CITATION: Anderson v. Anderson, 2016 ONSC 6666
COURT FILE NO.: 16-0167
DATE: 2016 October 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMY MICHELLE ANDERSON
Applicant
– and –
CHRISTOPHER BRUCE ANDERSON
Respondent
G. Edward Lloyd, for the Applicant
Neha Chugh, for the Respondent
HEARD: OCTOBER 14, 2016
RULING ON MOTION
PEDLAR J.
[1] This is a motion that was brought prior to a case conference being held, seeking leave to proceed on an urgent basis, which leave I am prepared to grant on all issues in view of the circumstances set out below.
[2] The first motion was brought by the respondent, returnable September 20, 2016. The application had been issued in March by the applicant and served on the respondent on March 23, 2016. The motion returnable September 20 by the respondent was for an order that counsel for the applicant be removed due to a conflict of interest. The motion also sought equal parenting time for the child of the marriage, Addison Deborah Anderson, date of birth September 26, 2013.
[3] The applicant responded with a counter-motion returnable October 14, 2016, listing 14 orders being sought, primarily related to the issues of custody, access and child support.
[4] The motion materials take up 21 tabs of affidavits and supporting exhibits, totalling approximately 400 pages of material. The balance of the material in Volumes 1 and 2 of the Continuing Record are the pleadings.
[5] The parties started living together on or about December of 2010. They were married on June 29, 2013. They separated on or about February 28, 2016. They attempted a reconciliation which did not succeed and the exact date of separation is a matter of dispute, but it was clear that by sometime in June, 2016, they were permanently separated with no reasonable prospect of reconciliation.
[6] At the time the motions were argued on October 14, 2016, I denied the request to have counsel for the applicant removed from the record for oral reasons stated. We then continued on to hear submissions from both counsel with regard to the issues of custody, access and child support. The property issues were referred to briefly but were not the subject matter of the motion.
[7] The applicant is a nurse and has regular full-time employment at a local hospital in a role that does not require her to work shiftwork. She basically works an 8:00 a.m. to 5:00 p.m. work week, Monday to Friday. The respondent is a member of the Ontario Provincial Police and does work 12-hour shifts on a rotating basis.
[8] This is the second marriage for both parties. The respondent declared bankruptcy as the result of issues related to the breakup of his first marriage. That development has resulted in the applicant assuming legal responsibility for what amount to joint debts of the relationship between these parties. Those issues will have to be resolved during the course of these proceedings, but they are not the subject matter of this motion.
[9] Following the birth of the child, the applicant took maternity leave. There was some dispute about when, during that process, the respondent also took paternity leave. That will be a matter that can be easily cleared up through their employment records. The applicant’s position is that she took a full 12 months maternity leave, during the last three months of which the respondent also took paternity leave. His position is that when he took paternity leave, the applicant had returned to work.
[10] I commented at the hearing of the motion that many issues over which the parties now disagree, will be easily proven through the process. They cannot rewrite history and issues such as when the paternity leave is taken, which is not particularly critical at this stage, will be cleared up and may reflect on the credibility of either or both of the parties.
[11] The applicant claims to have been the primary parent of the child prior to separation. Since separation she clearly has been the primary parent. There was a time following separation when there was no access between the respondent and the child. The exact reasons for that are not clear. There are several emails exchanged between the parties and various counsel who were attempting to arrange access. The applicant took the position that as a result of the respondent’s anger and alcohol addiction issues primarily, she was not yet prepared to allow overnight access. She did also attempt to arrange exchanges through the Rose Garden Supervised Access Program, but ultimately agreed to other arrangements, and there has been daytime access weekly that has been put in place between the parties. The applicant also stated, through her counsel, at the hearing of the motion that she has offered and is willing to have daytime access on alternate weekends, with certain conditions in place.
[12] The issues of custody and access are, of course, important to the question of child support. These parties have approximately equal incomes and there is no claim for spousal support. The respondent is claiming a parenting arrangement that would see the child with him in excess of forty percent of the time and, therefore, is seeking an order that there be no child support paid, other than a sharing of the necessary s. 7 expenses, particularly, daycare, which can be apportioned according to the parties’ respective salaries and the time spent with each party with the child in their respective care.
