Harris v. Alberta, 2016 ONSC 1364

CITATION: Harris v. Alberta, 2016 ONSC 1364 COURT FILE NO.: 1296/10 DATE: 2016/02/24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Natalie Nicole Harris (Walsh), Applicant

• and -

Arthur Lorne Craig Alberta, Respondent

Counsel: Marlene J. VanderSpek, for the Applicant Edwin A. Sauer, for the Respondent

HEARD: February 16, 17, 18, 19 & 22, 2016

BEFORE: The Honourable Mr. Justice P. R. Sweeny

REASONS FOR DECISION

Introduction

1The issues in this case are access to the child by her biological father and the child support payable by the father. The mother opposes access by the father on the basis that she does not believe it is in her daughter’s best interests.

Background

2The applicant, Natalie Nicole Harris Walsh, and the respondent, Arthur Lorne Craig Albert, have a daughter, Maya Rose Lee Harris-Alberta (“Maya”), born January 28, 2008. The applicant is 26 years of age (born October 5, 1989). The respondent is 29 years of age (born December 15, 1986).

3The applicant and the respondent started dating in high school when the applicant was 15 and the respondent was 17. They had a relationship which involved excessive consumption of alcohol and drugs. Marijuana was the main drug of choice. It was not a healthy relationship. The applicant described the relationship as “toxic” and the respondent agreed. They conceived a child in January 2005, who died in the delivery room on October 25, 2005. The couple did not see each other for a while. They start to see each other again commencing New Year’s Eve 2005. The relationship was consistently on and off. They did not cohabitate together for any significant time.

4In Spring 2007 they conceived Maya, who was born January 28, 2008. After the birth of Maya, the relationship continued off and on. The respondent would see Maya, but not on a consistent basis. In 2008, the applicant moved in with the respondent’s mother. The respondent was not allowed to live in the home at that time because of his drug use and stealing. He did not have a job. In September 2008, the applicant moved into 51 Almond Street in St. Catharines. The respondent would still see Maya, but the visits were not regular. The respondent continued to use and abuse drugs and alcohol. He had several other relationships.

5In spring 2009, the applicant started a new relationship with Dalton Walsh (now her husband). As the applicant’s relationship with Dalton grew, it caused friction with the respondent. The respondent sent inappropriate text messages and telephone calls. In 2009 the applicant and the respondent engaged in a mediation process to regularize access. This resulted in a consent order of September 2, 2009 of Scott J. (“the Scott Order”). That order provided the custody to the applicant, with the respondent having access up to three times per week, with advance notice and consent of the applicant, and alternate weekends. There was also a schedule for holidays and other important dates.

6Following the Scott Order, access was more regularized for some period of time. However, the access started to be less regular. It is the respondent’s evidence that as the applicant’s relationship with Walsh grew, he was denied access. The applicant disputes this and suggests the respondent was not, in fact, exercising his access as he was entitled to do. The respondent does not drive and so would depend upon his mother, Margaret Dempsey, or other people to deliver or pick up Maya for access visits.

7The communication between the applicant and the respondent continued to be strained. There were police reports made February 24, 2010 alleging threatening text messages from the respondent to the applicant. The text messages surround issues of the respondent’s concern he was not getting proper access. In March 2010 there was a police report that the respondent was continuing to contact the applicant with threatening phone calls and text messages. The police were unable to connect with the respondent to discuss these issues. The applicant was clearly concerned about the respondent’s behaviour.

8In August 2010, the applicant issued a motion to change. This is the proceeding we are faced with today. In the motion to change, she requested the respondent have no access until such time as he underwent drug tests and was able to prove he was drug-free, and then supervised access. She raised issues about the respondent’s history of drug abuse, history of violence, extensive criminal record, threatening text messages, Maya sleeping in a basement, Maya staying with six people, three with drug abuse, and the respondent threatening to run her off the road.

