Court File and Parties

COURT FILE NO.: FC-15-2657 DATE: 2016/09/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amber Nagle, Applicant AND David Demers, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Tanya Parker Wallace, for the Applicant Karen Pelletier as agent for Yanik S. Guilbault, for the Respondent

HEARD: August 25, 2016

Endorsement

1This is a motion brought by the respondent father seeking an interim order for joint custody of the child of the relationship and an order that the child spends equal time with each parent.

2The applicant mother brings a motion for an order which provides that the father would have the child in his care on Mondays and Thursdays from 3 p.m. to 7 p.m. and every Friday from 4 p.m. to Saturday at 4 p.m., and monthly spousal support in the amount of $2,000. She does not object to an order for interim joint custody.

3The father opposes the motion for spousal support.

[4] The issues are: − What parenting schedule is in Chase’s best interests? and − Is the mother entitled to spousal support and if so, in what amount?

Background

[5] The parties cohabited from February 2014 to November 3, 2015. Chase was born on May 5, 2014. Since December 2015, the child has lived with his mother and pursuant to an interim interim without prejudice agreement the father pursuant has care of the child as follows: − Every second Monday after Montessori School at 4 p.m. to Tuesday morning; − Every other Monday and every Thursday from 4 p.m. after Montessori School to 7 pm at a drop off location as agreed between the parties; − Every Friday from 4 p.m. to Saturday at 4 p.m., and − Any other access agreed to by the parties.

6Chase attends Bishop Hamilton Montessori School. He is well adjusted but can experience periods of anxiety with changes of routine.

7The father owns local restaurants and his income is $123,000 per year. The mother is a student finishing her degree in nursing and her income is approximately $12,000.

8On December 2, 2015, the mother moved from the family residence without the father’s consent with the child and moved in with her mother and stepfather. She moved her belongings while the father was at work. The mother alleges that she left because the tension and stress in the family home were increasing and the father was becoming verbally abusive. This is denied by the father.

9The parties attended mediation and, on a without prejudice basis, agreed to the current schedule for Chase.

10A disclosure meeting with the clinical investigator Nadine Crowley from the Official Children’s Lawyer’s office took place on June 28, 2016. On July 21, 2016, the Children’s Lawyer prepared a social worker report. The father has filed a dispute to the findings and recommendations contained in the report.

11During cohabitation, the father would drive the child to daycare. The mother would pick the child after daycare and arrange dinner, bath time and bedtime routine. She would prepare matters for the next day. The father had a busy work schedule that would, at times, see him return late from work. The father admits that the mother has been the main caregiver.

12The mother submits that poor communications exist between the parties, leading to misunderstandings. She alleges that the father also harbors anger towards her and refuses to speak to her with respect to parenting routines, advising her of incidents regarding Chase during his time with the child or passing on relevant information.

13The father submits that the mother has unreasonably denied him time with his son.

What parenting schedule is in Chase’s best interests?

Father’s position

14The father submits that it is in Chase’s best interests that he has equal time with both parents. The mother unilaterally created the status quo by leaving their residence with the child.

15The Court should consider the status quo prior to separation when both parents were equally involved with the child.

16The father disputes that the child has shown signs of distress and further confirms that the OCL did not directly observe this distress.

17The mother has restricted the child’s time with his father despite telling the OCL she wishes to support the relationship between the father and the child.

18The father moved with 10 minutes from the mother’s residence in order to be closer to the mother’s residence and his son’s school. He has a stable routine with Chase which includes a healthy snack after school, dinner, play, bath, TV and bedtime routine. In the morning after breakfast, the father takes him to school. On Saturdays, he visits the paternal grandmother’s home.

19The father has been extensively involved in the child’s life from birth. The child should have maximum contact with each parent.

Mother’s Position

20The mother sets out her concerns of the current schedule and how it is not in Chase’s best interests to increase time with his father at this time. In fact, she wishes to terminate the overnight visit on Mondays.

