CITATION: Cronin v. Wilson, 2016 ONSC 7664

COURT FILE NO.: F165/15

DATE: December 12, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Michelle Lee Cronin

Beth Leaper for the applicant

Applicant

• and -

Blair Wilson

Blair Wilson in person

Respondent

HEARD: December 5, 6, 2016

MITROW J.

1This trial involved two contested issues: the respondent's access to the parties' child; and child support, including arrears of child support.

2At the outset of the trial, the respondent conceded the issue of custody. He identified the issue relating to the child to be one of access.

ACCESS ISSUE

a) Background

3The parties cohabited briefly, for approximately a year or so. They have one child (Levi), now age 5, born in January 2011. The applicant is the child's mother; the respondent is the child's father.

4When the parties separated in 2011, the child was approximately 3 months old. There is no dispute that the child has been in the applicant's de facto primary care since separation.

5The applicant has two older children who reside with her. She describes having a positive relationship with the father of the two oldest children; he exercises regular access.

6There is no dispute that the respondent has a record of criminal convictions involving drinking and driving. The respondent has not had a driver's licence for a number of years; he candidly testified that it would be unlikely that he will drive again, citing as one reason, prohibitively expensive insurance costs.

7The applicant is employed as a registered nurse in the surgical department of a large dental office. She resides in London, having moved there from Glencoe. The parties had cohabited in Glencoe and the applicant continued to reside there with all of her children for a period of time subsequent to separation.

8The respondent is a welder by trade. He resides in Sarnia. The respondent also has a daughter younger than the child, Levi; the respondent testified that he has ongoing regular access arranged with the mother of his daughter - that evidence was not challenged.

9There is no dispute that as a result of an incident in January 2015 that the respondent has not had access to Levi subsequent to that time.

10The applicant's position at the commencement of trial was that the respondent's access should be supervised at Merrymount. The respondent rejected the need for supervision and sought a reinstatement of access, including alternate weekend access.

b) Discussion

11I do accept the applicant's evidence that, after separation, access did occur, but that it was sporadic; the main contributing factor to the sporadic access included the respondent's work schedule and his inability to arrange transportation for pick-up and/or return of the child.

12I prefer the applicant's evidence where there is any conflict with the respondent’s evidence regarding the respondent's unsavory conduct that included verbal abuse, ranting and threats to withhold the child. I accept the applicant's evidence that the respondent's poor behaviour was a consequence, on occasion, of his excessive alcohol consumption. Levi, and the applicant's two other children, were exposed to this behaviour.

13In the circumstances, the applicant did what she could, reasonably, to promote access. The respondent's parents, Rosemary Wilson and Daniel Wilson, I find both were substantially involved in promoting access, including assisting with the driving.

14The respondent's parents are both retired. They live in Petrolia, which is near Sarnia. They both testified at trial.

15On the evidence of the applicant and the respondent's parents, I find that there was a positive and respectful relationship between the applicant and the respondent's parents. It was this relationship, in part, that was instrumental in facilitating access between the respondent and the child.

16In arranging access, the applicant agreed to share the driving responsibilities; at times a midpoint access exchange location, such as Strathroy, was used. However, it was not unusual for the applicant to have to do more than her share of the driving when the respondent's arrangements for others to drive him fell through.

17The incident in mid-January 2015, I find, was precipitated by the respondent's foolish conduct, in refusing to return the child; the respondent acted unreasonably; his refusal to return the child was based on little more than unwarranted speculation regarding some perceived issues at the applicant's residence.

18To add some context, during 2014, there was no dispute between the parties that the respondent had stable and consistent alternating weekend access from Friday to Sunday. In large measure, this stable access was achieved by a promise to the applicant from the respondent's parents, in particular his father, that the child would always be returned to the applicant at the conclusion of the access. This commitment was made by the grandparents to allay the applicant's justifiable concerns, based on the respondent's past conduct and threats, that the child may be withheld by the respondent.

19It is noteworthy that there were no interim orders made regarding access and, in particular, there was no police assistance order; consequently the applicant was fearful of not having any means to secure the child's return.

20During the January 2015 incident, the respondent's parents insisted to the respondent that the child had to be returned and urged the respondent to do so; eventually police were called and the child was returned to the applicant.

21Soon after this incident, the applicant commenced her application seeking relief, including custody, supervised access and a police assistance order.

