Facchini v. Bourre, 2015 ONSC 763
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gina Roberta Facchini
Applicant
D’Arcy Denis Andrew Bourre
Respondent
C. Mackenzie, for the Applicant
L. Reich, for the Respondent
HEARD: January 15, 16, 19 and 20, 2015
THE HONOURABLE MR. P.B. HAMBLY
Judgment
Introduction
1This is an application by Gina Facchini (Gina) against D’Arcy Bourre (D’Arcy) for custody of their 6 year old son Ozzy Bourre (Ozzy), born June 20, 2008, child support and retroactive child support. D’Arcy has brought a counter application for joint custody of Ozzy, equal time sharing with Gina of Ozzy and that he pay no child support. The parties were self-represented until recently. Gina retained Ms. MacKenzie immediately before the Halloween access motion referred to below which was heard by Justice Aston on October 29, 2014. D’Arcy filed a notice of Change in Representation dated January 4, 2005 that he had chosen to be represented by Mr. Reich.
The Trial
2Gina testified. She called her son Tyler Facchini (Tyler), her mother Gertrude Facchine (Gertrude) and her friend Connie Gratton (Connie G.). D’Arcy Bourre (D’Arcy) testified. He called his partner Tiffany Melo (Tiffany), Tiffany’s mother, Nicoletta McLeod and his sister, Connie Jaconetti (Connie J.).
The Parties And Persons Connected To Them
3Gina was born on September 17, 1974. She is 40. She completed high school and part of a nursing program. She worked at Toyota in Cambridge. She is presently employed at CAMI in Ingersoll. CAMI is owned by General Motors and manufactures the Equinox. She is a welder. Tyler was born on March 31, 1994 from a previous relationship. Tyler is 20, soon to be 21. Gina brought Tyler up as single mother. Tyler’s father was never involved in his son’s life. Gina received no assistance from him in raising Tyler.
4D’Arcy was born on March 16, 1971. He is 42, soon to be 43. He has a son, Aaron Bourre (Aaron), born January 4, 1995, age 20, with his wife Angela Bourre (Angela). They separated in 2007. Divorce proceedings between them are unresolved. D’Arcy is also employed at CAMI. He is a production worker. Both parties have approximately the same income which is between $70,000 and $80,000.
5D’Arcy and Gina met at CAMI. They began dating after D’Arcy separated from Angela. They commenced living together in D’Arcy’s residence some time in 2007. Ozzy was born on June 20, 2008. He is 6 years of age. Aaron and Tyler also lived with them. Gina was away from work being either laid off or on maternity leave from April, 2008 to November, 2009.
6On January 5, 2009 D’Arcy and Gina purchased a large house with 5 bedrooms and an out building at 2143 Wharncliffe Road South (Wharncliffe) in London. They undertook renovations on it.
7Gertrude is 69. She was still working at the time of the purchase of Wharncliffe as a cashier at Costco. She worked part time and then retired in 2013. Gertrude has 2 other children in addition to Gina. She had always had a close relationship with Gina who is her youngest and the only child from her second marriage. She moved into Wharncliffe soon after Gina and D’Arcy purchased it. She pays Gina $500 per month rent. D’Arcy and Gina completed what the witnesses called during the trial a “granny flat” in the outbuilding.
8Gina was on maternity leave from CAMI when she and D’Acy purchased Wharncliff. They paid $365,000 for Wharncliffe. They were required to put a large mortgage on it. Gina could not qualify for the mortgage because she did not have an employment income. For this reason, they registered the house in the sole name of D’Arcy. Gertrude contributed $50,000 to the purchase of Wharncliffe and a further $35,000 towards the renovations of the granny flat. She also guaranteed the mortgage. In 2009, D’Arcy purchased an Equinox on which he traded a truck which was subject to a loan. The total amount of the loan for these two vehicles was about $40,000 which Gertrude co-signed and for which she is now solely responsible. In July, 2009 Gina, D’Arcy, Tyler and Aaron moved into Wharncliffe. Gina returned to work in November, 2009. Gertrude moved into the granny flat in July, 2010.
9In November, 2010 the relationship between Gina and D’Arcy broke down. They were still living at Wharncliffe. In December 2010, Gina, Tyler and Ozzy moved into an apartment. D’Arcy and Aaron stayed at Wharncliffe. Connie J. moved into Wharncliffe. D’Arcy and Gina had not completed the renovations which they had undertaken at Wharncliffe. They entered into an agreement that they would divide the costs of the upkeep of Wharncliffe including the continuing renovations. Connie J. would pay the rent on Gina’s apartment in the amount of $1,000 per month.
10In May, 2011 D’Arcy stopped paying half the household expenses on Wharncliffe. Gina was now working. She was able to replace Gertrude as guarantor on the mortgage.
11In June 2011 Connie J. moved out of Wharncliffe. She stopped paying Gina’s rent. Gina terminated the lease on her apartment at a cost to her. In July, 2011 she and Tyler and Ozzy moved back into Wharncliffe. D’Arcy and Aaron moved out of Wharncliffe and into an apartment. Gina has taken in two boarders at Wharncliffe who each pay her rent of $500 per month for rooms that they occupy.
