Lidbetter v. Usher, 2016 ONSC 7705

Court File and Parties

CITATION Lidbetter v. Usher: 2016 ONSC 7705

COURT FILE NO.: FC-15-2768

DATE: 2016/12/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIMBERLY ANN LIDBETTER – Applicant v. FREDERICK NEIL USHER - Respondent

BEFORE: Madam Justice Liza C. Sheard

COUNSEL: Graeme B. Fraser, counsel for the Applicant

Natasha D. Pappin, counsel for the Respondent

HEARD: November 24, 2016

ENDORSEMENT ON MOTION

1The parties have each brought motions. Prior to the hearing of the motions, the parties were able to resolve a number of issues and submitted a consent temporary order, which contained a detailed parallel parenting plan. I signed that order on November 24, 2016 (“the Parenting Order”) and reserved my decision on the unresolved issues on the motion

2There were two issues before me on the motions:

(1) The amount of, and parent entitled to, retroactive child support for the child Wesley Joseph Usher born March 16, 200 (“Wesley”) child, Christine Grace Usher, born October 5, 2001 (“Christine”); and

(2) Whether a restraining Order should be issued against the respondent Frederick Neil Usher (“the Father).

With whom did the children Reside?

3There is agreement that Christine has been residing with her parents on an equal, week about basis. The parties also agree that Wesley had his primary residence with the Father as of February 2016.

4The parties do not agree on where Wesley was living in April, November and December 2015 and in January 2016: each parent asserts that Wesley was living with them. As Wesley came and went from each parent’s home as he wished and/or was allowed, it is difficult to determine with certainty where Wesley was living in those months.

5In view of the need for further and tested evidence, I conclude that where Wesley was living in the disputed months is an issue that should be reserved to the trial judge.

Claims for retroactive Support: Child and Spousal

6On this motion the Father seeks an interim order for child support for Wesley from September 2016 but seeks to reserve the determination of any retroactive support to the trial judge. That Father submits that the trial judge should also determine the Mother’s claim to retroactive child support.

7Except as is otherwise ordered in this endorsement, the issues of retroactive child support and any claim for spousal support (which the Father also seeks to advance) are reserved to be determined by the trial judge.

Income to be used for Interim Child Support

8The parties also dispute the income that should be used for the Father when determining child support. His income will also be in issue should the Father pursue a claim for spousal support.

9The Mother asks that income be imputed to the Father on the basis of the income that he earned while living and working in Alberta. The Mother asserts that since returning to Ontario the Father has been under-employed and/or has failed to disclose his self-employment income.

10The Father asserts that he was able to earn more money in Alberta than he can earn in Ontario, which is why he sought work there. He says that he needed to return to Ontario to help with the couple’s four children.

11I do not accept the arguments put forth by the Mother that for the purpose of determining the Father’s income for interim child support, the Court should use the average of his income for the last three years. The Father has explained why his income went down after he returned to Ontario from Alberta. On the evidence before me, using the Father’s paystub, his 2016 income from employment will be $53,562 plus a further $1,000 in self-employment income.

12Whether the father can and should earn more and/or is not disclosing self-employment income are issues that are best determined after a full hearing by the trial judge. Although his income is significantly lower than it had been when he worked in Alberta, based on the evidence before me on the motion it appears that the Father is employed full-time in his usual profession. For that reason, for the purposes of this motion for interim child support, I use the Father’s income information based on his current payslip and disclosed self-employment income.

13Similarly, for the purposes of determining interim child support, I accept the evidence of the Mother’s income as set out in the letter from her current employer and find the Mother’s guaranteed 2016 income to be approximately $80,000.

14The Mother raised concerns over the potential unfairness to her of an interim support order in that she has paid a disproportionate share of the family debts, which she will not be able to recover from the Father. For that reason, she proposes that there be no interim order for child support. In the circumstances, I am not persuaded that it is proper or appropriate to defer the payment of interim child support on that basis.

15Therefore, on an interim and without prejudice basis, I determine that for the purposes of child support - set-off amount for Christine and Guideline amount for Wesley - the Father’s income is $54,562.00 and the Mother’s income is $80,000.00. Accordingly, on an interim and without prejudice basis, and based on the income figures set out above, the Mother shall pay Guideline support for Wesley effective September 1, 2016 and each month thereafter provided that Wesley is living with the Father.

