COURT FILE NO.: 34949/12
DATE: 2015-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CYNTHIA LYNNE KAVANAGH
Applicant
– and –
JUDITH ANN SHIELS
Respondent
Allan Papernick, Q.C., for the Applicant
Judy Shiels, Self-Represented
HEARD: November 21, 22, 26, 27, 28, December 5, 6, 2013, April 28, 29, 30, September 15, 16, 17, 18, 19, 22, 26, 2014.
REASONS FOR JUDGMENT
fitzpatrick j.
Overview
[1] This was a trial between the parents of two young children with special needs. The fundamental issue before me was to determine what custody and access regime for these parents would best meet the needs of the children now that the family unit has been severed. Related to this, I was also asked to determine the child support payable from the date of separation, including section 7 contributions. Respecting the support claim, the Applicant seeks an order vesting to her the matrimonial home registered in the name of the Respondent to secure the arrears of support owing by the Respondent.
[2] I note that both parties agreed during the trial that no equalization payment was due and that an unequal division of assets would not be pursued. However, the Applicant seeks an order declaring she has an equal interest in the matrimonial home registered in the name of the Respondent. Additionally, the Applicant seeks a declaration that the mortgage registered against the jointly owned cottage property is void.
BACKGROUND FACTS
[3] The Applicant, Ms. Cythnia Lynne Kavanagh (“Ms. Kavanagh) and the Respondent, Ms. Judith Ann Shiels (“Ms. Shiels”) began cohabiting together in 1994. They married on June 27, 2003.
[4] Ms. Kavanagh and Ms. Shiels met as teenagers at camp. The friendship later blossomed into romance leading to their cohabitation and eventual marriage.
[5] Ms. Kavanagh completed her Bachelor of Science in Nursing at Ryerson in 1992. She worked as a nurse from 1993-2005 and resumed work after an illness in 2012.
[6] Ms. Shiels graduated university in 1992 with a Bachelor of Science in Math and Computer Science. She has been self-employed as a computer consultant for a number of years.
[7] After the parties were married they had two children. The first child of the marriage, Joshua Ayden Shiels was born August 29, 2003 (“Joshua”) followed by Nathaniel Ryley Shiels, born on July 11, 2007 (“Nathaniel”).
[8] Joshua was diagnosed with developmental coordination disorder with the result that he has difficulties with motor tasks and sequencing. He has also been diagnosed with attention deficit disorder.
[9] Nathaniel is profoundly deaf and now has bilateral cochlear implants. He was born with low myelination and two cysts in the brain. He is delayed in his speech and development. His needs require much care and attention from his parents and numerous third party health and education professionals.
[10] The parties’ relationship ultimately disintegrated.
[11] There can be no doubt that the demands of caring for two special needs children would place strain on any relationship.
[12] Ms. Kavanagh testified that Ms. Shiels has a temper with the result that she was a verbally and physically abusive spouse. Ms. Kavanagh testified that when Ms. Shiels was enraged she would throw items. Ms. Shiels would also retreat to the basement despondent for days at a time. According to the Applicant, Ms. Shiels’ temper reached its tipping point on June 27, 2012. The parties were in a heated argument when Ms. Shiels allegedly threw a picture frame and assaulted Ms. Kavanagh. The police were called. Ms. Shiels was charged criminally on July 3, 2012 and prohibited from thereafter attending the matrimonial home. These criminal charges were dismissed following a trial.
[13] Ms. Kavanagh testified that in addition to Ms. Shiels’ temper other factors contributed to the marital breakdown. She became ill in 2005 with debilitating pain forcing her out of the workforce essentially from 2005 to 2012. The related financial and care strains arising from Ms. Kavanagh’s illness clearly added to the demands placed on the parties and their relationship.
[14] Ms. Shiels testified that she never felt fully accepted by Ms. Kavanagh’s parents or family. She believed the Applicant’s family could not accept their daughter’s homosexuality. Adding to the relationship strains, she expressed how difficult it was both financially and practically to handle Ms. Kavanagh’s illness plus caring for two special needs children.
[15] Ms. Kavanagh and the children remained resident in the matrimonial home in Burlington, Ontario following separation to the present.
[16] Ms. Shiels initially went to live with her sister in Bowmanville but soon returned to Burlington to establish her own residence.
[17] Following separation, the parties struggled to establish a time sharing regime for Ms. Shiels requiring court assistance.
[18] The first such Order was by Madam Justice Miller made August 27, 2012 (on consent) where the parties agreed that Ms. Shiels would have the children alternating weekends ending Sunday evening. This Order was made when Ms. Shiels was still resident in Bowmanville at her sister’s home.
[19] By Order of Mr. Justice Daley made February 13, 2013 (not on consent), Ms. Shiels had the children in her care alternating weekends extended to Monday morning plus Thursdays overnight following a non-access weekend.
[20] Finally, I should also note that during the course of this proceeding and trial the parties were able to negotiate extended holiday and shared summer time sharing for Ms. Shiels.
ANALYSIS AND EVIDENCE
Custody and Access
[21] There are various statutory directives for my consideration when determining the custody and access issues.
[22] Section 16 of the Divorce Act states:
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, 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.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[23] Without limiting the section 16 references, the Court must determine custody and access ultimately on the basis of what is in the best interests of the children.
[24] In analyzing the best interests of the children, section 24(2)(a-h) and 24(4) of the Children’s Law Reform Act provides a helpful indicia of factors a court should review when considering questions of access and custody. Section 24 states:
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(4) VIOLENCE AND ABUSE – In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
a) his or her spouse;
b) a parent of the child to whom the application relates;
c) a member of the person’s household; or
d) any child.
[25] Justice Tzimas provided a summary of the law of custody in the context of parents who are unable to get along. In D’Angelo v. Barrett, 2014 ONSC 6429 at para. 36 - 39 she stated:
The best interests of the child remains the sole issue in any custody case: see Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321(C.A.), at para. 14; Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 10; Ziaie v. Ziaie, 2013 ONCA 156, at para. 1.
(The judgment continues exactly as in the source text, including all remaining paragraphs, statutory excerpts, analysis sections, property findings, divorce order, and costs directions, through paragraph [164] and the release lines.)
Fitzpatrick J.
Released: September 21, 2015
COURT FILE NO.: 34949/12
DATE: 2015-09-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CYNTHIA LYNNE KAVANAGH
Applicant
– and –
JUDITH ANN SHIELS
Respondent
REASONS FOR JUDGMENT
Fitzpatrick. J.
Released: September 21, 2015