12Sometime in 2012, D’Arcy’s relationship with Aaron broke down and Aaron began residing with Angela. On May 27, 2013, D’Arcy made an assignment in bankruptcy. On January 15, 2015 at the commencement of the trial, I signed an order at the request of counsel pursuant to a joint written consent vesting Wharncliffe in Gina’s name. Whether the bank which holds the mortgage will permit the release of D’Arcy from his covenant on the mortgage or the Trustee in bankruptcy will approve the vesting order is unknown.
Court Proceedings
13Gina caused an application against D’Arcy to be issued on February 24, 2012. She made it returnable on April 13, 2012. There was a misunderstanding and no one appeared. The motions judge dismissed the application. Gina commenced a second application against D’Arcy on July 11, 2012. She claimed custody of Ozzy, current and retroactive child support for Ozzy and orders regarding property. D’Arcy filed an answer in which he claimed joint custody of Ozzy. The property claims have been settled. On March 19, 2013 Justice Korpan made an order at a case conference that D’Arcy pay support to Gina for Ozzy in the amount of $565 per month based on an income of $62,000 commencing April 1, 2013.
14The parties brought motions. On December 18, 2013 Justice Mitrow made an order for Christmas access. D’Arcy brought a motion for joint custody and that he be relieved from paying child support. Gina responded with a motion for interim custody and support in accordance with D’Arcy’s current income. On January 22, 2014 Justice Korpan made an order that Ozzy reside with D’Arcy on alternate weekends from Thursday at 4:00 p.m. to Sunday at 8:00 p.m. and on alternate Wednesdays when D’Arcy is on the day shift from 4:00 p.m. to 8:00 p.m. At all other times she ordered that he reside with Gina. She ordered that D’Arcy pay support to Gina for Ozzy in the amount of $639 per month on an income of $70,000 commencing on January 1, 2014. D’Arcy had not made current financial disclosure. She used the figure of $70,000 based on D’Arcy’s oral statement of his income. She also made an order that the parties attend for “communication counselling with a Parenting Coordinator”. The parties made an attempt to comply with this order but it was unsuccessful. It seems that the counsellor had not been told of the purpose of the counselling.
15On February 10, 2014 CAMI dismissed D’Arcy from his employment based on his absenteeism. D’Arcy brought a motion for an order “suspending” the child support order of Justice Korpan dated January 22, 2014. The following text message exchange took place between the Gina and D’Arcy on February 10, 2014:
D’Arcy to Gina 2:08 :06 – Got fired today
Gina to D’Arcy 2:08:22 – What !!!!
Gina to D’Arcy 2:08:26 - Why
D’Arcy to Gina 2:10:02 – Too many missed days. Between being stressed out n sick/going to court/you and Angie I’m done
Justice Templeton dismissed the motion on March 12, 2014. She made the following endorsement:
Mr. Barre (Bourre) lost his employment apparently because he was deemed unreliable due to absenteeism. He now seeks an order suspending his obligation to pay child support until he finds other employment. I decline to do so. In my view to endorse negative conduct by relieving a payor from his/her obligation to financially support his/her child would be entirely contrary to public policy and contrary to the best interest of the child. The motion is dismissed.
D’Arcy sent an E mail to Gina on the same day in which he stated : “count on no money for a while, I’m not pursuing work at Cami anymore”. D’Arcy recovered his employment with CAMI in June, 2014. He is on probation until June, 2016.
16On October 29, 2014 Justice Aston made an order for Halloween access, that D’Arcy make current financial disclosure and that D’Arcy pay costs of $750. D’Arcy is current on his support payments and he has paid the costs.
17D’Arcy has resided with Tiffany, born June 21, 1989, age 25 from November, 2011. She has a child, Gabriel McLeod, born August 28, 2005, age 9. His father is Jessie McCleod. He pays child support voluntarily without a court order in the amount of $400 per month. He also has access to Gabriel. Tiffany estimated that she receives this amount for about 10 months out of 12. Tiffany has experience working as a fast food waitress. She took a course at a community college on emergency dispatch. She is not working at present. Her income is the child support that she receives and the child tax credit.
D’Arcy’s Access To Ozzy Since His Parents Separated
18Gina has been the primary care giver of Ozzy since his birth. She has taken Ozzy to his medical appointments. She has made arrangements for him to take part in extracurricular activities, such as lacrosse where Tyler is the coach, and baseball. D’Arcy does not dispute this. At the same time, D’Arcy has been very involved with Ozzy since his birth. Gina testified that from the time that Ozzy was born D’Arcy was a “hands on Dad”. Gina supports D’Arcy being extensively involved in Ozzy’s life.
19Ozzy has attended Lambeth Public School from September to June in 2012/13 in junior kindergarten, in 2013/14 in senior kindergarten and in 2013/15 in grade 1. He is transported to and from school by bus which he accesses from outside of Wharncliffe. The shifts at CAMI where the parties work are 7:00 a.m. to 3:00 p.m. (days), 3:00 p.m. to 11:00 p.m. (afternoons) and 11:00 p.m. to 7:00 p.m. (nights). It is open to the employees at CAMI to work only nights or on a swing shift where they alternate 2 weeks on days and 2 weeks on afternoons.
