ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Marilyn Hill
Applicant
- and -
Frank Carone
Respondent
Mr. W. Clayton, for the Applicant
On His Own
HEARD: February 12, 16, 17, 19, 22, 23, 24, and 25, 2016
McSORLEY J.
Introduction:
1The matter before the court involved an application commenced by the applicant mother for custody of one child, Luca Carone, born November 11, 2005; child support, retroactive to November 2013 when the father moved out of the matrimonial home; contribution to s. 7 expenses; equalization of net family property; adjustment for overpayment of household costs paid by the mother while the parties remained in the home following separation; maintenance of the child on the father’s medical, dental and extended health benefits through employment; maintenance of a life insurance policy in the amount of $200,000.00 for the child with the mother being named as irrevocable trustee for the child, for so long as the child is a dependent; and a divorce.
Background:
2The parties were married in Punta Cana in the Dominican Republic on February 17, 2005. They are the biological parents of one child, Luca Carone, born November 11, 2010. The parties agree that the separation occurred on September 26, 2012, and although they continued to reside in the matrimonial home, they lived separate and apart from that date forward. The respondent father moved out of the matrimonial home in November 2013, when the applicant mother purchased the respondent’s interest in the home. Luca has lived in the home since birth and continued to reside there with his mother at the time of trial. At the time of trial, the child was 5 years old.
Issues:
3At the commencement of trial, the court was told that the parties had agreed that Ms. Hill would have custody of the child and that the child’s primary residence would be with her. Mr. Carone also confirmed that he was satisfied that Ms. Hill be entrusted to make decisions regarding the welfare of the child. However, it quickly became clear that despite what title the court or the parties chose to define the elements of custody and access, Mr. Carone wanted to have the child in his care 50% of the time and wanted to be consulted on all major issues regarding the child. The issue of custody and parenting time was very much alive throughout the trial and took up approximately 85% of the evidence. The balance of the issues are set out below.
4The issues for determination by the court are as follows:
a) The granting of a divorce;
b) Determination of net family property;
c) Repayment of household expenses paid by the applicant while the respondent remained in the home;
d) Parenting time regarding Luca;
e) Child support; and
f) Costs
5The court intends to deal with each of these issues separately, applying the law and the evidence heard during the trial as it relates to each issue.
Issue A: Divorce
6Neither party was able to find a marriage certificate to prove that the marriage occurred. However, the mother filed as Exhibit 21, a copy of the wedding invitation, which included details of the wedding ceremony to be held in Punta Cana on February 17, 2005, followed by a wedding party at the parties’ home on March 12, 2005.
7Exhibit #21 also included pictures from the wedding, the first showing the bride and groom with family members at the wedding ceremony and the second showing witnesses signing the wedding registry. Both photos show a tropical background, which would not be possible in Ontario in February.
8Additionally, both the paternal and maternal grandmother gave evidence regarding the wedding. Mrs. Fonte Carone indicated that she and her husband were present and witnessed the wedding ceremony in Punta Cana. She identified the woman in the white dress as the applicant and that the man next to her as Mr. Carone, in the family photo filed with Exhibit #21. Mrs. Carone also testified that there was a further celebration of the wedding at the parties’ home in March of 2005.
9Similarly, Mrs. Hill testified that she attended the wedding in Punta Cana in February 2005 and identified herself as being in the picture filed with Exhibit #21. She also identified the applicant and respondent as the bride and groom in the picture. She noted that the second picture filed, showed four people including the parties signing the wedding register.
10The court is satisfied on a balance of probabilities that the parties entered into a legal marriage that was witnessed by their families, on February 17, 2005 in Punta Cana. The parties have been living separate and apart since September 26, 2012, have not reconciled and do not wish to reconcile. Therefore a divorce order will issue terminating the marriage of Marilyn Hill and Frank Carone.
Issue B: Net Family Property and Equalization:
11Both parties provided Net Family Property (NFP) Statements. The applicant’s NFP was filed as Exhibit #20 and the respondent’s NFP was filed as Exhibit #33. Each of them also filed NFP worksheets, comparing the figures used by each party. Exhibit #34 was the respondent’s NFP worksheet and Exhibit #38 was the applicant’s NFP worksheet.
12The applicant argued that most of the figures were not in dispute. She further argued that the court should not use the respondent’s worksheet, Exhibit #34, because the respondent included values that did not appear on his NFP. She indicated that because the respondent’s worksheet was flawed, it was of no assistance to the court and the court should refer to Exhibits 20, 33 and 38. After reviewing all of the exhibits set out above, the court used Exhibit #38 for comparison and calculation of Net Family Property Equalization.
13On October 28, 2013, the applicant purchased the respondent’s interest in the matrimonial home. The parties entered into a separation agreement to deal with the matrimonial home, household contents and spousal support, which was filed as Exhibit #3.
14In the agreement, the parties agreed that each was financially independent of each other and released his or her rights to spousal support forever. Paragraph 4.1 (a) noted that this issue was to be final and non-variable.
15Paragraph 5(2) of the agreement dealt with the matrimonial home. It was agreed that the respondent would transfer his interest in the home to the applicant free of all encumbrances and that the applicant would pay the cost of the preparation and registration of the transfer. Paragraph 5(3) indicated that the applicant would pay to the respondent on or before November 2, 2013 the sum of $150,965.17, at which time the respondent would vacate the premises.
16The agreement also dealt with the joint bank account that will be referred to under the heading of “repayment of household expenses paid by the applicant from September 2012 to November 2013.
17Personal property was divided in accordance with paragraph 6 of the agreement. In addition to his clothing and personal affects, the respondent was entitled to remove the contents listed in Schedule A to the agreement All other contents of the home were to be the applicant’s and the parties agreed that neither of them would be obliged to include a value of such items in the calculation of their net family property.
18There was no claim by either party for a variation of the equalization amount and there was a consensus that the applicant would owe an equalization payment to the respondent. The applicant proposed an equalization payment of $38,830.00 and the respondent proposed an equalization payment of $49,896.00, a difference of $11,066.00.
19For the most part, the parties agreed on many of the values set out in the other’s net family property statement. The major issues of disagreement related to the valuations of the parties’ vehicles at the date of separation and the date of marriage; the value of the respondent’s line of credit at Meridian Credit Bank at the date of separation; the value of the respondent’s BMO Investments at the date of marriage along with the notional income tax to be deducted.
20With respect to the vehicles, the applicant owned a 2003 four door Jetta wagon on the date of marriage and the date of separation. She provided a value on date of separation of $5,200.00 representing the mid-point between the low and high wholesale values set out in the Canadian Black Book Wholesale/Retail Vehicle Guide. The respondent used the same guide but set out a value of $8,725.00, which was shown as the retail value. On the first page of Tab 2 of Exhibit 33, the respondent included a description of the high/low values set out in the book. In order for a vehicle to be assessed in the “high” range, the vehicle would be:
“near perfect with no exterior blemishes or interior wear or odours. Mechanically, nothing would be required to sell it.”
21In order to be assessed at the “low” value, a vehicle:
“will need to be reconditioned cosmetically and mechanically to give it that new-to-you feeling for the next buyer.”
22No case law was provided on this point. The court is tasked with attributing a fair market value to an asset when there is disagreement between the parties. The court’s understanding of the Black Book values is that the retail value is what a dealer would hope to sell the car to another buyer after a trade in. It is, therefore, unlikely that if the applicant traded in the Jetta with a dealer that she would get full retail price. Otherwise the dealer would make no profit. For that reason the court is not prepared to attribute the retail price set out in the Black Book.
23The applicant used a mid-point value between the high and low wholesale amounts. She testified that the Jetta was in good shape at the time of separation. The high wholesale value is approximately $2,200 lower than the mid-point between the low wholesale and the retail price. One might expect to get at least the high wholesale price due to the condition of the vehicle and the fact that the dealer would still make a profit if the car sold for the retail value. Therefore, the court has chosen the high wholesale value for the Jetta on date of separation.
24With respect to the joint RESP and sole RESP owned by the applicant, the court accepts the applicant’s market value over book value. The amount chosen for the savings account owned by the respondent is the value set out by the applicant as it was the last transaction prior to separation, whereas the respondent’s value was the amount in the account four days after separation.
25With respect to the debts, there was a slight difference attributed by the parties to the line of credit held by the respondent at the Meridian Credit Bank in the amount of $11.89. The applicant’s value was as of September 2, 2012 (24 days before the separation) and the respondent’s value was September 30, 2012 (4 days after the separation). Interest on lines of credit accrue daily. The amount set out by the respondent is likely much closer to the amount owing on the day of separation. The court has attributed the sum of $3,623.00 to the respondent.
26In dealing with the respondent’s 1997 Acura owned on marriage, the applicant again applied the mid-point of the high and low wholesale values. The respondent noted in Exhibit #33 that he traded in the Acura in the month following the date of marriage and obtained $10,500 for it. It is unlikely that the car was worth less before marriage. Therefore the court has used the value of $10,500 for the respondent’s Acura.
27There was a $682.00 difference in the value attributed to TD Waterhouse stocks owned by the respondent. The notes related to that item in Exhibit #38, indicated that the documentation provided by the husband at tab 30 of Exhibit #33 showed the value to be $16,463.00. That will be the value attributed to that asset on date of marriage.
28Finally, the largest dispute regarding property owned on marriage by the respondent related to his RRSP – BMO InvestorLine. The applicant took the position that as of January 31, 2005 the value of that asset was $11,166.30. The respondent testified that between January 31 and the date of marriage, he transferred investments from his TD trade account into the BMO InvestorLine. The applicant argued that the document at tab 29 of Exhibit #33 was dated February 28, 2005 and therefore does not provide the necessary proof of the transfer into the account prior to marriage on February 17, 2005.
29However, on closer examination of Tab 29 of Exhibit #33, there is sufficient information to show that the transfer took place on February 3, 2005. On page 3 of 4, under the heading “Other Activity”, the following information is set out, (identified by letters added by the court):
A) 02/03 Transfer In of 574 units of TD Amerigrowth RSP series 677 as of 02/03/05
B) 02/03 Transfer In of 210 units of TD Asiagrowth RSP series 670 as of 02/03/05
C) 02/03 Transfer In of 51 units of TD International Equity series 673 as of 02/03/05
30Although page 3 of 4 only notes the transfer in of funds and the number of units with no value, the values and the unit prices are set out on page 2 of 4 under the heading “Mutual Funds: RRSP Account” and “Foreign Securities: RRSP Account”. Using the same letter designation as above, the following information is provided on page 2:
A) 574.391 units of TD Amerigrowth RSP series 677; price $8.110; Value: $4,658.31
B) 210.748 units of TD Asiagrowth RSP series 670; price $8.420; Value: $1,774.50
C) 51.397 units of TD International Equity series 6730; price $21.670; Value: $1,113.77
31On page 2 of 4, other RRSP account activity is shown as follows (with letter designation added):
D) 02/03 Transfer in of 204 units of TD Canadian Bond series 162 as of 02/03/05
E) 02/03 Transfer in of 255 units of TD Canadian Money Market Fund series 164 as of 02/03/05
32Under the heading “Mutual Funds: RRSP Account” on page 2 the price per unit and the value of the transfer is set out for these transfers as well:
D) 204.165 units of TD Canadian Bond Fund series 162; price $13.120; value: $2,678.64
E) 255.988 units of TD Canadian Money Market Fund series 164; price $10.000; value: $2,559.88
33The information provided in the statement at tab 29 of Exhibit 33 proves that the respondent transferred in excess of $12,000 into his BMO account on February 3, 2005 and it remained in the account until at least February 28, 2005. The respondent will therefore be credited with the amount shown on the statement of $23,723.39 as property owned by him on the date of marriage. The last change relates to the notional tax discount on these funds. In Exhibit #38, the respondent accepted the applicant’s notional tax amount of $2,791.58. However, that amount was based on the value of the BMO account being $11,166.30. Having concluded that the respondent held $23,723.39 in the account at date of marriage, the notional tax discount at 22% would equal $5,219.23.
