Court File and Parties
COURT FILE NO.: F98/15 DATE: 2016/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Sara Elizabeth Shewaga Erin Burns, for the Applicant Applicant
- and -
Thomas Jason Belfour Beth Leaper, for the Respondent Respondent
HEARD: April 14, 15, 18, & 19, 2016 McSORLEY J.
[1] The matter before the court involved an application commenced by the applicant mother in January 2015. In her application, the mother sought an order for joint custody of the child, Cylus Belfour born January 12, 2013, child support and contribution to s.7 expenses in accordance with the Child Support Guidelines.
[2] In his answer, the respondent sought joint custody of the child, with primary residence to be with the father, child support and contribution to s. 7 expenses, coverage for the child on any extended medical or dental plans available through the applicant’s employment and an order that the applicant maintain the respondent as irrevocable beneficiary of any and all life insurance that she has or can obtain through her employment so long as the child is a dependent.
Background
[3] The parties met in 2008. Mr. Belfour was employed as the kitchen manager at Boston Pizza, where he had worked for five years. The parties became acquainted when Ms. Shewaga started working at the restaurant. Mr. Belfour testified that they dated for a short time and then moved in together. They lived together from January 1, 2009 until December 15, 2013. They continued to work together at Boston Pizza for slightly less than a year. In approximately the summer of 2011, Ms. Shewaga was accused of stealing at work. The accusations were unfounded. However, before that conclusion was reached, Mr. Belfour testified that he supported Ms. Shewaga and went to bat for her with his bosses. He testified that he put his job on the line to clear her name. As a result, his relationship with his bosses was ruined and he had to resign his position.
[4] The parties then worked in the GTA area. They were hired as a support team to run some restaurants. Initially, they ran a Swiss Chalet in Mississauga, but then were moved to a larger establishment called Egg Smart. The group for whom they worked started to purchase English Pubs, with the first one in downtown Toronto. Mr. Belfour said that he and Ms. Shewaga went there to get things going; do the hiring, manage the construction; and ‘get the place off the ground’. Unfortunately another incident took place where Ms. Shewaga was accused of defaming the company online. Mr. Belfour testified that he went to bat for her again, but she was dismissed. He continued to work for the group, but stated that his support for Ms. Shewaga created a hostile work environment.
[5] During this time, they were having problems with their rental unit in Halton Hills. Ms. Shewaga was “very pregnant” according to Mr. Belfour. Both of them had safety concerns about where they were living. There were electrical problems and animal problems on the property; there was an oil spill on the property; and there was no heat in the home. At the same time, the parties had rescued dogs and had several that they had to move. They decided to move back to the London/St. Thomas area prior to the birth of their child. They found a cottage in Port Stanley where they could keep the dogs.
[6] Cylus Belfour was born on January 12, 2013. At the time of his birth Ms. Shewaga was living with her parents; Mr. Belfour was living in the cottage and caring for the dogs; and visited Ms. Shewaga and his son at the paternal grandparents’ home in Port Stanley each day. He stayed overnight with Ms. Shewaga and Cylus and then returned to the cottage to care for the dogs.
[7] Mr. Belfour testified that both of the parents was trying to find employment. However, Port Stanley is a beach/port town. Many of the businesses close in the winter. He testified that when spring came, businesses started opening up. In March 2013, Mr. Belfour started working at the Kettle Creek restaurant as the closing chef. Because he was not the top chef at Kettle Creek, he obtained a job at the Wharf restaurant where he was hired as the kitchen manager. His hours at that job were 10 a.m. to 9 p.m. or 10 a.m. to 8 p.m.
[8] Mr. Belfour testified that Ms. Shewaga started to talk about a career in the military in the late spring or early summer of 2013. Mr. Belfour was not completely behind the idea of Ms. Shewaga joining the military, but he indicated she was looking for a career that she could enjoy. More will be said of this later. In August 2013, the mother commenced training with the Canadian Armed Forces in Quebec. Although basic training was scheduled for three months, the mother’s basic training took approximately one year, due to illness and injury.
[9] In December 2013, Ms. Shewaga came home on leave. During her visit, she advised Mr. Belfour that she did not want to be a part of his life anymore and did not want him to be part of her life anymore. Mr. Belfour remained in the cottage until February 2014 and then he and Cylus moved to his parent’s home in London. Ms. Shewaga returned to her military training, leaving the child with the father.
[10] As a result of an injury, Ms. Shewaga was sent to Wolseley Barracks in London to work from January to April 2014. During that period the parties shared custody of the child on a three day off and three day on arrangement.
[11] After basic training, she was stationed in Borden from August to October 2014, then lived in Meaford from November to December 2014 for soldier qualifications and winter warfare. Ms. Shewaga came home from December 13th to January 5th for Christmas. During that period, the parents again shared custody on a 50/50 basis using a four day off and four day on schedule. She was stationed back at Borden where she remained until March 2015, at which time she was sent to Moncton, New Brunswick to complete training in primary care in medicine. She completed all of her post-secondary training and her primary care in medicine while enlisted in the Canadian Armed Forces. In August 2015 she moved back to Borden to complete her medical technician training. She remained in Borden until December 12, 2015, when she once again returned to the London area for Christmas. During her visit home in December 2015, the parents once again cared for Cylus on a four day on/ four day off schedule.
[12] In January 2016, the applicant believed that she was going to be posted to Halifax, Nova Scotia. She advised her career manager that she wanted to stay in Ontario to be closer to her child. She was posted to Petawawa, Ontario, where she was living at the time of the trial.
Issues
[13] Both parents agreed to joint custody of the child. The major issue before the court is, with which parent the child would primarily reside and what access/parenting time should be given to the other parent. Questions of child support and s.7 expenses will be determined once the issue of primary residence is resolved.
The Law
[14] This application was made under the Children’s Law Reform Act. Section 20 of the Act indicates that the father and mother of a child are equally entitled to custody of their child. Pursuant to section 20(4) where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. Section 24(1) provides that the merits of an application in respect of custody of or access to the child shall be determined on the basis of the best interests of the child, in accordance with subsection (2), (3) and (4). Subsection (2) details the 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"
[15] Subsection (3) (past conduct) and (4) (violence and abuse) are not factors in this case. In this case, the only interests that the court is concerned with are the interests of the child.