20From the time that Gina went back to work in November, 2009 Ozzy attended day care until September 2012 when he commenced junior kindergarten. In December 2010 and January 2011 following the separation of Gina and D’Arcy, Gina was off work on stress leave. When Gina returned to work in February, 2011 she was on a swing shift working alternate days and afternoons. D’Arcy also worked a swing shift on the alternate shifts to Gina. For the two weeks when Gina was on the afternoon shift (3:00 p.m. to 11:00 p.m.) D’Arcy would pick up Ozzy from day care, give him dinner and return him to Wharncliffe in the early evening. Gertrude and/or Tyler would receive him and put him to bed. When Gina was on the day shift (7:00 a.m. to 3:00 p.m.) D’Arcy would get Ozzy at about 7:30 a.m. from Wharncliffe, take him to his residence, get him breakfast and then take him to day care. D’Arcy also had him on weekends from Friday to Sunday or on Saturday and Sunday depending on whether he was working overtime.
21From September, 2012 when Ozzy started attending junior kindergarten at Lambeth School until Justice Korpan made her order on January 22, 2014, D’Arcy had access to Ozzy every second week end. When Gina was on day shift Gertrude came to the main house when Gina left for work at about 6:00 a.m. She would get Ozzy dressed, get him breakfast and take him to the bus in front of Wharncliffe. When Gina was on the afternoon shift Gertrude would receive Ozzy from the bus and take him into the main house. She would care for him until his bed time. Either she or Tyler would stay in the house until Gina returned from work at about 11:30 p.m. At all times when she was not required to work, Gina would provide care for Ozzy.
22From January 22, 2014 D’Arcy has had access to Ozzy in accordance with the order of Justice Korpan as follows:
(a) Alternate Thursdays from 4:00 p.m. to Sunday at 8:00 p.m.;
(b) Alternate Wednesdays from 4:00 p.m. until 8:00 p.m.;
(c) Father’s Day from 10:00 a.m. to 8:00 p.m.
This access schedule has worked well. When D’Arcy has Ozzy for a long weekend in accordance with this schedule, on Thursday,Tiffany or D’Arcy gets Ozzy at the bus stop in front of Wharncliffe when he arrives there. On a Friday, Tiffany gives her son Gabriel and Ozzy breakfast. She takes Ozzy to Wharncliffe where she leaves him at the bus stop. She then takes Gabriel to St. Francis Public School which he attends. He is few minutes late. However, she has received the approval of the principal at the school to do this. Gertrude, in an unobtrusive manner, monitors the bus stop on Thursday afternoon and again on Friday morning to ensure that Ozzy is safe and the connections are made. At all times the primary responsibility for the care of Ozzy is with Gina.
D’Arcy’s Anger
23Gina testified that she tried to make the marriage work. She loved D’Arcy. She felt that it was very important that Ozzy grow up with a father figure who could be an appropriate role model for him. It is her position that D’Arcy’s irrational outbreaks of anger against her, often in the presence of Ozzy, made her living with him impossible. She is very concerned that Ozzy will learn from D’Arcy that intimidation of women through anger is appropriate conduct. She gave examples.
24In the summer of 2010 when Ozzy was age two, Connie G. and her husband and their three teen age children stayed overnight at Wharncliffe. In the morning, Gina was at the pool with Connie having a cup of coffee. D’Arcy appeared. He was enraged because Gina had left Ozzy asleep in a bedroom beside him. Ozzy had woken up, made noise and had awoken D’Arcy. He yelled at Gina without regard to her being with Connie G. Gina was greatly embarrassed. Connie and her family left and did not come back to visit.
25On another occasion when Gina was nursing Ozzy, Connie G. was talking to Gina on the phone. She could hear D’Arcy yelling at Gina. He did not stop in spite of Gina telling him that she was having a telephone conversation with a friend. On another occasion, Connie G. was with Gina when D’Arcy phoned. He was yelling at Gina so loudly that she had to hold the phone away from her ear. Shortly before the separation, D’Arcy picked up a chair, smashed the legs on the floor and broke the chair in front of Gina and Ozzy. Gina left with Ozzy and phoned Connie G. On Connie’s advice, Gina phoned the police. They came but took no action.
26Gertrude testified that D’Arcy yelled a lot at Gina, damaged property out of anger when speaking with Gina and used foul language toward her. Gertrude said that “mentally he pounded her down”. Tyler testified that when he was in a health class there was a discussion about domestic emotional abuse. He understood that this was what D’Arcy was imposing on his mother. He became emotional and had to leave the class. Gina and Gertrude gave evidence that D’Arcy would yell at Angela on the phone and call her profane names in front of their son Aaron. D’Arcy admitted that he yelled at both Gina and Angela without regard to who could hear what he was saying.
27Gina testified that D’Arcy was very forceful and aggressive towards her. She could not do anything right. On one occasion immediately before the separation, he grabbed her arm and forced her on the ground. D’Arcy was continually angry. Gina knew that she had to get out.
28D’Arcy revealed his anger toward Gina in e-mails that he sent to her. He was very disappointed that in the motions before Justice Korpan resulting in her order on January 22, 2014 that she did not order joint custody with equal shared time with Ozzy and that he be relieved from paying child support. Text message exchanges took place between Gina and D’Arcy the following day on January 23, 2014 as follows:
8:52 a.m. Gina to D’Arcy: I think that we should stick to what the judge ardered….its a big change for him and two weeks in a row will b to much for him so soon….its best to stay as close to what he is used to as possible
12:00 p.m. D’Arcy to Gina: Wish you cared about that when it was me that he was taken from. Let’s move foreword to the next court date k I’m not wasting my time tring working with you. You care only about yourself and what you can take from people. Your biggest user I’ve ever met and I hope one date you get what’s coming to you
12:26 p.m. D’Arcy to Gina: You know what your right this way is nest for now. Oz will get a few days a month with just him n tiff while I’m at work it’ll be good for oz to see what a mother is supposed to be like.