[13] In a proceeding for an interim custody order, the court must attempt to minimize the disruption to the child, on an interim basis, by attempting to determine what the status quo for parenting the child was prior to the separation. That status quo should normally focus on what role each parent played in the life of the child before separation. In the search for the best interests of the child, that approach attempts to minimize the disruption of a child whose world has significantly been turned upside down by the separation of the parents. It is considered to be in the best interests of the child, to maintain the parenting relationships as one constant in the midst of much upheaval in the child’s life.
[14] In this case, the two parties paint a drastically different picture of the father’s parenting role prior to separation. The applicant claims that he was not involved in parenting this child in any significant or substantial way prior to separation. The applicant goes so far as to claim that the respondent is seeking shared custody out of financial motives. She states that at the time of separation, he declared that he would never pay her child support. She also states that during the time that they were together, he would generally choose to pursue social engagements outside the home rather than provide care for the child.
[15] She also claims that the respondent has very little patience with children and has exposed both this child and her two sons from a previous marriage, aged nine and ten years old, to inappropriate foul language and outbursts. She alleges that both her and those two children from her previous marriage have been exposed to fits of rage in the home and at the cottage and while driving in the car, at social events and in public. She claims that an incident of drinking and driving forced her to ban the respondent from driving the child of their marriage in a vehicle with him.
[16] She states the respondent has made claims in this proceeding that far exceed the reality of his involvement as a caregiver for their daughter since her birth. For example, she states that after her return to work following her 12-month maternity leave, her employment was in Kingston and was shiftwork. She states she would commonly take their daughter with her to Kingston and arrange for childcare to take place in Kingston, either by way of a daycare provider or by provision of care by her parents who live in Kingston.
[17] There is a dispute between the parties as to the relationship the respondent has enjoyed with his now adult children. The applicant states that it was virtually non-existent for a considerable period of time. The respondent states that he is now actively part of their lives and he assisted them in moving back to Toronto to continue their university educations there, this past Labour Day weekend. The applicant states she really does not know about his current relationship but that in past years, it has been very strained or non-existent between him and his three children from the prior marriage. Again, that is a matter that can be easily proven as the proceedings unfold.
[18] The applicant claims that the respondent has been harshly critical and rude towards her two children of her previous marriage, who lived with these parties in accordance with the terms of custody and access worked out between the applicant and her first husband. That arrangement includes a rather substantial sharing of the time of the children between her and her former husband. There are allegations about the relationship between the respondent in this case and the applicant’s former husband. The applicant claims there were serious issues which arose between the two of them during pickup and drop-off of the children at the Rose Garden Supervised Access facility. It is not necessary for me to resolve those issues at this time, but again, I assume they can be proven, if necessary, as the matter proceeds. It is notable that there is no claim by the applicant that the respondent ever stood in the place of a parent to those two boys from her first marriage. She is making no claim for support for them from the respondent in this action and he is not seeking any order for access to either of them.
[19] Tabs 13 through 16 of Volume 1 of the Continuing Record are affidavits from family members of the applicant, all of whom support her claim that she was the primary parent prior to separation and all confirm concerning observations they have made of the respondent’s bad temper and abuse of alcohol during the time that the parties lived together.
[20] There are specific incidents of observation of the respondent’s conduct as it relates to the consumption of alcohol as well as specific observation of him in terms of parenting their daughter, who is the subject matter of this motion. There is a consensus amongst those family members with their affidavits that the applicant was the primary parent while the parties resided together since the child’s birth.
[21] The respondent has filed around 250 pages of material, most of which is aimed at attacking the credibility of the applicant. In particular, at Tab 1, he has denied that he has an alcohol problem. He alleges that the applicant has inflated that claim and, further, that she is telling their daughter information that is untrue in order to taint her view of him as her father. The exhibits to his affidavit filed at Tab 1 of Volume 2 of the Continuing Record include a copy of his duty report filed with the Ontario Provincial Police in response to a complaint made by the applicant’s first husband. Exhibit “B” to that affidavit contains reports and other materials provided by the applicant herein in support of his evidence in responding to that complaint.