[21] She states that: − Chase comes home overtired and is unable to regulate his emotions after overnight visits with his father,; − He can become aggressive and destructive with toys; − He has difficulty sleeping for the next 2 or 3 nights after an overnight with his father; − He exhibits separation anxiety when dropped off at his father’s home and his Montessori teacher; and − He responds to cuddling and breastfeeding as a source of comfort.

22She is also worried that the father refuses to follow Chase’s routine, making changes to the schedule due to his work commitments and he introduces new partners to the child.

Legal Principles

23In determining the custody and access, the Court must determine the child’s best interests in accordance with the section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA):

(1) The Court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .

Analysis

24The Court must consider what is in Chase’s current best interests.

25The Court is not bound by the current status quo created by the mother. As per Button v. Konieczny, 2012 ONSC 5613, when a without prejudice agreement has been entered into, the court should consider the status quo as it existed prior to the agreement. The Court will not necessarily ignore the current situation, but will disregard it if it is not in the child’s best interests.

26In addition, as stated in Z.B. v. J.T., 2012 ONCJ 152 assessments should not be relied on interim motions except in exceptional circumstances. The Court can however rely on observations and evidence of the assessor as opposed to the conclusions.

27The father is contesting the observations of the clinical investigator.

28As a business owner, the father has certain responsibilities but maintains that as self-employed, he has a flexible work schedule.

29The father was actively involved with Chase and the mother even while she was on maternity leave, was attending school and the child was in part-time daycare.

30After the mother left the family home, the father purchased a duplicate copy of the children’s items in order that he would have those available when Chase stayed with him.

31He admitted to the OCL that Chase is a sensitive child who has difficulty managing change, but did not witness the anxiety reported by the mother.

32Ms. Malandra, the caregiver remarked to the OCL that after the separation the child became more aggressive. She told the mother that the lack of a daily routine was causing changes to his behaviour.

33The third party collaterals do speak of both parents’ involvement with the child. The director at Bishop Hamilton Montessori School observed separation anxiety at the beginning of the school session when dropped off by his mother.

[34] The Court considers the following: (1) Face to face transitions between the parties appear to be stressful for the child. This parental conflict can be detrimental to the child. (2) The child is having trouble with transitions. The changes in care and location affect this child and according to the mother, he is becoming more anxious. (3) This child has many changes and transitions in Chase’s life including attending a private home day care on a part-time basis in April 2015, then mother moving out of the family residence in December 2015, and then in January 2016, moving into a new home. In March 2016 he was placed into a new daycare. (4) In May 2016 the child’s schedule with the father was changed to two overnight stays per week. (5) The OCL report speaks of the child’s irritable and angry behaviour towards his mother upon his return from overnight visits with his father. (6) The child has a loving relationship with both parents. However, the Court finds that the child does not cope with change. There have been too many changes in this child’s life.

35After the mother left the family home, the father purchased a duplicate copy of the children’s items in order that he would have those available when Chase stayed with him.

36The father has a close and loving relationship with the father. He has been involved and has a lot to offer the child. It is clear that the father was involved with the child during their cohabitation and he is an important person in his life.

37Nevertheless, the father’s involvement must be reviewed in the context of Chase’s best interests and the current situation. He is young, sensitive and not easily adaptable to change.

38Therefore, on an interim basis, the child’s schedule with his father will not change.

39The schedule will continue as per the interim interim agreement signed by the parties.

40The Court is not condoning the mother’s unilateral action of removing the child from the family residence. This Court’s only concern at this interim stage is the child’s best interests and based on the evidence, access will not varied at this time.

Is the mother entitled to spousal support and if so, what is the amount?

Mother’s position

41The mother submits that she is entitled to spousal support. She is in need and entitlement on a non-compensatory basis.

42She is submitting that she is entitled to the low end of the Spousal Support Advisory Guidelines and is requesting $2,000 per month.

43The mother also states that if she does not obtain spousal support, the child will have different standards. She is in need of support and the father has the ability to pay. During cohabitation, she relied on his income to support the family. When they met, she was a waitress in one of his restaurants.

