CITATION: MAISONNEUVE v. PREECE, 2016 ONSC 6987
COURT FILE NO.: 00-0353
DATE: 20161109
SUPERIOR COURT OF JUSTICE, FAMILY COURT - ONTARIO
RE: RENE MAISONNEUVE, Applicant (Moving Party)
AND:
BRENDA LUCILLE PREECE, Respondent (Responding Party)
BEFORE: MR. JUSTICE CALUM MACLEOD
COUNSEL: Stephanie Goffin-Boyd, counsel, for the Applicant Clinton Culic, counsel, for the Respondent
HEARD: November 7th, 2016 & November 9th, 2016
ENDORSEMENT
[1] The applicant is bringing a motion to change the child support and arrears of child support flowing from the order of Justice P. Cosgrove made on November 27th, 2007. At a case conference, on September 15th, 2015 Justice B. Abrams directed that a central fact which is in dispute in that motion be determined by trial of an issue. Counsel agree that it is only that question and not the actual motion to change which is before me. Consequently my mandate is limited to a specific fact finding exercise.
[2] Specifically, the issue to be tried is where the parties’ son, Brandon Maisonneuve was living between September of 2010 and September of 2013. The applicant contends that Brandon had his principal residence with him during that entire period. Alternatively he argues that he had Brandon in his care for more than 40% of the time. This is the sole issue to be tried.
Background
[3] By way of background, the parties are the parents of two children, namely Rebecca Maisonneuve, born January 1, 1991; and, Bronson Maisonneuve, born April 17, 1994. Although both children are now independent adults, they were dependent children at the time of the separation. The parties separated in 2000 and engaged in two rounds of legal proceedings. The first of these resulted in an order dated October 24th, 2001 (“the original Cosgrove order”). The second resulted in an order dated November 27th, 2007 (“the second Cosgrove order”).
[4] Under the original Cosgrove order, dated October 24th, 2001 the parties had joint custody of the children. The children were to reside with the mother and to spend every second weekend with the father after school on Friday until 8:00 p.m. on Sunday. They were also to spend Tuesday evenings and Thursday evenings after school with the father until 8:00 p.m. There were additional arrangements for holidays and such further parenting time as the parties might agree upon in the best interests of the children.
[5] The second Cosgrove order was dated November 27th, 2007 and it varied the first order. The second order provided that Bronson would have his principal residence with the respondent mother and that Rebecca would have her principal residence with the applicant father. It also provided that the applicant would pay the respondent child support of $160.00 per month based on setting off the table amount for one child each and their respective incomes. He was also to pay 61% of any s. 7 expenses. It is the accrued support arrears under this order which has never been varied or cancelled that the motion to change is designed to address. Interestingly, the order appears to delete any formal access schedule but it is the evidence of all parties they continued with the original access schedule for Bronson at least until it was modified in 2010.
[6] At the time of the second Cosgrove order, the children were both students and one child was residing with each parent. By agreement, support was calculated using the setoff method and their then current income in accordance with the child support guidelines. Support under the order was never changed despite changes in income and changes in the status of the children. It is conceded that support should now have ceased for both children.
[7] Prior to the present proceedings, neither party brought the matter back to court. For some reason automatic deduction of support ceased in 2009. The Family Responsibility Office (FRO) began enforcement proceedings last year and faced with the possible suspension of his driver’s licence, the applicant took the necessary steps. Specifically he obtained a refraining order and a partial stay of enforcement and he started this motion to change.
The issue
[8] As outlined above, at a case conference on September 15th, 2015 Justice Abrams ordered trial of an issue. While the formal order does not clearly identify the issue, counsel have agreed that it is solely the question of where Bronson was living between September of 2010 and September of 2013.
The evidence
[9] At a trial management conference, leave was granted to have three witnesses testify by Skype or similar technology. In the event only one witness testified remotely and that was by telephone. The trial was scheduled for a single day in Brockville. Unfortunately the time had been underestimated and a second half day was necessary.
[10] On behalf of the Applicant the court heard evidence from Rachael Gaurin, Arthur Landry, Pastel Andress and René Maisonneuve himself. On behalf of the respondent the court heard from Brandon Brennan, Brian Preece, Rebecca Maisonneuve, Bronson Maisonneuve, and Brenda Preece herself. All witnesses testified orally and were subject to cross examination. Madame Gaurin and M. Landry testified in French with the aid of an interpreter. Madame Gaurin also testified by telephone.
[11] Counsel had agreed on certain facts. Though most of those facts will be relevant to the motion itself, my fact finding exercise must take notice of the agreed facts where they are relevant to the issue to be decided. The Statement of Agreed Facts was filed as Exhibit A.