[22] Exhibit “C” is the report of the Family Court assessor, Ron Stewart, who made a number of conclusions with respect to the applicant’s credibility in the course of preparing an assessment regarding custody and access of the two sons from the applicant’s first marriage. Exhibit “D” has notes from the Family and Children’s Services of Leeds and Lanark Counties following an investigation into the theft of the respondent’s wallet and OPP badge allegedly by the applicant.
[23] Exhibit “F” is a receipt from the daycare to show that he made one payment on September 7, 2016, contrary to her affidavit that he had never paid anything. That affidavit is dated September 28, 2016 and her reply is that she was not aware of the payment being made at the time she swore the affidavit.
[24] Exhibit “G” is email correspondence showing attempts to try and make arrangements for access with the child on June 6, 2016, within days of the final separation of the parties. He again claims that to be contrary to paragraph 23 of the applicant’s September 28, 2016 sworn affidavit. It is to be noted that there are a number of emails regarding offers made back and forth between the parties and changing solicitors, etc. that make all that a little difficult to sort out at this point.
[25] I did read all the material that was filed including the lengthy assessment report, of about 78 pages, by Ron Stewart. In that report, he does make some credibility findings against the applicant and recommends that her first husband have primary residence of the children. I am advised that a somewhat different arrangement has been worked out and that the applicant and her first husband are sharing the children on substantial time with each parent and are managing to cooperate in that arrangement in spite of the very acrimonious nature of the litigation surrounding their marriage breakup.
[26] Other than one brief affidavit from a friend of the respondent, who states that he heard the applicant, on a speaker phone conversation with the respondent, admit to taking his wallet, including his OPP identification badge, and throwing it out the window of a moving vehicle while they were in a heated argument, there are no direct references to support the respondent’s denial of the applicant’s concerns about his anger management and alcohol abuse allegations. The applicant claims to have a recording of one example of the respondent’s abusive language to, and about, her and the two children of her previous marriage. The applicant’s mother has sworn that she has heard that tape and was “shocked by the degree of his anger and rage inflicted upon my daughter and the children”.
[27] Both parties then have, to some extent, relied upon evidence of the other party’s past parenting of other children from their previous marriages to raise concerns about their capacity to parent the daughter of their marriage. That evidence may be given more weight in assessing a long term best interest of this child, however, it is somewhat relevant to these proceedings and tends to indicate that the respondent was not in a close relationship with his children for a number of years, for reasons I am not in a position to determine, although there is evidence that that relationship is improving. There is clear evidence that the respondent’s relationship with the applicant’s two children from her previous marriage has struggled and even though he has been living with the applicant since December, 2010, there are no claims for either support or access regarding either child.
[28] The assessment by Ron Stewart of the applicant and her former husband does raise a number of issues about both of those parties as parents. It recommends primary residence to the father and raises a number of concerns about the applicant’s credibility and the allegations she made against him in that process. The arrangement that they have worked out, which appears to be working for the children’s best interests from the evidence I have, is not as recommended by the assessor but does allow for substantial time with each parent and the two children. It is also noted that the assessment is now more than five years old and relates to a whole different set of circumstances and dynamics between the parents and dealt with these children at a much earlier stage in their development. There may be issues raised in that assessment that could be relevant to these proceedings in terms of the children’s long-term best interests. I make no comment as to whether that will happen, primarily because of the passing of time and the completely different dynamics in the relationships between these parties. I am unable to rely on that assessment for any significant findings with regards to this issue of interim custody some five and a half years later, without more information than is available at this time.
