K.L.D. v. D.A.P., 2015 ONSC 4441

Citation: K.L.D. v. D.A.P., 2015 ONSC 4441 Napanee Court File No.: 365/13 Date: 2015/07/08

Ontario Superior Court of Justice

Between:

K. L. D. Applicant

– and –

D. A. P. Respondent

Counsel: Self-Represented Lucienne MacLauchlan, for the Respondent

Heard: May 26, 27, 28, and 29, 2015

Reasons for Judgment

Minnema J.

Nature of the Case/Issues

[1] The parties lived together for just over four years. They separated in July of 2013. During their cohabitation they had a child together, J.A.S.P., who is now five years old. The main issues in this case are custody and the parenting schedule. Child support and special expenses also need to be determined.

Background Facts

[2] Both the applicant mother, Ms. K.D., and the respondent father, Mr. D.P., were born in 1982. They started living together in Kingston in the first half of 2009.

[3] The mother has a child from a previous relationship, J.H. When the parties began their relationship he was about eight or nine years old and living with his father Mr. R.H. His mother saw him every other weekend and once during the week, a consent arrangement, and this continues. The father here, Mr. D.P., assisted as a step-parent in the care of J.H., including taking him fishing and golfing, and playing catch and videogames. He drove him at times to various activities such as baseball, soccer, and boxing. Although still a child, J.H. is now age 15. He was called as a witness by his mother in this trial and described his relationship with Mr. D.P. early on as “great”.

[4] When the mother became pregnant, the father was very involved in the pre-natal care and medical appointments. The mother is a smoker. She admitted that smoking while pregnant was not a sound decision, although she quit for the last three months. The child at issue in this case, J.A.S.P., was born healthy on […], 2010. The father attended the labour and delivery.

[5] The mother took the first eight months of maternity leave, and the father took the remaining roughly four months as paternity leave. The mother suggested that when the father was home with the child it wasn’t full-time, as J.A.S.P. went to day-care two to three days a week. The father denied this. The day-care provider testified. Although she was strongly allied with the mother who is a close friend of her daughter, her evidence supported the father’s version. She said that she did not begin caring for the child until he was approximately one year old.

[6] After the father’s paternity leave the child went to the said daycare provider Mondays to Fridays, including in the summer. The mother is a Registered Practical Nurse and worked shifts including some evenings and every other weekend. The father cared for the child alone during those times. Soon afterwards the mother began a regular weekly work schedule from 7 a.m. to 3 p.m. For the most part, both parents worked full-time.

[7] There were difficulties in the relationship and the parties separated on July 23, 2013. The mother left with the child, and the father was surprised when he discovered this on his return home from work. The mother let him know that she was staying with her ex-partner Mr. R.H., who is J.H.’s dad. This concerned the father as he was aware there had been domestic violence between them in the past.

[8] The mother claimed that she was concerned about the father’s mental state generally around the time of separation, and she told the day-care provider not to release the child to him six days later. The reason for this was not clear. This denial of access led to numerous attempts by the father and his family to communicate with the mother and day-care provider. The mother in response called the police multiple times. Other than the father trying to re-establish contact, no other difficulties were noted, and no criminal charges were laid. However, the police contacted the Children’s Aid Society (“CAS”) who did an investigation.

[9] A reporting letter from the CAS was in evidence dated August 30, 2013. It indicated that the police had reported an escalating level of tension since the separation and had concerns about the child being exposed to adult conflict. Along with the parties, the worker met with the children J.A.S.P. and J.H., and with J.H.’s father Mr. R.H. and his partner Ms. C.D.O. The CAS specifically noted that it did not appear that the children were exposed to any significant degree of conflict. Further, the mother indicated to the worker that she did not have concerns with the father’s access to J.A.S.P., which up to then had included visits in the community and two overnight visits. The CAS completed its investigation five weeks from the date of separation, and closed its file when no protection concerns were noted.

[10] On September 6, 2013, the mother brought this application seeking custody and child support. She claimed that her decisions in life reflected the best interests of the child and that she had been the primary caregiver. She alleged that the father was self-focussed, putting his needs before the child’s. Her affidavit of the same date confirmed that there had not been any violence or abuse by the father to her or the child.

[11] The father in his Answer dated September 20, 2013 also sought sole custody. He wanted an alternate week parenting schedule with a midweek visit, and shared holiday time. He claimed he was very involved with the child prior to separation and that the mother had previously agreed to his proposed time sharing.

[12] The mother’s reply was signed November 18, 2013. She denied any agreement to an alternate week parenting arrangement. She indicated that the father was reluctant to commit to the access times she offered, although he had the child for “up to 3-4 nights” on two occasions. She said that she wanted his access to be “Friday to Monday every two weeks, and an overnight in between” and said “I feel that primary residence remains with me as I can continue to provide a holistically, healthy and supportive environment for [J.A.S.P.] to thrive on with the presence of positive friends and family.” She also indicated “I would like to see that the respondent and I have joint decision making on healthcare, physicians education (sic), activities as I feel that both can make responsible joint decisions.”