9This proceeding has dragged on for some five and a half years. On December 13, 2010, Tucker J. ordered on consent at a case conference that the respondent have access to the child on his birthday, and that there would be Christmas access. On May 19, 2011, at a settlement conference adjournment, Henderson J. noted that drug testing was being done but was not yet completed. On June 20, 2011, Maddalena J. ordered on consent at a settlement conference that the respondent have telephone access, and the matter was adjourned to an assignment court for August 9, 2011. There is no evidence that any telephone access was exercised. The respondent said he tried but that the phone would not be answered. The applicant disputes this.

10On August 10, 2011, Tucker J. ordered on consent that the respondent’s normal access was to be supervised by his mother, pending further order of the court. The motion was adjourned to August 24, 2011. On August 24, 2011, Henderson J. ordered on consent that the respondent could have access supervised by his mother or father, and the matter was adjourned to October 5, 2011. On October 5, 2011, no one appeared and the matter was struck from the list.

11The supervised access continued for some period of time. The applicant asserts it was not regular. There is evidence that there were three missed weekends leading up to Easter 2012. The respondent communicated with the applicant seeking to have access on Easter, which she denied on the basis that the respondent had not exercised his access for the previous weeks. In response to this, the respondent left a voicemail message in which he threatened the applicant and her fiancé. The applicant went to the police. On April 10, 2012, the respondent was charged with uttering threats. As a term of his bail, he was prohibited from communicating directly or indirectly with the applicant or Dalton Walsh. In addition, he was not to see Maya until a new court order was obtained. On June 20, 2012, the respondent entered into a probation order which required him not to associate or communicate directly or indirectly with the applicant or Dalton Walsh for 15 months.

12The applicant’s evidence was that she was under the impression that the matter was resolved and that, given that order, she would not hear from the respondent again.

13The respondent’s evidence is that, through his mother, he sought to contact the applicant in order to obtain a court order allowing him access. He was unable to contact the applicant and, accordingly, obtained an order, dated January 22, 2013 of Matheson J., on an uncontested trial for access in essentially the same terms which were allowed in the Scott Order.

14When the applicant found out about the order through a Facebook message from Margaret Dempsey, she brought a motion to set aside the order. The order was set aside by MacPherson J. on April 3, 2013. That order indicated that the parties would participate in reconciliation counselling with the respondent and the child at Pathstone Mental Health Services.

15Unfortunately, the reconciliation counselling did not occur at Pathstone. On December 9, 2013, Henderson J., at a settlement conference, ordered that reconciliation counselling could occur with Lori Gill or Pathstone, and the applicant agreed to pay the costs.

16Reconciliation counselling did occur with Lori Gill. It commenced in January 2014 and continued until July 26, 2014. On October 29, 2014, Henderson J. ordered that the reconciliation counselling would continue, with costs split between the parties. The last reconciliation session was on December 22, 2014.

17On January 8, 2015, on consent, Tucker J. ordered the respondent would have supervised access to the child every Saturday for a period of two hours every weekend, and the parties would initially split the costs for supervised access. In addition, the respondent was ordered to pay child support in the amount of $135.00 per month based on the respondent’s estimated income of $17,000.00. There was no access and no child support was paid.

18On June 18, 2015 the matter was set for trial the week of February 16, 2016 when it proceeded.

Issues

19The issues are as follows:

(1) Has a material change in circumstances occurred since the Scott Order?

(2) Should the respondent’s access be terminated and, if so, what provisions for access are appropriate?

(3) What is the appropriate amount of child support for the respondent to pay?

(4) Does the respondent owe retroactive child support to the applicant and, if so, in what amount?

Material Change

20The respondent does not dispute that there has been a material change such that it is appropriate for this court to consider the appropriate orders dealing with access and child support. In making a determination with respect to the issue of access, the court should look at the matter afresh, and conduct a fresh inquiry into the best interests of the child (see Gordon v. Goertz, [1996] 2 S.C.R. 27, para. 17).

Should the Respondent’s Access be Terminated and, if not, should his Access be Supervised?

21Section 24 of the Children’s Law Reform Act (“CLRA”) requires that the merits of an application for access shall be determined on the basis of the child’s best interests:

Merits of application for custody or access

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).

Best interest 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 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.

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.

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.

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.

