ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-13-2297

DATE: 2015/10/12

BETWEEN:

Carol Anne Wooster
Applicant

– and –

Admir Lizalovic
Respondent

Self‑represented

Self‑represented

HEARD: October 5 and 6, 2015 at Ottawa

REASONS FOR DECISION

Justice A. Doyle

[1] The Applicant mother is seeking sole custody of Medina Anne Wooster‑Lizalovic (“Medina”), born March 14, 2010. The Respondent father is requesting joint custody. The parties currently have a joint custody arrangement pursuant to the parties’ mediation report dated April 2012.

[2] The mediation report also sets out the following living arrangement, which has continued to this day: in week one, the father cares for the child from Friday after school to Sunday evening and in week two, from Wednesday after school to Friday morning before school.

[3] The mother is requesting that the child be with the father every second weekend and that the mid‑week access take place every second Monday evening with no overnight. She believes that the schedule should not be significantly changed as this arrangement has been in place for over three years.

[4] The father is requesting more time with Medina as he states that Medina is now three years older and believes it is in her best interests that he have her 40% of the time.

[5] The mother is requesting ongoing and retroactive child support and a requirement that the father pay for his share of medical/dental expenses.

[6] For the reasons set out below, the Court orders the following:

• Joint custody with primary residence with the mother;

• The parties will discuss all major decisions and they will provide input to each other. If they are unable to decide a major issue, then the mother will have the final decision‑making power;

• The child will be in the care of her father:

o Every second weekend from Friday after school until Monday morning. If Monday is a statutory holiday or professional development day, then the time will be extended to Tuesday morning;

o Every second week from Wednesday after school until Friday morning;

o Two non‑consecutive weeks in the summer. The father will provide the mother with written notice by May 1st of each year as to which weeks he would prefer;

o For a period of time on religious holidays and celebrations as agreed by the parties;

• Commencing October 1, 2015, child support in the amount of $167 per month based on $20,880 per annum;

• Retroactive child support in the amount of $4216, which must be paid within 24 months;

• Retroactive section 7 expenses for dental care in the amount of $1058, which must be paid within 24 months;

• The parties will share section 7 special and extraordinary expenses in proportion to their respective income. Prior to incurring the cost, the mother will consult with the father to obtain his written consent and this consent must not be unreasonably withheld;

• By July 1st of each year, the parties will exchange their most recent income tax return and Notice of Assessment. Child support will be adjusted in accordance with the Table amount of the Ontario Child Support Guidelines, O. Reg. 391/97 and the parties will adjust their proportionate sharing of the section 7 expenses; and

• The father will maintain coverage for the child under his extended health/dental plan and any expense not covered by his plan will be shared by the parties in proportion to their respective incomes.

Background

[7] The parties commenced living together in November 2009 and lived in an apartment until June/July 2010, at which time the parties moved in with the father’s parents until the separation in 2011.

[8] The mother lives with her fiancé (Kyle) and the child. After the separation, she attended college for a two‑year massage therapist program. She has now been working for one year.

[9] She schedules her work hours so she is home with Medina as much as possible. On Mondays, her work hours are noon to 6:00 p.m. and the maternal grandfather cares for Medina until she returns home. In addition, she arranges her schedule so she will work on the Fridays and Saturdays when the child is with her father. She works on Sundays for four hours.

[10] The father lives with his parents. He has two college diplomas, computer technician and computer programming, which he obtained at Algonquin College.

[11] He recently obtained employment at a call centre where he manages accounts and he works 40 hours per week at $13.50 per hour plus commissions.

[12] Medina attends Senior Kindergarten French Immersion at Castlefrank Elementary School, which is a 20‑minute walk from their home. She made many friends and loves her teachers.

[13] When the parties were residing at the father’s parents’ home, the mother was the primary caregiver as the father was working. She was on maternity leave and was breastfeeding.

[14] The mother states that the father worked for the majority of the time when they were together and that he would spend his free time on video games or gambling.

[15] When they first separated, they would divide the weekends, allowing an extra day with the father so the mother could pick up an extra shift at work.

[16] After the separation, the mother lived at her parents’ home for five months until she secured her own apartment.

[17] Medina attended daycare when her mother was at school. The mother resides with her fiancé on Fenerty Court, which has a backyard and a basement.

[18] The mother indicates that initially Medina would resist going for visits with the father, but she gradually adjusted. Access is running well at this time.

