Court File and Parties
COURT FILE NO.: FS-13-13066 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DAWN CHARLOTTE LEMON and SEAN LEMON Applicants – and – JULIE ANNE LEMON, GLENN THOMAS COLE JAMIE LEON BUBER Respondents
Counsel: Janette Long, for the Applicants Janice Wood, for the Respondent Julie Anne Lemon No appearance by or on behalf of the Respondent Glenn Thomas Cole No appearance by or on behalf of the Respondent Jamie Leon Buber
HEARD: October 17, 18, 19 & 21, 2016; November 17 & 24, 2016; and January 11 & 12, 2017
Munroe J.
[1] This is a custody battle over two children, now 12 and 9 years old. The biological mother left her two children with her brother, his wife, and their children, “to get her life together.” That was seven years ago. With the exception of a brief interlude in 2013, the aunt and uncle have provided a stable home for the two children for those seven years. The mother wants her children returned to her care. The aunt and uncle want the children to remain with them. Both assert the interests of the children are best served with them. Added to this inherently contentious mix are preferential differences in religion and sexual orientation making cooperation between these two vying custodians strained. It is now for me to decide what is in the best interest of these children.
[2] In more formal terms, on April 10, 2013, Sean Lemon (“Sean”) and Dawn Charlotte Lemon (“Dawn”) (collectively “Sean and Dawn” or “the applicants”) brought an application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, for custody and related relief of two children, Dana Imzadi Lemon (“Dana”) born January 24, 2005, and Evin Sarek Wesley Lemon (“Evin”) born November 17, 2007. Sean is a brother of the birth mother, Julie Anne Lemon (“Julie”). Julie answered seeking custody of her children.
[3] For eight days, from October 17, 2016 to January 12, 2017, I heard from 11 witnesses and received 22 exhibits in addition to the Trial Record. The case was vigorously contested.
[4] The main issue before me – custody – has but one overriding principle: the best interests of the children. Although I am acutely aware of the heated feelings brought on by such issues, the parties’ opposing views on religious and sexual preferences must never detract from that determination. I must and will stay focused.
CUSTODY
Facts
Background
[5] Julie, the mother of the children, is 36 years of age. She was born in Canada but also has U.S. citizenship. Julie left high school in southwestern Ontario during her Grade 12 year, before graduating. She held various, mostly retail, jobs until the summer of 2003 when she moved in with her mother, Lillian Lowe, in her mother’s home in suburban Detroit, Michigan. The purpose of the move was to get her high school diploma. Julie started high school in Michigan in September 2003 and graduated in June 2004. At the time of her graduation, Julie was pregnant with Dana. Julie gave birth to Dana in January 2005. The father never has been involved with his child. Julie’s mother worked at Henry Ford Hospital. Julie did not work. She and the child continued to live with Ms. Lowe, Julie’s mother. In November of 2007, Julie gave birth to Evin while living with her mother. The father never has been involved with his child.
[6] In November of 2008, Julie began working at Blockbuster, a video store in Michigan. She and the children were still living with her mother. Ms. Lowe continued to work at Henry Ford Hospital. Child care was an issue. A major source of child care for Dana and Evin during this time was the Windsor home of her bother, Sean, and his wife, Dawn. In February of 2010, Julie began full time school at a Michigan college in an 18 month program to be a medical assistant. Julie continued to work at Blockbuster. There were growing tensions between Julie and her mother. In April of 2010, Ms. Lowe formally evicted Julie from her home.
Children to Sean and Dawn
[7] Julie and the children went to Windsor. It is disputed where in Windsor Julie went after this eviction. Julie says she moved into a boyfriend’s apartment and continued to use Sean and Dawn to care for the children because she continued to work at Blockbuster and go to school, both in Michigan. Sean and Dawn say Julie and the children moved in with them after the eviction in April, 2010. Julie got her own Windsor apartment in August of 2010 while still working and going to school in Michigan.
[8] There is a dispute on when Julie turned over the full-time raising of her children to Sean and Dawn. Sean and Dawn say it was in April, 2010. Julie says it was in September, 2010.