22The primary focus on such inquiry is the child. It is a child’s right to see a parent with whom the child does not live, rather than the parent’s right to insist on access to that child (see Macgyver v. Richards (1995), 22 O.R. (2d) 481 (C.A.) per Abella J.). In V.S.J. v. L.J.G., 2004 ONSC 17126, Blishen J. noted:

[128] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v. Dadar, [1996] N.B.J. No. 387 (QL).

[129] A review of the case law reveals that there are no standard criteria for termination of access within the best interests test. Madam Justice Abella noted at para. 34 o M.(B.P.) v. M.(B.L.D.E.) (1992), 42 R.F.L. (3d) 349 (QL) (Ont.C.A.):

It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests.

23In Chartrand v. de Laat, 2008 ONSC 58608, Trousdale J. summarized the factors most commonly considered by the courts in terminating access as set out by Blishen J. in V.S.J. v. L.J.G. as follows:

1. Long term harassment and harmful behaviour towards the custodial parent causing that parent and the child stress and or fear.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well being.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between non-custodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children’s wishes and preferences to terminate access. [para.104]

24In Dahaliwal v. Dahaliwal, 2015 ONSC 6172, [2015] O.J. No. 5152, the father had no contact with the six year old son for about two and a half years. In that case, there was evidence that at some point Mr. Dahaliwal had a significant substance abuse problem. Provisional supervised access was ordered, coupled with regular drug testing and family counselling. In that case, there was an issue of the discouraging behaviour by the mother.

25In Dahaliwal, Lemay J. approved the comments of Mossip J. in Reeves v. Reeves, [2001] O.J. No. 308:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children.

26In this case, the applicant asserts that the respondent’s behaviour disentitles him to access. She raises the following issues:

(1) The respondent has a criminal record and a history of drug use.

(2) The respondent has a history of severe anger management issues, including uttering threats to the applicant, for which he was criminally charged.

(3) The respondent has been harassing and intimidating towards the applicant.

(4) The respondent failed to follow through with the most recent order for supervised access for a period of well over 11 months.

27The applicant asserts that it is not in the best interests of the child that the respondent exercise access because during the period of reconciliation counselling, the child exhibited dysregulation behaviour. Since the reconciliation counselling ended and there was no supervised access, the child has improved and now exhibits no dysregulation behaviour.

28The respondent’s behaviour in the past was inappropriate. In his evidence, he acknowledged that he had behaved poorly. He acknowledged his threatening voice mail message was inappropriate. He did acknowledge significant drug use. I would note that marijuana is a drug and the respondent had significant issues with respect to marijuana use.

29The applicant points to behaviours of the respondent from 2012 and earlier. There is no evidence of any threatening or intimidating behaviour from the respondent since 2012. The respondent’s past behaviour has been poor. He seems to have had anger issues, usually arising in the context of access disputes and, no doubt, combined with drug and alcohol use.

30The respondent gave evidence with respect to how he has now turned his life around. He is older and more mature. He has had a regular job since August 2014. He works for a company that his brother-in-law and sister run. He is now in a relationship with Terrie Lee Lacoutte. He lives with her. She has an eight year old daughter from a prior relationship, and they now have two children; a daughter born May 31, 2014 and a daughter born four months ago. Ms. Lacoutte testified that the respondent no longer uses marijuana and he is an active participant in raising the children. He looks after the children when she is unable to. She is on maternity leave and will be returning to work as a P.S.W. in October 2016.

31The respondent’s mother Margaret Dempsey gave evidence. She testified as to the significant changes she has noticed in the respondent since he met Terrie. He is working fulltime, and he is a much different person. She believes he has grown up significantly. Ms. Dempsey was candid in her description of her son and his excessive use of drugs. In the past, she kicked him out of her house because he had stolen from her, and he was not employed. Ms. Dempsey was significantly involved in the access exercised by the respondent in the past. She would consistently drive and pick up, and she supervised access. The visits would occur at her home. Ms. Dempsey has six children and 19 grandchildren. She would welcome the opportunity to reconnect with Maya, her granddaughter, in the future.