[16] Both parties filed Books of Authorities dealing with the issue of custody and the factors that must be reviewed. The applicant cited the decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, a case involving a motion to change a court order so that the custodial parent could move from Canada to Australia in order study orthodontics.
[17] Although Gordon v. Goertz sets out the appropriate considerations in every case dealing with the custody of a child, it is important to note that this case is not a motion to change the conditions of a custody order and is not a mobility case. There has never been a determination regarding custody of Cylus. A mobility case is generally brought when a custodial parent wishes to leave the area in which he or she has lived with the child and where the move that is contemplated will significantly affect the child’s relationship with the other parent.
[18] At paragraph 32, the court summarized the steps the court must take in determining whether there has been a material change in circumstances that require an order or agreement to be changed. None of those factors apply in this case. Paragraph 32 also sets out factors for consideration including the reason why the custodial parent is moving. As noted this factor is relevant in a case where custody and access has already been determined and where one of the parents wishes to move away from the area in which the parents and child resided at the time of the order and the move will affect the relationship of the child with the other parent.
[19] Paragraph 19 of the decision in Gordon v. Goertz sets out other factors that the court must consider when the issue is whether a parent should be permitted to move with the child. Although the applicant attempted to frame her case as a mobility case, the court finds that this is not a mobility case. The court first must determine which of the parents is better able to provide for the child’s care and upbringing by applying the criteria set out in s. 20(4). 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 parent 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.
[20] The 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 important to note that there is no default position when it comes to custody and access. The decision that is made must be related to the specific child 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.
[21] In Gordon v. Goertz the court acknowledged that the Divorce Act required 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.
[22] The applicant referred to B.T.O. v. A.A., 2013 ONCJ 708, 2013 CarswellOnt 17790, [2014] W.D.F.L. 663, 236 A.C.W.S. (3d) 158, set out at tab 2 of her book of authorities. This case was also one of mobility. In it, the mother had custody of the children. After separation, the mother remarried and her new husband lived in Nigeria (where both the mother and father had originated). The mother brought an application for permission to move with the children to Nigeria.
[23] Sherr J. referred to the two stage process set out in Gordon v. Goertz that the court was required to consider in mobility cases. At paragraph 34, Sherr J. set out the criteria in section 24(2) of the CLRA. Paragraph 35 of the decision reiterates the additional factors to be considered in a mobility case. Aside from the general principles set out regarding the best interests of the children, the case is not helpful in this matter.
[24] Similarly, the case at tab 3 of the applicant’s book of authorities dealt with an application to move with the children following an order for interim custody being made in her favour.
[25] At tab 4 of the book of authorities, the applicant referred to the case of Ceho v. Ceho, 2015 ONSC 5285, 2015 CarswellOnt 13194, [2015] W.D.F.L. 5690, [2015] W.D.F.L. 5693, [2015] W.D.F.L. 5708, [2015] W.D.F.L. 5710, 257 A.C.W.S. (3d) 372. In that case, two children had been placed in the interim care of their drug addicted father under the supervision of his parents while the mother dealt with her own drug addiction and post-traumatic stress disorder. At trial, the mother had recovered from her drug addiction and PTSD and the Children’s Aid Society and the Office of the Children’s Lawyer recommended that the children be returned to the mother’s care. At the time the father was still addicted to drugs, his parents were disrespectful of the mother and were unable to effectively co-parent with her.
[26] At paragraph 101, Price J. stated that it is a prior adjudication, or a determination based on a consent of the parties that represents a true acknowledgement by them that a custody or access arrangement is, in fact, in the best interests of the children, that commands deference by a court in the future. Price J. went on to say that it is not the fact that a status quo has existed, or been extended, even if it is embodied in a temporary and without prejudice order and that if there has been no prior adjudication or status quo based on a consent that implies acknowledgement that the best interests of the child has been achieved, then the status quo is only one of several factors to be considered by the court in determining custody.
[27] The court notes that in the case at bar, there has been a consent to a status quo in that the mother agreed that the child would reside in the care of his father when she entered training in August 2013 and certainly when she advised him that their relationship was over in December 2013. However, the court agrees that status quo is only one element that must be considered when determining the best interests of the child.
[28] The last two cases of the applicant’s book of authorities dealt with moves with children by custodial parents, which as indicated is not the situation in this case.
[29] The respondent also provided a book of authorities. The first case at Tab 1 was Allen v. Wu, 2011 ONSC 6813, a decision of Stach J. of the Ontario Superior Court. The issue in that case was whether the child’s primary caregiver should be his mother in Toronto or his father in Sioux Lookout, along with the corollary issue of what access should be put in place to allow the child to spend time and continue to have a meaningful relationship with his non-custodial parent.
[30] In making his decision, Stach J. found that both of the child’s parents had the basic ability to act as a parent toward the child. He found that between them, the mother would be a fierce advocate for the child and was more likely to focus on the child’s education and scholarly extra -curricular activities. He found that the father would be more able to direct the child’s practical interest in how things work and was a patient parent.
[31] Stach J. found that the mother was far less committed than the father and far less sincere about ensuring that the father and his family would have regular, meaningful and frequent contact if she was awarded custody. He found her willingness to maximize contact between the child and his father to be wanting. At paragraph 80, Stach J. noted that the father had a far greater appreciation of the importance of maintaining a meaningful contact with the other parent and a far greater willingness to maintain such contact through a variety of means, including visitation.
[32] One of the issues that was raised in that case were the benefits of a large metropolis versus a small community. At paragraph 86, Stach J., very wisely, stated:
“One must be careful, however, about intruding value judgments whether a larger community has more to offer children than a smaller community or vice versa. This proceeding is not, after all, about places, but about relationships [6] and, ultimately, solely about what is in the best interests of Jamie Allen"
[33] In granting custody of the child to the father, Stach J. found that on a continuing basis, the father was more likely to have the capacity to provide the necessaries of life for Jamie and that the child’s best interests required that he be entrusted to the sole custody of his father.