22However, what followed thereafter was most unfortunate. It is inexcusable that Levi, since that time, has had no access with the respondent. For this, both parents share the blame.

23The applicant was clear in her evidence, and candidly admitted, that she made no effort to reinstate access. She offered a lame excuse that the child was not asking to see his father. Adults, not young children, are responsible for access occurring. The applicant sought no interim order to deal with the access; she wanted supervised access and was quite content to do nothing to promote access - a sort of "wait and see" approach - for the respondent to do something.

24The applicant, I find, abdicated her responsibility as the de facto custodial parent to promote access.

25For his part, the respondent too did nothing, despite having counsel at the outset of this matter. After his blameworthy behaviour that resulted in the police attending, the respondent, effectively, abandoned the child.

26Each parent blames the other; the sad and disheartening result is that Levi now, caught in the middle, has not seen his father for close to two years. Both parents lost focus as to Levi's best interests; both parents failed to take necessary steps, in promoting Levi's best interests, to reinstate access which could have included an appropriate interim order to address any concerns regarding the return of the child after access.

27Fortunately, the applicant and the respondent's parents remained on amicable terms and cooperated in arranging two visits at the applicant's home where Levi was able to visit with the respondent's parents (plus, on one of these occasions, another member of the paternal family also was present).

28The first visit took place in January 2016, just before Levi's fifth birthday. The respondent's parents brought birthday and also Christmas gifts. I accept, entirely, the grandmother's evidence that Levi greeted them with hugs and was happy to see them. Clearly he remembered his grandparents, even though a year had passed since he last saw them. In particular, the grandmother's evidence was that Levi went first to the grandfather. This was consistent with the applicant's evidence that Levi "loves his grandpa" and speaks highly of him.

29Kyle Ledermann, the applicant's former partner, who was called as a witness by the applicant, described Levi, during this visit, as being "clingy," staying by his mother. However, I prefer the grandmother's evidence. Mr. Ledermann, in his testimony, when describing the driving for access visits, seemed confused as to the highway and the route taken. I do have some concerns as to the reliability of Mr. Ledermann's evidence. The grandmother's evidence was given with unhesitating clarity as to what transpired at this January 2016 visit and I have more confidence as to the reliability of her evidence.

30During closing argument, the applicant, to her credit, retracted somewhat from her initial position on access. She submitted there should be two initial supervised visits at Merrymount, followed by six visits on alternate Sundays supervised by the respondent's parents, then six alternate weekends from Saturday to Sunday supervised by the respondent’s parents, and then finally transitioning to alternate weekends with the respondent from Saturday to Sunday for six visits followed by “regular” alternate weekends from Friday to Sunday.

31Further, the applicant, quite reasonably, agreed to share the driving (meeting at Strathroy) plus some access for Boxing Day this year, which is consistent with Christmas access in past years.

32In dealing with custody and access, I have considered the relevant factors in s. 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”) dealing with the child's best interests.

33It is in the child's best interest for the applicant to have sole custody.

34In dealing with access, I do not agree that some supervised visits at Merrymount are necessary. It is noted that no evidence was called by the applicant as to the wait times at Merrymount. More importantly, I am confident, after hearing from the respondent's parents, that they are appropriate and willing access supervisors, and that they will do what is required to deal with any inappropriate behaviour by the respondent, including calling the police.

35I accept the evidence of the respondent and his parents that, when access was occurring, that Levi enjoyed spending time with his father. The grandmother testified that Levi, at times, was reluctant to leave after the conclusion of an access visit.

36The applicant testified that she witnessed at times a reluctance by Levi to go on access visits; she described Levi as being anxious – that he would cry and cling to the applicant. After access visits, the applicant testified that Levi would be anxious, and clingy, and would wet his bed. Since visits ceased, the applicant’s evidence was that Levi’s confidence level has increased, that he is a happier child and less anxious.

37Given the evidence of the respondent and his parents, which I accept, as to Levi enjoying his access visits, I am not prepared to make any finding that Levi is suffering negative consequences as a result of access. There was no evidence from the applicant that she sought any counselling or other therapeutic intervention for Levi to assist in understanding the aetiology of his symptoms; and further, the reason that access ceased was precipitated by the specific event described earlier, not because of any alleged ongoing anxiety displayed by Levi.

38Accordingly, absent objective evidence from a professional, I do not view the applicant’s evidence as a reason for altering or limiting access.