32Jennifer Lynn Ingram is the respondent’s sister. She confirms he is employed by the company owned by her common-law husband. He has been working at the company since August 2014. She is impressed with his performance. He is now one of the good workers. He has learned some skills. Ms. Ingram testified that she has five children, aged 20, 19, 11, 8 and 4. She has experience with and knows the difficulties which arise with blended families. She recalls that there was not really a problem with access until the applicant started her new relationship with Mr. Walsh. Then everything went downhill. Things got complicated when Maya started calling Dalton “daddy”. However, she understands the issues that arise and acknowledged that it is sometimes easier to push an “ex” out of the way. However, that is not necessarily in the best interests of the child.

33In this case, there is no question that Maya benefits from the love, support, caring, and nurturing provided to her by the applicant and her husband. The applicant has two new children with her husband; a daughter born December 28, 2012, and a son born July 2, 2015. In addition, the applicant has a stepfather who has been very involved with the children, as has her mother-in-law.

34Lori Gill was the reconciliation counsellor who met with Maya, the applicant and the respondent. She provided two reports and gave evidence in this proceeding. She has extensive experience with family dynamics. In her view, the reconciliation counselling was successful. She was pleased with the interactions between Maya and the respondent. She recommended that supervised access occur.

35The applicant and her family raised issues with respect to dysregulation they noted. Ms. Gill was questioned with respect to this dysregulation. Ms. Gill noted the child herself seemed to enjoy the visits with her father. However, the child experienced conflict given her perception that her other family members had expressed disapproval of the respondent. Although Ms. Gill did not believe that the applicant and her family directly spoke to the child, she did make it clear that children are “receptive and perceptive”. They can sense anxiety and apprehension of caregivers. Ms. Gill thought that a great deal of Maya’s dysregulation is being experienced vicariously through the anxiety and apprehension of the caregivers.

36The applicant and her present family wish, I am sure, that the respondent exercise no access at all. The past history of the applicant and the respondent causes stress to the applicant. Her concern and worry is projected onto the child. However, a parent’s desire to have no relationship with the father of her child cannot form the basis for a denial of access. In general, it is in the best interests of the child to have maximum contact with each parent.

37In this case, I am satisfied that the respondent has no history of violence or improper conduct which would preclude him from exercising access. I have no concerns with respect to safety issues surrounding the access exercised by the respondent. The respondent has not denigrated the applicant. The respondent and Maya do have a relationship. The respondent is involved in a stable, loving relationship and has the support of his family. Ms. Gill’s evidence was that this was not a “high conflict” situation from her perspective.

38The main concern I have in considering the best interests of Maya is that the respondent has failed to be consistent in exercising his access. The respondent did fail to take the appropriate steps to follow up with the supervised access which was ordered by Tucker J. No good explanation has been given. I note that Lori Gill offered an additional session of reconciliation counselling, which the applicant declined on the basis that she would be going to court. The evidence is that Maya was enjoying the access visits with her father and it is unfortunate that no consent was given to an additional reconciliation counselling session which would have been at no charge. In addition, access is the right of the child. The custodial parent has a responsibility to facilitate that access. While it is a minor point, the applicant contacted Pathstone, and then followed up in April, but at no time did the applicant’s lawyer contact the respondent’s lawyer to determine if there were any problems with respect to getting the access going. I appreciate the applicant has a stable life right now and would rather Maya not see her biological father. However, it is important to allow Maya the opportunity to interact with her father and his family. The applicant has expressed her desire for Maya to know her father, and that is commendable. I am confident she and her family can continue to support Maya in developing a healthy relationship with her father.

39In all the circumstances, I am satisfied that it is appropriate for the respondent to have access and that the access should be supervised at this time. I am concerned that the respondent exercise the access consistently. He needs to show his commitment to the relationship with his daughter and put her wellbeing and interests first. Therefore, I will order that the parties engage in reconciliation counselling for at least two joint sessions with Lori Gill, to be paid by the respondent. Following the reconciliation counselling, arrangements shall be made for supervised access at Pathstone or with Lori Gill for two hours per week. This is to be paid for by the respondent. Such supervised access is to continue for a period of four months. Prior to the end of the four months of access, the parties are to appear before me, at a date to be arranged with the trial co-ordinator, to review the status of the access. Reports from Pathstone and/or Lori Gill are to be provided prior to that hearing. The hearing will be for the purposes of reviewing the status of the access and whether modification to the access should occur.