[9] Julie left the college program before its completion in the fall of 2010. She stayed working at Blockbuster until it closed in 2011. Julie began another college program, this time in massage therapy, in Michigan in 2011. After her Blockbuster work ended, she began working for a Windsor business. Julie kept her Windsor apartment until early 2013, although she began a romantic relationship which took her again to live in Michigan from the fall of 2011 until early 2013. The children stayed with Sean and Dawn. Julie did visit her children.
[10] Julie’s Michigan relationship soured and she left the massage therapy school both around Christmas of 2012. Her job with the Windsor company ended. Julie decided she wanted to continue with massage therapy school and Toronto provided the education she sought. Julie registered for a Toronto massage therapy school in late February, 2013. In Toronto, she was staying with her sister, Tracy. She had no job.
The Taking and Return of the Children
[11] When Julie heard that Sean and Dawn were seeking a lawyer to keep the children, Julie simply appeared at the Windsor school of the children on Tuesday, February 26, 2013, removed the children from school, and took them to Toronto telling Dawn that she would never see them again. The following Monday, March 4, 2013, Julie enrolled both children in a Toronto public school.
[12] On March 28, 2013, Pomerance J. ordered interim custody to Sean and Dawn and directed law enforcement to assist in returning the children to Sean and Dawn. Shortly thereafter the children were returned to the custody of Sean and Dawn. These proceedings followed the filing of the formal application for custody by Sean and Dawn on April 10, 2013.
[13] Access has not been smooth during these proceedings. It started with supervised access and developed into longer unsupervised access in Toronto.
Julie
[14] Around the time of the taking of the children to Toronto, Julie rekindled a Toronto relationship with Sophie Lafrance (“Sophie”). Very soon, Julie moved into Sophie’s apartment and the two have been partners ever since. Julie never went to the Toronto massage therapy school but she did work. She worked in Toronto for Beck Taxi for nine months, for Diamond Taxi for about one year, and for Roots Canada beginning in November of 2015 until she quit in June, 2016. Julie and Sophie then moved to a home owned by Sophie’s brother, Matthieu Lafrance (“Matthieu”), in Oshawa, one or two hours east of Toronto. Julie was on social assistance from the summer of 2016 to October, 2016, when she recommenced work with Roots, this time in their Oshawa store. Sophie continues to commute to work in Toronto for Diamond Taxi where she has worked for over 12 years. Her brother also works in Toronto. They commute together.
Sean and Dawn
[15] Sean is 47 years old and Dawn is 46 years old. They have been married for over 25 years. They have three children of their own: Trevor, now age 25; Joshua, now age 21; and Timothy, now age 18. All live in the family home in Windsor. Sean now works as drywall subcontractor with an annual income of approximately $50,000. Dawn used to have a cleaning business but that ended a couple of years ago and now she is a stay-at-home mom.
Religion
[16] All, including Julie, were raised in the Jehovah’s Witness faith. Julie left the faith at age 19. She returned when pregnant with Dana and left again when pregnant with Evin. She does not want to return and now is quite critical of the religion. When she left her children with Sean and Dawn, Julie knew they were involved in the faith and would so raise the children.
[17] The faith does not believe in certain celebrations including Christmas and birthdays. The faith also does not believe in same-sex relationships. These two beliefs have been the source of much discord in the ongoing access regime and the absence of real communication between Julie and Sean and Dawn.
Children’s Aid Society
[18] On November 4, 2014, an anonymous call was made from Toronto to the Windsor-Essex Children’s Aid Society (“WECAS”) expressing concern over the well-being of the children. More specifically, the caller said the children were made to feel guilty and read scripture on their return from access visits with Julie. An investigation was opened and the person assigned the investigation, Lisa Parent, gave evidence.
[19] Ms. Parent attended the Windsor home of Sean and Dawn. She interviewed Dana and Evin separately. She also spoke with Dawn and Julie. Ms. Parent verified risk of emotional harm to the children but it was caused by Julie, not by Dawn. During access visits, Julie had the children participate in activities she knew were against the teachings of the Jehovah’s Witness religion. Julie does not want the children to be Jehovah’s Witnesses. Because the children were raised in this faith since birth, Julie’s conduct created stress in the children.