34Although the applicant has purchased the respondent’s share of the matrimonial home and taken over the mortgage, the figures from the net family property statements regarding the home and mortgage will be included in the calculation of the equalization payment in order that the parties can easily determine where the court has made changes to the values. Using the values agreed upon by the parties along with the values attributed by the court on assets and debts where there was no agreement, the equalization calculation is as follows:
| Property Owned on Valuation Date: September 26, 2012 | Wife | Husband |
|---|---|---|
| Matrimonial Home | $226,250.00 | $ 226,250.00 |
| Jetta | $ 5,850.00 | |
| Golf Clubs | $ 1,200.00 | $ 2,500.00 |
| Lap top/kayak | ||
| Investments and Bank Accounts | $487,863.62 | $ 908,352.05 |
| Income tax refund | $ 2,998.99 | $ 2,035.62 |
| Total Property on Valuation Date: (Total 1) | $724,162.61 | $1,139,137.67 |
| Debts on Valuation Date | Wife | Husband |
|---|---|---|
| Mortgage | $ 84,503.57 | $ 84,503.57 |
| Line of Credit | $ 3,623.00 | |
| Notional Income Tax on Nesbitt Burns RRSP | $ 8,630.05 | |
| Notional Income Tax on UWO Pension | $ 1,701.99 | |
| Notional Income Tax on HOOP | $ 57,502.82 | |
| Notional Income Tax on BMO InvestorLine RRSP | $ 6,432.58 | |
| Notional Income Tax on Pension on value attributed to marriage (applicant’s figure used because respondent’s figure had an arithmetical error) | $ 183,795.04 | |
| Total Debts on Valuation Date: (Total 2) | $ 152,338.43 | $ 278,354.19 |
| Property Owned on Date of Marriage: February 17, 2005 | Wife | Husband |
|---|---|---|
| Jetta | $ 16,050.00 | |
| Bank Account | $ 5,350.89 | |
| Investments | $113,060.89 | |
| RRSP | $ 29,177.00 | |
| Acura (traded in October 2005) | $ 10,500.00 | |
| Bank Account | $ 397.97 | |
| Savings | $ 19.54 | |
| Chequing | $ 8,420.17 | |
| BMO Investments | $ 23,723.39 | |
| Stocks | $ 16,463.00 | |
| CRA Pension | $ 559,238.00 | |
| Total Property on Marriage | $163,638.78 | $618,762.07 |
| Debts Owed on Date of Marriage | Wife | Husband |
|---|---|---|
| Notional income tax on RRSP | $ 6,418.94 | |
| Jetta Loan | $ 21,230.59 | |
| Investment Loan | $ 26,289.92 | |
| Notional income tax on BMP Investments 22% of $23,723.39 | $ 5,219.23 | |
| Notional income tax on Pension | $123,032.36 | |
| Total Debts on Marriage: | $ 53,939.45 | $128,251.59 |
| Net Value of Property Owned on Date of Marriage --- (Net Total 3): | $109,699.33 | $490,510.48 |
| Wife | Husband | |
|---|---|---|
| Total Debts and Other Liabilities: (Total 2) | $152,338.43 | $ 278,354.19 |
| PLUS | ||
| Net Value of Property on Marriage: (Total 3) | $109,699.33 | $ 490,510.48 |
| Total Deductions from Property Owned on V Day (Total 5) | $262,037.76 | $ 768,864.67 |
| Wife | Husband | |
|---|---|---|
| Value of Property Owned on Valuation Date: (Total 1) | $724,162.61 | $1,139,137.67 |
| Less total 5 above | -262,037.76 | - 768,864.67 |
| Net Family Property | $462,124.85 | $ 370,273.00 |
Difference: $91,851.85
Applicant pays to the Respondent: $45,925.92
35Based on the values above, the applicant owes to the respondent the sum of $45,925.92 for the equalization of their net family property values. That amount may be adjusted depending on whether the court orders the respondent to repay household expenses incurred by the applicant while the respondent resided in the home and whether child support is found to be owed by the respondent.
Issue C: Repayment of household expenses paid by the applicant while the respondent remained in the home;
36The applicant claimed reimbursement for payments made by her to the joint living expenses from the date of separation to November 2013. Her position was that the parties had an arrangement while they lived together that each would deposit to their joint account the sum of $1,400.00 every two weeks. Following the separation in September 2012, the respondent reduced the amount of money he paid into the account to $1,000 every two weeks and at times only made the deposit twice monthly. The applicant testified that after the respondent reduced his contribution to the account, she did as well, but continued to pay all of the household bills. She indicated that the amount originally agreed to was needed to pay the household bills and that when the respondent reduced his contribution, she had to pay the difference from her own funds and by using credit cards to ensure that all the household bills were paid.
37The applicant filed Exhibit # 19 which contained bank records for the joint account and reviewed the deposits from January 2012 to November 1, 2013. In reviewing the bank records, the following deposits are shown from each of the parties on a monthly basis:
| Deposits by Month | By Wife | By Husband |
|---|---|---|
| January 2012 | $2,900.00 | $2,550.00 |
| February 2012 | $2,900.00 | $2,550.00 |
| March 2012 | $2,900.00 | $4,200.00 |
| April 2012 | $4,350.00 | $1,300.00 |
| May 2012 | $2,900.00 | $4,300.00 |
| June 2012 | $2,900.00 | $ 450.00 |
| July 2012 | $2,900.00 | $4,150.00 |
| August 2012 | $2,800.00 | $2,100.00 |
| September 2012 | $2,800.00 | $1,400.00 |
| October 2012 | $3,400.00 | $2261.71 |
| November 2012 | $2,000.00 | $2,000.00 |
| December 2012 | $2,000.00 | $2,000.00 |
| January 2013 | $2,000.00 | $1,930.00 ($2,031 deposited & $101 withdrawn) |
| February 2013 | $2,000.00 | $2,000.00 |
| March 2013 | $2,000.00 | $2,500.00 |
| April 2013 | $3,000.00 | $1,000.00 |
| May 2013 | $2,000.00 | $4,000.00 |
| June 2013 | $2,000.00 | $1,000.00 |
| July 2013 | $2,000.00 | $2,000.00 |
| August 2013 | $2,000.00 | $2,000.00 |
| September 2013 | $3,000.00 | $3,000.00 |
| October 2013 | $2,000.00 | $1,000.00 |
| Total Deposits | $56,750.00 | $49,691.71 |
Difference from January 2012 to October 2013: $7,058.29
Difference from September 2012 to October 2013: $4,108.29
38The table above shows clearly that the applicant was depositing at least $ 2,800.00 per month into the account. Between January 2012 and August 2012, she never deposited less than $2,800.00 and on seven occasions, she deposited more than $2,800.00. During that same period, the respondent’s deposits varied. In September 2012, the month of the separation, the respondent began to deposit much less than had been agreed upon, despite the fact that he remained in the matrimonial home where the expenses remained the same. As a result of the respondent’s actions in reducing his contribution to the joint bank account to $2,000.00 or less per month following the separation, the applicant also reduced her contributions to the account. Beginning in September 2012 until October 2013, the respondent’s deposits were only higher than $2,000.00 on four occasions and were lower than $2,000.00 on two occasions. The applicant’s deposits were never lower than $2,000.00 per month and were also higher than $2,000.00 on four occasions.
39The applicant testified that prior to the reduction of deposits, there was generally a good positive balance in the account and as a result, the parties did not need to pay bank fees. However, in January 2013, as a result of the reduction of deposits, the balance of the account went below $1,000.00 and the applicant asked the respondent to put more money into the account because the amounts deposited were not covering the household expenses. She stated that the respondent was very aggressive when asked to deposit more money. She also testified that he was running up the costs with his internet use and long distance telephone calls, for which he refused to pay. Her evidence was that she had to use credit cards and money from other account to ensure that all the household bills were paid. Her position was that so long as the respondent insisted on remaining in the home, he should have contributed equally to the costs of running the home instead of reducing his contribution, leaving the applicant to pay the deficit.
40The applicant’s claim for reimbursement is based on the amount of money that the respondent should have continued to contribute to the account, that being $1,400.00 every two weeks from the date of separation until he left the home. From the end of September 2012 to the end of October 2013, there were 56 weeks or 28 two week deposit periods. Had the respondent continued to deposit the sum of $1,400.00 every two weeks, he would have contributed $39,200.00 during that period. Instead, the respondent contributed $28,091.71, leaving a deficit of $11,108.29. The applicant claimed $11,200.00.
41The difficulty with the applicant’s position is that while the court accepts that she took on the burden of meeting expenses that were not being covered by the joint account, there is no clear accounting for the extra expenses that she paid. In his closing arguments regarding determination of NFP, Mr. Clayton argued that Part 1 of the Family Law Act allows for deductions “if you can prove those deductions”. The same principle applies to expenses claimed to have been paid. In order for the court to order a repayment by Mr. Carone of $11,200.00, the court would need better and clearer documentation showing the amounts spent by Ms. Hill over and above what was taken from the joint account to meet the household expenses while Mr. Carone lived there following separation. That information was not provided to the court.
42What is clear from the documentation is that from the end of September 2012 to the end of October 2013, Ms. Hill deposited $32,200.00 to the joint account to cover the household bills and Mr. Carone deposited only $28,091.71. There is no good explanation why Mr. Carone felt he should contribute less to the household expenses while he was living there. As Ms. Hill only claimed the deficit created from the end of September 2012 to the end of October 2013, there will be an order that Mr. Carone pay to Ms. Hill the sum of $4,108.29, which amount will equalize the deposits of both parties following the separation until Mr. Carone moved out of the home. This amount will be set off against the equalization payment owed by Ms. Hill to Mr. Carone.
43In the discussion above, the court did not include the last deposit by Mr. Carone in November 2013. In the separation agreement signed October 28, 2013, paragraph 7 dealt in part with the joint account. At paragraph 7.1, there was an acknowledgement by Ms. Hill that Mr. Carone “made his usual deposit into the joint account on or about October 28, 2013 and that he will not be obliged to make any further deposit ….” The acknowledgement of the deposit was made on the same day as the agreement was signed by Ms. Hill. In reviewing Exhibit #19, it is evident that Mr. Carone made no deposit into the joint account on October 28, 2013. When Mr. Carone eventually made his last deposit, it was on November 1, 2013 and was in the amount of $660.00, rather than $1,000.00.
44Mr. Carone argued that Ms. Hill did not live up to her obligations in the separation agreement in that she was to divide the balance of $2,189.28 that was in the joint bank account as of October 29, 2013 with Mr. Carone. Mr. Carone’s half would have equaled $1,094.64. She testified that she paid him $500.00 instead. The division of the balance was based on Mr. Carone making his last usual deposit, which he did not. The deposit that he made was short by $440.00. Mr. Carone gave no explanation why he did not deposit the usual $1,000.00 as agreed. In addition, schedule A to the agreement listed the items that Mr. Carone was entitled to remove from the matrimonial home. Ms. Hill’s evidence was uncontroverted that Mr. Carone removed additional chattels that were not on the list, that Mr. Hill had to replace. The $500 amount plus the $440 owed by Mr. Carone totaled $940.00. The amount that Ms. Hill was short was $154.64, which would have covered very little of the costs incurred by Ms. Hill to replace the additional chattels that Mr. Carone was not to remove from the home. Therefore there will be no adjustment on this issue.
Issue D: Custody/Parenting Time with the child Luca
45The real issue in dispute concerned the parenting schedule for child Luca, born November 11, 2010. In their opening and closing statements, the parties confirmed that custody was not in issue. Mr. Carone in his closing arguments noted that he agreed to the applicant having custody of the child and that major decisions regarding the child could be made by her. He stated that such an arrangement would reduce the amount of conflict between the parties. Despite the agreement on custody and decision making, there was no agreement on the issue of how much time Luca would spend with each parent. The father sought an equal amount of time with the child and the mother sought a reduction of the time that Luca spent with the father.
The Law:
46Both parties referred to the Divorce Act and the Children’s Law Reform Act and provided case law to the court on this issue. The matter was commenced under the Divorce Act and as such the relevant sections of that Act are applicable. Section 2 (1)(b) provides a definition of child as:
“ “child of the marriage” means a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
47There is no dispute that Luca Carone is a “child of the marriage” as defined by the Divorce Act. Section 16 of the Divorce Act deals with the issues of custody and access. The applicable subsections of s. 16 are as follows:
“16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and the access to, any or all children of the marriage.”