[34] The second case referred by the respondent was the Court of Appeal decision in Walsh v. Walsh, 39 R.F.L. (4th), [1998] CarswellOnt 2893, [1998] OJ No 2969 (QL), 111 OAC 118 for the purpose of setting forth the court’s view on how s. 24(2) can be considered in a judgment without itemizing each factor. At paragraph 13, the court stated:
“In his reasons for judgment, the trial judge referred specifically to s. 24 of the Act and observed that in any custody application, a multiplicity of factors must be considered. In referring to “a multiplicity of factors”, he surely had in mind the considerations outlined in paragraphs (a) to (g) of s. 24(2) of the Act. While it is true that the trial judge did not itemize those factors or engage in a separate analysis of each, he was under no obligation to do so. As was pointed out by this court in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 204, reasons for judgment should not be read or analyzed as if they were an instruction to a jury. Rather, they reflect the culmination of the trial judge’s reasoning process and are meant to explain why he or she arrived at a particular conclusion. They are not to be read as a verbalization of the entire process engaged in by the trial judge in reaching a decision.”
Analysis
[35] In reviewing the evidence, it is noteworthy that the parents gave very similar stories about the meeting, dating and living together. Their evidence regarding their employment situation and how jobs were lost at Boston Pizza, then in Toronto were identical. It was uncontroverted that Mr. Belfour was never fired from a job. He left two jobs because he believed Ms. Shewaga had been treated unfairly and supporting her in that belief made his continuation at his jobs impossible.
[36] Their evidence about returning to the London area and renting a cottage in Port Stanley was the same. At the time that the parties moved to Port Stanley, Ms. Shewaga was very close to her delivery date. The parties owned four dogs that they had ‘rescued’ together and needed to be cared for. That job fell to Mr. Belfour. Ms. Shewaga stayed at her parents’ home before and after the delivery. She and Mr. Belfour saw each other daily.
[37] At the time of Cylus’ birth, Mr. Belfour had worked in the restaurant business for close to ten years. Unfortunately because Port Stanley caters to seasonal visitors, there were no jobs available when the parties first moved to Port Stanley. He testified that the dogs had to be walked 2 or 3 times daily and each walk would take up to an hour or more. After Cylus’ birth, Ms. Shewaga was primarily responsible for the child’s care. She would drive to the cottage around 4 or 5 p.m. and pick up Mr. Belfour and return with him to her parents’ home. There they would have dinner with Mr. and Mrs. Shewaga and then would retreat with the child to the basement area for private family time. This schedule continued until the parties moved into other rental accommodations together in late February or early March 2013.
[38] By March 2013, Mr. Belfour was employed at Kettle Creek and later took on employment at the Wharf. Both establishments were restaurants in Port Stanley. Ms. Shewaga remained home to care for the infant child. Mr. Belfour testified that he worked either 10 a.m. to 8 p.m. or 9 p.m. He described a typical day as consisting of spending time with Cylus in the morning and when he returned home from work. He indicated that he would often care for Cylus during the night time so that Ms. Shewaga could rest. During those times he was responsible for both feeding, changing and caring for the child. He noted that during this period, he typically worked on Saturday mornings but would be off after lunch and on Sundays.
[39] When asked, Mr. Belfour candidly admitted that he did not know at that time whether he had a career plan set on working in restaurants. He stated that his career at that time had been in the service and hospitality sector where he had worked for almost a decade and had always advanced in that sector. He noted that if he and Ms. Shewaga had continued to work in the Toronto area, they would probably have owned or had ownership stakes in several establishments.
[40] At some point in the late spring or early summer of 2013, Ms. Shewaga brought up the idea of joining the military. Mr. Belfour indicated that she was trying to find a new career path for herself and was frustrated with the restaurant business. Mr. Belfour candidly admitted that he was not 100% on board with Ms. Shewaga joining the military, but did support the idea of her moving into the medical field. He stated that he was concerned about Ms. Shewaga being hurt or killed and that he did not want his son to lose his mother. Another concern for Mr. Belfour was the fact the he believed he and Ms. Shewaga were best friends; (something she confirmed in her evidence); they lived and worked together and had spent close to 24 hours a day together for many years. Mr. Belfour stated that the idea they would lose that closeness was scary.
[41] However, Mr. Belfour made it clear that once the decision was made, he was on board to support Ms. Shewaga and her dreams. He stated that he was excited for her; was proud of what she was doing; and what she would accomplish, even though he still had qualms. They talked about the future. Mr. Belfour was aware that once Ms. Shewaga finished her training, she could be posted anywhere in the country. He stated that it was understood that there are bases with homes for families and that once she was posted, the three of them would be moving to that post together.
[42] Ms. Shewaga left for training towards the end of August 2013. Cylus was 8 months old. Ms. Shewaga arranged for Cylus to be cared for during the work day by her parents. Mr. Belfour noted that he and Cylus continued to reside in the rental home in St. Thomas with the four dogs. He indicated that his role at work increased and that in addition to working regular hours in the restaurant, he did a lot of event planning for special events and music events.
[43] Mr. Belfour described a typical day for him and Cylus. He noted that Cylus would get up between 5 and 6 a.m. Mr. Belfour would dress Cylus and get ready for the day. They would go downstairs and greet the dogs, feed Cylus and play with him; feed the dogs and play with them. He indicated that he had 4 or 5 hours each morning with the child before he had to go to work, where he would play with him. He would go to work for 10 a.m.
[44] Ms. Shewaga’ parents lived two minutes from the restaurant. Mr. Belfour would drop Cylus off at his paternal grandparent’s home and go to work. He went home part way through the day to walk the dogs and then go back to work. He picked Cylus up each evening shortly after 6:30 p.m. He and Cylus would go home; Mr. Belfour would put Cylus in his stroller and they would take the dogs for a walk. After that Mr. Belfour had a consistent bedtime routine for Cylus that consisted of a bath, reading and a final bottle. After Cylus was asleep, Mr. Belfour would try to contact Ms. Shewaga to tell her about their day.