[12] The time period in question is September 2010 until September 2013. It is agreed that after the latter date, Bronson lived with his paternal uncle in Ottawa while he attended La Cité Collégiale and that he rented his own apartment in Ottawa from April 2015 until he graduated from college in 2016.
[13] Until 2012 Bronson attended Académie catholique Ange-Gabrielle (ACAG) in Brockville. During most of the relevant period, the applicant lived in Brockville while the respondent lived in Toledo, 31 kilometres to the north west.
Findings of Fact
[14] I do not intend to summarize the testimony of each witness. While I found the evidence of certain witnesses to be more persuasive than others, it must be recognized that all of the witnesses were operating from memory concerning daily routines that occurred more than 6 years ago. No one kept a detailed log of what time Bronson spent with each parent and unless the parties adhered to a rigid and unchanging schedule it would be virtually impossible to determine how many hours he spent with each parent in each individual week or month.
[15] Generally speaking the relevant time may be divided into three blocks. The first of these is the time between September of 2010 and November of 2011. The second is November of 2011 until April of 2012 and the third is April of 2012 until September of 2013. Significant events separate these time periods.
[16] In the summer of 2010, Bronson started working at McDonalds and at another restaurant in Brockville. At this time the applicant lived with Rebecca in a two bedroom apartment at 50 Central Avenue in Brockville while the respondent continued to live in Toledo. The evidence is that it would take between 35 and 40 minutes to drive between the two residences. It is the applicant’s evidence that from that point on, Bronson primarily slept in town at his apartment. While this is in dispute, there is no doubt that starting to work at McDonalds was an important event in Bronson’s life.
[17] In November of 2011 Bronson became independently mobile as he acquired his own automobile. No longer was he dependent on his parents or other adults to drive him to and from school or work. He could visit either parent with relative ease. It is his evidence that from that point on he spent roughly equal times with his parents but it was largely dependent on where he was when he needed a place to sleep. All parties agree that once he had “wheels” Bronson largely determined his own schedule.
[18] In April of 2012 just before finishing high school, Bronson moved to his sister’s house. In fact this was also the residence occupied by the applicant who had purchased the home jointly with Rebecca in 2011. From that point on until he started attending La Cité Collégiale, Bronson was working full time and living at the house owned by his sister and father.
[19] Throughout the relevant period of time, Bronson regarded his mother’s house in Toledo as his official residence. That is to say it was his mailing address, the address shown on his driver’s licence, on school records and on his motor vehicle registration and insurance and on all other official documents. This supports an inference that he continued to have his principal residence with his mother as set out in the second Cosgrove order but it is not conclusive.
[20] The applicant suggests that Bronson began to live with him almost full time in September of 2010. He attributes this largely to the fact that after he started working at McDonalds, it was more convenient to stay in town. In addition Bronson was involved with extra curricular activities at school in particular acting as a DJ at school dances.
[21] This is not Bronson’s own evidence or recollection. Bronson believes that he began to stay overnight with his father on Sundays when it was his father’s weekend and also to stay overnight on Tuesdays and Thursdays rather than going back to Toledo but generally he would be in Toledo on his mother’s weekends and on the other nights of the week. Of course there were some exceptions to this but it is his evidence that he tried to keep to the schedule and to make up time if it was missed.
[22] The applicant seeks to show that Bronson was with him almost full time during the school year. In support of his evidence he puts forward the evidence of three corroborating witnesses. These were Mr. Landry, Ms. Gaurin and Ms. Andress. Mr. Landry testified that the applicant had arranged with him to drive Bronson to school each day because he lived in the same building as the applicant. He testified that he drove Bronson at least three days per week every week and if Bronson did not get a ride with him (because he missed the ride) Bronson would call Ms. Andress for a ride. Ms. Andress testified that she gave Bronson a ride to school at least twice per week on average. Mr. Landry and Ms. Andress are co-workers of each other and of the applicant and both are friends of the applicant.
[23] Mr. Landry’s evidence is deeply problematic. On a previous occasion he signed a letter stating that he drove Bronson to school 5 days per week. He was completely unable to explain the discrepancy and he was evasive in his answers when pressed. More importantly, he concedes that he did not have a log or a record of what days he drove Bronson. The arrangement basically was that if Bronson showed up in the parking lot before he left for work, he would give him a ride. Even if I accept his evidence that he often drove Bronson to school three days per week that would not be inconsistent with Bronson staying with his father on Tuesday nights, Thursday nights and every second Sunday night.
[24] Similarly it is entirely possible that sometimes Ms. Andress would get two calls per week if Bronson missed a ride with Mr. Landry. Even if I accept her evidence completely she is unable to say for certain that this occurred every single week or to give particulars of what days she was asked to drive.
