CITATION: Daigle v. Torkelson, 2016 ONSC 7842
COURT FILE NO.: 1332/16
DATE: 2016/12/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carley Daigle, Applicant
AND:
William Andrew Albert Torkelson, Respondent
BEFORE: The Honourable Mr. Justice J.W. Sloan
COUNSEL: C. Gill - Counsel, for the Applicant
Ms. Hammond Grant - Counsel, for the Respondent
HEARD: December 2, 2016
ENDORSEMENT
[1] This is another case where two people who individually would have no difficulty in raising a child and determining what would be in his best interests, are unable to do so under the circumstances where they have created a child but are no longer living together.
[2] The child in question is Andrew William Robert Torkelson born May 20, 2014, so he is now 2 ½ years old.
[3] The parties cohabited between June 2013 and February 23 2016, when they decided to separate, but they remained residing in the “matrimonial home” until the applicant mother moved out on June 11, 2016.
[4] This is one of the many cases that come before the Court on a short rather than a long motion, without facta (whether one is required or not under the rules), where no cross examinations have been held and where the parties have, not surprisingly, a different view of the facts and what the court should read into them.
[5] To their credit, the parties appear to be able to agree on many things but not on the time each of them should spend with the child.
[6] Both parties have good paying jobs with the father averaging in the $100,000 range and the mother averaging over $50,000 per annum.
[7] The mother seeks custody of the child with access to the father, child support and spousal support.
[8] The father seeks a more or less an equal joint custody regime with equal timesharing. He is prepared to have child support payable pursuant to the child support guidelines and he opposes spousal support.
[9] There is a settlement conference scheduled for January 9, 2017.
Father’s Position
[10] Since the separation the mother has not permitted the father to have more than one consecutive overnight with the child.
[11] His work allows him flexibility and he remains living in what I have referred to as the matrimonial home so there is more than adequate room for the child to stay there overnight.
[12] Currently the father has the child for dinner one night per week and overnight for one night per week. In addition he picks up the child from daycare every day but is still restricted to one dinner per week.
[13] The father claims he was a hands-on father right from the start and admits to taking on over time after the birth of the child in order to cover expenses, while the applicant mother was on maternity leave.
[14] He claims that the applicant agreed to a 50-50 timesharing arrangement when they agree to separate but her evidence is to the contrary.
[15] He claims the applicant mother is extremely restrictive and from his position very unfair with respect to allowing him more and more meaningful time with his son.
[16] His main concern is that the applicant is building up a status quo which will make it more difficult for him to obtain joint custody with a more or less 50-50 residency component.
Mother’s Position
[17] She has kept something akin to a diary after the parties separated in February but remained living in the matrimonial home until June 2016.
[18] In essence she states that during this period of time he left the home frequently leaving her to look after the child.
[19] After he broke his leg playing baseball in July 2016 and had the ability to pick up the child from daycare early he did on occasion but only 30 to 60 minutes early.
[20] She works in Mississauga as an accounts payable clerk from 8:30 a.m. to 5:00 p.m. but has limited ability to make any significant changes in the hours that she works.
[21] She claims that she has been by far the more involved parent.
Findings
[22] Based on the material before me at the stage of the proceedings, I am not in a position to say whether or not it is in the best interests of the child to spend equal time with both parents.
[23] However the time the father is being allowed to spend with the child currently appears to be unduly restrictive.
[24] Therefore on an interim interim totally without prejudice basis I make the following order:
A. The child shall reside with the mother at all times except;
B. Alternate weekends commencing December 16, 2016, from Friday after daycare (or earlier if agreed to) until Monday morning when the child is delivered to daycare,
C. Each Tuesday evening after daycare until Wednesday morning when the child is delivered to daycare,
D. At all other times as agreed between the parties.
E. Father shall pay child support commencing December 1, 2016 based on his imputed income of $100,000 per annum.
F. Father shall pay 67% of s. 7 expenses including daycare commencing December 1, 2016 based on his imputed income of $100,000 per annum and the mother’s imputed income of $50,000 per annum.
G. I make no order as to retroactive support including s. 7 expenses as I don’t have the exact earnings of the parties before me and it should be a simple matter for the parties to calculate and agree on.
H. I make no order as to spousal support at this time.
[25] Success has been divided and I therefore make no order as to costs.
Justice James W. Sloan
Date: December 14, 2016