39The applicant seeks a police assistance order for two years. Section 36(7) limits such an order to six months “unless the court is satisfied that a longer period of time is necessary in the circumstances.” Given the respondent’s past conduct, including his threats, I find that two years is necessary in the circumstances.

40The order below sets out a progressive access schedule.

CHILD SUPPORT

41Although the respondent did produce tax disclosure for a number of years, up to 2015, he failed to provide an updated financial statement prior to trial and he failed to provide prior to trial any income disclosure for 2016. This information had been requested multiple times, in writing, by the applicant's counsel.

42On the day of trial, the respondent came to court with what appeared to be his final pay statement in 2016 for the pay period ending September 24, 2016. This statement shows gross year-to-date income from Chemfab Industries Inc. totaling $37,621.

43The respondent testified that during 2016, he had periods of unemployment. The respondent failed to bring with him any evidence of his Employment Insurance payments. He estimated that he will earn around $48,000 total between Employment Insurance and employment income in 2016, although he referred at trial to his net (not gross) Employment Insurance payments in arriving at that estimate.

44It is trite to observe that the respondent's dismissive attitude towards providing evidence of his current income and his current financial circumstances was a source of justifiable frustration to the applicant and her counsel, Ms. Leaper.

45By January 2015, the respondent had stopped paying any child support. There appeared to be some consensus between the parties, as verified in their respective pleadings, that the respondent had been paying voluntarily $650 per month for child support. This would correspond to an income of $71,300 based on the tables for one child.

46The respondent's line 150 income according to his tax information is as follows:

2011 $28,254 2012 $58,117 2013 $91,910 2014 $104,179 2015 $75,613

47The respondent's pay statement confirms that his regular hourly rate is a little over $43. The respondent explained that his high income years were the result of overtime.

48The respondent agreed that he stopped paying child support in January 2015, as this corresponded with access stopping. The respondent’s decision to pay no further child support was reckless and irresponsible.

49The applicant seeks table amount of child support starting January 2015; she is content to accept what was paid until then in satisfaction of the respondent's obligation towards the table amount. This is reasonable, given that for some of the years prior to 2015, the respondent's income would have produced table amounts exceeding $650 per month; further, the evidence was not entirely clear as to when the respondent actually started paying $650 per month. There was evidence from the applicant that the respondent, soon after separation, which was in 2011, paid child support on a sporadic basis. It is most likely, on the evidence, that the respondent has failed to pay, since separation, the full table amount, to the end of 2014.

50Further, the respondent did not cross-examine the applicant on child support issues, nor did he take issue with the various financial disclosure exhibits filed by the applicant, which included arrears calculations with supporting documentation.

51The applicant seeks s. 7 expenses for her childcare costs, back to 2012. She filed receipts for all these expenses, together with DivorceMate calculations for each year, that factored in the tax savings to the applicant, and apportioned to the respondent his share of the net after-tax cost in proportion to the parties' incomes. The childcare costs are claimed only until the child started fulltime junior kindergarten in September 2015. I accept the applicant's evidence that she needed to incur these childcare costs to enable her to work fulltime. No childcare costs are claimed for 2011 as the applicant would have been on maternity leave.

52The applicant's income and childcare costs for 2012 to 2015 inclusive are:

Year | Income | Childcare Costs 2012 | $59,537 | $6,845 2013 | $62,578 | $6,810 2014 | $67,266 | $7,723 2015 | $65,071 | $6,649

53The proper calculation for s. 7 childcare expenses are shown in Ex. #5. This results in childcare expenses owing by the respondent as follows:

2012 $2,332 2013 $2,688 2014 $3,624 2015 $2,352 Total: $10,996

54I find that the respondent has engaged in blameworthy conduct by failing to provide financial support to the applicant for childcare expenses despite being aware that the applicant was working, and required childcare; further, the respondent was not forthcoming in providing financial disclosure on a voluntary basis. When the respondent ceased paying any child support, the applicant promptly commenced this application in February 2015.

55In relation to the claim for “retroactive” childcare expenses for the time period prior to the commencement of this application, I have considered S.(D.B.) v. G.(S.R.), 2006 SCC 37 and, in particular, the discussion at paras. 94-116 relating to factors to be considered when retroactive child support is ordered, and the discussion at paras. 118-125 as to the date of retroactivity. In considering all the factors, in particular, the respondent’s blameworthy conduct, I find that an order for childcare expenses in the amount of $10,996 is appropriate. Of this amount, all but the childcare expenses from February 2015 are “retroactive.”