[13] Following the separation the father indicated that he saw J.A.S.P. about the same as now, so about every other weekend and a Thursday to Friday on the off week. I accept the father’s evidence that the relationship was amicable.

[14] On February 13, 2014, the father was arrested and charged with various criminal offences. There was limited documentation in evidence - just the charges, record of pleas and convictions, and the probation order. The father explained that he went to pick up J.A.S.P. from day-care on his assigned day and was told the child wasn’t there as the mother had picked him up early. He said that he called and texted repeatedly to determine why and as a result was charged with harassment. There was no dispute about that account. The charge had a cumulative aspect to it, covering communications back to July of 2013 when the child was also withheld. Another harassment charge was related to a friend of the mother’s, Ms. K.L.I., but I heard no evidence about the circumstances. The father was also charged with threatening a Mr. P.W. He explained that the mother’s ex-partner Mr. R.H. told him that this individual was with the mother before and after the father’s relationship, and was now raising J.A.S.P. In response the father said to Mr. R.H. that he would physically harm this person and make the mother watch. Mr. R.H. reported that statement to the police.

[15] The father did not attempt to minimize the criminal nature of these behaviours, and pled guilty to the three noted counts on February 27, 2014, just weeks after being charged. He had been in pre-sentence custody for 14 days and was sentenced to an additional 14 days in jail (although released after 10), and to three years probation. The probation order, among other things, restricts his communication directly or indirectly with the mother, Mr. P.W., Mr. R.H., and Ms. K.L.I., with an exception related to the mother for access arrangements per a Family Court Order or agreement. No children were involved and there are no restrictions related to J.A.S.P. There is a requirement that the father attend counselling as arranged by his Probation Officer. He indicated that he has already completed the Partner Assault Response program, although found it had limited application as he has never assaulted the mother.

[16] A letter was in evidence from the CAS dated April 15, 2014, which said that as a result of a referral received on February 13, 2014 (the date of the criminal charges) it had conducted an investigation which included interviews with family and private interviews with J.A.S.P. The worker indicated that she had verified the criminal convictions, and “[a]dditionally, I have verified concerns regarding the emotional impact on your son [J.A.S.P.] as a result of ongoing custody and access dispute between you, his parents.”

[17] The parties indicated that the CAS, in the course of its involvement, recommended that both of them take a parenting course and counselling. The father enrolled in a parenting course, but because of his work was only able to attend five out of nine sessions. The mother did not attend a parenting course. The father attended counselling for four sessions. There was no evidence of the mother’s counselling. The CAS also recommended drug tests on the parents. The father put a test result into evidence showing no detections. The mother claimed to have completed a drug test but did not produce it.

[18] Following the father’s release from jail the mother refused him all access. After over a month of not being able to arrange to see the child he brought a motion returnable May 12, 2014. It was adjourned to May 26, 2014. For the period of the adjournment the parties consented to supervised access at the Salvation Army. Before that was arranged, however, and before the return date of the motion, the parties at a settlement conference on May 23, 2014 consented to the father having interim access every other weekend from Fridays at 5:30 p.m. to Sundays at 5:30 p.m. and on the alternate weeks from Thursdays at 5:30 p.m. to Fridays at 5:30 p.m. The access was not to be supervised, but was to be exercised at the home of the paternal grandparents. The parties interpreted this as meaning that there were no restrictions on the father’s access except that the child was to always sleep there. The paternal grandparents were to do the access exchanges for the father. The parties were directed not to discuss court proceedings or any other adult issue with or in the presence of the child or allow anyone else to do so.

[19] Given the criminal conditions, all communication between the parties occurred through the paternal grandfather. He was always respectful, cordial and reasonable, and the mother acknowledged this. These communications were for the most part effective and appropriate. The mother was comfortable with the child spending time with the father’s family. The father has a married sister in the area who is a school teacher and who has two children, girls aged 13 and 11, and he has a brother who also has two children, boys aged 7 and 3. Along with being very close to his paternal grandfather and grandmother, J.A.S.P. has a relationship with these family members as well.

[20] As noted, after the separation the mother and J.A.S.P. went to live with her ex-partner Mr. R.H., their shared child J.H., and Mr. R.H.’s partner Ms. C.D.O. A relative of Mr. R.H. that J.A.S.P. called “Uncle D.” was a visitor to the home. He has a criminal record and that was a concern for the father. While the mother and Ms. C.D.O. admitted that Uncle D. had spent time in jail, they had never seen his criminal record but understood it was for fraud related convictions. However, they were both aware that Uncle D. had been involved in an altercation where he had been stabbed in the chest.