Issues

[19] The issues are the following:

1. What custody arrangement is in Medina’s best interests?
2. What living arrangements are in Medina’s best interests?
3. What ongoing and retroactive child support should be paid?

Mother’s Position

[20] The mother requests sole custody and a reduction of mid‑week access. She submits that it would be too drastic for Medina to change the schedule as requested by the father.

[21] She is proposing that he exercise access on alternate Mondays instead of Wednesdays to Friday mornings.

[22] She is prepared to be flexible during holidays and has permitted the father two days to celebrate Eid and time at Christmas and Easter, as well as time during summer holidays.

[23] She has a number of concerns regarding the father that stem around two main areas:

a) Communication

• He is not responsive to her e‑mail communications dealing with the child, nor her texts: for example, after she requested that they communicate by e‑mail, he failed to respond to her e‑mails sent over a period of one month.

• He does not relay information about the child, whereas she does.

• He took three months to advise the mother that the child had five cavities that needed attention.

b) His inattentiveness to Medina’s care and health issues

• He sent Medina to daycare when ill against the daycare’s policy.

• He neglected the child’s teeth and used lack of money as an excuse for not providing the necessary attention by stating that he was waiting for his health plan to become effective.

• He is not attentive to the child’s needs. For example, Medina had a fever and he did not take her to the doctor because he did not have a health card. The mother later took the child after she completed work and Medina was diagnosed with strep throat. It is her position that medical personnel will not turn away a sick patient and the father could have taken the child to obtain medical attention.

• He did not place cream on Medina’s rashes.

• The father arranged for Medina’s ears to be pierced without the mother’s consent. She respects that it is part of the father’s culture that this be done but this resulted in serious ear infections, which he did not attend to.

• She stated that the child told her that “babo (father) hit me”.

[24] In addition, the father has not paid child support since the separation in August 2011 and he owes retroactive support.

[25] His lack of payment has caused the mother to incur credit card debts and she has not been able to do activities with Medina.

[26] She states that retroactive support is owed as follows:

• 2011 – $952 from September to December

• 2012 – $1,944 from January to December

• 2013 – he would owe $720

• 2014 – he would owe $300

• 2015 – he would owe $300

Total amount – $4,216

Father’s Position

[27] The father wishes to continue the joint custody arrangement.

[28] Regarding access, since the child is older, the schedule should be adjusted so he can spend more time with her. He would like a 60/40 split in time. He provided a schedule of how he thought it could work, which included the child moving back and forth between the parents’ homes.

[29] He pleads that Medina deserves more time with her father and is not as dependent on her mother. Medina has a close relationship with his family: his parents and his sister also care for her.

[30] Medina has the benefit of his extended family, including an aunt, an uncle and paternal grandparents.

[31] He is prepared to pay retroactive and ongoing support and his share of dental expenses.

[32] The father’s concerns regarding the mother are as follows:

• Her partner, Kyle, plays violent video games that include “Grand Theft Auto”.

• Medina says Kyle says bad words.

• The child hears arguments at the mother’s residence between her mother and Kyle.

• The mother has made communication difficult. He says the mother claims to only want to contact him by e‑mail; however, she sends texts and she has lied about deleting Facebook messages. She said that she was getting rid of Facebook messaging so he needed to give her his cell number, when in fact she did not do so.

• The mother does not adequately supervise Medina: the child was scratched in the neck by a cat and attacked by one of the mother’s friend’s dogs.

• The mother schedules appointments at CHEO on his time with the child, which is not acceptable.

• He could not register Medina for swimming lessons, as the mother wanted to spend her days off with her.

• He has to bribe Medina to send her back to her mother’s home and other family members have observed Medina’s reluctance to leave his home.

[33] He has set up an educational fund for his daughter that will assist her in her educational needs in the future.

Issue # 1 – What custody arrangement is in Medina’s best interests?

[34] The Court must determine custody and access issues based on Medina’s best interests by considering the factors set out in section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”):

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,

• Marina has ties with both parents. She is bonded to her mother and father and their extended families. Her primary residence has been with the mother since separation and the Court finds that the mother has been the main caregiver since birth. The Court also notes that the father leaves a large part of the caregiving to his parents.