56In relation to the table amount of child support, other than child support for the month of January 2015, the claim for child support is “post-application” and is not properly characterized as “retroactive” support: see the discussion on this point in MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 2005 CarswellOnt 1536 (Ont. C.A.) at paras. 18-21, where it was held, in relation to spousal support, that “… post-application support is not retroactive support …”

57For 2015, the respondent should pay child support in the amount of $687 per month based on an income of $75,613. The arrears for 2015 are $8,244.

58For 2016, at Ex. #6, the DivorceMate calculation, which includes a gross-up for the “net” Employment Insurance benefits, calculates the respondent’s annual income as $53,116, which I round to $53,000. This required the applicant to estimate, somewhat, the number of weeks of Employment Insurance benefits consistent with the respondent’s oral testimony.

59This is a reasonable approach; the respondent should not be heard to quarrel with this estimate given his failure to provide documentary disclosure.

60For 2016, the table amount, based on $53,000 is $479 per month, for total arrears of $5,748.

61The total table and s. 7 arrears are $24,988 ($10,996 + $8,244 + $5,748).

62In terms of the respondent’s income projection for 2017, the respondent gave little, if any, helpful or credible evidence. He speculated on being laid-off for periods of time, but he called no evidence from employers, or officials within his union, as to work prospects for 2017. I would ascribe little weight to the respondent’s prediction as to his potential income for 2017, absent reliable corroboration.

63The respondent is able-bodied and capable of working. He gave no evidence as to any health issues limiting his ability to work. He is a skilled tradesperson earning a base hourly rate in excess of $43. His income for 2013 – 2015 ranged from a low of over $75,000 to a high of over $104,000. Although the 2016 income will be in the range of $53,000, I find that on all the evidence, including the respondent’s income history, that the respondent is capable of earning at least $65,000 annually and I impute that income to him commencing January 1, 2017. This is substantially less than working fulltime (40 hours/week x $43/hour x 52 weeks = $89,440) and therefore takes into account some potential downtime. In fixing the respondent’s income, I have considered, and applied, Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) as to the proper principles in imputing income.

64In dealing with arrears of support, and the respondent’s ability to pay arrears, his current financial situation is one relevant factor to consider. The respondent, as noted earlier, breached the rules by failing to file an up-to-date financial statement, and I draw an adverse interest against him for his failure to do so.

65The respondent testified that currently his pay is garnished to the extent of 50%, regarding child support, and apparently also child support arrears, owing for his other child. He gave some vague evidence about ongoing court proceedings in Sarnia, to lower his child support and/or arrears; however, he failed to provide any documentary evidence from those proceedings, including a copy of any existing child support order, even though Ms. Leaper had asked for information about that court case in her recent correspondence.

66The respondent’s only financial statement, sworn August 18, 2015, discloses total debts of just under $14,900, of which $13,000 is a lawyer’s bill. He discloses minimal assets.

67Although the respondent signed his financial statement almost eight months into the calendar year, he disclosed current income annualized at $45,970, which is substantially less than the $75,000 plus that he actually earned in 2015. The respondent made no attempt to explain this in his evidence. This further demonstrates that little reliability can be placed on the respondent’s ability to provide accurate evidence as to his income potential.

68Although the respondent has a financial obligation to pay child support for another child, he made no claim for undue hardship. In fixing the arrears payments, I do take into account that he has another child to support. The respondent shall pay the arrears at the rate of $400 per month, until paid.

69Some provisions regarding child support have been incorporated from the applicant’s draft order. The life insurance provisions are for 50% because the respondent has another child.

ORDER

70For the foregoing reasons, I make the following order:

1. The applicant shall have sole custody of the child.

2. The respondent shall have access to the child as follows:

a) on alternate Sundays from 10:00 a.m. to 5:00 p.m., commencing Sunday, December 18, 2016, said access to be for a period of 5 visits and to be supervised at all times by either the child’s paternal grandfather, Daniel Wilson, or the child’s paternal grandmother, Rosemary Wilson (hereinafter referred to as “grandfather,” “grandmother” and collectively as “grandparents”), and subject to the terms of supervision as set out in paragraph 3;

b) thereafter alternate weekends from 3:00 p.m. Saturday to 5:00 p.m. Sunday, for a total of four visits, to be supervised by the grandparents and subject to the terms of supervision in paragraph 3 of this order;

c) thereafter the respondent shall have unsupervised access alternate weekends from Saturday at 3:00 p.m. to Sunday at 5:00 p.m. for a total of 4 visits; and

d) thereafter the respondent shall have regular alternating weekend access from Friday at 5:00 p.m. to Sunday at 5:00 p.m. with no supervision.