[21] The mother and child stayed with Mr. R.H. and Ms. C.D.O. for 7 or 8 months. They live about twenty minutes west of the paternal grandparents. She then moved to Kingston, in an apartment where she stayed for 7 or 8 months. After that she moved in with her mother, who lives about an hour’s drive north of Kingston. She had been living there with J.A.S.P. up to the time of the trial. Ms. C.D.O. noted she and Mr. R.H. still have J.A.S.P. in their care about once per week.

[22] Junior Kindergarten was to start for J.A.S.P. in September of 2014. The father broached the choice of school with the mother early in the year. The mother left enrolment late, and the usual structured orientation program for the child was missed. She indicated that she was uncertain where she would be living. With the help of the father and his family, including the paternal aunt who again is a teacher, an appropriate school was identified near the paternal grandparents’ home. The child was enrolled just days before it started. The paternal grandfather filled out the paperwork for the mother to sign. While the father and his family took charge, the mother agreed with those decisions.

[23] I understood that prior to school J.A.S.P. continued to go to the same day-care provider. There was no evidence establishing the cost or who paid. The day-care provider when asked could not recall. One and a half months before school started she suffered a heart attack. The paternal grandparents offered to care for J.A.S.P. during the day, which the mother accepted.

[24] The maternal grandmother has a known drinking problem. The mother asserted that her mother quit drinking when she and J.A.S.P. moved in with her, but that evidence was contradicted by her own son J.H. who said that his maternal grandmother drinks every day. Both the mother and her mother smoke. The mother asserted that all the smoking at her mother’s place now takes place outside. She denied smoking in the car with the child, and said that on the drive back and forth to Kingston she stops at a store along the way to smoke, but not every day.

[25] The mother and child sometimes stay in town at various locations. For example, J.A.S.P. has stayed with his mother at her close friend’s Ms. J.J., who is the daughter of the day care provider. There was no dispute that J.A.S.P. does not enjoy staying at Ms. J.J.’s. Another example already noted was J.A.S.P. stays with Mr. R.H. and Ms. C.D.O., sometimes overnight during school. For the week of this trial the mother and J.A.S.P. stayed both with Mr. R.H. and with the parents of her current partner.

[26] While the court proceeding moved towards trial, the access per the court order went well, and indeed some flexibility was being shown. The father, through the paternal grandfather, suggested to the mother that it made sense that he and his family pickup J.A.S.P. after school, rather than leave him in the after school program for two hours. The mother agreed. Similarly a request was made that J.A.S.P. stay later than the 5:30 p.m. on Sunday evenings so that he could have a meal before the one hour drive back to his maternal grandmother’s. The mother agreed to 7:00 p.m.

[27] The father was criminally charged again in late September of 2014. He explained generally that he is accused of yelling at Mr. P.W., one of the subjects of the criminal restraining/probation order, when they drove by each other in convertibles. This resulted in a charge of threatening and two counts of breach of probation. At the time of this trial that matter was still before the courts and being defended.

[28] Both parties began new relationships, the mother in January 2014, and father in July of 2014. There were three developments in late 2014 that triggered a return to court on an interim motion.

[29] J.A.S.P. disclosed to the father’s family in early November of 2014 that his brother J.H. touched his penis and it hurt. This was disturbing, as the father’s family liked J.H. and thought him to be a good kid. Not knowing what to do, they contacted the father’s counsel, who advised them that they had an obligation to report it to the CAS, which they did. The CAS investigated, including interviewing the children. Both parties indicated that the CAS has no current concerns. There was no evidence of what caused the child to make the disclosure, or what if any recommendation was made. Immediately following this event the mother announced that the access would revert back to the court order, namely start at 5:30 p.m., no longer after school, and end Sunday nights at 5:30 p.m., no longer at 7:00 p.m. In early December 2014, the maternal aunt asked to have J.A.S.P. for a sleep-over with his cousins, and the mother said no. When asked by the paternal grandfather around that time if her emotions were getting carried away, the mother’s only explanation came in a text indicating “I just prefer to stick to the terms of the temporary order until there is a settlement.” The mother in her evidence said she reverted to the previous access schedule because she felt that the report to the CAS was an attack on her support system, and she exercised a form of punishment for the insult to her family and for having J.A.S.P. and J.H. put through an investigation. There was no suggestion that the father’s family made up the disclosure, or that they should not have reported what they heard.

[30] The second and third developments were related to the mother’s new relationship. In January 2014 she met Mr. C.A., aged 25 or 26, who is a member of the Royal Canadian Air Force and from this area. They began dating. Mr. C.A. was posted to Montreal in April of 2014, and the mother would visit him there, taking J.A.S.P. with her twice. Mr. C.A. would often come to visit at her mother’s place north of Kingston, staying there. Although J.A.S.P. is five, he still sleeps in the same bed with his mother. Her evidence was that he insists, and she cannot say no. She said he would therefore sleep with her and Mr. C.A., but not always. Mr. C.A. was subsequently posted to Winnipeg and moved west in October 2014.

