ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamouraska Coté
Appellant
– and –
Johannes Botha
Respondent
Self-represented
Self-represented
HEARD: October 13, 2015
REASONS FOR JUDGMENT
CHARBONNEAU, Michel Z.
1The applicant brings this application for a divorce, custody of the three children of the marriage, child support and contribution for the children’s special and extraordinary expenses.
2The respondent is seeking joint custody with the children spending equal time with him on a week-about basis.
THE TRIAL
The Court heard the testimonies of the applicant, her sister and her father.
3The respondent testified but did not call any other witness.
4The Court also had the benefit of the report of Nancy Webb, the clinical investigator appointed by the Office of the Children’s Lawyer. Neither party took issue with the findings and recommendations of Mrs. Webb although the father indicated at trial he failed to see why the children should not spend an equal time with him since for many years, especially during the couple’s first year in Canada, he was the primary care giver of the children.
BACKGROUND FACTS
5The parties met in Zimbabwe. They married in 2003. They had the two older boys, Cale born on March 25, 2002 and Shae born on July 25, 2003 while still residing in Africa. They moved to Canada in 2004. The younger son, Hans, was born in Canada on November 7, 2008.
6During the first year in Canada, immigration rules prevented the respondent from working and he remained at home with the children. Except for a 1 year maternity leave in 2008, at all times the mother was gainfully employed and shared the child care and domestic chores with the father.
7After the first year in Canada, the father worked as a computer technician. He lost his employment when his employer stopped its operation. He has continued for a while as a self-employed computer technician which provided only minimal income. He has then acquired a job with a landscaping company. He will start to work for MLCS drywall and renovation in the near future. He indicates his income for 2015 will total between 21,000$ to 22,000$. According to his answer, his gross annual income prior to separation was 29,126$ for 2010, 24,675$ for 2011 and 34,642$ for 2012.
8The mother works as a dealer collection representative with Automotive Finance Canada Inc. She earns approximately 50,000$ annually.
9The parties separated in January 2013. The separation was acrimonious and led to verbal violence. The police was called and the applicant was charged with assault. The applicant admits that at the relevant time she was abusing alcohol and frustrated about the parties tensed relationship. She later completed an anger management course and has ceased abusing alcohol.
10The respondent left the matrimonial home in June 2013. The children remained in the care of the mother with sporadic access to the father.
11On October 4th, 2015, the Court heard a motion. The resulting temporary order provides as follows:
- The children shall have their primary residence with the mother.
- The respondent shall have access every second week-end and overnight access several days in between week-end access periods.
- The respondent shall pay child support in the amount of 748.00$ per month based on an annual income of 38,937.90$.
- Costs payable to the applicant were later fixed at 4,000$.
12On January 6th, 2015, a new temporary order was made as follows:
- The proceeds of the sale of the matrimonial home would be transferred to the mother in satisfaction of child support arrears.
- The existing access regimen would continue.
- Child support was fixed at 435$ per month effective February 1st, 2015.
13Subsequently the parties agreed to modify the respondent’s access to the children. During any given 15 day period the children are with the mother from Sunday evening until the following Tuesday evening (9 days) and then with the father from the Tuesday evening until the Sunday evening (6 days).
14In the summer of 2015, the parties attempted a week-about regime. This was discontinued in September when the children returned to school.
ANALYSIS
15Since the sale of the house, the applicant has moved with the children to her father’s house in Sarsfield. The property in question is made up of a large 8 bedrooms and 4 bathrooms house on 15 acres of land. The applicant’s sister also resides in the house with her two children. The 3 adults and the 5 children all have their own bedroom.
16The grandfather Mr. Coté is a healthy former manager for CIDA who lived many years in Africa with his family while employed by CIDA.
17I have found him to be a very credible witness. He has shown a very reasonable attitude to the parties’ difficult situation. He loves the children and has demonstrated that he is able to work well with both parents. In fact, Mr. Botha agrees that he is reasonable and helpful. During the summer the parties tried to split the time spent with each parent. However, during the week that the children were with their father, they would bike to the grandfather’s house and spend the day there. They would return to their father’s residence at night.
18The respondent residence is presently inadequate to raise three boys for any length of time. It only has 1 bedroom. It is a type of a trailer situated in a trailer park. It does not have a telephone landline and the only way to reach Mr. Botha is through his cell phone. This creates a problem during the day. Mr. Botha is still looking for a permanent residence.
19The grandfather testified that the children are thriving. Moreover he indicates that although the applicant abused alcohol in the past, she is now stable and seeing very competently to the needs of the children. He also indicated that the respondent should continue to have as much access as possible with the children. However when he has the children with him he must better plan and manage their time and needs. According to Mr. Coté, two years after the separation, Mr. Botha has still not learned how to do that. As an example he cited the fact that during the summer the children spent their days at his house without the father ever calling him to inquire if he was agreeable to this and whether everything was fine with the children. Mr. Botha would appear to think things simply sort themselves out by themselves.
20Mrs. Webb has recommended that the present living and visitations arrangements should continue because they work well with the children. She indicates that both parents need help with certain weaknesses in their parental skill. She recommends both parents should take a parenting course in order to improve their parenting skills. I consider the conclusions in her report well founded.
21Mr. Botha’s only contention is that it would be unfair that the children not spend equal time with him. His position appears to focus on what is fair to him as compare to what is in the best interest of the children.
22In coming to my decision I have considered all of the factors set out in section 24(2) of the Children’s Law Reform Act. I conclude that the needs and circumstances of the child are best met by continuing their primary residence with the mother. She is in the best position to offer a stable and comfortable environment for the child. This is specially so because she has the support of her father and sister. Mr. Botha on the other hand is still organizing his life and has no one to help him at this time except the mother’s family.
23I agree that it is important that children spend a lot of time with each parent. That is clearly attained by the present custody regime.
24Mr. Botha’s situation may very well progress to the point where his wishes for equal time with his children can be realized. In order to do this, he must establish a permanent residence and permanent work.
25I find that it is in the best interest of the children that the present living arrangements continue.
26Both parents must seek help in order to ensure that they meet the children’s need now and in the future.
27In relation to the issue of child support, the present living arrangements provide for the children spending 9 days with the mother and then 6 days with the father. The father therefore has the children with him 40% of the time at least during the school year. Section 9 of the Guidelines therefore applies.
28In the circumstances, at this time the means of the mother are substantially greater than those of father. Until the father’s financial situation improves there should be no child support payable by either party.
29For all of these reasons, order to go as follows:
- The parties shall have joint custody of the children Cale born March 25, 2002, Shae born July 25, 2003 and Hans born November 7, 2008.
- The children shall have their primary residence with applicant-mother.
- The present living arrangements of 9 days with mother and 6 days with father shall continue.
- Both the mother and father shall complete the Triple-P parenting course or such other equivalent parenting course on or before July 1, 2016.
- The parties shall pay the extraordinary and special expenses incurred for the children after January 1st, 2016 on the basis of 70% for the applicant and 30% for the respondent.
- Each party shall provide annually to the other a copy of his/her income tax return and notice of assessment no later than June 1st of each year.
- A divorce order shall take effect 30 days from the date of this judgment.
Charbonneau J.
Released: October 26, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kamouraska Coté
Appellant
– and –
Johannes Botha
Respondent
REASONS FOR JUDGMENT
Charbonneau, J.
Released: October 26, 2015