2:35 p.m. D’Arcy to Gina: You always say he should be with a parent, your not home for 2 weeks think of oz here not you and the money and ill have some respect for you. Till then your just a baby momma
2:58 p.m. Gina to D’Arcy: By your txt on me not being what a mother is supposed to b like….u clearly don’t have respect for me
3:21 p.m. D’Arcy to Gina: Still waiting for you to earn that respect (emphasis added)
29D’Arcy sent Gina a text message dated October 22, 2012 leading up to the Halloween access motion as follows:
7:37 p.m. D’Arcy to Gina: ‘I’ didn’t agree to it and after seeing that you intend on taking more time away from me I have no interest in giving you any of ‘my’ time with oz. And I’ll make sure to tell him your intentions in court so he starts to understand the type of person you are. Don’t worry it’ll all get done in court and I’ll be getting a rep for ozzy so that the courts get to know how full of crap you are. 650 a month and you don’t spend a cent on him too busy going to vagas and buying a hot tub for your ho parties. Wonder if the courts who you told you were stressed for money know what you did since then? I’ll tell them :) you’ve broken court orders and every verbal contact we’ve ever had I have faith in the courts they aren’t paid to be on your side like you lawyer or so called friends. I’ll have my court papers with me on Halloween so I won’t lose my time with oz I’m gonna ask the cops to come to avoid and hassles. Catch more bees with honey. Just a little hint for you. I’m not giving you anything not ordered by the courts so if you don’t want to play nice don’t expect me to (emphaisis added)
30On October 23, 2014 D’Arcy sent a text message to Angela which Angela sent to Gina as follows:
Oz is only 6 he doesn’t need to be involved in all of this but I’ll make sure he knows my side this weekend and all his brother did to the family and why he’s still runnin from it. I’m going to press that they don’t have contact in court. (emphasis added)
31To understand the significance of this it is necessary to understand what has happened between Aaron and his father D’Arcy. Aaron lived with D’Arcy and his mother Angela alternately. When he was with D’Arcy, he lived with him and Gina between 2007 and December, 2010 including the time that they resided at Wharncliffe between July, 2009 and December, 2010. He lived with D’Arcy and Connie J. at Wharncliffe after D’Arcy and Gina separated in December, 2010 until they moved out in June, 2011. Thereafter, he lived with D’Arcy and Tiffany from when they commenced living together in November, 2011.
32In February, 2012 the relationship between D’Arcy and Aaron broke down. D’Arcy learned that Aaron had not been attending school. He told Aaron that because of this he had to leave his home. Aaron has resided exclusively with Angela since this time. D’Arcy testified that he understood that Aaron had put unauthorized purchases on Connie J.’s credit card in the amount of about $1,000. Connie J. confirmed that he had done this but thought that the amount was about $100. Aaron making unauthorized purchases on Connie J.’s credit card further confirmed with D’Arcy that he should sever his ties with Aaron.
33Gina testified that when Aaron resided at Wharncliffe with her and D’Arcy, that Aaron spent time with Tyler and Ozzy. Tyler confirmed this. Tyler testified that the three of them played a board game called “minecraft” the object of which is for the players to build their own virtual world. Gina contacted Angela with a view to re-establishing the relationship of Ozzy with Aaron. Angela came to visit Gina at Wharncliffe in the summer of 2013 unannounced. Gina was not home but Angela met with Gertrude. They talked for about three hours. Since that time on Gina’s intitiative, Ozzy has met with Aaron, spent time with him and Angela and has stayed overnight at Angela’s residence where he visits with Aaron.
Gina’s Claim For Arrears Of Child Support
34Gina claims arrears of child support. She filed a chart setting out the support that D’Arcy should have paid in accordance with the Child Support Guidelines based on the income that he reported on his income tax documents from May 1, 2011. This is the date that D’Arcy refused to pay half the costs of the upkeep of Wharncliff. She gives him credit for what he has paid. In 2014 he was off work from February to June because of his absenteeism. She seeks to impute income for him in 2014 of what he earned in 2013. Based on these calculations, the total amount of the arrears is $16, 363. She claims $12,500.
Relationship Between Ozzy And Gina And Between Ozzy and D’Arcy
35D’Arcy slandered Gina’s ability as a mother in the texts quoted above. He offered not a scintilla of evidence to support his extravagant statements. I find that Gina has been and will continue to be a wonderful mother to Ozzy. She promotes a wide variety of relationships for him including – his grandmother Gertrude, his half-brothers Tyler and Aaron, D’Arcy, Tiffany, Gabriel and his school and neighborhood friends, Nathan and Madison. In the summer of 2013, Gertrude took Gina, Tyler, Ozzy, and a 28 year old granddaughter to Germany for two weeks to meet with her relatives.
36Ozzy has done well at school. His first term junior kindergarten report card issued February 8, 2013 states the following:
Ozzy is adjusting well to the JK program. He cooperates well with adults and other children. He follows class rules and routines and is helpful when it is time to tidy up. Ozzy shows an awareness of ways of making and keeping friends (eg. Asks if he can play, shares toys). He notices and responses (sic) to others feelings (e.g. tries to make a student happy, when they are sad). He is able to dress and go outside on his own and he usually knows when to ask for help or when he needs to make a decision on his own.