[31] The second development was that the father indicated J.A.S.P. told him he would be moving to Winnipeg to live with Mr. C.A. The mother denied saying this to the child, but her evidence here was confusing. She admitted that the child may have “overheard” her and Mr. C.A. talking about it. She added that upon overhearing, J.A.S.P. was “fine to move” and she alleged that the child, then age four, stated “I want to move to Winnipeg with [Mr. C.A.]”. The father’s lawyer wrote to the mother’s lawyer in the fall of 2014, asking for an undertaking that she not move with the child absent a court order. Neither the mother nor her then counsel responded.

[32] The third development had to do with the mother planning a 10 day trip to Winnipeg. She intended to leave the child with her ex-partner R.H., not with the father.

[33] The motion by the father sought to: prohibit the child moving; address the curtailment of his access; and allow him to care for the child when the mother travelled. On the first return date of January 19, 2015 the court ordered interim custody to the mother, that the child not be removed from Ontario without a court order or agreement, and, on consent, that the father’s access recommence after school rather than at 5:30 p.m. The balance of the motion was adjourned to February 2, 2015, and on that date the court also ordered that the father would have the first option to care for the child if the mother went on a vacation. However, the issue of where the child had to sleep during access was further adjourned to give the mother an opportunity to meet with the father’s new partner. The mother had cited a lack of information about Ms. A.C. as the reason for resisting increased time with the father and overnights at his new home. The mother in her evidence indicated that they met and had no concerns. Access began occurring overnight at the home of the father and Ms. A.C. without returning to court.

[34] The mother filed a new reply dated February 27, 2015, with leave, on consent. The essential changes from her previous reply were as follows. She wanted the access to be Friday to Sunday, rather than Friday to Monday as she had previously indicated. Her reasoning was that, referring to the father’s criminal charges, the child’s “increased exposure to this negative behaviour and lack of self control could be damaging to our childs (sic) well-being and sense of security.” Also, she changed her position on joint decision-making saying that she did not feel that the father had been able to make responsible and child focussed decisions for a period of time and that he lacked accountability for his actions, making it difficult to cultivate a healthy co-parenting relationship. This too was in reference to the criminal convictions and charges.

[35] The mother’s wish to move to Winnipeg remained a large issue until just before trial. In response to the father’s motion, the mother had filed a letter from Mr. C.A. It ended by him saying “Given the opportunity I would adopt J.A.S.P. as my own as we have a very close bond and I have accepted him as if he were my own.” The father was understandably concerned that there was a plan to cut him out of the child’s life. However, Mr. C.A. has recently been successful in obtaining a posting to Kingston. The mother indicated that they have rented an apartment and were obtaining possession on the last day of trial. The location is near the child’s school and the paternal grandparents’ home, and not far from where the father and Ms. A.C. live.

[36] The father’s partner Ms. A.C. is a separated mother, employed, with two well-functioning young daughters aged 14 and 9 who are in her care on alternating weeks. The relationship with her ex-partner is civil. She has a good relationship with J.A.S.P., as do her children. She describes J.A.S.P. as a good kid who listens. J.A.S.P. is active in her home with both indoor and outdoor activities. Both she and the paternal grandfather indicated that J.A.S.P. sleeps in his own bed while at their homes without difficulty. She indicated that her relationship with the father is healthy and respectful, with little conflict. Ms. A.C. has observed that when the father becomes stressed, he can become animated and his voice gets louder. This is not yelling and is not directed at anyone. The only time she recalls J.A.S.P. being present when the father raised his voice was when the disclosure was made about the child being touched by J.H. Ms. A.C. noted that, before it was lifted, the restriction on where J.A.S.P. could sleep was difficult. For example, it resulted in the child missing out on an overnight visit to Canada’s Wonderland as the mother would not allow the child to sleep in a hotel room.

Analysis – Custody and Access

1. Law

[37] The parties never married. The legal tests for custody and access are therefore found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”).

[38] Section 24(1) directs me to determine this proceeding on the basis of the child’s best interest in accordance with subsections 24(2), (3) and (4). The child’s best interest is the overarching consideration.

[39] Subsection 24(2) directs me to consider all the child’s needs and circumstances with specific items mentioned, but that list is not exhaustive.

2. Child’s Needs and Circumstances

(a) Plans

[40] The mother plans to live with J.A.S.P and Mr. C.A. in Kingston. She wants the father’s weekly access to stay as it is. Although she indicated that she intends to be with Mr. C.A. forever, they have never lived together as a family for any extended period. There was no evidence about how long Mr. C.A. as an RCAF member could expect to be posted to this area or what his duties might be. He did not testify. While even the father conceded that Mr. C.A. seemed like a nice guy, the court heard little about him despite being a big part of the mother’s plan.