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

• The court heard from the mother, her father, Brian Wooster, and the father’s sister, Admira Buljubasic, brother‑in‑law, Amer Buljubasic and his friend, Patryk Kulczycki. These are all people involved in Medina’s care and upbringing and their involvement has been positive.

(b) the child’s views and preferences, if they can reasonably be ascertained;

• Given the child’s young age, the child’s views and preferences cannot be reasonably ascertained.

(c) the length of time the child has lived in a stable home environment;

• As stated above, the mother has been the main caregiver for the child but the father has been involved since birth. Each parent provides a stable home environment.

• Each of the parties has complaints regarding the other home.

(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;

• The mother has provided the lead role in meeting the child’s needs. The father has been a willing participant. He has attended parent/teacher meetings and the mother has been compliant in providing Medina’s report cards to him.

[35] The parties agreed to joint custody in 2012. They have had some communication issues but have been able to resolve some important matters, such as what school the child was to attend.

[36] Medina deserves to have both parents fully involved in her life. A joint custody arrangement will ensure that this will occur.

[37] They have been able to have some form of communication, albeit, it is not perfect. They have communicated by phone, e‑mail, text, Facebook messaging and in person.

[38] When it has come to the major decisions, they have been able to consult and discuss issues. For example, on the school issue, the mother consulted with the father before registering Medina. He would have preferred a school equidistant between the parents’ homes. She explained that since the child spent most time with her, it would make more sense that the school be in her neighbourhood. The father did not oppose nor debate nor cause any further conflict on this issue.

[39] The mother has played the lead role in major decisions. She set up the school, the daycare and oversaw the dental care for Medina’s cavities.

[40] However, the father wishes to be involved and, although he feels that the mother resents his opinion, she has demonstrated that she involves him and has sought his input.

[41] The father’s opinions should be taken into account.

[42] On the activities, the parties agreed that swimming lessons were important although they did not agree on the location, as the mother did not belong to the club that was suggested by the father’s family.

[43] Nevertheless, the Court is concerned with some of the communication issues that have arisen to date. The parents disagree on whether communication should occur by text, e‑mail or Facebook messaging. The mother says he resisted giving his mobile phone number to her.

[44] The Court is also concerned regarding medical/dental issues. The father’s failure to advise the mother regarding Medina’s cavities is concerning. He had determined that this health issue could be postponed until he had dental coverage through his employment. There is no evidence of the seriousness of these cavities nor did the delay in treatment jeopardize Medina’s health. Nevertheless, the Court notes that the father should have promptly advised the mother, who had Medina in her care, about this health issue.

[45] The mother has expressed other concerns regarding the father’s lack of attention to Medina’s health needs. This was illustrated in his failure to place cream on rashes and in allowing Medina’s ears to be infected and not promptly attending to her strep throat.

[46] Therefore, if joint custody is to work for the best interests of the child, the father should be consulted with the decision‑making on significant decisions and the parties must exchange important information regarding Medina.

[47] If the parties cannot arrive at a decision on a joint custody issue which would include education, medical/dental needs and religion, then the mother will have the power to make the final decision.

[48] Joint custody requires some minimum ability of the parties to discuss and communicate. This principle has been enunciated in a number of cases, most notably by the Court of Appeal in Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.).

[49] As the Ontario Court of Appeal stated in Kaplanis, there must be evidence of historical communication between the parents and appropriate communication between them.

[50] In this case, the parties have had access to many modes of communication. There were 96 pages of e‑mails entered as an exhibit showing countless e‑mails between the parties regarding drop off, changes of times, potty training and the location of the doctor’s office. In addition, the e‑mails reveal numerous disagreements regarding financial matters and the dental issue discussed above. Both parties criticize the other with respect to the modes of communication.

[51] In Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), the Court of Appeal dismissed the appeal from a trial decision which ordered joint custody. There, the parties had largely cooperated on major decisions affecting the child even though there were communication issues.

[52] As stated in Warcop v. Warcop (2009), 66 R.F.L. (6th) 438 (Ont. Sup. Ct.), a standard of perfection is not required. The issue is whether “a reasonable measure of communication and cooperation is in place” (at paragraph 94).

[53] Although conflict exists, it is not extreme. There has been communication. Joint custody should continue to allow both parents to continue to participate in a meaningful way in Medina’s life.

[54] The parties can continue using the forms of communications available or utilize a communication book or other electronic means.