3. Where access is required to be supervised by the grandparents, the following are the terms and conditions:

a) the access shall be at the grandparents’ residence in Petrolia, Ontario, including any overnights;

b) at all times, either the grandfather or the grandmother shall be present when the respondent is with the child;

c) there may be outings during the access visit outside of the grandparents’ residence, so long as at least one grandparent accompanies the respondent and the child;

d) the respondent shall abide by any rules and directions set out by the grandparents during the supervised access; and

e) if any issue or difficulty occurs during the access, the grandparents forthwith shall report same to the applicant.

4. The respondent shall have additional access as follows:

a) during the Christmas season on December 26 of each year starting 2016, from 10:00 a.m. to 6:00 p.m., and at such other times as may be agreed to by the parties;

b) at least one week access during July and August each year, to be increased to two weeks each year starting in 2018, with the two weeks not to be taken consecutively unless the applicant agrees; and

c) for all special occasions, statutory holidays, other school holidays including March Break, the respondent shall have such access as agreed to by the parties.

5. On presentation of a photocopy of this order, the respondent shall be entitled to receive information from the child’s physician, dentist, any other healthcare professional, teacher, school principal and any other person involved in the child’s education, and the right to receive information includes getting copies of all relevant documents, including school records, medical records and hospital records. Where necessary, the applicant shall sign a direction to any of the aforementioned persons specifically authorizing this disclosure to the respondent.

6. When the respondent is not exercising access, the respondent shall have reasonable access to the child by telephone, and as age appropriate, reasonable access to the child via any other electronic communication.

7. A police assistance order is granted as requested in paragraphs 3(a) to (e) inclusive, in the applicant’s draft order filed as Ex. A.

8. Each party is responsible for assisting in the driving arrangements to facilitate access; for all access visits, the access exchange at the beginning of any access visit and at the conclusion of any visit shall take place in Strathroy, Ontario at the Tim Hortons location as agreed to by the parties. The respondent is responsible for making arrangements with the child’s paternal grandparents, or other family members or other persons to attend at the access exchange location for each access visit.

9. The respondent shall pay to the applicant for the support of the child the sum of $594 per month commencing January 1, 2017, and payable monthly thereafter, based on his actual or imputed income of $65,000, said amount being payable pursuant to s. 3(1)(a) of the Ontario Child Support Guidelines.

10. The total arrears owing by the respondent for the table amount of child support, and for childcare costs, is fixed at $24,988 as at the date of this order and the said arrears are payable at the rate of $400 per month commencing January 1, 2017, and continuing monthly thereafter until the arrears are paid in full.

11. The respondent shall maintain the child on the extended medical and dental benefits available to him through his current employer or any subsequent employer for so long as the respondent is obligated to pay child support. Within 30 days of the date of this order, the respondent shall provide to the applicant booklets or other information detailing his medical and dental benefits and providing confirmation that the child has been enrolled in those benefits.

12. The respondent shall maintain the applicant as irrevocable beneficiary in trust for the child in respect of 50% of any life insurance benefits payable pursuant to policies available to the respondent through his place of employment. This obligation shall also extend to 50% of life insurance benefits for any life insurance policy that the respondent owns privately. Within 30 days of the date of this order, the respondent shall provide to the applicant full details of all employer and private insurance policies and shall provide evidence from each insurer that the respondent has made the beneficiary designation as required by this order.

13. By no later than May 15 of each year, commencing 2017, the respondent shall provide to the applicant a copy of his T1 general income tax return, together with all slips and schedules, for the immediately preceding calendar year and also the respondent shall provide a copy of his notice of assessment (including a copy of his notice of reassessment, if any) for that calendar year as soon as same is received.

14. This final order is made pursuant to the Children's Law Reform Act and the Family Law Act.

71If the parties cannot agree on costs, then written costs submissions may be forwarded to the trial coordinator as follows: by the applicant within 14 days, by the respondent within 14 days thereafter and by the applicant, a reply, if any, within 14 days. Costs submissions shall not exceed 3 typed pages (2 pages for reply), plus any offers, time dockets, bill of costs and authorities.