[45] Mr. Belfour testified that his relationship with Ms. Shewaga’s parents was cordial and that he was very appreciative of what they were providing to Ms. Shewaga, Cylus and himself, noting that it was a big economical advantage. At the time, the parents had significant debt and the provision of free day care was a large benefit for them.
[46] The court has added the detail above to illustrate everything that Mr. Belfour was doing to support Ms. Shewaga and care for Cylus. He appreciated the help he got from her parents. What was disturbing for the court was how badly Ms. Shewaga’s parents thought of Mr. Belfour and had nothing but criticism for him, almost from the moment they met him.
[47] The paternal grandfather testified that his initial impression of Mr. Belfour was that he could have presented himself a little better, noting that his hair was long; he had a baseball cap on sideways; was unshaven and in baggy clothes. Mr. Shewaga said he met Mr. Belfour when he was moving into an apartment in the Southdale/Wharncliffe area. Later he corrected that statement and said it was not moving day. He felt the clothes were a fashion statement, of which he obviously did not approve and further noted that Mr. Belfour was very quiet as well.
[48] In addition to not having a good impression of Mr. Belfour when he first met him, Mr. Shewaga complained that Mr. Belfour did not work hard on employment opportunities. He testified that his daughter looked for jobs for Mr. Belfour, put together a resume, but he did not take advantage of it. He also said that he could get a job for Mr. Belfour at Magna International, but Mr. Belfour never pursued it. It was clear that the impression Mr. Shewaga wanted to give the court was that Mr. Belfour was unambitious and did nothing about looking for work.
[49] As indicated Mr. Belfour had worked in the restaurant business for almost a decade. He had to leave a fairly lucrative position in Toronto, where he could have had ownership or part ownership of one of the pubs. During that period, he was working 70 hours per week. He left that job to support Ms. Shewaga after she had been falsely accused of slandering the company in a customer online survey. Upon leaving the Toronto area, the parents moved to Port Stanley where restaurant jobs were nonexistent in the winter. Within two and a half months of moving there, Mr. Belfour was once again employed. He has remained employed although he changed jobs after the separation.
[50] The court is unsure how Mr. Shewaga came to the impression he did having regard to Mr. Belfour’s work history. However, the court is very sure that if Mr. Belfour had not stepped up to support his then very pregnant partner and had not taken her side in the dispute, Mr. Shewaga’s impression would have been much worse. As it is, the court does not accept Mr. Shewaga’s impression of Mr. Belfour as accurate.
[51] As bad as Mr. Shewaga’s impression was of Mr. Belfour, Mrs. Shewaga’s was worse. She confirmed that she and her husband first met Tom when he and Ms. Shewaga were moving in together. She described him as very quiet, sloppily dressed and as someone who did not impress them. Mrs. Shewaga indicated that when the couple returned to the London area, both of them were unemployed. She went on to state that Sara could not work because she was very pregnant, but that Sara wanted Tom to be working. Mrs. Shewaga indicated she had no knowledge of whether Mr. Belfour was looking for work in the first two months following Cylus’ birth. However, he was employed full time within six or seven weeks of Cylus’s birth. She too, gave no credit to Mr. Belfour’s supporting her daughter when she was wrongly accused. She simply complained that he was not ambitious enough.
[52] Mrs. Shewaga testified that she learned about the reason for the separation one week after Ms. Shewaga returned to basic training. Her extremely hurtful comment was that,
“.. the experience of going away enlightened her to the fact that she had been the brains and brawn of the operation and now she had an opportunity to move on with her life.”
[53] In Mrs. Shewaga’s opinion, her daughter is more than capable of looking after the child and she believes her daughter will show Cylus a life of commitment and motivation and purpose. She went on to say that Mr. Belfour did not bring the same level of personal motivation to the table and that she was unsure he would provide the same opportunity for the child. She conceded that Mr. Belfour loved Cylus.
[54] During cross examination, Mrs. Shewaga stated that Mr. Belfour was misleading the court when he said he was responsible for the child more than the paternal grandparents. She testified about the care they provided for Cylus after the mother left for basic training toward the end of August 2013 to the end of January 2014, a period of five months. By that time, the lease on the rental property had run, the restaurant business in Port Stanley was closed and Mr. Belfour moved with the child to his parent’s home in London. Mrs. Shewaga admitted that during the time she and her husband were caring for the child, Mr. Belfour dropped the child off at approximately 10 a.m. until 6:30 p.m. She admitted that the child’s day generally started at 6:30 and that the father would have had the full care of him from then until 10 a.m. and then again from 6:30 p.m. to the next day. In the course of an average week, that would place Cylus in his grandparent’s care for approximately 40 out of 168 hours. Even accepting that the Shewagas may have had Cylus in their care at other times, it certainly was not the 80 – 85% they wanted the court to believe.
[55] Sadly none of the Shewaga’s gave Mr. Belfour credit for anything he has done since the separation, including being employed full time, arranging day care for his son and caring for him basically alone for more than two years as of the time of trial. Despite testifying that he was heartbroken by the separation, at no time did he abandon his son to the full time care of anyone, but did what he had to do to ensure that Cylus was well cared for and loved.
[56] By comparison, Mr. Belfour’s mother described meeting Ms. Shewaga in 2010. She described her as a very pleasant young lady, interesting to talk to and very self-assured. During the early months of basic training, Mrs. Belfour-Barnett stated that she communicated with Ms. Shewaga by text messages and noted that she was concerned about her health. She admitted that she has not had communication with her since the separation, but denied getting a telephone call from her. Mrs. Belfour-Barnette testified that she would have responded to Ms. Shewaga had she got such a call and that she was “not in the business of excluding people from my life.”
[57] Mrs. Belfour-Barnett testified that when Ms. Shewaga ended the relationship and returned to training, she was concerned about her son. She testified that the effect of the separation on Mr. Belfour was ‘astonishing’. She stated that he was shocked that Ms. Shewaga was asking him not to be a part of her life anymore and that he was left to deal with the four dogs, a home and the child. Mrs. Belfour-Barnett and her husband urged Mr. Belfour to come to London to live with them. They fixed up the basement so that Mr. Belfour and Cylus would have a bathroom, bedroom and living space that was their private area in the home. Mr. Belfour and Cylus moved into the home in February 2014. Before he could do so, he found homes for the dogs owned by him and Ms. Shewaga.
