COURT FILE NO.: FC-15-2316 DATE: 2016/10/11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NADINE LACHAPELLE Applicant – and – REBECCA LEBLANC Respondent
Karen Pelletier, counsel for the Applicant Cecil Lyon, counsel for the Respondent
HEARD: In Writing
Endorsement
SHELSTON J.
Overview
[1] On September 13, 2016, the parties appeared before me seeking various claims of temporary relief. I released my decision on part of the issues in Lachapelle v. Leblanc 2016 ONSC 5928. The remaining issues of child support, spousal support, a parenting assessment and costs were to be reserved as I requested further information from the parties. Such information was to be provided no later than September 30, 2016 with the issue of costs to be reserved until I had ruled on all issues. The parties have provided me with the supplementary information.
Assessment
[2] At the centre of this custody dispute is Lili Ella Lachapelle-Leblanc (“the child”) born December 21, 2010. Both the Applicant (”Nadine”) and the Respondent (“Rebecca”) seek custody of the child and have agreed to maintain the current physical sharing scheme of the child. The parties are requesting an assessment to assist the Court in arriving at a decision regarding the child.
[3] I requested that the parties provide the name and qualification of proposed assessors. Nadine has provided three names. Rebecca has provided one name. It is important to note that Nadine and her counsel are bilingual while Rebecca and her counsel are not. During the course of the argument of the motion, Rebecca required the assistance of a translator. This issue of language is a factor, according to Rebecca, that I must consider in making my decision as to which assessor to appoint.
[4] Nadine proposes the following assessors:
a) Dr. Pérusse is a bilingual psychologist in the city of Montreal who has conducted over 1200 parenting capacity assessment in the Quebec Superior Court and Youth Court. She could start the assessment in November and complete it by January 2017. She writes her reports in French. The parties will have to travel to Montreal but the amount of trips can be reduced from four to three. She can meet with the parties and translate and explain her report and recommendations. She estimates that the cost of the assessment would be $6000.
a) Marie-Josée Mercier is also a bilingual psychologist in the city of Montreal who has conducted over 700 parenting capacity assessments in child protection proceedings and family proceedings in the Quebec Superior Court and Youth Court. She is willing to travel to Ottawa but additional meeting may require the parties to travel to Montreal She writes her reports in French. She estimates the cost of the assessment to be $8000 not including travel expenses of coming to Ottawa. She plans to meet parties as well as the children between four and six times. She can start in November and provided no estimated completion date.
b) Lucia Fernadez is a bilingual psychologist in the city of Montreal who has conducted parenting capacity assessments in the Québec Superior Court and Youth Court. She could start the assessment in November and have it completed by January 2017. She is bilingual but her report would be in French with an explanation to an Anglophone person. The cost of the assessment would be $7500, but that does not include other expenses such as travel expenses, telephone conference calls, office rental in Gatineau and hotel expenses. She can start in November and be finished in January 2017.
[5] Rebecca has provided the name of one assessor being Valerie Morinville who has a Masters degree in Social Work from Carleton University and a Bachelor degree in Social Work from the University of Manitoba. She is bilingual and has an extensive background in social work, but since April 2006, she has been preparing custody and access evaluations, parenting mediation and couple counselling for private clients, the Office of the Children’s Lawyer and the Mental Health Commissioner of Canada. She can start in early October 2016 and would complete the assessment in a period of 3 to 5 months. She estimates that the lower end of the cost of the assessment would be $8000.
[6] Both parents request a parenting capacity assessment to have a thorough investigation regarding each parents respective parenting skills.
[7] This is clearly a high conflict file. Both parties make significant allegations against each other and have difficulty in agreeing on what is best for their daughter. The parties have disagreed about drop off times, parenting issues, and the selection of the dentist. The Ottawa Police Service and the Children’s Aid Society of Ottawa have been involved with this family.
[8] In my view, one of the prerequisites for the assessor in this proceeding is someone who has the ability to conduct psychological testing, interpret the results and provide an opinion on that individual. The allegations made by both parents are serious and raise issues about the child’s psychological well-being. Consequently, a psychologist must be retained.
[9] The second prerequisite is that the person must be functionally bilingual to be able to interview the parties, receive written information, contact collateral witnesses and communicate with the parties.
[10] The third prerequisite is that the report be completed within a reasonable period of time. Having the report by January 2017 is a reasonable period of time.
[11] I appoint Ms. Pérusse as the assessor in this proceeding. I do so because of her extensive experience in preparing parenting capacity assessments in a litigation setting, her cost estimate and her reasonable commencement and completion date.
[12] With respect to the cost of the assessment, I order that both Nadine and Rebecca equally pay for the cost of the assessment without prejudice to claiming such costs as part of their final cost submissions in this matter.