[41] The father’s plan is to continue to live with Ms. A.C., share time with J.A.S.P. equally with the mother, and foster the child’s current extended family relationships. Ms. A.C. noted that if she and the father have J.A.S.P. half time they will have to either re-do her basement or move.

[42] All current plans have the parties living in close proximity to each other and to the child’s school. This is good for J.A.S.P. It will mean significantly less driving for school and access, and that both parents will be in the same community to encourage his growth and activities.

(b) Emotional Ties and Relationships

(i) Parents

[43] The mother tried to put the relationship between the father and child into doubt. She claimed that the child suffers from “emotional stress” or distress related to the father. In my view, there was no credible evidence to support that. Indeed, the mother’s actions were inconsistent with her alleged belief. She did not obtain any services for the child related to his emotions, despite claiming she had, and was content with regular overnight access and shared holidays.

[44] The day-care provider suggested that J.A.S.P. was generally “happier” after separation. She suggested there was a lack of affection when the father would pick-up the child from her almost a year ago, as he was focussed on asking her questions about the mother. However, she was a very biased witness with a rather selective memory. As already noted her daughter is a very good friend of the mother. She conceded on cross-examination that the mother did the large majority of the pick-ups and drop offs and that she had a limited opportunity to see the father and J.A.S.P. interact. She was quick to recall events that might put the father in a bad light, such as the exact number of times he called her within a short span, but when cross-examined on that point she claimed a marked inability to recall any details that would explain what he said or what she did that led up to or triggered those calls. She purposely went out of her way to walk in front of the father and glare at him upon leaving the witness box.

[45] The child’s brother J.H. indicated that J.A.S.P. seemed shyer before separation; Ms. C.D.O. said that he was more reserved. No such changes in the child were noted by the father or his witnesses. In any event, I do not see how the mother can tie such observations to just the father. The atmosphere in the home was generally noted to be quite poor just prior to the relationship ending.

[46] The mother went further and asserted that the child is now fearful of his father. Her theory was that the child witnessed her being harassed, and that the father yells at his current partner. There was no reliable evidence to support either allegation. The mother herself has not seen the child and father together at any length since the relationship ended. All of the evidence from people who do regularly see them together - the paternal grandfather and the father’s partner and his sister - described the relationship as warm and loving, without any discomfort. The exception to this was the daycare provider as noted, whose evidence was not persuasive.

[47] In my view, while the father did not attempt to attack the mother’s relationship with the child and conceded that it was generally positive, her own attempts to question his emotional ties fell flat. The weight of the evidence left me with no doubt that both the mother and father love J.A.S.P., that he loves them unconditionally, and that the relationships are important and generally positive.

(ii) Family Members and Others

[48] Both parties put forward their extended families as having important relationships with J.A.S.P.

[49] On the father’s side, this was clear. No one, not even the mother or her witnesses, disputed that the paternal grandparents are very important in the child’s life. He also has relationships with his cousins and aunts and uncles. Ms. A.C. is now an important figure, as are her daughters. The adults are all high functioning. The father’s family is very interested and involved with J.A.S.P.’s wellbeing, assisting wherever possible.

[50] There was no evidence of the mother’s extended family having notable relationships with the child. The maternal grandmother has a drinking problem, and some family members were estranged for unexplored reasons. J.A.S.P. does however have a strong relationship with his older brother J.H. and, although not biological family, he has a relationship with Mr. R.H. and Ms. C.D.O. as well. The mother said that if alternate week parenting was ordered she was concerned it would reduce J.A.S.P.’s time with his brother. However, arranging J.A.S.P.’s time to coincide with J.H.’s would not be difficult under the father’s plan. J.A.S.P. also has a relationship with Mr. C.A., although the extent of it is somewhat unknown. The mother claims that it is wonderful, however there has been minimal direct contact over at least the past six months because of Mr. C.A.’s posting.

(c) Child’s Views and Preferences

[51] J.A.S.P. does not have a lawyer and has no independent person purporting to convey his wishes. Even if he had, the reliance on or the weight given to those wishes would have to take into account that he is only five years old.

(d) Status Quo and Stability

[52] When the family was together, the care for the child appeared to be more or less shared. The mother’s statements of the father being uninvolved were not supported by the evidence. The father is consistent with his access. The child has been primarily with the mother since separation. She has moved a number of times and, except for seven or eight months, has lived with others since the relationship ended. The child is currently experiencing a change in residence, moving to Kingston to live with his mother and Mr. C.A.