[58] Although Mrs. Belfour-Barnett and Mr. Barnett were disappointed about the separation and questioned whether it was the best way for Ms. Shewaga to obtain her training and were concerned about Mr. Belfour, they did not criticize Ms. Shewaga in any way. The disrespectful attitude of the Shewaga’s to the child’s father raises serious concerns that if the child was not in his care, there would be much enthusiasm or effort in ensuring his contact with the child.
[59] Both of these parents are more than capable of caring for Cylus. Both of them love Cylus very much. Although counsel argued that Ms. Shewaga’s plan of care for Cylus is superior to Mr. Belfour’s plan, there is really very little difference between the plans. Ms. Shewaga lives on base in a rented three bedroom home. Mr. Belfour lives in St. Thomas in a rented two bedroom home. She lives with her new husband, whom she married in January 2016. Mr. Belfour moved in with his new partner in November 2015. Cylus would attend day care in Petawawa and go to school there. Cylus attends day care in St. Thomas and would go to school there. The physical aspects of the plans of the parents are of little assistance in determining where it would be best for Cylus to live.
[60] However, when one considers the length of time the child has lived in a stable home environment, it is the father who has provided the stability for his son. Ms. Shewaga planned out her career very carefully and she has worked very hard to complete her training. However, her efforts were greatly assisted by the fact that Mr. Belfour was willing and able to become a single parent to their son so that she could be away from their home and their son. He did not initially support the plan 100%, but not because he would have to care for Cylus, but because he was worried that his partner of many years and the mother of his child could be hurt or killed and because he knew how much he and Cylus would miss her.
[61] Ms. Shewaga complained that Mr. Belfour did not provide a stable home for the child because he moved out of their rental home, to London to live with his parents, and then almost two years later moved out into another rental home with his girlfriend. At the time of the first move, Ms. Shewaga had unilaterally and without warning ended their five year relationship. Although there was some suggestion that Ms. Shewaga ended the relationship due to the condition of the home, Mr. Belfour stated that she had never complained before and none of the other witnesses made any comment on the state of the home in which Mr. Belfour lived with Cylus.
[62] Following the separation, there was no reason for Mr. Belfour to remain in the St. Thomas/Port Stanley area or in the home he had shared with Ms. Shewaga. His family lived in London. There was no restaurant work in the winter time in Port Stanley. He and Ms. Shewaga has built up a significant debt load and Mr. and Mrs. Shewaga certainly did not think much of him. When his mother offered her home to Mr. Belfour and the child, rent free, the move was both practical and provided Mr. Belfour with emotional support.
[63] Mr. Belfour and Cylus lived with his parents for almost two years. They then moved back to St. Thomas and are residing in a rental home with Sara Wissink and her daughter. In all, Mr. Belfour has moved twice since the separation in 2013. For her training, Ms. Shewaga was required to live in Quebec, Borden, Meaford, Moncton, London, back to Borden and then Petawawa. There was also a possibility that she would be posted to Halifax. Ms. Shewaga had to ‘grieve’ that decision in order to remain as close to her son as possible. That location was Petawawa. The court acknowledges that Ms. Shewaga’s moves were a result of her military training and completely out of her control. The fact is that if the parties had remained together as a family, there is a strong possibility that Cylus would have moved more than twice since 2013 and a far greater possibility that he would potentially move many more times while in the care of Ms. Shewaga if she remains in the Armed Forces.
[64] The first time Cylus moved was the end of January 2014. He was only one year old. It is very likely that within a few days Cylus would have forgotten his old home and settled into the new one. The next move occurred just before his third birthday. Not only did he move with his father, with whom he had always lived, he moved into a home with Ms. Wissink who he had spent time with for more than a year and her daughter Lily. The evidence was that Cylus and Lily have a close relationship.
[65] Stability for a child rests in the people he/she sees on a daily basis, the routines both out of the home and in the home and the love he or she is given each day. Stability does not rest in a house. Just as the court would not fault Ms. Shewaga from having to move around the country to fulfill her military duty, the court does not find fault in the two moves that Mr. Belfour has made since the separation. He and his mother made it clear, that his sole focus during all of this time was Cylus and despite how heartbroken he may have been by Ms. Shewaga’s sudden departure, he testified that he made sure that Cylus would not ever be aware of how he was feeling. Cylus has been provided with a great deal of stability, mostly by living with his father.
[66] By this the court does not mean to suggest that Ms. Shewaga has not been a consistent presence in Cylus’ life. During her training, whether in Quebec, Borden, Meaford or Moncton, Ms. Shewaga visited with Cylus every opportunity that she could. She travelled to the London area regularly to spend time with her son. She complained that she had to do all of the travelling and pay all of the costs of travelling in order to visit with Cylus. When Ms. Shewaga visited in the London area, she resided at her parent’s home. Mr. Belfour acknowledged the listing of times Ms. Shewaga visited with the child, although he testified that the length of many of the visits was exaggerated. He noted that he always made the child available for his mother’s visits and would often drop him off at her parents’ home so that he would be there when she arrived.
[67] Mr. Belfour testified that if would have been difficult for him to take the child to wherever Ms. Shewaga was. Such a trip would mean two of them would have to travel, sometimes for hours in a car and that when he arrived at the place Ms. Shewaga was residing, he would either have to turn around and drive home or would have to spend a weekend in a hotel. While it is correct that Ms. Shewaga paid for all of the travelling expenses during the period since separation, it is also correct that she paid nothing for the support of the child while he lived in Mr. Belfour’s care.
[68] With respect to the ability and willingness to provide the child with guidance and education and necessaries of life, both parents are equally capable of doing so. Ms. Shewaga’s parents are understandably proud of her and believes that she is much more ambitious and goes after what she wants in life and achieves it. They believe that only she will be able to teach Cylus a life of “commitment and motivation and purpose”. The court does not fault them for supporting their daughter.