16In addition, using those same income figures, the Father shall reimburse the Mother his proportionate share of Wesley’s Hockey expenses for the 2015-2016 seasons. I understand that she has paid a total of $3,879.20.

17Should there be a dispute as to the amount to be paid in child support as per the terms of the Order, the parties may serve and file their calculations to my attention within 14 days of the date of the release of this endorsement.

Restraining Order

18The Mother has filed two affidavits for this Motion: dated September 15, 2016 and November 21, 2016. In the first affidavit, she describes “escalating verbal, emotional, physical, and sexual abuse” that she suffered at the hands of the Father. According to the Mother, this abuse occurred over several years in the course of their 22-year relationship. She states that she decided to leave the relationship in April 2015 following a sexual assault by the Father.

19The Mother asserts that after separation, the Father continued to enter her home without permission and against her wishes, which led to her contacting the Ottawa police in July 2015. Despite the involvement of the Ottawa police, the Mother reports that the Father repeatedly entered her property without permission, screamed at her on the doorstep, and told her he was free to enter the house anytime. The sale of this home has been a source of conflict but in her affidavit of November 21, 2016 the Mother states that the house has now been sold, with a closing date of December 30, 2016.

20In both of her affidavits, the Mother documents a number of confrontations with the Father that happened at his residence when she was there for child-related reasons and when he attended at her residence, for similar reasons. The Mother also describes occasions in July and August, 2016. On one, the Father was following her in his car on Preston Street, screaming, swearing at her and yelling out the window; on another he berated her over the telephone and in emails while she was at work and at home in July and August, 2016. Another the Father attended at the Mother’s home ostensibly to pick up her son but arrived much earlier than the son was expected home from work. She viewed this as a form of intimidation by the Father.

21Notwithstanding the intimidation by the Father as described by the Mother, she states that she has the garage code for the Father’s home in order to be able to check on the children when they are at his home but the Father is not there. The Mother most recently attended at the Father’s home in response to a tearful telephone call from Wesley.

22In his responding affidavit dated November 17, 2016, the Father denies the Mother’s allegations of physical, verbal, sexual and emotional abuse. He explains why he was at the Mother’s home and asserts that he has communicated with her only for the purpose of discussing the children or the sale of the home. He does acknowledge that they have had disagreements but denies that there has been a situation even “remotely close” to what is been suggested by the Mother.

23The affidavit evidence of the Mother and Father is conflicting. There is no independent evidence to corroborate either’s version. Moreover, despite her stated fears, the Mother has willingly attended the Father’s home. Based on the evidence before me on the motion, I accept that the parties have had considerable conflict and, also, that there is also a history of conflict between the parties and their sons, Wesley and his older brother. Taken as a whole, the evidence does not satisfy me that a restraining order should be made. Also, the parties share custody of Christine and agreed to the Parenting Order, that imposes some obligations on them to communicate with each other and would make enforcement of a restraining order either very difficult or subjective: based on the Mother’s determination of when communication was allowed.

24In addition to the above reasons, by the terms of the Parenting Order, the parties have set out and agreed to defined parameters of contact and communication. The Parenting Order is a positive step to address and reduce the conflict between them. However, the Parenting Order contemplates and requires the Father and the Mother to keep the other informed, by email, with respect to the health of the child(ren) in their care; important events or appointments for the children; the names and contact information of professionals involved with the children; to divide the holidays with the children on an equitable basis “as agreed-upon” and to continue the week-on/week-off residency arrangement for Christine.

25The other term in the 26-paragraph Parenting Order contain a clear framework for how the parties are to communicate with each other about the children and in front of the children and, among other things, requires them to communicate in “brief and cordial interchanges”. A restraining order could create confusion or a lack of clarity about when the Father is allowed to be near or communicate with the Mother, which would require the interpretation of two Orders.

26The Parenting Order states that neither shall go to the other’s home except for the purpose of picking up the children or with the consent of the other. It uses clear language and leaves little, if any, room for misunderstanding as to how and when the parties are to interact with each other. It should be easy to monitor, and, if needed, to enforce.

Costs

27Unless the parties agree otherwise, given that many of the issues have been deferred to the trial judge, costs of these motions are also to be reserved to the trial judge.