“16(4) The court may make an order under this section granting custody of, or access to any or all children of the marriage to any one or more persons.” (Joint custody)
“16(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.”
“16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”
“16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.”
“16(10) In making an order under this section, the court shall give effect to the principle that the child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”
48Although the Children’s Law Reform Act is not the statute under which custody and access for Luca will be decided, section 24(2) is often referred to due to its comprehensive detailing of the many factors that should be considered when determining the “best interests of the child”. Those factors are as follows:
“(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
49As indicated, both parents provided a book of authorities to which they referred during closing submissions and to which the court will refer later in this judgment.
50The applicant testified that she was responsible for the majority of the care giving duties related to Luca. She indicated that she took a year’s maternity leave during which she was responsible for Luca’s care. The maternal grandmother Linda Hill and maternal uncle Derek Hill both testified that immediately following the birth of Luca, the father was very involved with the child. Mrs. Hill stated that Mr. Carone was 'smitten' with Luca; would hold him; rock him and would change his diapers. Both testified that as time went on, Mr. Carone’s interest in Luca abated somewhat. Mrs. Hill noted that he would walk by the child and say “hello big guy” but did not hold the child or play with him. Mr. Hill stated that when summer came, Mr. Carone was more interested in golfing than being at home.
51There was evidence from Mr. Carone regarding fertilization treatments necessary for the couple to have a child. It was his evidence that when initial attempts failed, Ms. Hill became withdrawn and difficult to communicate with. He testified that he was at the stage where he wanted to give up, but Ms. Hill did not want to give up. Eventually, the treatment was successful and Luca was born. Mr. Carone asked Ms. Hill no questions regarding this issue.
52Mr. Carone testified that he was present at the birth of his son and was completely overcome with emotion when he held the child for the first time. He did not provide any evidence disputing the fact that the mother provided daily care for the child during the first year of his life, except to say that he wanted to share the allocated leave time with her so that he could be at home to care for Luca, but that she refused. Mr. Carone did not put that evidence to Ms. Hill during her cross examination to give her the opportunity to refute it. His evidence regarding his desire to participate in paternity leave is not accepted by the court because it offends the rule in Browne v. Dunn, 1893 65 (FOREP), 6 R. 67 H.L.
53The applicant stated that when she returned to work, Luca attended Little Acorns day care, which was located close to Mr. Carone’s work place. When Luca first started day care, Mr. Carone would drop the child off at day care and Ms. Hill would pick him up. She noted that she got Luca up each morning, dressed him and had breakfast with him. She then put him in his outdoor clothing and packed his bag, which was handed to Mr. Carone as he left the house with Luca. At the end of the day, Ms. Hill would pick Luca up and take him home. According to Ms. Hill, Mr. Carone arrived home at approximately 6:30 p.m., having first golfed or gone to the gym. Luca would be put to bed between 7 and 7:30 p.m. Mr. Carone would cuddle Luca on the couch for a short time after dinner and Ms. Hill would get Luca ready for bed.
54During the first year of Luca’s day care attendance, Ms. Hill worked five days per week from approximately 7 a.m. to 3 p.m. Her hours were flexible and she used that flexibility to work around either dropping Luca off at day care or picking him up. She testified that at the time, Mr. Carone was working Monday to Friday in week one and Monday to Thursday in week two. It was uncontested that although Mr. Carone was available to care for Luca every second Friday, he did not do so, choosing instead to leave Luca in day care and pursue leisure activities on his free Fridays.
55Ms. Hill testified that while the parties were together, she would have Luca in her care after daycare and most weekends. She noted that most days after work she and Luca would participate in activities such as going to a farm to watch the cows and horses, feed the ducks, go for a walk or other places. She noted that she continues to do activities with Luca when she picks him up from school, such as going to the library, playground, and sledding. During the golf season, it was Ms. Hill’s evidence that Mr. Carone played golf every Saturday and most evenings. This left Ms. Hill and Luca alone.
56Ms. Hill testified she had had a long standing concern regarding Mr. Carone’s participation at home. She indicated that she was telling him that he was never there and that his response was that she was making it up. As a result, Ms. Hill started a log reporting all of the activities done with Luca by herself and by Mr. Carone, for the period September 3, 2012 to June 2013. The log was filed as Exhibit #9. A review of the log shows that Ms. Hill was far more engaged with Luca during that time period than was Mr. Carone.
57Mr. Carone testified that in early 2012, Ms. Hill approached him about having more children. He noted that they still had two embryos. He stated that their marriage was not going well and he did not think they should have more children. Ms. Hill’s first attempt was unsuccessful. He stated that Ms. Hill went back to being moody and withdrawn. He stated that their relationship was deteriorating. Ms. Hill wanted to make one more attempt, although Mr. Carone did not think it was a good idea. According to him, Ms. Hill said he could sign the consent and stay or sign it and leave. He testified that he was “devastated”. According to his evidence, Ms. Hill’s second attempt to become pregnant also failed. He noted that after this attempt failed, Ms. Hill remained in the guest room.
58In June 2012, Mr. Carone was informed that the criminal investigations division of the CRA was closing down 20 of 26 offices, including the office in London. His job was affected by this shut down. He testified that he advised Ms. Hill of the change at work at dinner that evening. He stated that he felt her response was ‘pretty cold’ and that she told him to ‘suck it up’. He went on to state that this was one of the first times he felt he could have used “the love and support of a loving wife – some hugs, some reassurance”, but that this did not happen.
59Again, none of this evidence was put to Ms. Hill during her cross examination. Further, the court found his statement of wanting the “love and support of a loving wife” and being devastated when she told him to sign the consent for the fertilization treatment and either stay or go not credible. At no time did Mr. Carone speak about loving his wife. At the beginning of his evidence, he noted that the relationship “seemed to be fine at the start of the marriage – no fireworks, but we had things in common.” He described his wife as controlling and overbearing. It is difficult to believe that Mr. Carone was devastated by anything Ms. Hill said, when at the very start of the marriage, he felt no fireworks in his relationship and right from the beginning, he believed her to be controlling and overbearing. It is also difficult to believe that in June 2012 when he advised Ms. Hill about the changes at work, that he wanted and expected some hugs and some reassurance from Ms. Hill. According to Mr. Carone’s evidence, Ms. Hill had moved into the guest room months earlier and their relationship “was deteriorating rapidly”. His evidence on these points, while somewhat dramatic, was not credible.
60During the summer of 2012, Mr. Carone indicated that he was struggling with the issues at work and the marriage was falling apart. According to him, he was not thinking straight. He spoke with his doctor, who advised him to take time off work. His evidence was that he took five weeks off work to think about what was happening at work and at home. During that time, Luca remained in day care and Mr. Carone did not spend any extra time with the child, choosing to pursue leisure activities on his own.
61In September 2012, both parties agreed to separate. Ms. Hill indicated that she asked Mr. Carone for a divorce. Mr. Carone indicated that he approached Ms. Hill about either fixing the marriage or moving on. He stated that she suggested they separate. Whatever words were used, it was agreed that the parties separated on September 26, 2012. Both remained in the home. Mr. Carone testified that he had no interest in buying the home, but that Ms. Hill wanted to purchase his share and remain there with Luca. Mr. Carone stated that Ms. Hill was always trying to get him to leave the home following the separation, but that he would not leave until they had an agreement on how to handle the home and an agreement regarding parenting of Luca. As a result, an intolerable situation with both of them in the home continued until November 2013. Coincidentally, Mr. Carone moved out of the home after Ms. Hill purchased his interest in it, even though there was no final agreement regarding parenting time for Luca.
62Ms. Hill commenced the divorce proceeding in April 2013. On September 6, 2013 a motion was heard regarding the interim custody and access of Luca. Justice Mitrow released his decision on the motion on September 30, 2013. The reasons for decision were filed at tab 8 of Exhibit #1 and the interim order was filed at tab 7 of Exhibit #1.
63In the motion Mr. Carone requested shared custody of Luca on a week about basis. Mitrow J. found that from the early party of 2013, the parties had developed a schedule in the home that consisted of the mother picking Luca up from day care on Mondays and Wednesday and caring for the child in the evening and the father picking Luca up on Tuesdays and Thursdays and caring for him in the evening. The mother took Luca to activities on Saturdays and the father took Luca to his parents’ home on Sundays.
64In paragraph 14 of the reasons, Mitrow J. found that it was Ms. Hill who had arranged all of Luca’s many activities and for the most part was the person who took Luca to his activities. Mitrow J. also found that it was Ms. Hill who took Luca to his medical and dental appointments, (with some very minor exceptions when Mr. Carone attended). Justice Mitrow did not give credence to the submission by Mr. Carone that the mother would not share information about Luca’s activities. He found instead that the evidence was more consistent with the situation that Mr. Carone was content that the mother took on these responsibilities.
65At paragraph 21 of his reasons, Mitrow J. found that the preponderance of evidence clearly suggested that historically it was Ms. Hill who was more engaged in the routine of parenting Luca, spending time with him and attending to his needs. Mitrow J. reviewed the two incidents where Mr. Carone had alleged abuse by Ms. Hill. He found at paragraph 37 that the evidence regarding these events created a substantial concern that Mr. Carone was trying to use the criminal justice system to create a tactical advantage for himself.
66Mitrow J. held that there was ample evidence that Ms. Hill attempted to engage Mr. Carone, through emails, to deal with access arrangements, but with limited success. At paragraph 39 of the reasons, Mitrow J. referred to Ms. Hill’s email message to deal with spring and summer vacation plans. He noted:
“For example in early May 2012, Ms. Hill sent a simple, short polite email to Mr. Carone as to her suggestion regarding the spring and summer vacation plans. Instead of focusing on the best interests of Luca in trying to come to an agreement on this rather minor point, Mr. Carone staunchly refused to deal with the issue until there was either a separation agreement or (in his opinion) there was some indication that Ms. Hill was negotiating in good faith. Mr. Carone then spent time in his email pontificating about his experience as a mediator. I find that Mr. Carone’s refusal to deal with the vacation issue was neither reasonable nor child-focused – it was unnecessarily confrontational and served only to increase stress levels and legal expenses.”
67Justice Mitrow found that it was in Luca’s best interests to structure an interim order that would reduce conflict between the parents by making a clear interim order that set out who was to make decisions and defined the childcare schedule. Justice Mitrow found it was in Luca’s best interests to grant custody to Ms. Hill with frequent access to Mr. Carone.
68The interim order of September 30, 2013 provided access by the father to Luca as follows:
a) every Tuesday from after daycare to Wednesday morning when daycare starts;
b) every Thursday from after daycare until Luca’s bedtime and, if the parties no longer reside together in the matrimonial home, until 7:30 p.m.;
c) alternate Fridays from after daycare until Saturday at 9:00 a.m., which may be changed to 8:30 a.m. by the applicant if this additional time is necessary for the applicant to take Luca to any scheduled activities;
d) every Sunday from 9:00 a.m. to Monday morning at daycare or, if Monday is a statutory holiday, then to 2:00 p.m.;
e) equal time with each party during the Christmas season in 2013 according to a schedule agreed to by the parties, failing which a motion could be brought; and
f) such other access as may be agreed to by the parties.
69The order also provided that while the parties remained in the matrimonial home, the parents were to act reasonably in permitting the other party to spend time with or interact with Luca when Luca was present in the home; that the applicant would continue to take Luca to his routine medical and dental appointments and would provide seven days’ notice of such appointments, with the respondent being able to attend the appointments if he so chose; that the applicant would continue to be responsible to enroll Luca in any activities, but that she would consult the respondent and consider any reasonable suggestions made by him; that both parties could attend Luca’s activities; that the respondent had the right to receive records or information regarding the child from third parties involved with the child; that if one of the parents was unable to care for Luca, the other parent was to be given the first opportunity to provide care; that when the parties were no longer living together that each of them would have reasonable telephone access to the child when he was with the other parent; and that the parents would use a communication book to advise the other of any important events or information regarding Luca.