His final junior kindergarten report card issued on February 8, 2013 stated the following:
....Ozzy consistently demonstrates a positive attitude toward school. He demonstrates self-motivation and confidence in his learning by selecting books, and materials to complement our inquiries (e.g. space). Ozzy demonstrated a sense of identity and positive self-image when expressing his ideas and sharing experiences about something he made or classroom activities. He shows an interest in people’s feelings and is able to respond to these feelings appropriately...
His current report card dated November 14, 2014 states the following:
In the Grade 1 classroom Ozzy approaches new tasks with curiosity and a positive attitude. He comes to school prepared with the necessary items for the days learning (e.g. planner). Ozzy follows familiar routines and instructions with independence.....
With his primary residence at Wharncliffe under the direction of Gina, Ozzy is doing extremely well. Gina has been a beacon of strength and stability for Ozzy often under difficult circumstances.
37D’Arcy has some obvious deficits. However, I heard no evidence from Gina or those who support her and have serious reservations about D’Arcy that D’Arcy does not have an excellent relationship with Ozzy. Gina testified that when Ozzy was a baby that D’Arcy was a “hands on Dad”. There was evidence that Ozzy is happy when he comes back from a visit with D’Arcy. The only criticism that I heard of D’Arcy’s interaction with Ozzy was from Gertrude when she said that she had a concern that at D’Arcy’s residence Ozzy was exposed to an electric war game called “Call of Duty” in which the participants in the game killed Germans. I did not understand this to be a serious concern. It was not emphasized in the submissions of Ms. MacKenzie.
The Positions Of The Parties
38The parties are agreed on the division of holiday time. Gina through Ms. Mackenzie submitted a draft order which gives both Gina and D’Arcy substantial specific times with Ozzy during holiday time. D’Arcy through Mr. Reich agreed to it. Gina seeks an order that she have sole custody of Ozzy, that she make the important decisions on Ozzy’s welfare after consultation with D’Arcy, that D’Arcy have access to Ozzy in accordance with the order of Justice Korpan conditional on him or Tiffany providing transportation, that D’Arcy pay child support in the amount of $688 per month based on an imputed income of $75,699 which was D’Arcy’s income for 2013, that the parties exchange income tax returns by May 1 of each year commencing in May, 2016 and that child support be adjusted on June 1 of each year based on D’Arcy’s income for the previous year, that they divide s. 7 expenses equally, that D’Arcy pay to Gina arrears of child support in the amount of $12,500 and that costs be determined after written submissions.
39Gina while making it clear that her primary position is that D’Arcy should have access permanently as set out in Justice Korpan’s order suggested an alternative proposal which would expand his access. This proposal would have Ozzy being at D’Arcy’s residence when he is on the day shift between 4:00 p.m. and 8:30 p.m. with either Tiffany or D’Arcy picking up Ozzy from the bus stop at Wharncliffe, taking him to D’Arcy’s residence and returning him to Wharncliffe at 8:30 p.m.
40Gina relies on s. 24 of the Children’s Law Reform Act which provides that the overarching principle of what is in the best interests of the child determines who should have custody of a child. It states the following:
24(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) 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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) 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. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
41It is Gina’s position with which I agree that on the evidence each of the applicable sub sections of s. 24 favors her having sole custody of Ozzy. I summarize her position on each of the sub sections as follows:
s. 24 (2)(a)(i)(ii)(iii) and (c)
42Gina emphasizes that Ozzy is thriving under her overall direction. She has promoted the relationships of the child with every person who has a positive involvement in his life – D’Arcy, Gertrude, Tyler, Aaron, Tiffany, Nathan and Madison. His relationships with Gertrude, Tyler, Aaron, Nathan and Madison would be put in jeopardy were shared custody to be put in place. Ozzy’s routine in the morning and after school supervised by Gertrude, Tyler and Gina, when she is not working, would change when D’Arcy would have him continuously during the week. This would be a major disruption for Ozzy of his current routine which is working so well.
2(d)(e)(f)(g)
43Gina has been doing this since Ozzy’s birth. In the period after Gina and D’Arcy separated, D’Arcy has often failed to fulfill his responsibility – he provided no child support after the separation in December, 2010 until he was ordered to do so by Justice Korpan by her orders of March 19, 2013 and January 22, 2014. There was a long period from May, 2011 when he stopped contributing to the expenses of Wharncliffe until Justice Korpan’s order dated March 19, 2013 of almost two years when he paid nothing to Gina notwithstanding that she had primary care of Ozzy. He lost his employment through absenteeism and then sought unsuccessfully to be relieved from paying child support. He cancelled the fire insurance on Wharncliffe and the insurance on the car that Gina was driving and hence put in jeopardy Gina’s capacity to keep the house where Ozzy was living and to provide transportation for him. He has declared bankruptcy which has left Gina and Gertrude solely legally responsible for debts which he and Gina incurred while they were together. D’Arcy’s relationships with both Angela and Aaron have failed seemingly largely as a result of his behavior. He has shown an inability to live with stress in many ways, most importantly when he lost his employment as a result of absenteeism.
(3) and (4)
44The evidence of D’Arcy’s emotional abuse of Gina which at times has become physical and to a lesser extent his emotional abuse of Angela are unchallenged and set out above.