[53] Despite the moving around, the mother credits herself for keeping consistency for J.A.S.P. in the forefront. She tried to minimize her previous plan to move to Winnipeg suggesting that she was just considering it as an option. If so, it begs the question as to why she chose to risk anxiety for J.A.S.P. by bringing him into that discussion. Further, her response to an email from the paternal grandfather in late March of 2015 asking about mediation suggests that moving was more than a remote possibility:

It is no surprise that I would like to relocate to Winnipeg with [J.A.S.P.] if given the opportunity. Therefore, I am open to the suggestion of mediation if [the father D.P.] will consider the idea of [J.A.S.F.] and I moving to Winnipeg in the near future. I would be open and willing to negotiate a reasonable access arrangement and other terms (if agreed upon) that may be suitable for both parties. I am also happy to provide any information on schools, programs, where we would be living etc. to help assure [the father] that this is of benefit to [J.A.S.P.]. If [D.P.] is unwilling to consider the move at this time then I will go forward with the trial.

(e) Parenting Ability

(i) Pre-Separation

[54] There was no issue taken with the mother’s parenting ability pre-separation. Similarly the father cared for J.A.S.P. for long periods with no difficulties, and he was noted to have a good relationship with J.H. as a step-parent. The mother seemed intent on maligning the father generally including raising claims for the first time during the trial that he abused her during the relationship. This was contra-indicated by what she previously said to the police, the CAS, and in her pleadings. She eventually conceded this point, asserting instead that the father’s behavior became bad after her application was filed, specifically in relation to the criminal matters.

(ii) Post-Separation

[55] The father has been a good and reliable access parent to J.A.S.P. He has good relationships with his current partner’s children, as well as with his nieces and nephews.

[56] The mother’s case for sole custody seemed hinged on her belief that the father’s criminal convictions and charges meant custody should fall to her, almost by default. The father’s criminal behaviours are indeed a serious concern; he harassed the mother, and indirectly threatened her when he said to Mr. R.H. that he would make her watch an assault on Mr. P.W. It is a factor I am directed to consider per section 24(4) of the CLRA. However, while important, it is one factor. The father pled guilty well over a year ago, has taken the PAR program and some counselling, and nothing untoward has occurred between the parties before or after.

[57] The father did not attack the mother’s post-separation parenting ability, and remains content with shared custody. The mother put her own parenting forward as a reason why there should be no change to the interim order/arrangement. However, the evidence established that in many instances she could have done better. While claiming to have attended to the child’s medical appointments, it was established that there were only two since separation, both for immunizations. The mother admitted being tardy arranging them. One delay resulted in a brief technical suspension from school. Regarding the dentist, the mother did not take the child to his first appointment until he was four and a half years old. She had coverage. She acknowledged waiting that long was not in the child’s best interests. Regarding school, the father helped arrange enrollment and the mother was tardy there as well. Further, the child had eleven absences since September, and was also late six times. The mother said that two of the absences were when she took J.A.S.P. out of school to go to Montreal to visit with Mr. C.A. The other nine times the child was ill. However, the child did not see his doctor related to these illnesses, and there was no other evidence of his being sickly. With J.A.S.P. in Junior Kindergarten there is little homework, but a reading log was in evidence. It established that the time the parents spend reading books to or with the child is roughly equal, notwithstanding that the father only has him a fraction of the time.

(iii) Discussions With the Child

[58] The mother and Ms. C.D.O. indicated that the child has said things that made it clear he is aware of the father’s dislike of Mr. R.H. and Mr. P.W. The father made similar direct statements to J.H. I find that the father spoke about these individuals such that the child overheard. There was no evidence when that occurred, and it could have been when the charges arose well over a year ago.

[59] The mother and the daycare provider admitted speaking to the child about the father being in jail. I have already noted that the mother admitted engaging J.A.S.P. regarding the proposed move to Winnipeg. She also had discussions with the child about access, and not just generally. She maintained that he wanted the exact same start and end times that she did.

[60] All the above discussions were inappropriate. However, the most troubling example related to the evening of the second day of trial. The child was being put to bed in the home of Mr. C.A.’s parents. It was 9:30 p.m., well past his usual bedtime. The mother alleged that he then made a spontaneous statement. So she got her cell phone and claimed he repeated it for her so that she could record it. The recording was played in court. The mother and Mr. C.A. together, with extremely leading questions that all but put the words into J.A.S.P.’s mouth, eventually got him to say that the father yelled at Ms. A.C. and that as a result he was scared. The child was clearly uncomfortable with the questions and even tried to deflect them by changing the subject. However, the mother and Mr. C.A. persisted. The mother corrected the child to say what she wanted, and encouraged him “good boy” when he finally delivered. She acknowledged that the child was in distress while being interviewed, but attributed it to his being afraid of his father. However, the father was nowhere near, and had not seen the child for at least a few days. To the contrary, the distress clearly started when the questioning started and stopped when it stopped. When the mother was asked by the father’s counsel whether she thought her mid-trial examination of the child in his bed for the purpose of a recording was a child focussed decision, she said “absolutely.” As an aside, I have complete confidence in Ms. A.C.’s evidence when she indicated that no such yelling has occurred. However, that is not the point - the child’s recorded statements were not admitted for their truth. The point is that the mother caused the child distress by undertaking this line and manner of questioning, a very poor parenting decision in my view.