[55] After conducting a voir dire, the Court permitted the child’s statements made to both parties. The child told the mother that her father hit her. Based on statements made by the child to the father, he surmised that the child was exposed to violent video games. The Court does not give much weight to these statements.

[56] Medina’s comments to her parents who are in litigation have not been subject to cross‑examination. As well, if either parent’s concerns of physical aggression or the child being exposed to violent videos were serious, then the Court would have heard more corroborating evidence on these issues.

[57] In determining custody and access, the Court has other evidence that it can consider in determining these important issues.

Issue # 2 – What living arrangements are in Medina’s best interests?

[58] In considering the factors set out in the Children’s Law Reform Act set out above, it is in Medina’s best interests that she continues to spend time with her father and his extended family.

[59] Given the father’s work schedule, increasing time could mean more time with his parents, but the Court finds that Medina does enjoy her time with her father and his extended family and together they work as a team in caring for Medina. The Court has not heard any evidence that would suggest that Medina is not cared for or loved by the paternal side of the family.

[60] The mother does not provide substantive reasons as to why Medina’s time with her father should be reduced. The father’s proposed schedule would mean Medina would not see her father for 10 days in a row. The Court does not believe that either of these proposals is in her best interests.

[61] Regarding access, the Court is guided by the principle that Medina should have as much contact with both parents as possible. Medina’s current schedule has been in place for over three years and she appears to be doing well under this regime.

[62] Despite the complaints of both parents, the evidence shows that Medina is well loved and cared for by both parents and their respective families.

[63] The child also has the benefit of the father’s Bosnian culture, language and tradition in his home and it is important that the child be exposed to this part of her heritage.

[64] Medina is now three years older than when this schedule commenced. The Court believes it continues to be in Medina’s best interests to have one primary residence with her mother. However, it is also in her best interests to increase the time with her father.

[65] I will order the increase of access so that on every second weekend (week one), when the father has access, access will continue to Monday morning when the child will be dropped off at school/daycare. If Monday is a statutory holiday or professional development day, then the child will be dropped off on Tuesday morning.

[66] In week two, the father will continue to care for the child from Wednesday after school to Friday morning.

[67] The father will be entitled to two non‑consecutive weeks with the child during the summer. The parties have agreed that he will also have time with Medina on Eid and Christmas.

Issue # 3 – What ongoing and retroactive child support should be paid?

[68] Regarding support, the father does not dispute his obligation to pay retroactive support.

[69] The Court accepts the mother’s figures as set out above. The amount owing by the father for retroactive child support is $4216.

[70] The father should also be responsible for his equal share of the dental work.

[71] The Court accepts that he must pay $1058 as his half share of the dental invoices dated May 13, May 14, May 27 and December 9, 2014.

[72] The Court orders that all retroactive amounts must be paid within 24 months.

[73] In determining retroactive support, the Court has considered the factors set out in S. (D.B.) v.G. (S.R.), 2006 SCC 37. The Court finds that on the evidence the mother provided notice and did not delay in requesting support, the circumstances of the child require retroactive support as the mother was financially struggling, and there would be no hardship on the father to pay those amounts. He is living at home and has minimum expenses. He is now fully employed. The Court has considered his conduct to be unreasonable in not financially assisting the mother in meeting the child’s financial needs. Instead, he set up an educational fund for the child, which is laudable but does not meet Medina’s current needs.

[74] Child support will be paid at the rate of $167 per month on an annual income of $20,880.

[75] The father will maintain coverage of the child under his extended health and dental plan and the parties will share any medical or dental expenses not covered by the plan, proportionate to their respective incomes.

[76] By July 1st of each year, the parties will exchange their most recent tax return and Notices of Assessment and child support will be adjusted in accordance with the Table amount of the Ontario Child Support Guidelines and section 7 expenses will be paid, proportionate to their respective incomes.

[77] The parties will share section 7 special and extraordinary expenses which include daycare, extraordinary activities and health/medical expenses not covered by any health plan in proportion to their respective incomes. The expense must not be incurred without the written consent of the parties.

[78] There will be no order as to costs.

Madam Justice A. Doyle

Released: November 12, 2015

COURT FILE NO.: FC-13-2297

DATE: 2015/10/12

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Carol Anne Wooster
Applicant

– and –

Admir Lizalovic
Respondent

REASONS FOR DECISION

Doyle J.

Released: November 12, 2015