45D’Arcy seeks an order for joint shared custody with equal time sharing of Ozzy, concedes final decision making authority to Gina, that he pay no child support, that s. 7 expenses be divided equally and that each pay their own costs. He relies on the evidence that he has a good relationship with Ozzy.
Case Law1
46In Young v. Young 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, the parties had three daughters. The father was a Jehovah's Witness. The trial judge awarded custody to the mother. The father was granted access, but he was restricted from discussing his religious beliefs with the children and from taking them to religious services. The British Columbia Court of Appeal removed the restrictions on the father's access. The majority of the Supreme Court of Canada upheld the decision of the Court of Appeal. Justice L'Heureux-Dubé wrote a lengthy dissent. She would have upheld the trial judge. She canvassed a number of the principles that a trial judge ought to apply in deciding the issue of custody. As Gray J. noted in Warcop v. Warcop 2009 CanLII 6423 (ON SC), [2009] O.J. No. 638 at para. 50, none of the other judges disagreed with her expression of the relevant principles. I find the principles expressed both in the majority judgment of Justice McLachlan and in the dissenting reasons of Justice L'Heureux-Dubé of assistance in this case. The paragraphs that follow, in my view, have direct application to this case.
Justice L'Heureux-Dubé
Custody
33... Courts are not in a position, nor do they presume to be able, to make the necessary day-to-day decisions which affect the best interests of the child. That task must rest with the custodial parent, as he or she is the person best placed to assess the needs of the child in all its dimensions. In my view, this was eloquently expressed by Weatherston J. (later J.A.) in McCahill v. Robertson (1974), 1974 CanLII 2225 (ON SC), 17 R.F.L. 23 (Ont. S.C), at pp. 23-24:
A child must know where its home is and to whom it must look for guidance and admonition and the person having custody and having that responsibility must have the opportunity to exercise it without any feeling by the infant that it can look elsewhere. It may be an unfortunate thing for the spouse who does not have custody that he or she does lose a great deal of the authority and indeed to some extent the love and affection of the child that might otherwise be gained, but this is one of the things which is inherent in separation and divorce. The parents cannot have it both ways. As I say, in my view, it is vitally necessary that the child know where its home is, to whom it is responsible and that there be no doubt in the mind of the child as to that. Within those limits, the parent who does not have custody should, of course, have access to the child under terms which are as reasonably generous as possible, but without interfering with that basic responsibility on the parent having custody.
Access
41Professor Payne, in Payne on Divorce, supra, at p. 144, shares the view that the access provisions in the Act do not confer any authority on the non-custodial parent to participate in the major decisions of a child's life. ... Payne states at pp. 145-46:
the non-custodial spouse with access privileges is a passive bystander who is excluded from the decision-making process in matters relating to the child's welfare, growth and development. This remains true notwithstanding that subsection 16(10) of the Divorce Act, 1985 provides that the court shall promote "maximum contact" between the child and the non-custodial parent to the extent that this is consistent with the best interests of the child.
I could not agree more….
No Presumption of Joint Custody
43The arguments in favour of increased authority over the child by the access parent are closely related to those which support a presumption in favour of joint custody ... They rest on the premise that the relationship of authority and obligation that existed between each of the parents and the child during the marriage should and can continue, despite the fact that the parents may no longer be willing or able to cooperate on its exercise. While joint custody may remain an ideal solution in proper cases, particularly when parents are willing and able to cooperate, such premises are often based on illusion rather than reality and may, in the words of Thorson J.A., amount to "a triumph of optimism over prudence" (Kruger v. Kruger, supra, at p. 681).
Custodial Parent
48Support for the decisions of the custodial parent in the discharge of his or her responsibilities remains crucial if the child is to flourish. The conferral of decision-making authority on the custodial parent acknowledges and reflects the actual day-to-day reality of this task ....
117... The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will often provide the most reliable and complete source of information to the judge on the needs and interests of that child.
Justice McLachlin
202... the "best interests of the child" test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role.
47In Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, the trial judge awarded joint custody to parents of a two year old girl. The parents separated three months after the child was born. They attempted marriage counselling. The marriage counsellor asked them to leave his office because of "the 'uncontrollable invective being exchanged by them'" (para. 4). The Court of Appeal, in the judgment of Justice Weiler, awarded custody to the mother. She stated the following:
2For the reasons that follow, I would agree with the mother that the order of joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties.
9Family law cases are, by their nature, fact-based and discretionary. It is unnecessary to address this court's prior jurisprudence regarding the issue of joint custody to resolve the issue of custody in this appeal.
10As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be "fit" did not mean that it was in the best interests of the child for a joint custody order to be made.
11The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis.
48Ladisa v. Ladisa 2005 CanLII 1627 (ON CA), [2005] O.J. No. 276 was released by the Court of Appeal at the same time that it released Kaplanis. The parties were married and lived together for 16 years. They had three children, Alana age 16, Jordan, age 13 and Jessica, age 9. When the parties separated, all three children remained in the matrimonial home with the mother. The father was disabled. The parties had a history of being able to work together in the care of the children in times of crisis. The children wanted joint custody and an assessor recommended it. The trial judge granted joint custody. The mother appealed. When the case was heard in the Court of Appeal, Alana was almost 17. She was described as being out of control. The Court of Appeal, in the judgment of Justice Weiler, upheld the award of joint custody regarding the two younger children but made no order regarding the older child. Justice Weiler stated the following:
12The trial judge found:
Despite the intense conflict between these parents, in emergencies and when the parents have had an opportunity to consider the real interests of their children, they have behaved appropriately, even in each other's presence ...