Case Law and Analysis:
70The applicant cited the decision in Gordon v. Goertz, 1996 191 (SCC), 19 R.F.L. (4th) 177, [1996] 2 S.C.R. 27, 141 Sask. R. 241, [1996] 5 W.W.R 457, 196 N.R. 321, 134 D.L.R. (4th) 321, [1996] R.D.F. 209, 1996 CarswellSask 199, [1996] S.C.J. No. 52, a case involving a mobility issue where a custodial parent wished to move from the country in order study orthodontics. Although the case at bar is not a mobility case, the applicant referred to Gordon v. Goertz, noting that the court took pains to point out what the courts needed to look at when determining the best interests of a child. At paragraphs 20, 21 and 24, the court set out guiding principles for determining the issues of custody and access. These included the principle that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake; that the court should not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent; and that the court should give effect to the principle that a child should have as much contact with each former spouse as is consistent with the best interests of the child. At paragraph 28, the court stated that the child’s best interests are not merely “paramount”, they are the only consideration. The focus must be on the child’s interests, not the interests and rights of the parents.
71The case also stands for the principle that every case requires individual justice and that the court must consider what is best for the child in question, rather than impose a general standard to all children. It is also important to note that there is no default position when it comes to custody and access. Similarly, there is no default position requiring joint custody or shared custody in every case. The decision that is made must be related to the specific child(ren) and family that is before the court. It is for this reason that while case law is helpful in articulating principles, the facts of each case are unique and each case turns on its own unique circumstances.
72In Gordon v. Goertz the court acknowledged that the Divorce Act requires the court to give effect to the principle of maximum contact with both parents, but found that the principle was mandatory, but not absolute. At paragraph 24, the court held that the principle of maximum contact need only be considered to the extent that such contact is consistent with the child’s best interests.
73The balance of the applicant’s cases to which no reference was made during closing submissions, dealt with the issue of determining the percentage of time that a child is in each parent’s care for the purpose of a “s.9” analysis under the Child Support Guidelines. That issue will be dealt with later in this judgment.
74Mr. Carone also filed a brief of authorities. He referenced the case of Ladisa v. Ladisa, 2005 1627 (ON CA), 11 R.F.L. (6th) 50; [2005] CarswellOnt 268; OJ No. 276 (QL); 193 OAC 336. In that case the trial judge ordered joint custody of three children. The mother appealed. The father also appealed the support decision, but that portion of the decision was not applicable to this case.
75In that case, the trial judge found that despite “the intense conflict between the 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”. There was evidence from many third party observers that the parents had acted appropriately when together towards each other and towards their children. As a result of the judge’s findings, the Court of Appeal upheld the decision regarding joint custody.
76Following Mr. Carone’s move from the home, there were many disagreements and disputes regarding Luca. Many of those disputes took place by telephone or email. Often emails were unanswered and issues were not resolved. Prior to the move, it was evident that during the period between September 2012 and November 2013, the situation in the home was very tense. For example, there was evidence that during the “father’s time” with Luca while in the home, he denied the mother the ability to interact with the child. He also forbade her to have her family into the home for a visit, citing a need for privacy. As a baby, Luca would have known his uncle and his maternal grandparents as part of a caring, loving circle of family members around him. Mr. Carone put his needs first in denying the mother the opportunity to have her family members visit the home for short periods of time during the initial year of separation.
77In June 2013 there was an incident regarding Saturday morning music class for Luca. Ms. Hill advised the father that she was taking Luca to music class as was her usual practice. Ms. Hill testified that the father grabbed Luca and said that he was taking the child to class (even though he had rarely done so in the past). His evidence was that although he had spent time with the child on Saturday morning, he had not spent a lot of time with him the night before and wanted more time with him. The mother put out her hand and asked him to stop. In doing so, she made contact with his arm. Mr. Carone told her he was going to have her charged with assault. He handed Luca to her, told her she was not to leave the house and called the police.
78When the police arrived, officers spoke with each parent separately. Ms. Hill had telephoned her parents, who arrived with her brother and sat outside of the home in the car. At one point, Ms. Hill’s brother got out of the car. Mr. Hill was asked by the officer who he was and why he was present. As Mr. Hill answered the officer’s questions, Mr. Carone said “tell him to get the fuck off my property”. Mr. Hill got off the property but stood at the base of the driveway listening to the conversation between Mr. Carone and the officer. Mr. Hill testified that he could hear the conversation between Mr. Carone and the officer.
79Mr. Hill testified was that the father told the officer about the incident and advised that he wanted Ms. Hill charged with assault. He indicated that Mr. Carone alternated between leaning on his arm to rocking back and forth. At one point, he grabbed his arm and said “ow, I am hurting.” Mr. Hill opined that this seemed to be a phony reaction because Mr. Carone had been leaning on his arm for five minutes prior to grabbing it. At some point Mr. Carone got into the police car and Ms. Hill’s brother was told he could enter the home. Mr. Hill stated that Ms. Hill was sitting on the couch, was calm and was relating her story to the other officer. Afterwards, Mr. Hill spoke with the officer and believed that the incident was over and that no charges would be laid. The officer then advised Ms. Hill she could take Luca to the music class.
80Ms. Hill then took Luca to her car where she placed him in his car seat. She and her mother got into the car to drive to music class. Mr. Hill testified that Mr. Carone stood behind Ms. Hill’s car, with his hands on his hips, looking angry and would not allow her to drive out of the garage. Ms. Hill honked the car horn several times. One of the police officers got out of their car and spoke to Mr. Carone. He eventually moved out of the way and the mother and Luca were able to proceed to music class.
81Mr. Hill’s version of events was very similar to the mother’s evidence. Mr. Carone did not question him nor challenge his evidence about this event in any way. Although Mr. Carone testified that he believed his safety was in jeopardy, his evidence does not mesh with any other witnesses’ testimony. Ms. Hill’s witnesses all described her as the ‘best mom’ or the ‘best mother’ they have ever seen. Ms. Hill’s brother testified that Ms. Hill is “even better than my mom who is a ten out of ten”. Ms. Hill was described as having infinite patience and having never exhibited anger toward Luca. This description by four additional witnesses simply does not jive with Mr. Carone’s evidence that he was in fear of his safety with Ms. Hill. At no time did he express this fear to anyone, including his own mother who was called as a witness. The court does not accept that Mr. Carone was afraid of Ms. Hill and agrees with the finding made by Justice Mitrow that Mr. Carone was trying to use the criminal justice system to create a tactical advantage for himself.
82Unlike the Ladisa case where teachers, coaches, hockey parents and neighbours all testified that the parents had always acted appropriately when together towards each other and their children, the incident above shows a remarkable lack of understanding how such an incident might affect a young child. Additionally, the entire incident was precipitated by the fact that Mr. Carone felt he had not had enough ‘time’ with the child the night before and so was entitled to have him that morning. Mr. Carone’s expectation and feeling of entitlement to precisely equal time with his son does not take Luca’s interests into consideration at all, and is completely focused on his own needs. An approach that would have put Luca’s interests first would have been to allow Ms. Hill to take Luca to music class, something that Luca had participated in since he was a young baby primarily with his mother, and suggest a different fun activity for Luca and his father to participate in later that day. Further, it appeared from this incident that in insisting that Ms. Hill be charged with assault, Mr. Carone did not care that his young child might be isolated from his primary caregiver, so long as he could use the incident to his advantage. This incident speaks of a much different parenting arrangement than in the Ladisa case.
83Mr. Carone referred to the case of Ursic v. Ursic, 2006 18394 (ON CA). Following the trial, the parents were granted “joint custody in the parallel parenting mode” of their child Jacob, with a detailed parenting schedule, under which Jacob was to live with each parent about half the time. The mother appealed this decision. At the time of appeal, Jacob was 4 ½ years old. Prior to the appeal being heard, the judgment was stayed on revised terms of access to which both parents agreed and which continued to provide both parents with roughly equal time with the child. The parties attempted to mediate their dispute and requested an assessment from a social worker, Morrison Reid.
84The assessment noted that “joint custody over one year has demonstrated the ability to meet Jacob’s needs well, and should be continued.” By the time the child reached school age, the parents were able to agree on which school the child should attend.
85Mr. Carone submitted that the Ursic case was similar to the case before the court. He noted that he and the applicant have flexible jobs as did the parents in Ursic. He stated that the parents in Ursic shielded the child from conflict and that the parents could agree on important decisions. It is noteworthy that by the time the matter reached the appeal court, a parallel equal parenting regime had been in place for at least a year and there were very few conflicts between the parents.
86Although Mr. Carone is correct that both parents have flexible work hours, the court does not agree that Luca has been shielded by the parents from the ongoing conflict. The police incident certainly did not shield Luca from conflict. Further, the evidence is overwhelming that Luca is shielded by his mother from the conflict because she does not refuse every request made by Mr. Carone, often conceding time with the father rather than causing problems that might affect Luca and instead thinks about the decision to be made from Luca’s point of view. The same cannot be said of Mr. Carone. More will be said of this later.
87The final decision referred to was Jet v. Lo, 2015 YKSC 44. That case involved a claim for equal parenting time of a 2 ½ year old child. It is interesting to note that the analysis in that case began with the statement: “This application presents the classic disagreement about the appropriate age to start equal residential sharing of a young child and whether it is in the best interests of the child.” This comment and direction taken by the court is likely due to the wording of the Children’s Law Act, R.S.Y 2002, c. 31. In s. 30(4) of the Act, there is a rebuttable presumption that the court ought to award the care of a child to one parent or the other and that all other parental rights associated with custody of that child ought to be shared by the mother and father jointly. The starting point for the analysis in that case was very different than the starting point under the Divorce Act. In this case, there is no rebuttable presumption of any type of custody order except one that puts the best interests of the child first.
88In this case, there is no equal parenting regime in place and there has never been one. Ms. Hill has always been Luca’s primary caregiver and continues to be. Further the evidence is that the parents do not agree on many issues and several of them have caused problems, mostly unnecessary. After hearing all the evidence it is the court’s view that many of the issues have been caused by Mr. Carone. Below are some of the examples, not in any particular order.
89Face time/Skype: The use of Face time and/or Skype came up when Ms. Hill was reviewing with her counsel the requested order filed by Mr. Carone as Exhibit #6. In paragraph 2 under the heading Access, Mr. Carone suggested reasonable telephone access with the child and as he grows older, such digital media as may be appropriate to his age and stage of development, including email, texting and Skype. Ms. Hill stated that his offer of using electronic communication did not match his behavior during the past two years. Ms. Hill testified that she had asked Mr. Carone to allow her such access to the child when he was with his father, but that Mr. Carone had adamantly refused to allow it.
90In a similar vein, Ms. Hill testified that after the interim order was made and they continued to reside in the home, Mr. Carone would tell her that the order was open to interpretation and that she did not know how to read a custody order. When Mr. Carone entered the home during “his time”, he would not allow Ms. Hill to say hello to Luca. Considering that Luca was not quite 3 years old at the time, such behavior must have been confusing to him.
91Ms. Hill stated that it is important that Luca have a chance to talk to both his parents each day. She testified that when Luca was in her care, she encouraged face time or Skype and phone conversations between the child and his father. She stated that she turns off the television or stops games and encourages Luca to tell his father about his day. That type of encouragement and behavior has not been exercised by Mr. Carone when Luca is with him.
92Registration for activities: The interim order made on September 30, 2013 provided that Ms. Hill would continue to be responsible to enroll Luca in any activities, with the proviso that she would consult with the respondent first and consider any reasonable suggestions made by him. Ms. Hill did enroll Luca in activities. Often when she emailed Mr. Carone about a specific activity, he would not answer. Without any consultation, Mr. Carone enrolled Luca in floor hockey and Tball. Ms. Hill noted that she would receive an email from Mr. Carone after the registration was completed. Mr. Carone stated that he signed Luca up for Tball and floor hockey without consulting Ms. Hill and testified that “I did not see that I did not have the authority to do it.” Luckily Ms. Hill made no fuss about the registration of Luca into these activities. When told, she indicated that she thought that Luca would enjoy the activity. However, she believed that two activities at a time were sufficient for a five year old and ended her plan to enroll Luca in gymnastics.