[69] But while Mr. Belfour is described as a quiet man, which is not necessarily a negative thing, he is also described as caring, loving and easy going. Despite the Shewaga’s attempt to paint Mr. Belfour as shiftless and lazy, he has been employed since his teen years. He was successful in the restaurant business moving up in terms of positions and responsibility. Had he not been obliged to leave the job in Toronto, he might well have owned a portion of one or more restaurants by this time. Similarly, he took a job a Weedman and has been slowly moving up in positions and responsibilities. He testified that he has told his boss that he is coming after his job. Mr. Belfour might not have accepted the direction of Ms. Shewaga and her father in terms of the types of employment they thought he should have, but he has remained employed, appears to be a steady worker who has never been fired from a job and has been the sole support of his son since January 2014. He certainly has shown a very strong commitment to Cylus. Further, at the time of trial, both he and Ms. Shewaga were earning approximately the same amount of income, at $50,000.00 per year. It appears that Mr. Belfour has been as successful in his career to date as has Ms. Shewaga.
[70] As indicated earlier, the plans of both parents for raising Cylus is very similar. Both parents live in a two parent household; both have to work outside the home; both intend to use daycare until Cylus attends school; and both have schools that Cylus can attend in the neighbourhood in which they live. Ms. Shewaga believes her plan is better because she lives with her husband on a military base that provides recreational facilities and libraries for the military families and provides personal support to them. The St. Thomas/ London area has many recreational and library facilities that families can use and Mr. Belfour has the support of his family in the area. Ms. Shewaga indicated that her day would be over by 3 p.m. and that she would pick Cylus up at day care and take him home. Ms. Wissink can pick both children up no later than 5 p.m. and sometimes earlier when she has no more patients to see. The similarities between the plans of the parents is such that this would not be a deciding factor in who should have primary residence of Cylus.
[71] If Cylus was to live with his mother in Petawawa, he would be moving away from his entire family in southwestern Ontario. Both sets of grandparents live in the London area. Both see Cylus regularly. Despite, the Shewaga’s disdain for Mr. Belfour, Mrs. Shewaga stated that she would provide backup care for Cylus if it was needed and that that would never change. Since Mr. Belfour began dating Ms. Wissink, Cylus has another member of his family with whom he is close. He and Lily are six months apart in age. They attend the same day care together and will attend the same school together, although Lily will go to school one year earlier than Cylus. There is no blood tie between Cylus and Ms. Wissink or Lily, but they are part of his daily life and need to be factored in as one of the many changes Cylus would have to deal with if he was moved to his mother’s care.
[72] Both parents are capable of acting as a parent to the child. Ms. Shewaga handled most of the child’s care for the first eight months of the child’s life and since the beginning of 2016 has shared custody of Cylus with Mr. Belfour on a two week on/ two week off schedule. Mr. Belfour has proven himself to be more than capable to act as a parent to the child. Notwithstanding his shock and heartbreak over Ms. Shewaga’s summary termination of their relationship, he took the necessary steps to ensure that Cylus was unaware of his emotions and continued to meet all of his needs. The parents, grandparents and Ms. Wissink all described Cylus in a very positive way. Various descriptions included: “well spoken, courageous little boy”; “smart little boy, happy, very social, always ahead in his speech”; “very smart boy, matured the way he should have, not backwards or anything, he is a good kid”; “funny, happy, caring, mature for his age, speaks very well, adjustable”. As Mr. Belfour was primarily responsible for Cylus from January 2014 to January 2016, these comments are a testament to his parenting of the child, especially during a very difficult time in 2014.
[73] There are two issues of concern related to the parenting of Cylus. Firstly, Ms. Shewaga is a member of the Canadian Armed Forces. She could at any time be deployed or sent on exercises. She testified that she and her husband would never be deployed at the same time, but in fairness, Mr. Turner met Cylus one a year ago. At the time of the marriage in January 2016, he was posted at Borden during the week and home only on weekends and as such had not spent a lot of time with Cylus. His evidence was that his training at Borden would be completed in July 2016, at which time he would be living full time in Petawawa. As such, his involvement with Cylus has been fairly limited. If Ms. Shewaga was deployed or sent on exercises it was unclear whether she would send Cylus to his father or expect Mr. Turner to care for Cylus in Petawawa. Ms. Shewaga also testified that she and Mr. Turner could be moved somewhere else in Canada. She noted that this would not be done without further training, but there is no guarantee that Ms. Shewaga will always live in Petawawa. A move to another province or across the country would seriously affect Mr. Belfour’s relationship with the child.
[74] Ms. Shewaga spent some time testifying about the efforts she had made to find work for Mr. Belfour and Ms. Wissink in the Petawawa area. She indicated that it was always the plan of the parents to move with the child to wherever she was posted. She felt that Mr. Belfour had not seriously looked at or considered these opportunities.
[75] There was clear evidence that the parents had discussed and agreed that Mr. Belfour would move to wherever Ms. Shewaga was posted following her training. However, it was also clear that Mr. Belfour expected that move to include an intact family and that he and Cylus would be going to live together with Ms. Shewaga. That plan ended when Ms. Shewaga ended the relationship. It was absolutely finalized when Ms. Shewaga married in January of this year. Even if Mr. Belfour was not involved in another relationship, a move to Petawawa would mean uprooting his life to move to a location where he knows no one except Ms. Shewaga, who is married to another man. He would have to start over at a new place of employment, likely in a lower position and would have to rent accommodations somewhere in the area. While homes and recreational facilities are provided at to the military personnel, Mr. Belfour would receive none of the advantages that Ms. Shewaga spoke of.
[76] In addition, Mr. Belfour is no longer single. He and Ms. Wissink have lived together, at the time of this judgment for approximately nine months. Ms. Shewaga also looked for jobs for Ms. Wissink. But Ms. Wissink does not come without ties to the community. She has a daughter, who spends most weekends with her father. Ms. Wissink has a positive relationship with Lily’s father. She testified that he would not approve of Ms. Wissink moving their daughter to Petawawa. Further, Ms. Wissink has a job she enjoys and does not want to change that job.