[25] Ms. Andress assumes and I am asked to accept that the days she drove and the days Mr. Landry drove should be viewed cumulatively so that between the two of them they were driving Bronson to school 5 days per week every week in September of 2010. I do not accept this conclusion. I prefer Bronson’s own evidence that the rides he received were far fewer than those remembered by Mr. Landry and Ms. Andress and that by and large he tried to follow the regular schedule. His evidence is consistent with the evidence of his sister Rebecca who lived there at the same time. The fact that when he slept over he would occupy the bedroom and his father would sleep on the couch though not conclusive by itself would suggest that Toledo continued to be the main residence.
[26] Ms. Goguin is the mother of Marc-Antoine who was a friend of Bronson. Bronson agrees that he spent a great deal of time with Marc-Antoine and often slept there on weekends. I do not doubt that when Ms. Goguin drove Bronson “home” she was generally taking him to his father’s apartment at 50 Central Avenue. This is consistent with Bronson regularly spending time at his father’s residence but it does not show that he was living there on a daily basis. Again I prefer Bronson’s own evidence to the inferences made by the mother of his friend.
[27] There is a further factor that weakens the reliability of the evidence tendered by the applicant’s three witnesses. As I noted above they are operating from memory and some of the events they described took place earlier than the time period in question. On the other hand their ability to observe the living arrangements of Bronson and the applicant was neither daily nor congruent with the time period under review. Ms. Goguin for example moved from Brockville in December of 2010. She was a tenant of Ms. Andress and after she and Marc-Antoine moved away, the evidence was that Bronson no longer called Ms. Andress for rides “when Rachael and Marc-Antoine stopped living above my garage”. So the time she was talking about was 2009 – 2010.
[28] I am asked to prefer the evidence of these “independent” witnesses to the potentially biased evidence of the respondent and her children and brother. Rebecca is now involved in litigation with the applicant over the ownership of her house. I detected no animus in Rachael’s evidence but in any event I do not rely upon it except to the extent that it is consistent with Bronson’s own evidence. I found Bronson’s evidence the most compelling as it appeared to me he was trying to be scrupulously accurate and fair. In fact his evidence for the later periods of time was helpful to the applicant. I have placed no reliance on Brian Preece’s evidence as it was simply too vague to be reliable or helpful.
[29] But the applicant’s witnesses are neither neutral nor independent. They are friends of each other and of the applicant. Ms. Gourin and her son, for example lived at Ms. Andress’ home until December of 2010 when they moved to northern Quebec. The applicant now lives at the same place. Mr. Landry and Ms. Andress and the applicant were co-workers and remain close friends. They all know each other and would have had many occasions to discuss this matter with the applicant and amongst themselves. They have previously been asked for affidavits. I do not need to impugn their integrity to observe that they are not neutral disinterested witnesses but are aligned with the applicant.
[30] In summary, I find that during the first period of time, that is September 2010 to November 2011 Bronson continued to live primarily with his mother. In general he spent every second weekend including Monday overnight with his father and he spent Tuesday and Thursday nights at his father’s house. There may well have been exceptions but this was the general pattern. It was the original schedule with the addition of overnights. I am unable to find that he was primarily resident with his father or that the time spent with his father exceeded 40%.
[31] During the second period of time, both parties were consistent in saying that once Bronson had his own car, he set his own schedule. I accept his own evidence that he spent roughly equal time with each of his parents from November of 2011 until April of 2012.
[32] From April of 2012 until September of 2013 Bronson was living with his sister in North Augusta. His father was also residing there and (though this is now the subject of litigation) the applicant was a joint owner of the property. It appears that Bronson was largely living independently at that stage because he was working full time. In any event he was not living with the respondent who shortly thereafter sold her house in Toledo and moved.
Significance of these findings
[33] This trial of an issue was structured as a specific fact finding exercise and not the determination of the other factual or legal issues involved in the motion to change. I have dealt with the time spent with each parent based on my assessment of the evidence before me. I have not heard evidence about which parent bought groceries, clothing, school supplies or how vacation time was arranged. I have heard no evidence about Bronson’s own income or changes in the respective income of each of the parties.
[34] My findings may be summarized as follows:
September 2010 – November 2011 Bronson remained primarily resident in Toledo
November 2011 – April 2012 Bronson spent equal time with each parent
April 2012 – September 2013 Bronson was residing with his sister and the applicant and working. He was no longer residing with the respondent but I have not determined if he was being supported by the Applicant or was independent.
[35] These facts along with the facts set out in the Statement of Agreed Fact (filed as Exhibit A) shall form part of the factual nexus for arguing the motion to change if the parties are not able to reach agreement.
[36] The costs of the trial of the issue which occupied 1.5 days will be reserved to the motions judge.
November 9, 2016
Mr. Justice Calum MacLeod