93Mr. Carone’s behavior in registering the child for activities without advising Ms. Hill contravened the order. Ms. Hill could have refused to send Luca for the activities that Mr. Carone had arranged, but she made her decision based on Luca’s interests, not her own and did not blindly follow the court order, which could have in these circumstances created unnecessary conflict. However, Mr. Carone regularly insisted that the order be followed to the letter, if there was a request by Ms. Hill to do something with Luca. He did not seem to care that Luca might enjoy an activity planned by Ms. Hill. If it interfered with his time, he would depend on the order to back him up.
94Mr. Carone’s requested order indicated that the parties would consult with one another and reach a consensus in writing before enrolling Luca in any extracurricular activity, if the activity may fall on the other party’s time. Ms. Hill testified that if Luca is signed up for an activity he should be able to participate fully and that parents have no control over the days on which activities are scheduled.
95Mr. Carone stated that there is only so much time with Luca and if he is enrolled in an activity, Mr. Carone’s time will be spent getting him home, feeding him and transporting him to the activity. He admitted that extra-curricular activities are not planned for convenience parents, and that Luca enjoys the activities, but went on to say that if your time with the child is being taken up by such activities, “you are not getting quality time.” Mr. Carone clearly was unable to see the benefit of such activities from Luca’s view point.
96Passport: Ms. Hill testified that Luca has a passport and that it had been recently renewed. Ms. Hill planned to take Luca to Detroit for a major league baseball game. She attended at the passport office along with a copy of the interim order of September 30, 2013. She indicated that she sat down with a representative and reviewed the application and the order step by step. She was told to return for the passport on Friday, July 3, 2015.
97When she returned to obtain the passport, she learned that the application had been ‘red flagged’ and that Luca’s passport would not be renewed. When she asked why, she was told that the representative would have to talk to Mr. Carone to ensure that the information was correct. She stated that the passport office wanted documents that did not exist, specifically more recent orders. Since there were no other orders except the order of September 30, 2013, she could not provide one. Apparently the passport office had tried to reach Mr. Carone multiple times but he had not answered his telephone.
98During cross examination, Mr. Carone stated that he had no problem with the mother obtaining a passport. However, for some reason when he initially spoke to the passport office, he mentioned the separation agreement. He denied this and stated that the office asked him if there was a separation agreement. He told them that there was. He did not tell them that the agreement only dealt with the division of the contents of the home and the purchase of the home by Ms. Hill. He did not tell them that there was nothing in the agreement that dealt with custody or access and that the court order was the only document that did.
99Mr. Carone stated that the office called him the first time and left him a message. He did not call the office back. They called a second time, but Mr. Carone believed he did not need to call them back. He stated that when the second call was made he was in Montreal and had been driving all day. He said that his phone was on vibrate. He also did not answer the third call made by the passport office.
100Mr. Carone’s denied trying to make the process of renewing Luca’s passport hard for Ms. Hill. He explained by saying, “she tried to get the passport too fast” and “she did not tell them about the separation agreement”. There was absolutely no reason to advise the passport office about an agreement that dealt only with property. The court order was the only document that dealt with custody and access was the court order. Mr. Carone’s actions were both unnecessary and did nothing but make the process harder for Ms. Hill. The result could have been that Luca did not have the opportunity to go the baseball game in Detroit. The only person who could be hurt by Mr. Carone’s actions was Luca, yet he was completely unapologetic about his behavior and placed the blame on Ms. Hill for trying to get a passport “too fast”.
101Trips: Ms. Hill testified that Mr. Carone restricted her travel with the child. While they were still residing in the home, but separated, Ms. Hill asked Mr. Carone if she could take Luca to visit her parents in Florida for a week. Mr. Carone refused to give his consent to such a trip even though he was going to be away. She noted that there were two Florida trips for which Mr. Carone refused to provide permission.
102Ms. Hill also testified that she wished to visit her grandmother in Barrie with the child. She noted that any conversation about taking Luca away for a trip triggered anger from Mr. Carone. She was afraid to push the issue once he said no, because he had threatened to have her charged with kidnapping Luca in the past, specifically during the music class incident in June 2013.
103Ms. Hill noted that Mr. Carone asked to take Luca out of the country once since the separation. She noted that Mr. Carone wanted to take Luca to Cuba. She stated that Mr. Carone gave her a consent letter to sign on a Sunday and was angry when she had not signed it by Thursday of the same week. Ms. Hill explained that she had received the consent in November and the trip was not until March. Without any undue fuss, Ms. Hill signed the consent so that Luca could travel with his father.
104In addition to out of province trips, Ms. Hill has not been able to take Luca anywhere that interferes with Mr. Carone’s Sunday access. She indicated that she is unable to visit relatives with the child, because the drive back and forth in one day was too much. She testified that she and Luca love to camp. But because Mr. Carone is so inflexible about the time she spends with the child, she is only able to camp on Saturday during the day and overnight, but then is required to pack up at 5:30 a.m. just to get the child back to Mr. Carone on time Sunday morning.
105Mother’s Day: While it is rare that parents have disputes over where a child will spend Mother’s Day and Father’s Day, that is not the situation in this case. Ms. Hill testified that in 2014, Luca was with his father. Ms. Hill asked if she could have some time with Luca on Mother’s Day. Mr. Carone’s response was that he would “give” her one hour around dinner time. Ms. Hill asked if she could have Luca in the morning instead, and she got no reply to her request.
106In 2015, Luca was with his mother for part of the Mother’s Day weekend, that being Friday and Saturday. She took him to Great Wolf Lodge in the Niagara Falls area. She asked Mr. Carone if she could also have Luca on Mother’s Day (Sunday) and thereby extend their time at the resort. Mr. Carone stated that he “thought she had had enough time with the child”. He testified that he did not think he was being unreasonable and that Luca “gets bored at water parks”. He admitted that once he refused the extra time, Ms. Hill brought the child home “at the required time”.
107Communication: Ms. Hill has attempted to discuss issues related to Luca through email. Unfortunately, she is not always provided with a response. As an example, she reviewed an email string regarding Luca’s birthday in 2015. Luca’s birthday is on November 11th and as such both she and Mr. Carone have the day off. She sent an email to Mr. Carone on September 30th advising him that she had the day off, assumed he did as well and asked him if he would like extra time with Luca until noon that day, instead of the regular drop off time for school. She received no response to her message. She sent a second message on November 7th, to which Mr. Carone did not respond. The last one was on November 10th, and again Mr. Carone did not respond. She admitted that Mr. Carone had sent a message on September 27th suggesting he keep Luca until 2 p.m. on his birthday. She stated that she sent three messages in response and never heard from him. In cross examination she denied that the parents had any conversation wherein Mr. Carone said he would bring Luca home at noon, stating that if they had had that conversation, she would not have sent the emails on November 7th and 10th.
108Ms. Hill testified about an incident where Luca was taken to school by his father after a visit, covered with red spots. The source of the spots was unknown. A picture of Luca covered in spots was entered as Exhibit #16. Ms. Hill indicated that she received an irate call from the school insisting that Ms. Hill come and get Luca. She noted that the rash was on Luca’s face, neck, belly, arms and legs and that Luca had to be cleared by a doctor before he could reattend school. Mr. Carone said Luca had had a few spots on his belly that might have migrated to his face. Mr. Carone testified that he sent the mother a text that morning regarding the rash. Ms. Hill agreed that Mr. Carone sent her a text in the morning but that he told her in the text that Luca had eczema. Ms. Hill said the rash clearly was not eczema.
109Mr. Carone complained that Ms. Hill did not share information with him as required by the order. He used an example regarding Luca getting the flu shot. He stated “once again this is a perfect example of her failing to share critical information about Luca.” However, Ms. Hill had shared the critical information with Mr. Carone on the day of the flu shot. She told him when he came to pick up Luca that Luca might be feverish due to having the flu shot that day. He stated that she was supposed to give him two weeks’ notice of all appointments so that he could attend if he wished to do so. The order refers to “routine” appointments. Ms. Hill had no appointment to obtain the flu shot. Flu shots are given at drug stores, clinics set up temporarily at arenas and now even at large grocery and department stores. There is no ability to obtain an appointment, one merely walks in and signs up for the shot and is given the shot. The critical information was the fact that Luca had received his shot that day, not how it had been arranged.
110Another example of the very bad communication between these parents related to an email Ms. Hill sent to Mr. Carone about Luca’s homework. Mr. Carone referred to an email sent to him by Ms. Hill dated October 1, 2015. He indicated that Ms. Hill complained that he was not helping Luca complete his homework, but stated that the email told him not to take the homework our of Luca’s backpack. The email at page 5 of exhibit #18 read:
“Please don’t remove the contents of Luca’s school communication bag and send it home empty. (unless of course it’s a notice directed to Dad).
111Mr. Carone insisted that this email directed him not to take anything out of Luca’s bag, so he could not do the homework. Despite reading the email out loud several times, he continued to insist that the meaning of the email was as he stated. He refused to acknowledge the presence of the conjunction “and” to get the true meaning of the message. Ms. Hill was telling him not to take the contents out of the bag and keep them out of the bag, returning the bag to her empty. At no time did Ms. Hill tell Mr. Carone not to take the contents out of Luca’s bag in order to assist Luca with his homework. The fact that Mr. Carone continued to be adamant in his interpretation of the message was a clear example as to why communication is so difficult for these parents.
112Time with the maternal grandparents: Ms. Hill testified that Mr. Carone has a problem is she arranges time for Luca to spend with her parents, even if she does so during a time when Luca is in her care. She testified that Luca loves the special time with his grandparents and that they go on “adventures”. Ms. Hill wanted to give Luca a day off between day care ending and school starting. The plan was for Luca to have a special grandmother/grandfather day. Despite the fact that Mr. Carone was at work, he would not allow Luca to spend a day alone with his grandparents. Similarly, during the summer of 2015, both parents were permitted to three weeks with Luca, uninterrupted by the other parent’s access. Ms. Hill sent a message to Mr. Carone advising that she was taking an additional week to stay home, but that his access would continue as ordered. Mr. Carone told her she could not do this and that if she did, she would be forfeiting one of her vacation weeks. Considering that the purpose of setting out specific times for vacation weeks is so that each parent has time with the child that is uninterrupted by the other parent’s access, there was no reason for Mr. Carone to take the position he did. His time with the child was going to continue. The only difference was that Luca would be at home with his mother during the day instead of day care. This was another example of Mr. Carone insisting that he be given equal time down to minute regardless of the effect on Luca.
113Another example of Mr. Carone’s inflexible attitude toward the custody/access timetable occurred one evening after Ms. Hill dropped Luca off for his time with his father. Ms. Hill had been home that day with the child because it was a PD day. When she dropped Luca off, she told him in front of his father that she would call him before bedtime. Although she tried to call several times, but was unable to reach Luca. She later learned that Mr. Carone had gone out and left Luca with a babysitter. Ms. Hill wondered why Mr. Carone simply did not leave the child with her for the evening if he was going out. She also noted that Mr. Carone would know that her call could not go through to Luca because Mr. Carone had his phone with him. He later lied and told her his phone was out of battery power.
114In June 2014, Mr. Carone was planning on taking Luca to camp. Ms. Hill advised him that her parents were driving her to the airport and that they would drop Luca off on the way home. Mr. Carone once again referred to the interim order stating that if she could not care for Luca, he was supposed to have him. Despite the fact that Ms. Hill would have had Luca in her care prior to leaving for the airport and while in the car and despite the fact that Luca may have wanted to go to the airport with his grandparents to say good bye to his mother, Mr. Carone insisted that Ms. Hill comply completely with the order and bring the child to him.