16In my opinion, it was within the trial judge's discretion to make the order she did respecting Jordan and Jessica. The trial judge's conclusion took into consideration the history of co-parenting by the parties while they were married and the ties that the children had to both their parents.
49In Habel v. Habeborn, 2005 ONCJ 242, [2005] O.J. No. 3556 (affirmed [2007] O.J. No. 2143 (Sp. Ct); followed 2010 ONSC 4325 (Sp. Ct.)) at issue was the custody of a three year old boy. The mother sought custody. The father sought joint custody. The parties had lived together intermittently before the child was born. When the child was conceived they were not living together. The pregnancy was not planned. The father urged the mother to have an abortion, which she refused to do. They lived together in circumstances of tension for four months after the child was born. There was much conflict between the parties over the care of the child. Justice McSorley summarized the guidelines to be taken from Kaplanis and Ladisa as follows:
4Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis v. Kaplanis and Ladisa v. Ladisa, the court applied the same legal analysis. Several important guidelines can be taken from Appeals Justices Karen M. Weiler's reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:
(a) there is no default position in favour of joint custody in Ontario;
(b) each case is fact-based and discretion-driven;
(c) past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision whether to order shared parenting in any form;
(d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;
(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.
And:
7According to the principles in Kaplanis v. Kaplanis and Ladisa v. Ladisa, joint custody may be appropriate in three main types of cases:
An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.
Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.
Finally, joint custody may also be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.
33… Having regard to the evidence presented and the entries in the communication book, I find that Mr. Hagedorn's method of communication is abusive, sarcastic, accusatory and bullying. I find that the mother is not in any way responsible for the difficulties in communication…
She awarded custody to the mother.
50In Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, the Court of Appeal reversed an award of joint custody by the trial judge in a case where there was much conflict between the parents. The Court stated the following:
4The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co-operate and communicate effectively: see, for example, Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at 4 (C.A.).
5The basis for the trial judge's order of shared parenting was the recommendation of Mary Satterfield, a mediator who worked long and hard, but ultimately unsuccessfully, to resolve the parties' disagreements after being appointed by the trial judge following 12 days of evidence.
6Unfortunately, virtually the entire record - interim proceedings before another judge, the mediator's own description of the parties' relationship, the trial judge's own comments during the trial and his observations in the judgment, and the fresh evidence filed by both parties - establishes that a foundation for a joint or parallel custody order set out in the case law, namely co-operation and effective communication, has been and continues to be entirely missing from this case.
51In Testa v. Basi [2005] O.J. No. 3054 Justice Aitken considered the claims of the mother for custody and the father for joint custody of a 3 year old boy. The facts are similar to the facts of the case before the court. The father was estranged from a 13 year old boy from a previous marriage. The relationship of both parents to the child was good. Justice Aitken stated the following:
36By all accounts, Rocco is a bright, healthy, intelligent and happy boy who is surrounded by adults who love him and who work hard at taking good care of him. I have no hesitation in finding that both Ms. Testa and Mr. Basi are competent and caring parents for Rocco. This is reinforced by the fact that neither parent has any concerns about the care that Rocco receives when he is with the other parent, or the other parent's extended family. Both parents acknowledged that Rocco loves both of them, is happy to be with both of them, and is comfortable and secure in both homes.
46What causes me some concern is that Mr. Basi has a volatile and impulsive side that at times results in poor anger management…
56What concerns me is that when testifying Mr. Basi used negative and derogatory language about Ms. Testa much in the same way as he did in regard to his wife, Renée, though his allegations against Ms. Testa were more moderate. Mr. Basi is inclined to see difficulties in his life as being caused by others. He reacts with anger when things are not working out as he would like. He has difficulty understanding and accepting the valid needs of others. He has difficulty assuming responsibility for helping to create current circumstances. This concern has implications for the next factor.
59…. The language used by Ms. Testa when giving her evidence at trial, her description of Rocco's relationship with his father, her recognition of the warmth and love given Rocco by Mr. Basi's extended family, her willingness to consider options regarding access arrangements all suggest that Ms. Testa does not, and has not, seen the need to keep Mr. Basi out of Rocco's life. …
52In Armstrong v. Armstrong 1997 CanLII 24458 (ON SC), [1997] O.J. No. 4137 Justice McKinnon considered the claims of the mother for custody and the father for joint custody of a 10 year old boy and an 8 year old girl. Both parents were devoted to the children. They had been with the mother since separation 2 years prior to trial. Justice McKinnon awarded custody to the mother. She stated the following:
21The test to be applied is what is in the best interest of the children, not what is in the best interest of either parent. There is no doubt that the father sees his best interest as being served by allowing him to spend half his time with his children. I am not convinced that this would be in the children's best interest. In my view, it is pure speculation that the children would be happier under the joint custody regime proposed by the father. What we know to be fact is that the children are very happy and well-adjusted now. In my view, given the wrenching emotional circumstances surrounding the separation, to change their environment significantly at this point in time would not be in their best interest. In the absence of any independent evidence whatsoever that a change is dictated, it would be a potentially dangerous error to interrupt the regime which has been very deliberately worked out over the past two years. To subject the children to such a change at this time would surely affect the stable environment that all agree exists. Passing the children back and forth, week after week, cannot be said to constitute a change for the better in circumstances where no evidence exists to support such a change, other than the expressed wish of the father.