3. Summary/Conclusions

[61] Neither of these parents is perfect. Each has made poor decisions in the context of their separation, some quite recently. Despite this, they individually still have adequate skills to care for J.A.S.P. I find that generally each parent has the ability and willingness to provide J.A.S.P. with guidance and education and to meet his physical and emotional needs.

[62] In my view this is an appropriate case for joint custody. While the parties cannot communicate directly, they can communicate effectively through the paternal grandfather. It has been shown that the practical difficulties of the probation/restraining order can be overcome; the grandfather is willing to continue to assist for as long as is needed as are others. There has been little if any conflict with this arrangement. The one major custodial decision to date - which school the child should attend - was made by the parents together. The mother struggled to identify real concerns. She said that she did not believe children of J.A.S.P.’s age should go to funerals while the paternal family did, but no context was given. She asserted rather presumptuously that joint custody will not work because she does want to be questioned about her decisions. However, it needs to be noted that the child might have benefited from the father’s input in making sure there were timely dentist and doctor attendances. Further, given the number of unsupported reasons the mother put forward for limiting the father’s access and her previous decision to curtail it as a form of punishment, in my view granting her sole custody would create a real risk that the father’s involvement with the child would be minimized: see Wilson v. Wilson, 2015 ONSC 479 at para. 69.

[63] As to the parenting schedule, in a broad sense the mother’s position in this trial was inconsistent. On one hand she articulated that she wanted the child to have a healthy and positive relationship with his father and that it grow stronger. On the other hand she wanted the father’s week to week access to continue per the interim court order, without any increase. This remained her position even after her concern about the father’s partner was put to rest. She stated numerous reasons why she felt the father’s access should be limited: the child’s wishes, the child’s current routine, the child being closer to her side of the family, pre-separation abuse of her by the father, conflict between the father and his partner, and the child’s exposure to the father’s criminal behaviours. These have been examined and considered, and for the most part discounted. As noted in Wilson at para. 65, the principle of maximum contact is an important consideration when determining the best interests of children. I can see no reason why the child should not benefit from spending equal time between his parents. The child loves both parents and each has much to offer in terms of love and guidance. There are no practical limitations to such an arrangement, as both parents will now be living in the same community and close to the child’s school.

Financial Matters – Facts, Law, Analysis

[64] Child support is largely determined by the Child Support Guidelines (Ontario), O.Reg. 391/97, as amended (“Guidelines”).

[65] I use the father’s Line 150 incomes from his tax returns to calculate the past support adjustments. The only issue here was that the father stated that I should not include an RRSP withdrawal from 2014 in his income. I disagree. I have included it in keeping with the decision in Fraser v. Fraser, [2013] O.J. No. 5307 (Ont. C.A.) para. 103. I did not hear evidence or argument that would lead me to conclude that doing so would be unfair.

[66] The father’s table child support obligation up to this year is calculated in the following chart:

Year	Father’s Income	Monthly Child Support Payable per the Guidelines	Child Support Owed	Yearly Totals Owing
2013	Employment - $36,338	$318	4 months (Sept. 1 to Dec. 31)	$1,272
2014	Employment - $17,517 EI - $16,181 RRSP - $11,549 Total: $45,247	$408	12 months	$4,896
Total				$6,168

[67] While not paying child support, the father was contributing to the child’s expenses under four general headings: childcare; clothing; toys; and miscellaneous. This seemed to be a satisfactory interim arrangement for the parties; they were in court a number of times and no order for interim child support was made. The father at trial understood that he owed child support but was seeking adjustments for these payments.

[68] In my view, the clothing and miscellaneous expenses paid by the father were contributions towards child support and treated by the parties as such. Had the mother been in receipt of support, she would have been expected to pay for clothing, shoes, socks, a school backpack, etc. These will be deducted dollar for dollar from the child support arrears. So will some of the miscellaneous items, such as the lunch bag and haircuts, but not the birthday party and “Toy & Bath Supplies”. None of the reimbursement claims for toys are allowed.

[69] The childcare expenses are clearly section 7 expenses to be shared proportionally. While I understood that the child was in daycare prior to starting school, as noted there was no evidence on who paid, nor any request to apportion. The amount paid by the father for the ‘before and after school program’ in 2014 was $837.80. With the mother’s income at $66,782 and the father’s income as noted above, the result is a 60/40 sharing. I heard no evidence on the tax treatment of this expense, likely because of the small sum. I therefore find the mother’s share to be $502.68.