115While there was no doubt that both parents loved Luca or that Luca had a loving bond with both his parents, there was disagreement as to which parent could best meet Luca’s physical, emotional, and educational needs. Both parents agreed that the parenting schedule that was in place at the time of the trial was not beneficial to Luca because there were too many transfers and Luca was tired quite a bit. Ms. Hill indicated that Sundays are very difficult for Luca and he often does not want to leave her home. In order to assist Luca to cope with that transition, Ms. Hill testified that they both get up really early on Sunday and talk about the things he can do with his dad, so he has time to transition. Similarly, Ms. Hill noted that transitions after vacations are really tough for Luca. Both parents agreed that the number of transfers between the parents should be reduced.
116Both parents raised concerns about the other’s ability to parent Luca. In addition to the concerns set out above Ms. Hill’s concerns related primarily to issues around homework, planning ahead for Luca and talking to Luca about adult issues related to this proceedings.
117Homework: Luca started school in September 2014. Ms. Hill testified that by October of that year, Luca started bringing homework home that he was to do. The homework consisted of reading with the child, hunting for words of the week, tasks based on a poem and other small exercises. One of the programs was called the “Snuggle Up and Read” program, described in exhibit #4 as a program designed to instill the love of reading within a child. The “Snuggle Up” book was sent home with Luca every Monday and was to be returned every Friday. Parents are requested to read every night with their child.
118Ms. Hill testified that she sent the weekly book along with Luca when he went to his father’s home during the week so that he would continue the reading exercise. The pages are all initialed by Ms. Hill. Starting at page 6 of Tab 1 of Exhibit #4, all of the books that were sent home with Luca during the school year are listed. Ms. Hill noted that all the initials beside the books are hers and that Mr. Carone did not initial a single book. She stated that she did not leave any pages out of the book.
119Ms. Hill’s concern was that Luca was not getting the reading practice that was required when he was with his father. When the book was not read, the teachers would return it to Ms. Hill to read with Luca.
120At Tab 2 of Exhibit #4 were pictures that were sent home from the teacher. Ms. Hill explained that parents were not allowed into the classroom and in order to keep the parents involved and aware of what the children were doing, a collage of pictures of the week was sent home on Fridays and was to be returned to the school on Mondays. Ms. Hill and Luca would look at the pictures and Ms. Hill would either write a note to the teacher on the back of the pictures or write down what Luca told her about the pictures. Of the 92 pages, Mr. Carone initialed only the first collage of pictures sent home for the week of September 2nd – 5th. It was noted that that picture was the only picture that had a box in the right top corner which read: “Please Sign and Return”.
121Tab 3 of Exhibit #4 included homework that came home on Fridays that focused on words. Luca was supposed to underline specific words each week. The exercises were followed by a parent’s signature and the child’s signature. Luca was not doing his homework when he was with his father and this concerned the mother because she felt that Luca was not getting the help he needed to succeed in school. The teacher spoke to Ms. Hill and asked why some of the homework was not getting done. Because Tuesday homework was particularly problematic, the teacher left the homework to be done on Wednesdays when he was with Ms. Hill. The teacher also spoke to Mr. Carone about the homework. Following that conversation, Mr. Carone did one page of the Tab 3 homework and then did nothing until March 2015. Of the 64 pages at Tab 3, none of them are signed by Mr. Carone.
122Tab 4 of Exhibit #4 contained homework called Jolly Phonics. This homework was sent home on Tuesdays and was to be returned on Fridays. In this homework, the child was to sing the little ditty associated with each letter, make the sounds of the letter and then form the letters. Ms. Hill indicated that she did this homework with Luca and helped him print the letters. She noted that if Luca was left on his own, he would not do the homework. She noted that he loved the exercises but needed someone to be involved with him to get it done. There was no evidence that Mr. Carone assisted Luca with this homework.
123Tab 5 of Exhibit #4 contained the first pages from Tab 1 and Tab 6 and more of the books and exercises to be done by Luca. In Tab 6, Mr. Carone signed one of the 13 pages.
124Mr. Carone testified that he was unaware that the homework was mandatory. He called as a witness his neighbor whose child Landon is in Luca’s class and who is a school teacher. In her evidence in chief she stated that kindergarten is not mandatory and that homework is not mandatory. However, in cross examination she admitted that most children start school at age 4, sometimes 3 1/2. She noted that she did not teach kindergarten. She admitted that homework is sent home with kindergarten children at the school that Luca attends and that homework is meant to be paid attention to. She stated that there are exercises in the homework; that it is normal for parents to pay attention to what is coming home from school; and that the teacher would expect the work to be done.
125Mr. Carone also stated that he did other types of exercises with Luca, rather than the homework. He indicated that he read to Luca each night. He discussed installing a “Raz Kid’s app” that provides a list of books to read, and the reading difficulty. He stated that you tap on a book and the tablet reads the book to you and then asks questions about the story. He testified that he thought it was a “really good supplement” and that “homework from school was a mommy thing and the supplement was a daddy thing”. He stated that “homework does not have to be assigned by the school”. While every type of reading is good for children, homework from school that is not done, usually means that a child will fall behind his or her classmates because he or she has not read the book that has been assigned.
126Mr. Carone claimed that the first time he heard that the homework was an issue was at the trial management conference. He stated that if Ms. Hill was so concerned she could have sent him an email. He stated that it would have been nice if she had mentioned it and not let him see it in a trial management conference brief.
127To his credit, Mr. Carone did help Luca with his homework during the 2015-2016 school year and he regularly initialed Luca’s homework to show that it had been done. Ms. Hill identified Exhibit #7 as a homework book prepared by the father showing the homework that both of them had initialed in the 2015-2016 school year. While this was a positive step, Ms. Hill’s position is that Mr. Carone was unable to understand Luca’s need to complete his homework every night and to assist him with the homework until it was pointed out to him by Ms. Hill.
128Another example raised by Ms. Hill with respect to Mr. Carone’s planning for Luca relates to clothing. Ms. Hill testified that she has purchased all of Luca’s clothing, shoes, and outdoor wear. She indicated she buys multiples of jeans and sweat pants and shirts to ensure that he has clothes to wear to school and to take to his father’s home. She noted that she often has to watch how the weather is changing so that he is sent to school appropriately dressed for the weather. She complained that Mr. Carone did not plan for changes in the weather and had sent Luca to school inappropriately dressed. Ms. Hill was shown Exhibit #30 which included 5 pictures showing children’s clothing, including jackets, shirts, jeans and pajamas. She testified that aside from one pair of pajamas on the second page and one of the shirts on the third page, she had never seen the pictures or the clothing before.
129In cross examination, she testified that when she spoke of inadequate clothing, she was speaking about not supplying rain gear, snow gear and inappropriate clothing for the weather. She admitted that one could not predict the weather, but that she ensures Luca has the following clothing at school in case the weather changes: a spare pair of long pants, extra scarfs and hats for the cold, extra rain gear, and extra underwear and shorts if it gets warm. She noted that as a result of Luca being inappropriately dressed for the weather and sent to school by his father, she had changed her practice in the 2015 – 2016 school year and had included extra outdoor clothing.
130Another concern of Ms. Hill was the fact that Luca was repeating things about the adult issues that he claims have been said by his father. On one occasion, Luca told his mother that “daddy says I am with you more than twice as much as with him – that is not fair”. Ms. Hill testified that she has shielded Luca from the conflict but as he grows older, he will become more aware of it.
131Another witness called by the mother expressed a similar concern. Ms. Lipper lives next door to the mother and lived next door to both parents when they lived in the home together. She testified that she had known Luca since his birth. She praised Ms. Hill as the best mother she had ever seen. She stated that while the parents lived together she did not see Mr. Carone with Luca a lot, although she admitted that she had seen him with Luca a few times on their deck. She testified that one day last summer (2015) she and Luca were sitting around a fire in the yard, and Luca made the statement to Ms. Lipper: “daddy said I (Ms. Lipper) was mean to him”. Ms. Lipper testified that she was taken aback by the comment, but said nothing and changed the subject. Mr. Carone did not ask the witness about this statement during cross examination.
132Mr. Carone denied speaking to Luca about the adult issues surrounding custody and access. However, children are perceptive and hear many things that they are not supposed to hear. The fact that Luca is making these statements and attributing them to things said by his father confirms Ms. Hill’s concern that as he gets older he will be more aware and therefore more embroiled in the conflict if it is not ended.
133Mr. Carone testified that he also had concerns about Ms. Hill’s care of Luca, in addition to the information set out above. He produced a brief of pictures in Exhibit #30. The first five pages showed the clothing that Mr. Carone had for Luca. Page 6 showed a small cut over Luca’s right eye. The area is slightly bruised. Mr. Carone said he picked the child up at day care and he had the cut and bruise. His evidence was that Luca fell off a chair and Ms. Hill did not tell him. From the picture it does not appear that Luca needed any medical attention; there was no band aid on the cut, nor were there stitches.
134At page 7 of the exhibit, was a picture of Luca sitting on the kitchen counter drinking from a drink box. He is pushed to the back of the counter in a corner. His feet do not reach the edge of the counter and he had one leg folded under the other. He appears to be content and is not fighting for balance. Ms. Hill is in the picture looking into a kitchen cabinet with her back to Luca. Mr. Carone indicated that it was not safe for Luca to be on the counter and that Ms. Hill’s placing him there showed bad parenting. He indicated that she had spoken about his bad parenting and that he was proffering the picture to show her mistakes in parenting as well. Aside from the very small safety issue regarding the possibility that Luca might fall off the counter before Ms. Hill returned to him, it was disturbing to note that rather than do anything about what he felt was a dangerous situation, Mr. Carone got out his cameral or cell phone and took the picture before lifting Luca down from the counter.
135In another similar incident Mr. Carone described being at the gym one evening and saw Luca enter the building with his maternal grandparents. From his description, it appeared that the building housed a library on the main floor and a gym on the second floor. Mr. Carone testified that Luca ran into the library and was out of the sight of the grandparents for 11 seconds. When asked how he knew how long Luca had been out of sight he said he was on a cross trainer with a timer and continued to train while watching this event. He testified that this incident was cause for “great concern” because Luca could have been injured or abducted in the 11 seconds that he was out of sight. He admitted that Luca was pretty quick and he had ‘scooted’ away from him sometimes. He stated that the grandparents ran into the library to retrieve Luca.
136The court accepts that children can be quick and caregivers need to keep a close watch on them to ensure their safety. However, in this case, Luca was already inside the building. He ran into the library, not out of the building. His grandparents went after him. The likelihood of injury or abduction was very small. It is also very difficult to believe that Mr. Carone was seriously concerned about his child being injured or abducted. He watched the incident from the cross trainer. He did not call out; he did not move; and in fact did nothing to assist in ensuring Luca was safe. He testified that he wanted to see what would happen. Mr. Carone says that he loves Luca and Luca is the most important thing in his life. The court believes Mr. Carone’s feelings for his son are real. It is for that reason that the court does not accept that Mr. Carone truly feared Luca could be abducted during an 11 second period, but did nothing about it. Had Luca been in any real danger, Mr. Carone would have yelled out or would have moved quickly to stop him.
137The incidents that Mr. Carone raises appear to be a desperate attempt to find something wrong with Ms. Hill’s parenting, so that his own shortcomings appear to be less severe. However, in determining which of the parents is better able to meet all of Luca’s needs and which of them will ensure that Luca has a positive relationship with all members of the family, the evidence is overwhelming that it is Ms. Hill who should be the primary parent. Since Luca’s birth, she has:
taken responsibility of his daily care; including doctor and dentist visits;
provided appropriate clothing for him, planning for weather contingencies;
registered him in extracurricular activities and attended those with him;
working closely with the school, teachers and Luca himself on daily homework tasks to ensure his success;
kept Mr. Carone advised of Luca’s activities and sought his input;
planned out his summer and March break activities and sought Mr. Carone’s input;
cooperated in a timely way and without the need for legal intervention to provide consent for Luca to travel with his father;
wants Luca to have a loving relationship with all of his family members and believes contact with extended family is important;
encourages communication between Luca and his father when Luca is in her care;
does not insist that Luca keep secrets from his father about his life with his mother;
does not insist on an accounting of every minute Luca spends with his father and require that the time be made up to her, down to the minute.