[77] The court was left with the impression that Ms. Shewaga took steps to improve her life, education and employability. Although she indicated she did so for Cylus’ sake, the court finds that these steps were taken primarily for her own interests, although over time, they will benefit Cylus. Ms. Shewaga took those step while her son was an infant, depending on Mr. Belfour to take on full responsibility of raising him on his own, with some support from Cylus’ grandparents. During the two years between January 2014 and 2016, it was Mr. Belfour that met all of Cylus’s needs. Ms. Shewaga was not just content that he do so, she needed him to do so, in order to take the steps that would improve her life. Now that she is ready to be a full time parent again, she expects Mr. Belfour, Ms. Wissink and Lily to accommodate her needs and move their lives to Petawawa, despite the fact there is no one and nothing for them there, except potential jobs. They have a life, a home and work that they enjoy here, and it is completely unreasonable for Ms. Shewaga to expect that they will make these changes in order to accommodate her needs. The court wonders if Ms. Shewaga was posted to Halifax whether she would once again expect Mr. Belfour, Ms. Wissink and Lily to move there as well. The father and Ms. Wissink have a stable relationship and home in St. Thomas, and they should not be expected to simply pack up and move to make Ms. Shewaga’s life easier. To suggest such a thing is not child focused.
[78] Finally, Ms. Shewaga complained that Mr. Belfour does not communicate with her as often as he should regarding Cylus and does not immediately answer her texts or emails. She testified that he would often wait two or three days before he responded to her. In cross examination, when the times of response were noted, there were very few times that Mr. Belfour took that much time to respond.
[79] Mr. Belfour testified that he does not live at the end of his telephone and that when he is working, he does not take time to check personal texts and messages. In this age of constant communication, Mr. Belfour may be one of the few people who does not spend all of his time looking at his telephone. This is not necessarily a bad thing. Mr. Belfour indicated that he was aware that communication had to be improved on his end and he had been attempting to do that. When Cylus is not in Ms. Shewaga’s care, she insists on some communication by telephone or Face Time with Cylus and a picture of Cylus each day. While the court might believe this may be excessive, Mr. Belfour had agreed that he would provide better and more immediate communication regarding Cylus to Ms. Shewaga.
[80] Both parents testified that if they resided in the same area, they would be sharing Cylus on a 50/50 basis. Although they have been sharing Cylus on a two week turn around since January 2016, both admit that they will not be able to do so permanently. Cylus will begin school in 2017. He cannot be travelling up and down the highway every two weeks once he is in school full time and such trips must be difficult for such a young child even now.
[81] Ms. Shewaga testified that Petawawa was the closest posting she could obtain in Ontario. Frankly, even if she was posted in Borden which is closer to London, an equal parenting schedule will not be possible once Cylus is in school. Ms. Shewaga testified that she would quit the military if Cylus was not placed in her primary care and move back to the London area. She indicated that such a move would be to Cylus’ detriment because she would have no employment in the area. The court is unsure whether a soldier can simply walk away from the military after receiving two years of training. One would think that such a soldier would have to commit to a length of service to pay for that training. No evidence from the military was provided on this point. Ms. Shewaga’s statement felt very much like an empty threat to push the court into placing Cylus in her care, rather than having her give up her dream to be a medical technician.
[82] Ms. Shewaga need not give up her dream. Both she and Mr. Belfour testified that each of them would want as much time with Cylus if he was not in his or her care. It was abundantly clear, that each of them would ensure that Cylus spent as much time with the other, while maintaining his primary residence with one of them.
[83] With respect to travel for the purpose of access, Ms. Shewaga complained that she had done all of the travelling and had borne all of the costs of travel to see Cylus. There is no doubt that the parents will have to share this duty in order that Cylus can have maximum contact with the other parent.
[84] Under all of these circumstances, the court finds that it is in Cylus’ best interests to remain in the primary care of his father, with access to the mother.
[85] The remaining issue is one of child support and s. 7 expenses. Coupled with this is the issue of medical and extended health benefits. Ms. Shewaga indicated that she could only have Cylus on her benefits if he was with her 75% of the time. She provided no evidence in the form of a benefits package to support this claim. The court finds it very strange that a parent in a separated or divorced situation would not have benefits to cover his or her children unless they resided with that parent 75% of the time. Almost all companies that provide benefits to their employs cover dependent children whether they live in the care of that parent or not. It seems very strange that the military would disallow dependent children of their member just because of a residency requirement. In any event, Mr. Belfour indicated that he would have benefits in May 2016 and would be ensuring that Cylus was covered.
[86] Cylus is entitled to child support from both of his parents. Mr. Belfour claimed child support and contribution to day care costs for 2014 and 2015 and going forward. The court has not considered child support for the year 2013, because until she returned home in December 2013, the parents and child were an intact family.
[87] In 2014, Ms. Shewaga’s income was $37,475.00. On this amount, she would have been liable for monthly support at the rate of $330 per month or $3,960 for the year. The net day care expenses according to Divorce Mate calculations filed by Mr. Belfour showed day care costs of $8,063, with a deduction of $7,000. This would leave a net result of $1,063.00. There was no explanation why Divorce Mate showed the full deduction for the day care of $7,000 but then calculated contribution of $410 per month by Ms. Shewaga representing her 62.5% share. Perhaps the tool provides for the amount that each parent would pay assuming the deduction would be shared by both parents. In any event, it appears that the full deduction would be Mr. Belfour’s to claim and as such the mother would owe him for her share of the net expenses for child care the sum of $664.00. The total owing in 2014 would be $4,624.00.
[88] From January 2014, Ms. Shewaga was home recuperating from injuries suffered in basic training. During that period the parents shared custody of the child 50/50. She returned to training in April 2014. That would eliminate $990 in child support, reducing the total owed for 2014 to $3,634.00. Ms. Shewaga provided evidence of the number of times she travelled to the London area in 2014 to visit Cylus. The total shown in Exhibit #1 was $3,032.00. If this is subtracted from the support owing, Ms. Shewaga owes to Mr. Belfour the sum of $602.00 for the year 2014.