[13] I am cognizant of the fact that Rebecca and her lawyer do not speak or understand the French language. At a hearing, this can be alleviated with use of translation services. However, once the report is received, they have the right to be able to understand and read the report.
[14] On the issue of the translation of her report, I order the parties to equally share in obtaining a written translation of the parenting capacity assessment from French into English. Further, the French version of the report is not to be released to the parties until the report is translated from French to English. While I expect that this will delay the release of the report, a fundamental right of each litigant is to receive the report in a language that they can understand.
Child Support
[15] Both parties provided me with child support calculations. Based on Nadine’s employment income of $101,504, less union dues of $576, her income for child support purposes is set at $100,929. Rebecca’s income is $43,861 based on a projected income for 2016 as set out in her financial statement sworn August 26, 2016.
[16] Based on Lili being shared equally between the parties, the parties have used the set-off amount of some child support at $498 per month. Rebecca argues that the child support may or may not be the set-off amount and submits that the Court cannot undertake the analysis required in s. 9 of the Federal Child Support Guidelines because Nadine has not provided a childcare budget. I agree that I do not have sufficient information to conduct that analysis, but at this stage, without the evidence, I order Nadine to pay Rebecca the sum of $498 per month for child support. This order is without prejudice to Rebecca arguing at trial that the amount of child support retroactive to December 2015 should be calculated after the s. 9 analysis is conducted at trial.
[17] With respect to the commencement date of the child support, Rebecca submits it should be retroactive to March 1, 2016. Nadine, in her notice of motion returnable June 2016, requests the commencement date of March 1, 2016. I order the child support to commence as of March 1, 2016 and credit is to be provided to Nadine for any payments made after that date.
Spousal Support
[18] The parties started living together in August 1, 2007 and separated on July 17, 2015. During these eight years, they had one child of the relationship, Lili.
[19] Nadine is employed with the federal government and in 2015 earned $101,500. Rebecca is a teacher with the Ottawa Catholic School Board and in 2015 earned $34,308, but estimates that in 2016 her income will be $43,861.20.
[20] Rebecca has a bachelor’s degree in political science and in law. She has a bachelor’s degree in education and is a member of the Ontario College of teachers. When Lili was born in December 2010, Nadine went on maternity leave for 12 months returning on December 12, 2011. During this time Rebecca was a supply teacher the Ottawa Catholic School Board working part time and caring for Lili.
[21] Nadine’s income was the main source of income for the parties after the birth of Lili. Rebecca’s efforts were acknowledged by Nadine in an email dated September 2014 about her child rearing role as well as assuming the majority of the domestic functions of the relationship.
[22] I find that Rebecca has made a prima facie case of entitlement for spousal support based on the length of the relationship being eight years, the economic disparity in the party’s incomes and the economic dependence by Rebecca on Nadine and the roles assumed by the parties in the relationship with respect to Lili.
[23] I have reviewed and considered the Spousal Support Advisory Guidelines. I find that where the parents share the physical custody of a young child, the parents should have an equal net disposable income at least on a temporary basis. In reviewing the Spousal Support Advisory Guidelines calculations prepared by Nadine, a payment of $746 per month would result in each party having an equal net disposable income. On the other hand, in reviewing Rebecca’s calculations, the payment of $1463 per month would result in equal net disposable income. The calculations differ because each party has entered different deductions and additions such as the amount of s. 7 expenses, whether or not to insert a deduction for RPP, RRSP and the insertion of daycare expenses for Rebecca.
[24] Considering that this is a temporary order, I order Nadine to pay Rebecca, on a without prejudice basis, the sum of $1200 per month for spousal support commencing March 1, 2016 less any payments made since March 1, 2016.
Section 7 Expense
[25] At the motion on September 13, 2016, the parties agreed that the only s. 7 expense to be considered at this juncture in the litigation is $370 per month for daycare expenses for the child. The amount to be contributed to by the parties is intertwined with spousal support.
[26] Having decided the amount of spousal support to be $1200 per month payable by Nadine to Rebecca, I order Rebecca to pay Nadine, on a without prejudice basis, the sum of $125 per month as her contribution to the s. 7 expense of daycare retroactive to March 1, 2016.
Costs
[27] If the parties are unable to resolve the issue of costs, Nadine is to provide me with her cost submissions not to exceed two pages plus a detailed bill of costs and any offers to settle by October 21, 2016. Rebecca shall provide me with her cost submissions not to exceed two pages plus a detailed bill of cost and any offers to settle by November 5, 2016.
Shelston J.
Released: October 11, 2016
COURT FILE NO.: FC-15-2316 DATE: 2016/10/11 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: NADINE LACHAPELLE Applicant – and – REBECCA LEBLANC Respondent ENDORSEMENT Shelston J.