138Mr. Caron loves his son and would never do anything to harm him. His witnesses described his as a being engaged with Luca; always having fun when they are together; that Luca adores his father; and that Mr. Carone is a great cook. In Exhibit #30, Mr. Carone included pictures of Luca playing, swimming, on a pony, and beside a ginger bread house he and his father made together. There is an additional picture at Exhibit #31, showing Luca painting a dinosaur.
139However, based on the evidence, Mr. Carone does not seem to be attuned to all of Luca’s physical, emotional, educational and mental needs to the same extent as Ms. Hill. Further, the evidence has shown that many of the decisions made by Mr. Carone have been made to meet his own needs and at times have not been in Luca’s best interests. The needs of the parents are not in issue. The only issue is the best interests of Luca.
140In applying the relevant factors set out in s. 24(2) of the Children’s Law Reform Act, the court finds the following:
a) Luca has always lived in the primary care of his mother in a stable home environment and it is in his best interests that he continue to do so.
b) The mother has proven to be the parent who is attuned to Luca’s needs and anticipates and plans for them.
c) The mother’s plan is preferable because it does not entail Luca having to move back and forth between his parents’ homes.
d) The mother has shown an ability to place Luca’s needs ahead of her own.
e) The mother has shown that she encourages Luca’s relationship with his father, is flexible regarding plans put forth by the father when they are in Luca’s interests, and is more likely to foster a positive relationship between Luca and his father.
141Mr. Carone argued that Luca had been in his care 7 out of every 14 days since the date of the order of September 30, 2013 and that anything less than that would not be in Luca’s best interests. However, while Luca may have seen his father on 7 out of 14 days, Luca was not in his father’s care 50% of the time that Mr. Carone’s argument would seem to suggest.
142In determining the time that Luca was in his father’s care, the court has reviewed the details of the order and counted the hours that Luca was in his father’s care. Looking at every two week period, Mr. Carone had Luca 16 hours on each Tuesday evening to Wednesday morning (total 32); 4 hours on each Thursday (total 8); 17.5 hours on alternate Fridays to Saturday morning; and 22.5 hours on each Sunday to Monday morning (total 45).
143Following the interim order of September 30, 2013 and Mr. Carone’s subsequent move from the matrimonial home on November 1, 2013, Mr. Carone had Luca in his care for 102.5 hours in each two period of 336 hours, or 30.5 % of the time.
144In addition, the court must add in the time that Mr. Carone had Luca during holiday times. He was provided with half of the Christmas vacation, which the court assumes was one week and three weeks in the summer school vacation time. In order to achieve a true number of hours that Mr. Carone had with his child it was necessary to recalculate the time based on a full year.
145In a full year, there are 8,736 hours. Four full weeks of vacation time would amount to 672 hours. Access that does not include vacation weeks has been multiplied by 48 weeks where the access occurred each week and by 24 weeks where the access occurred every second week. None of the weekday or weekend access that was subsumed by the holiday weeks have been included in the calculation because such inclusion would be a duplication of that time. Based on the yearly calculation, the father had access to Luca in a year as follows:
Every Tuesday from 3:30 p.m. to Wednesday at 7:30 a.m. – 16 hours X 48 = 768 hours
Every Thursday from 3:30 p.m. to 7:30 p.m. – 4 hours X 48 = 192 hours
Every Sunday from 9:00 a.m. to Monday at 7:30 a.m. – 22.5 hours X 48 = 1,080 hours
Alternate Fridays at 3:30 p.m. until Saturday at 9:00 a.m. – 17.5 X 24 = 420 hours
4 vacation week per year – 168 X 4 = 672 hours
Total hours 3,132 hours
146The portion of time that Luca has been in his father’s care since the order of September 30, 2013 is 35.8% or 36% . Although Mr. Carone seemed to suggest that he had been having Luca in his care 50% of the time, he was in fact not doing so.
147As indicated both parties felt that the order resulted in too many transitions between their homes that adversely affected Luca. The court is not inclined to remedy that problem by substantially increasing Luca’s time away from his primary caregiver by acceding to Mr. Carone’s request for a 50% parenting schedule. Such a schedule has never been in place and there was no evidence that such a schedule would be in Luca’s best interests.
148In dealing with the issue of access, the court has attempted to provide Mr. Carone with approximately the same number of hours with Luca in every two week period, plus special occasion access. In the past Mr. Carone has had Luca every Sunday. He used that time to visit with his parents. He described how Luca loved to attend his grandparents’ home; how his grandmother made a big fuss over him; and how much Luca enjoyed his grandmother’s cooking. Mrs. Carone also testified and talked about the special Sundays. Mr. Carone sought access every Sunday in order that Luca would “remember his grandparents”.
149Unfortunately, having Luca every Sunday prohibited Ms. Hill from ever having a full weekend with Luca. More unfortunately, Mr. Carone has not shown an ability to adjust the schedule in order for Ms. Hill to participate in special events with Luca when they occurred on Sunday (example Mother’s Day, camping and visits to family members). Both parents work full time and Luca is in school full time. During the school year, the only recreation time for special activities occurs on the weekend. Luca should have the opportunity to participate in special activities with his mother as well as with his father. There is nothing to prevent Mr. Carone from seeing family members during alternate weekends and during week day visits. The court is satisfied that Luca will not forget who his grandparents are if he does not see them every weekend and that he will enjoy his visits with his grandparents just as much every second weekend.
150Both parents made requests for special occasion access. Both talked about family traditions. Ms. Hill spoke about the Carone having Christmas celebrations on Christmas Eve and so requested every Christmas Eve in the evening and Christmas day. Mr. Carone said that Luca still believes in Santa Clause and he has not had a Christmas Eve and Christmas morning with Luca since November 2013. Similarly, with respect to Easter, Mr. Carone suggested that Easter was not important to Ms. Hill and Ms. Hill indicated that it is important and that she makes a big fuss over it. Both want special occasions to be dealt with based on their beliefs that their traditions are more important than the other. As such, the court will divide the special occasion celebrations equally, because both traditions deserve the same treatment. Luca will develop many traditions made up of celebrations with his father and celebrations with his mother.
151Finally, the new access order will commence September 2, 2016. The summer access which is currently in place will continue until then.
Issue E: Child Support
152The applicant claimed child support in her application issued in April 2013. Any order made after that date is prospective. She made no claim for retroactive support and in fact, she only sought child support from November 1, 2013, when the father moved out of the matrimonial home and established his own home.
153In his closing submissions, Mr. Carone indicated that he was making no representation about future child support and stated that if it is determined on the parenting schedule that he owes child support, he will pay it. However, it was also clear that Mr. Carone has never paid any child support to Ms. Hill since he moved from the home on November 1, 2013. He had notice that a claim was outstanding, but still provided nothing to Ms. Hill for Luca’s benefit. Not only must the court determine whether Mr. Carone must pay child support going forward and in what quantum, but the court must look at the respondent’s financial situation from November 1, 2013 and assess child support since then.
154The applicant’s case book provided cases dealing with s. 9 of the Child Support Guidelines. However, since the court has determined that Luca was not in his father’s care more than 40% of the time, s. 9 is not applicable and the cases will not be reviewed in this judgment.
155As noted earlier, the interim order that was in place from September 30, 2013 placed Luca in Mr. Carone’s care 30.5% of the time in every two week cycle. He was given 3 weeks of vacation during the summer and half of the Christmas holidays, which the court assumes would be one week. When those weeks are factored in, the percentage time that Luca was with his father rose to 36%. There is nothing about the access order that has been in place up to the time of this judgment that requires the court to order anything but table amount support for Luca.
156There were two exhibits filed, #22 and #35, setting out the income of the father by way of income tax returns, notices of assessment and pay stubs. The respondent’s income in 2013 was $154,778.00 according to his notice of assessment. In 2014, the respondent’s income was $109,361.00 based on his income tax return. In 2015, his end of year pay stub showed year to date income at $107,330.00. Finally, looking forward to the respondent’s income in 2016, the court must use the 2015 income. However, included in exhibit #22 was a letter from the Human Resources branch of his employer dated August 11, 2015 stating that Mr. Carone’s current income as of that date was $105,567.00. The difference between his 2015 and 2016 income is slight. Therefore the court will use the amount set out in the letter from CRA noting Mr. Carone’s current income at $105,567.00.
157Using these figures, Mr. Carone should have been paying the following child support since November 1, 2013:
November 1 to December 1, 2013 inclusive on $154,778.00: $1,298.00 per month
January 1 to December 1, 2014 inclusive on $109,361.00: $ 952.00 per month
January 1 to December 1, 2015 inclusive on $107,330.00: $ 937.00 per month
January 1, 2016 onwards on $104,816.00: $ 918.00 per month
158As indicated, child support was claimed in April 2013 and becomes a prospective order from that date forward. The applicant sought child support from November 1, 2013 as the start date because this was when the father left the matrimonial home.
159Using the child support guidelines and assessing the amount of support that Mr. Carone should have been paying since November 2013, the following amounts are owed to Ms. Hill:
2013 for two months $ 2,596.00
2014: for twelve months $ 11,424.00
2015: for twelve months $ 11,244.00
2016: January to August (8 months) $ 7,344.00
Total of child support owed by Mr. Carone to Ms. Hill: $32,608.00
160This amount along with the adjustment regarding the joint expenses from September 2012 to November 2013 will be set off against the equalization payment owed to Mr. Carone from Ms. Hill.
161Although there is a claim for contribution to s.7 expenses, the only evidence of s.7 expenses was the cost of before school program. Ms. Hill indicated that she and Mr. Carone alternated the payment each month and that each claimed the deduction. Both parents have registered Luca in extracurricular activities and both have paid for some of them. Luca has gone to various summer camps but there was no information as to who paid for them. As there were no details provided of such costs, there will be no order dealing with any of those costs incurred up to the time of judgment. Going forward each parent should contribute to s.7 costs in proportion to their incomes.
162For the year 2016, s. 7 expenses will be on a 46% share by the father and a 54% share by the mother. Adjustments will have to be made annually based on the incomes of the parties.
163For the reasons set out above, the following order will issue:
A Divorce order will issue terminating the marriage of Marilyn Hill and Francesco Carone, who were married on February 17, 2005
The applicant mother shall have custody of the child Luca Carone, born November 11, 2010. Luca will have his primary residence with his mother.
The respondent father will have regular access to the child Luca as follows:
a) Alternate weekends commencing September 9, 2016 from 3:30 p.m. on Friday to Monday at 7:30 a.m.;
b) During the week following the father’s alternate weekend access, on Thursday at 3:30 p.m. to Friday at 7:30 p.m. commencing on September 15, 2016, and;
c) During the week preceding the father’s alternate weekend access, on Tuesday at 3:30 p.m. to Wednesday at 7:30 p.m.
Special occasion access:
The special occasion residency schedule set out below shall override the regular access schedule set out in paragraph (3) above, provided that the underlying pattern of the regular access will not change.
The respondent father will have access to Luca for the school spring break in odd numbered years, from leaving school at the start of spring break until 9 a.m. on the Sunday ending spring break, provided that the respondent has plans to travel with Luca for the spring break. The respondent will provide written notice of such plans by February 15 in each odd numbered year. If the respondent does not have plans to travel with Luca during the school spring break, then the regular access schedule in paragraph (3) will continue.
The applicant mother will have Luca in her care for the school spring break in even numbered years, from leaving school at the start of spring break until 9 a.m. on the Sunday ending spring break, provided that the applicant has plans to travel with Luca for the spring break. The applicant will provide written notice of such plans by February 15 in each even numbered year. If the applicant does not have plans to travel with Luca during the school spring break, then the regular access schedule in paragraph (3) will continue.
Easter Weekend
- The parties will share Luca during the Easter weekend. In odd numbered years, the respondent father will have Luca in his care from Thursday after school until Saturday at 7:00 p.m. and in even numbered years the respondent father will have Luca in his care from Saturday at 7:00 p.m. until Monday at 6:00 p.m.
Mother’s Day/Father’s Day
- The child will always be with the mother on Mother’s Day and with the father on Father’s Day. If Mother’s Day falls on one of the father’s regular weekend, he will return the child on Saturday at 7:00 p.m. where the child will remain until the start of school on Monday morning. If Father’s Day falls on a weekend that is not one of the father’s regular weekends, the father will have Luca from Saturday at 7:00 p.m. until his return to school on Monday morning.