40I remind the parties that access is the right of the child and it is to be facilitated by the parties and their families.

Quantum of Child Support

41What is the appropriate amount of child support for the respondent to pay?

42The respondent has an obligation to pay child support in accordance with the Child Support Guidelines. The evidence discloses that the respondent’s income for 2015 was $23,515.50. The respondent’s income for 2014 was $14,316.00. The applicant seeks the imputation of income to the respondent.

Imputation of Income

43The applicant seeks to impute income to the respondent. The income sought to be imputed is the fulltime minimum wage income. The applicant argues that the respondent could have worked and there was no evidence led that there was any physical impairment to his ability to work.

44In Drygala v. Pauli, [2002] 61 O.R. (3d) 711, the Court of Appeal reviewed s.19 of the Federal Child Support Guidelines and set out three questions which the trial judge is required to consider in applying the provisions. These are:

(1) Is the spouse intentionally under-employed or unemployed?

(2) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

(3) If the answer to question #(2) is negative, what income is appropriately imputed in the circumstances?

45In interpreting the first question, dealing with “intentionally”, it is not required to establish bad faith. The Court stated:

Read in context and given its ordinary meaning, “intentionally” means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less … than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work. (para. 28)

46In this case, I am satisfied that the respondent did not intentionally choose to be underemployed. He has limited skills and abilities. His lack of motivation may be seen as part and parcel of his immaturity and significant drug use. I am not prepared to impute income to the respondent. He is presently working full-time and has an opportunity to continue to earn more income as he continues in his present position. The child will receive the benefit of increases in income in future years.

Retroactive Child Support

47The applicant seeks retroactive child support. In the Scott Order, the applicant did not seek child support but did impose an obligation for financial disclosure. In several subsequent orders, no child support was directly sought. The order of Henderson J., dated December 9, 2013, required the respondent to produce income tax returns and notices of assessment which were for the purposes of calculating child support. The respondent delayed in providing the required information. I do not fault the applicant for failing to seek child support earlier. Given the respondent’s work history, it was not clear the respondent had any significant income from which to pay child support.

48In this case, the respondent has acknowledged obtaining full-time employment in 2014 and, accordingly, acknowledges an obligation to pay child support.

49The applicant would like child support to be retroactive to an earlier date. In all the circumstances, I order child support retroactive to January 1, 2014. I decline to order child support prior to January 1, 2014. I do this, in a large measure, because the respondent presently is in a common-law relationship with three children in the household. His income is fairly modest and it would cause undue hardship if there was an obligation to pay retroactive support prior to January 1, 2014.

50Therefore, the respondent shall pay child support retroactive to January 1, 2014. For the year 2014, he was obligated to pay child support of $84.00 per month based on income of $14,316.00. The respondent is obliged to pay child support commencing January 1, 2015 in the amount of $188.00 per month, based on an income of $23,515.50. The total arrears for 2014 are $1,008.00, and from January 1, 2015 to February 1, 2016 are $2,632.00.

51The respondent’s ongoing child support obligation is fixed at $188.00 per month based on an income of $23,515.50. He shall provide income tax returns and notices of assessment by June 15th of each year to allow for recalculation of child support, commencing June 15, 2017.

52The parties shall immediately contact Lori Gill to make arrangements to initiate the continued reconciliation counselling. The parties shall make necessary arrangements for supervised access to commence as soon as possible after reconciliation counselling has been resolved. The parties shall prepare an order in accordance with these reasons. The matter is to be brought back before me prior to the completion of the four months supervised access.

53This does not seem a case for costs. However, if any party seeks costs, they are to provide written submissions, with a Bill of Costs and any offers to settle, within 10 days of the release of the decision, and with 10 days for the other party to respond.

Sweeny J.