[70] Given the above, I make the following calculation:

2013 and 2014 child support owing by the father: $6,168 Less: 2013 clothing & essentials adjustment (276) Less: 2014 clothing & essentials adjustment (562) Less: the mother’s section 7 share of the 2014 childcare: (503)

$ 4,827

[71] I therefore find that the total child support and section 7 expenses owed by the father as of December 31, 2014 is $4,827.

[72] The father’s income for 2015 is expected to be $49,920 per his Financial Statement sworn April 9, 2015. I allow the father a credit of $218 for payments made for clothing & essentials in 2015 for the reasons already noted. The father shall therefore pay Guideline support for January 2015 of $231 ($449 less $218) and $449 per month for February through July 2015. This total, for child support only, is $2,925.

[73] Going forward, the mother was terminated from her employment in December of 2014 and began collecting Employment Insurance in 2015. Her updated Financial Statement sworn May 8, 2015 shows an expected income for this year of $24,432, based on this benefit. The father has asked that I impute income to her at the level she earned in 2014, based on her own clear expectation that she will have no difficulty finding work in her field right after the trial. In my view imputing income is not appropriate at this time. The mother did not voluntarily leave her job. Despite hoping to move to Winnipeg, she still provided evidence of local job searches in February and March of this year. I cannot assume her next employment will be at the previous earning level.

[74] It is well established that the objective of the Guidelines is to determine child support based on current income: Coghill v. Coghill, 2006 28734 (ON SC), [2006] O.J. No. 2602 (S.C.J.). However, it is also clear that the current income is an annual amount; payments are monthly but the tables are based on annual incomes. The sources of income in the year for any payor can be numerous and varied, and the challenge is to determine the current annual income as best as possible at the relevant time and then, if necessary, make adjustments at year end: L.(R.E.) v. L.(S.M.) (2007), 2007 ABCA 169, 40 R.F.L. (6th) 239 (Alta. C.A.). The starting point for the adjustments is the Line 150 income when known. While this approach is often criticized as complicated and cumbersome, it fulfills the objectives of fairness and consistent treatment and is in keeping with the Guidelines themselves. Further, it encourages parents to be as accurate as possible about their income estimates, as there would be no lasting benefit from an artificially low ongoing payment when adjustments will eventually be made.

[75] Given the above, I set the ongoing child support using each party’s expected income for 2015, subject to future adjustment based on actual earnings. Starting on August 1, 2015 the father shall pay monthly child support of $254, being his table amount of $449 less the mother’s table amount of $195. I am aware that section 9 of the Guidelines requires me to take into account not only the tables but also the increased costs of the arrangement and the conditions, means, needs, and other circumstances of each parent and the child. I heard no submissions on these latter criteria. While I have reviewed the financial statements filed, both parties now live with new partners who work, and neither put their partner’s financial situation before the court nor inquired about the others. With no comprehensive information about increased costs or means and needs, they seemed to expect and accept a straight set-off calculation in the event of shared parenting. On the limited information before me, I conclude that the amount ordered provides a reasonable arrangement to support the child in both homes.

[76] The parents shall share section 7 expenses in proportion to their respective incomes. I find that the father has paid $903.75 in 2015 for the ‘before and after school program’ and that this is a special expense subject to apportioning. I make no specific order now, as a proper calculation can only be made once the mother’s employment situation is known.

Decision

[77] The father’s counsel produced a proposed draft order in her opening submissions, and the parties agreed on a large number of paragraphs that dealt with shared holiday time and other practical matters. An order shall go on consent in accordance with paragraphs 4 to 9 and 13 and 14 of that draft order. Given the findings above, not on consent, there shall also be an order in accordance with paragraphs 1 to 3, granting joint custody and shared parenting. Paragraph 3 shall be changed to indicate that the alternate week schedule starts on Friday, July 17, 2015, given the timing of these reasons. However, the parties are free to agree on different alternating weeks to accommodate the access schedules of Ms. A.C.’s daughters and, more importantly, J.A.S.P.’s brother J.H. The final order shall also include the clause in paragraph 7 of the May 23, 2014 interim order restricting the parties from discussing the court proceeding and adult issues with the child and from speaking negatively about each other. Lastly, child support, child support arrears, and section 7 expenses shall be as ordered above.

[78] If the parties cannot agree on costs, I will accept brief written submissions from each provided that they are received within twenty days. Both parties are also permitted to make a two page costs reply within five days after receiving the other’s submissions.

Mr. Justice Timothy Minnema

Released: July 8, 2015

Citation: K.L.D. v. D.A.P., 2015 ONSC 4441 Napanee Court File No.: 365/13 Date: 2015/07/08

Ontario Superior Court of Justice

Between:

K.L.D. Applicant

– and –

D.A.P. Respondent

Before: Mr. Justice Timothy Minnema

Counsel: K.L.D., self-represented Lucienne MacLauchlan, for the Respondent

Reasons for Judgment

Mr. Justice Timothy Minnema

Released: July 8, 2015