Summer Long Weekends
Regardless of the regular access schedule, Luca will be in the applicant’s care for the July long weekend from Friday at 3:30 p.m. until Tuesday at 9:00 a.m. For the purposes of this clause, the Canada Day long weekend shall be the weekend that includes the July 1st holiday, or the first weekend of July where July 1st falls on a Tuesday, Wednesday or Thursday.
Regardless of the regular access schedule, Luca will be in the respondent’s care for the August Civic long weekend from Friday at the start of the weekend at 3:30 p.m. until Tuesday at 9:00 a.m.
Summer Vacation
- The applicant and respondent shall each have Luca in their care for three non- consecutive 7 day weeks, unless the parties otherwise agree to accommodate either party taking a trip with Luca that might require 14 days. For this provision a week will run from Friday at 5:00 p.m. until Friday at 5:00 p.m. The parties shall act reasonably in granting a request for such an extension. Each party shall provide to the other a written schedule of the time each of them proposes by May 1 of each year, and if each person has chosen the same week and the parties cannot otherwise resolve the issue, the applicant’s choice will take precedence in odd numbered years and the respondent’s choice shall take precedence in even numbered years. One of the respondent’s weeks will include the designated week at Fairhavens Family Camp with Luca.
Thanksgiving
- If Thanksgiving weekend coincides with a weekend when Luca is with the applicant, the respondent shall be entitled to have Luca for the purpose of celebrating Thanksgiving with his family as arranged with the applicant, for six hours on either Saturday or Monday. If Thanksgiving weekend coincides with a weekend when Luca is with the respondent, the applicant shall be entitled to have Luca for the purpose of celebrating Thanksgiving with her family as arranged with the respondent, for six hours on either Saturday or Monday.
Halloween
- The regular access schedule will apply. However, the parent who does not have Luca in their care on Halloween may join the other parent in taking Luca out trick or treating in the other parent’s neighbourhood, or alternatively may take Luca out trick or treating in their own neighbourhood for one hour and will return Luca to the other parent at the end of the hour. The parent who has Luca in his or her care on Halloween shall be responsible for providing Luca’s costume.
Christmas
In even numbered years, the respondent shall have Luca in his care from 2 p.m. on Christmas Eve until 1 p.m. on Christmas Day. In even numbered years Luca will be with the applicant from 1 p.m. on Christmas Day until 6:00 p.m. in Boxing day, (December 26th).
In odd numbered years, the respondent shall have Luca in his care from 1 p.m. on Christmas Day until 6:00 p.m. on Boxing Day. In odd numbered years Luca will be with the applicant from 2 p.m. on Christmas Eve until 1:00 p.m. on Christmas Day. The balance of the school holiday will be divided equally between the parents.
Luca’s Birthday
Luca will be with the applicant from 7:00 p.m. on November 10th each year until noon on November 11th of each year. Luca will then be with the respondent on November 11th from noon until 6 p.m. of each year.
The parties will alternate Family day and Victoria Day weekends each year. The child will be with one parent on the Family day weekend and the other parent on the Victoria Day weekend. If the parents cannot agree as to who will have the child on these weekends, the respondent will get first choice in odd numbered years and the applicant will get first choice in even numbered years.
The regular access schedule and/or holiday schedule set out above will only be altered if both parties agree. If the parties are unable to agree on a new parenting schedule the parties may arrange for mediation/arbitration to resolve the issue. The cost of mediation/arbitration will be paid equally by the parties, without prejudice to the mediator/arbitrator reapportioning responsibility for costs in resolving a particular issue.
In the event that the respondent is unable to take Luca into his care for any of the prescribed access periods, for any reason, Luca will remain in the care of the applicant and there will be no make-up time scheduled that involves a switching of weekends. The respondent will make every effort to abide throughout the year to the alternate weekend access schedule except, as adjusted by the special occasion access, missing a regularly scheduled weekend only due to exigent circumstances. Exigent circumstances does not include optional recreational activities or travel that is not for business purposes.
The respondent may arrange visits or outings with Luca while Luca is in the applicant’s care provided that, firstly, Luca is available, and secondly, that the respondent has provided reasonable notice of the request. Reasonable notice shall mean at least 24 hours in advance for longer outings and at least 3 hours’ notice for brief outings or visits that do not involve Luca spending overnight with the respondent. Such requests may only be made two times in any month.
If either party takes a vacation without Luca, no makeup with Luca time will be provided to that parent.
For the purposes of access, Luca will be picked up and/or dropped off directly at the before and after care program or at school. When Luca is not scheduled to attend school or before and after care program, the party in whose care Luca is shall be responsible to pick up and/or drop off Luca at the other parent’s home unless otherwise agreed.
In the event that Luca is ill, the exchange of Luca will occur according to the schedule unless Luca is too sick to travel between the homes of the parents, according to Luca’s doctor. If Luca’s doctor is not available to assess the situation, the parties shall exercise common sense and act in good faith from the perspective of Luca’s best interests in determining whether Luca is too sick to travel between the parents’ homes.
Luca shall be permitted to take to the other parent’s home any toy, gift, personal item or article of clothing without restriction.
Each parent shall have reasonable telephone, Face time and /or video chat access with Luca while he is in the care of the other parent. Neither parent will interfere with Luca’s contact with either parent, unless circumstances make such interference reasonable from Luca’s perspective and in his best interests.
Luca may have reasonable telephone access to his maternal and paternal grandparents and the grandparents may have reasonable telephone access to him. Luca may be left in the care of his maternal or paternal grandparents for special outings, sleepovers, or similar activities during the periods of time when Luca is in the care of either the applicant or the respondent.
In the event either parent is unable to care for Luca for a period exceeding 3 hours (except as in 25 above), he or she will notify the other parent and give him or her the opportunity to care for Luca or make arrangements for family members to do so. If neither parent nor extended family members are able to provide care for Luca, the parents will make child care arrangements that are safe and appropriate for Luca, at his or her own expense.
If Luca will be in the care of any person other than the parents for any overnight period of time during a party’s scheduled time with Luca, that party will advise the other by email and will provide the name, address and telephone number of the third party.
Neither party shall arrange activities with Luca during the other party’s time with Luca without the other party’s consent, such consent not to be unreasonable withheld.
The respondent may make inquiries and be given information by Luca’s teachers, school officials, doctors, dentists, health care providers, summer camp counselors or others involved with Luca. The applicant will cooperate and execute any required authorization or direction necessary to enforce this provision if needed.
Both parents may attend parent/teacher meetings together or separately, as they may agree from time to time.
Each parent will obtain his or her own school calendar and school notices. Both parties may attend school functions regardless of the access schedule.
Both parents may attend classroom events or school trips, where parents are expected or invited to attend. If they both attend such functions, they will treat each other civilly, and refrain from any discussion that might promote conflict or embarrassment to Luca.
Both parents may attend all of Luca’s extra-curricular and school activities in circumstances where it is appropriate for a parent to attend regardless of the access schedule. The parent in whose care Luca is at the time of such activities will ensure that Luca arrives at his activities on time. If the parent who has Luca in his or her care cannot take Luca to an activity for legitimate reasons, the other parent will be at liberty to pick Luca up and take him to the activity, returning him to the care of the other parent at the end of the activity.
The parent residing with Luca at the relevant time will make the daily decisions affecting his welfare.
The applicant will make important decisions about Luca’s welfare after consulting with the respondent, including decisions regarding Luca’s
A) education;
B) major non-emergency health care;
C) major recreational activities; and
D) Religious activities.
Neither party will change Luca’s name without the express written consent of the other parent.
Luca’s health card will travel with Luca to each party’s home.
In the event of a medical emergency while Luca is in the care of either parent, he or she will promptly notify the other parent.
The applicant and respondent will provide each other with their email addresses, current home address, and telephone number where they can be reached at all times. In the event either party proposes to change their address within the City of London, he or she will provide the new address and new telephone number to the other.
If either party proposes to change his or her residential address to a location outside of the City of London, he or she will give the other 90 days’ notice of such a proposed move by text or email. If the parties cannot agree on the custody/access schedule for Luca, they may enter into mediation or arbitration or either one of them may bring a motion to change to deal with issue.
The applicant may apply for a Canadian passport or for a renewal of passport for Luca. The respondent will sign the application for passport where required. The applicant will retain the passport and provide it to the respondent for travel with Luca. The respondent will return the passport to the applicant on his return from any trip with the child.
If either parent plans a vacation with Luca, that parent will give to the other a detailed itinerary at least 14 days before departure, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers and details of how to contact Luca during the trip.
If either parent plans a vacation outside of Canada with Luca, the other parent will provide a notarized letter authorizing Luca to travel. The parent obliged to provide a notarized letter authorizing Luca to travel may refuse to do so only in circumstances where a reasonable person would refuse to authorize the travel for reasons related to the safety and welfare of the child.
If either parent plans a trip away without Luca, he or she will give to the other parent a telephone number where he or she can be reached in case of an emergency or if Luca wishes to contact that parent.
The respondent shall consent to the applicant travelling to the USA with the child for any period 10 days or less, without the need to obtain his written consent, so long as the trip does not interfere with the respondent’s access. In the event that such a trip results in the respondent missing scheduled access with Luca, such time will be made up within three weeks of the applicant’s return.
Commencing September 1, 2016 and on the first day of each month thereafter, the respondent shall pay to the applicant child support under s. 3 of the Child Support Guidelines in the amount of $918.00 per month based on his income of $104,816.00 ($105,567.00 less union dues of $751.00).
Commencing September 1, 2016, the respondent shall pay 46% of the expenses incurred by the applicant as prescribed by s. 7 of the Child Support Guidelines based on his income of $104,816.00 and the applicant’s income of $123,152.00 ($124,914.00 less union and professional dues of $1,762.00).
The parties will continue to share s. 7 expenses for Luca in proportion to their incomes each year, provided that each party consents to the expense being incurred, such consent not to be unreasonably withheld.
While Luca is a child of the marriage as defined by the Divorce Act, the parties will provide to each other by May 1 of each year a copy of his or her complete Income Tax Return with all information and slips for the preceding year. Upon receipt the parties shall provide each other with a copy of his or her Notice of Assessment and Notice of Reassessment, if applicable. The parties will adjust the child support and the s7 contribution each year and such adjustment will be retroactive to January 1 of each year.
Both parties shall maintain drug, dental and extended health coverage available through their employment for Luca, for so long as Luca is eligible for such coverage according to the terms of the plans.
Both parties shall maintain their life insurance with Luca as the irrevocable beneficiary with each party irrevocably appointing a third party as Trustee for so long as the child is entitled to support which shall be in full and final satisfaction of the obligation of the deceased party, or his or her estate to pay child support following his or her death. Once Luca is no longer a child of the marriage, each party may change the beneficiary of their life insurance to a person of his or her own choosing.
Within 45 days of this judgment, the respondent will pay to the applicant, the sum of $32,608.00 representing child support arrears from November 1, 203 to August 31, 2016.
Within 45 days of this judgment, the respondent will pay to the applicant the sum of $4,018.00 representing his share of household expenses between October 1, 2012 and November 1, 2013, less $700.00 as a result of the closing of the joint account for a net sum of $3,409.29.
Within 45 days of this judgment, the applicant will pay to the respondent an equalization payment of $45,925.90 in full and final satisfaction of all property issues.
If the parties cannot settle the issue of costs, they may make written submissions, no longer than five pages. The applicant will serve and file her submissions regarding costs on or before September 16, 2016. The respondent will serve and file his submissions regarding costs on or before October 14, 2016 and the applicant will serve and file any responding submissions on costs on or before October 28, 2016.
“Justice Margaret McSorley”
Justice Margaret McSorley
Released: August 22, 2016
CITATION: Hill v. Carone, 2016 ONSC 5237
COURT FILE NO.: FD685/13
DATE: 2016/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Marilyn Hill
Applicant
- and -
Francesco Carone
Respondent
REASONS FOR JUDGMENT
McSORLEY J.
Released: August 22, 2016