Conclusion on Custody And Primary Residence Of Ozzie With Gina vs. Joint Custody of Ozzy To Gina And D’Arcy With Shared Equal Residency Of Ozzy
53In my opinion based on the evidence and the applicable principles set out it is in the best interests of Ozzy that Gina have sole custody of him, that he reside primarily with her and that D’Arcy have access as provided in Justice Korpan’s order for the following reasons:
There is no effective communication between Gina and D’Arcy. They do not speak. When they do communicate they do so by text with angry invective coming from D’Arcy. They are able to arrange for the exchange of the child only through third parties – Gertrude, Tyler and Tiffany.
D’Arcy has shown himself to be unstable emotionally and irresponsible in his financial obligations to support Ozzy.
Notwithstanding D’Arcy’s abusive behavior towards Gina I accept that he does have much affection for Ozzy. That said I find that a significant part of his determination to have custody and shared residence for Ozzy is to avoid paying guideline child support. He was outraged by Justice Korpan’s 2 child support order and by Justice Templeton not staying the child support because he had lost his employment as a result of his absenteeism. He texted Gina after Justice Templeton made her order that she was not to count on getting money from him because he was not going to work at Cami. Tiffany testified that she was going to have to go back to work if the child support was not reduced.
In my view the alternative proposal put forward by Gina for D’Arcy to have expanded access is not in D’Arcy’s best interests. It is suggestive of Gina appeasing D’Arcy’s aggressive behavior towards her surrounding Ozzy which she should not do. She should count on the court supporting her. The plan involves much too many exchanges of Ozzy between the 2 households particularly during the week when he is attending school.
Most important D’Arcy openly denigrates and shows disrespect for Gina. As I have set out above his statements about her are false and demeaning. D’Arcy referred to Gina as a “baby moma” and accused her of having “ho parties”. These are expressions which the court hears in cases. To call a woman a “baby moma” is to convey the meaning that her sole function is to give birth to a child. It suggests that she is not worthy of respect as an individual. A “ho” is a prostitute. It is derived from the word “whore”. These statements are vile. I totally reject them. Gina’s concerns are well founded that if D’Arcy is permitted with impunity to continue to voice these opinions about her in front of Ozzy that this will affect Ozzy’s view of women and even of her. D’Arcy has openly stated that he will attempt to turn Ozzy against Gina. In the E mail of October 22, 2014 he said “I’ll make sure to tell him your intentions in court so he starts to understand the type of person you are”. I do not need an expert to tell me that children adopt the conduct of their parents. If it were not for Gina’s support of D’Arcy having extended involvement in Ozzy’s life I would be inclined to restrict D’Arcy’s contact with Ozzy to supervised access which access would immediately end if D’Arcy started to denigrate Gina. D’Arcy must cease denigrating Gina and particularly in front of Ozzy. His behavior is unacceptable.
Arrears Of Support
54Children have a right to financial support in accordance with their parents' income. The non-custodial parent has an obligation to pay support to the custodial parent based on his/her income. The Child Support Guidelines, which came into effect on May 1, 1997, set out in tables the monthly amount that the non-custodial parent was obliged to pay the custodial parent based on his income. In S. (D.B.) v. G. (S.R.) (2007), 2006 SCC 37, 31 R.F.L. (6th) 1 (S.C.C.), the Supreme Court of Canada in the judgement of Justice Bastarache stated the following:
43... But while they seek to instill efficiency and consistency in child support matters, the Guidelines are also attentive to concerns of fairness and flexibility, adopting a "children first" perspective: see Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 (S.C.C.), at para. 39; Guidelines, s. 1.
44In order to accomplish its goals, the Guidelines generally make only two numbers relevant in computing the amount of child support owed: the number of children being supported, and the income of the payor parent.
Regarding claims for retroactive support Justice Bastarache stated the following:
118Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.
55It seems to me that an argument could be made that Gina gave D’Arcy constructive effective notice of her claim for child support in May, 2011 when he arbitrarily stopped paying his equal share of the expenses for the upkeep of Wharncliffe. At the latest she gave effective notice of her claim when she served her first application issued on February 24, 2012 and returnable on April 13, 2014. Income can be imputed to him for the period that he was in effect suspended from Cami for absenteeism pursuant to the Regulations Establishing Federal Child Support Guidelines as interpreted by the Court of Appeal in Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. no. 3731. In any event Gina does not seek all the arrears of support from May, 2011 which are $16,163. Her claim is for $12,500. I find that this amount is fair and reasonable.
Result
56An order will go in the precise terms of Gina’s draft order entered as Exhibit 9. Gina may make written submissions on costs within 10 days of the receipt of this judgment and D’Arcy may have 10 days to respond.
P.B. Hambly, J.
Released: February 2, 2015
COURT FILE NO.: F387/12
DATE: 2015-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gina Roberta Facchini
Applicant
D’Arcy Denis Andrew Bourre
Respondent
REASONS FOR JUDGMENT
P.B. Hambly, J.
Released: February 2, 2015
Footnotes
- I have used my review of the case law in my judgements of Misch v. Pfister [2012] O.J. No. 4489 and Crocker v. Cox (2008) 2008 CanLII 47469 (ON SC), 58 R.F.L. (6th) 265.