[89] In 2015 Ms. Shewaga earned $44,054.00. Child support on that income would have been $398.00 per month or $4,776.00 for the year. There was no claim for s. 7 expenses because Mr. Belfour was able to obtain subsidized day care for Cylus. According to Exhibit # 1, Ms. Shewaga spent $4,700.00 in travel expenses to visit with Cylus in 2015. As a result the difference is only $76.00 for that year.
[90] Going forward, the parties both testified that they were earning approximately $50,000 per annum. Cylus has been in a shared custody situation since the beginning of 2016. Therefore there will be no child support or s. 7 expenses assessed. The parties may continue the shared custody situation until September 2nd, 2016, at which time Cylus will remain in the primary care of his father. Child support will be assessed based on Ms. Shewaga’s income of $50,000.00 per year in the amount of $450.00 per month. As the parties will be sharing the travel expenses related to the child’s visits with his mother, there will be no adjustment to the support. Further the parties will share net s.7 expenses on a 50/50 % basis. So long as Cylus is entitled to subsidized day care, there will be no contribution to that amount. However, if the subsidized day care ends as a result of child support being paid, then both parents will share equally in that net cost. Mr. Belfour will be entitled to claim the child as a dependent on his income tax return and be eligible to receive the full amount of the universal child tax credit.
[91] For the reasons set out above, the following final order will issue:
Final Order
The parents, Sara Shewaga and Thomas Belfour will have joint custody of the child, Cylus Belfour, born January 12, 2013, with the child having his primary residence with the respondent, Thomas Belfour.
Commencing September 1, 2016, the applicant, Sara Shewaga shall have access to the child as follows: a) One weekend per month in Petawawa from Friday at 7:00 p.m. until Sunday at 7:00 p.m. or Monday at 7 p.m. if such access occurs on a long weekend; b) One additional weekend per month in the London area from Friday at 7:00 p.m. to Sunday at 7:00 p.m. or Monday at 7 p.m. if such access occurs on a long weekend; c) The mother shall advise the father by the15th day of each preceding month, which weekends she intends to have access to the child in the next month; d) Every March break commencing in 2017 from Friday at 7:00 p.m. at the start of the March break until Sunday at 7:00 at 7 p.m. following the end of March break; e) Commencing in 2016 and in every even numbered year thereafter, the applicant will have the child in her care from Christmas Day at 1:00 p.m. to Boxing Day at 6:00 p.m. The child will be in his father’s care in even numbered years from Christmas Eve at noon until Christmas Day at 1:00 p.m. f) Commencing in 2017 and in every odd numbered year thereafter, the applicant will have the child in her care from Christmas Eve at 1:00 p.m. until Christmas Day at 1:00 p.m., the child will be in his father’s care in odd numbered years from Christmas Day at 1:00 p.m. to Boxing Day at 6:00 p.m. g) The balance of the Christmas school holiday will be divided equally by the parents. h) Commencing in July 2017, the parties will have equal time with the child during July and August. While Cylus is under the age of ten, the time will be split two weeks on/two weeks off, with the mother picking the first two weeks in odd numbered years and the father picking the first two weeks in even numbered years. Once Cylus has reached the age of ten, the parties may continue this summer schedule or change it to one month on and one month off, with the mother picking the month she chooses by June 1 of each odd numbered year and the father picking the month he chooses by June 1 of each even numbered year. During the summer months the regular weekend access will be suspended. i) Such further and other times as the parties may agree. j) Paragraphs 1, 2, 3, and 4 of the order dated April 14, 2016 will be incorporated into this final order.
For all access that is to occur in Petawawa, the parents will share the transportation. They will choose a location near the highway in Peterborough and will meet there to exchange Cylus. If the parents are unable to arrive in Peterborough by 7:00 p.m. on the Friday at the commencement of access due to work related activities, that parent will notify the other as soon as they are aware of the difficulty and arrange for a different time to exchange Cylus at the beginning of the weekend or holiday access. The exchange of Cylus at the end of access should occur on time or as close to on time as possible. Any delay caused by traffic is to be communicated to the other parent immediately.
The parents will notify the other immediately of any medical emergency that occurs regarding Cylus while he is in either the father’s or mother’s care. Each parent will provide to the other updated addresses, telephone numbers and email addresses if and when they are changed.
Commencing September 1, 2016 and on the first day of each month thereafter, the applicant mother will pay child support to the respondent father for the child Cylus Belfour born January 12, 2013 in the amount of $450.00 each month, based on the Child Support Guidelines, and her estimated income of $50,000.00 per year.
The parents shall share s. 7 expenses on a 50/50 basis. The respondent will advise the mother of such expenses and provide written proof that such expenses have been paid and the mother will pay her 50% share of such expenses within 30 days. For discretionary s. 7 expenses such as extra-curricular activities, the respondent will discuss such activities with the mother and obtain her consent in advance, such consent not to be unreasonably withheld, prior to registering Cylus in such activities. The father may register Cylus in extra-curricular activities without the mother’s consent where he seeks no contribution from her and where such activities will not interfere with the mother’s access.
The applicant will pay the additional sum of $678.00 at the rate of $75.00 per month commencing September 1, 2016 and payable on the first day of each month until the sum of $678.00 is paid in full, representing support and s. 7 payments less travel expenses for the years 2014 and 2015.
The parents will exchange Income Tax Returns and Notices of Assessment and Notices of Reassessment, if applicable, by June 1 of each year commencing in 2017. Child support and s.7 contribution will be adjusted on consent based on the information in the Income Tax returns by July 1 of each year.
If the parties cannot settle the issue of costs, they may make written submissions limited to 5 pages. The respondent will serve and file his submissions on or before September 30, 2016. The applicant will serve and file her submissions on or before October 28, 2016. Any reply submissions, (if necessary) will be served and file on or before November 15, 2016.
“Justice Margaret McSorley” Justice Margaret McSorley
Released: August 22, 2016
COURT FILE NO.: F98 - 15 DATE: 2016/08/22 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Sara Elizabeth Shewaga Applicant
- and - Thomas Jason Belfour Respondent REASONS FOR JUDGMENT McSORLEY J. Released: 2016/ 08/ 22