44She is not seeking retroactive spousal support at this time.

Father’s position

45The father denies that this relationship is one of “some permanence as defined in the Family Law Act.

46It was short 19-month relationship and the mother failed to establish that the relationship had any economic impact on her.

47The father said she continued her education and her role during the relationship did not have an economic impact on her. The mother refused to return as a waitress at the restaurant. She did not sacrifice her education or earning potential as a result of the parties’ relationship.

48From the outset, the father stated that he wanted a cohabitation agreement to ensure that she would waive spousal support. The agreement was never signed.

49The mother is healthy and capable of working. The parties cohabited for only 19 months and this was not a relationship of some permanence.

Legal Principles

50The first issue is entitlement and the Court must consider the definition in s. 9 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”):

− spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited : (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29 ; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30 .

51Section 30 stipulates the obligation of spouses for support :

− Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30 ; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7) .

52Section 33(8) stipulates the purposes of order for support of spouse

(8) An order for the support of a spouse should: (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8) ; 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9)

53Section 33(9) sets out the factors in determining the quantum of support.

Analysis

Is the applicant a “spouse”?

54The first issue is whether the parties are spouses as defined in FLA, section 29 which states:

"spouse" means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited: (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

55In Johazi v. Bennett, 2008 ONCJ 805, Justice Sherr examines the issue of what constitutes “a relationship of some permanence”. He refers to DeSouza v. DeSouza (1999), 48 R.F.L. (4th) 63 (OCJ) where the court found that a relationship of six months could still be considered to be a relationship of "some permanence". In DeSouza, the court suggests that it must examine the individual factors of each case to determine this.

56In Johazi, the parties had a relationship of two years and they moved in together one month prior to the child’s birth. There was an intention to form an economic unit, raise the child together and live together long term as a family. The father supported the family. Justice Sherr found that this was a relationship of some permanence.

57In the case at bar, the facts are similar to the Johazi case although the length of cohabitation is slightly less. Therefore, based on the fact that the family became one economic unit, the father supported the mother and child, the father was interested in the execution of a cohabitation agreement as a sign that the intention was to be a couple, the Court concludes that this is a relationship of “some” permanence.

Is the applicant entitled to support?

58The next issue is to determine whether the mother’s entitlement to spousal support

59When the parties commenced their relationship, the mother was working at one of the restaurants, working part-time as a personal trainer and had put her degree on hold. Following the birth of the child, she returned to school part-time to obtain the required courses so she could enter into the nursing program. The father and her mother would care for Chase while she was in school.

60When she was in clinical placement as part of her nursing program in July 2015, she put Chase in full-time daycare.

61She is completing the program on a part-time basis as her medical letter indicates; she cannot do it on a full-time basis.

62She took 1 year maternity leave and did attend courses on a part-time basis.

63She receives $1,060 per month as child support and with her work as a trainer and other party time jobs, expects to earn approximately $15,650 per year.

64She was financially dependent on the father during the relationship

65She states that the child support helps her with rent and that the student loans cover the rest of her expenses. Details of the student loans have not been provided, although two lines of credit are indicated in her financial statement.

66The father’s financial statement shows $3.4M worth of assets and with $2.2M of debts, his net worth being $1.1M according to his financial statements.

67The cohabitation was only 19 months. A child was born of the relationship and certainly the evidence shows that the mother was financially dependent on the father during the relationship. There is certainly a need basis for spousal support.

68The Court finds that she is entitled to spousal support on interim and on a non-compensatory basis.

69Here, the mother has a need for support and the father has the ability to pay it.

70In reviewing the SSAGs, the range is $2,000 to $2,898 per month. The Court accepts that support based on the facts of the relationship, a low range of $2,000 per month commencing September 1, 2016 is appropriate. The issue of retroactive support will remain with the trial Judge.

71If the parties cannot resolve the issue of costs, the applicant may provide a 2-page submission by September 23, 2016 and the respondent a 2-page submission by October 7, 2016.