[29] Based on the information stated above, I find that the status quo over the several months prior to separation, (whether that separation date is either February or June of 2016), was that the applicant was the primary parent for the child who is the subject matter of this motion. The respondent was, and will continue to be, an important part of this child’s life. At this time, I would grant interim custody to the applicant, with reasonable access to the respondent to include a minimum of the access he has been getting on Wednesdays from 10:00 a.m. to 4:00 p.m. and then on alternate weekends from 9:00 a.m. to 5:00 p.m. on both Saturday and Sunday. The order will include a prohibition against the respondent from consuming or being under the influence of alcohol for 12 hours prior to the commencement of access and during access. The respondent is also prohibited from smoking in the presence of the child at all times she is in his care. Access exchange to take place through a third party, agreed to between the parties, with such third party to be a family member of the respondent or the Rose Garden Supervised Access facility or a similar body. Access exchanges to take place either at the Rose Garden facility in Kemptville, the senior citizen’s home in Merrickville or the child’s daycare/preschool facility in Merrickville or as agreed to in writing between the parties. Both parties are prohibited from speaking in a disparaging manner about the other in the presence of the child or to allow anyone under their control to do so in the presence of the child pending further order of the court. All communication between the parties is to be either through counsel or by text message or email or a software program, such as “Our Family Wizard”, or “2 Houses”, so that there is a record of all communication, unless there is a medical or similar emergency that requires telephone or personal contact on an urgent basis. Communication between the parties should be civil and respectful and relate only to issues of the logistics of access or information as to health, education or welfare of the child.
[30] The respondent is to pay on an interim, without prejudice, basis, child support for one child in the amount required by the Guidelines based on his Line 150 income from his 2015 tax return and/or notice of assessment, fixed at $864.00 per month. In addition, the parties are to share the s.7 expenses of the child, including the cost of daycare, equally, on an interim, without prejudice, basis in the amount of $263.00 per month.
[31] I am unable to resolve the issue of what, if any, child support would be payable between the separation that occurred in February, 2016 and the final separation that appears to have occurred in June of 2016. It appears to be acknowledged that the respondent was putting money into a joint account up until June 1, 2016. For that reason, I will order that the first payment of this interim, without prejudice, child support order will be effective as of July 1, 2016, leaving open the issue of what, if any, retroactive support may have to be adjusted based on the deposits into the joint account by the respondent, the joint debts that were being paid throughout by each of them and in what portion and how they are going to resolve the issue of ongoing support on a more long-term basis remains to be determined. The issue of the child as a beneficiary of the respondent’s work place benefits will also be left to be dealt with in the normal course of these proceedings.
[32] I am making this order on the assumption that during the relevant periods of time, the respondent was paying nothing to the other three children from his first marriage. All three of those children are reported to be in post-secondary education out of town. I have no accurate information relating to what, if any, contribution the respondent has made to their post-secondary education that might be relevant herein.
[33] I would encourage the parties, as I did at the time that this matter was heard, to attempt to work cooperatively towards a resolution of this matter without escalating the process and thereby increasing the costs to themselves of the proceedings. This case has the potential to develop into a high conflict litigation for which both the parties and the child will pay dearly. The biggest risk to the child, could very well be the conflict between her parents, if it continues to escalate. Both parents are encouraged to support each other in their respective roles as parents while continuing to be vigilant about the child’s best interests. The initial evidence presented at this stage of the proceedings seems to indicate that the respondent should be willing to openly and honestly address the issue of anger management and alcohol abuse. It is quite common for the person with either of those issues to deal with, to lack insight into how much they impact the people around them. The problem with a lack of insight is that the person lacking such insight, by definition, cannot see it. The applicant, on the other hand, may wish to review the assessment by Ron Stewart and look for issues there that she may or may not have addressed in the last five years that may be relevant to her parenting of this child and seek any support that would appear to be helpful to her in that role.
[34] This matter is then adjourned to the case conference to take place on December 2, 2016, at 3:00 p.m. at the courthouse of the Superior Court of Justice in Brockville, Ontario.
[35] If either party wishes to claim costs for this motion, if they cannot be agreed to between the parties, they may do so in writing within 30 days limited to no more than four typed pages plus a draft Bill of Costs. The other party will have a 10-day right of reply limited to no more than four typed pages.
[36] Thank you to counsel for dealing with this rather contentious matter.
The Honourable Mr. Justice K. E. Pedlar
Released: October 26, 2016
CITATION: Anderson v. Anderson, 2016 ONSC 6666
COURT FILE NO.: 16-0167
DATE: 2016 October 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMY MICHELLE ANDERSON
Applicant
– and –
CHRISTOPHER BRUCE ANDERSON
Respondent
RULING ON MOTION
Pedlar J.
Released: October 26, 2016