Lisa Sharp, Counsel, for the Applicant
Robie Loomer, Counsel, for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: July 3, 2015