[20] The worker, Ms. Parent, found no concerns with Sean or Dawn. They were protective and appropriate. On return from the access visits, the children felt comforted by Sean and Dawn; they helped the children cope with the differences in lifestyles.
Office of the Children’s Lawyer (OCL) Reports
[21] There are two reports from the Office of the Children’s Lawyer (“OCL”). Both were ordered by the court pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The first is dated June 19, 2014 (“OCL1”) and the second is dated April 6, 2016 (“OCL2”). Both were authored by Suzanne Hamil, an OCL clinical investigator. She gave evidence at trial. Both reports are part of the Trial Record.
[22] Both reports contain the same beginning to its “Summary of Situation” section:
Ms. Lemon is the biological mother of Dana and Evin Lemon. Ms. Lemon was residing with her mother in Michigan; however when they had a falling out in March/April 2010, she and the children moved into her biological brother and sister-in-law, Mr. & Mrs. Lemon’s house in April 2010. Ms. Lemon moved out of their home in September 2010 and made a verbal agreement with Mr. & Mrs. Lemon that the children would remain in their care until she was stable in her career and was able to obtain housing for the children and herself.
[23] The preference of the children remained similar if not identical. In OCL1, at pages 21-22, the report states the following:
Dana: Dana reported that she would like to remain in the care of Mr. & Mrs. Lemon and continue to have the same access schedule with Ms. Lemon, every two weeks.
Evin: Evin advised that he would like to see Ms. Lemon ‘more’ often and when asked for more detail, he reported that he would like to see her ‘every day.’ When asked about how often he would like to see Mr. & Mrs. Lemon, he reported ‘a lot. Every time [we] come back from the access centre.’
[24] In OCL2, at pages 15-16, the report states the following:
Dana: Dana feels that it is fantastic that she gets to see Ms. Lemon because she used to have nightmares about not seeing her mother. In her dream, she advised that Ms. Lemon and Mrs. Lemon were arguing and when Dana attempted to hug her mother, there was a bubble separating them. Dana blinked and her mother was gone.
Dana advised that once or twice per year, she ‘has a feeling’ that she should be visiting Mr. and Mrs. Lemon and living with her mother. Dana advised that the only person, until now, that she has disclosed this to, is a friend, Akira, at school. She reported feeling confused and discouraged when having these feelings. She advised that when she is around Mr. and Mrs. Lemon or with her mother she doesn’t feel that way as she misses the other party when she is away from them.
Dana has access to Ms. Lemon once per month and when they have PA days or a break from school, the children have extended access with Ms. Lemon. Dana is happy with the amount of time that she spends with Ms. Lemon currently, as she advised that it is ‘perfect.’
Dana was asked three wishes about her family. One wish was that her mother could reside with her, Evin, and Mr. and Mrs. Lemon. She wished that they could either live in the same house, as they did before or in the same city.
Evin: Evin advised that the visits with him [sic] mother are going well. Evin would like to see Ms. Lemon more, as he currently only sees her ‘a little bit.’ ….
When asked three wishes, Evin was able to provide one. He wished that he could have ‘more visits’ with Ms. Lemon.
During the second interview with Evin, he advised that he resides with Mr. and Mrs. Lemon and has access to Ms. Lemon ‘three days in a row.’ He hates the drive to and from Toronto as it is five hours long. He recalls the transition to be smooth and reported ‘kinda’ missing the other party while with the other.
…. Evin advised that he would like to have access with Ms. Lemon ‘for like a month or two or three then come back here [Mr. and Mrs. Lemon’s residence].’ He enjoys residing with Mr. and Mrs. Lemon but would like to spend more time with Ms. Lemon.
[25] Interestingly, the reports by the same author reached opposite recommendations. OCL1 recommends sole custody should remain with Sean and Dawn. OCL2 recommends sole custody should be given to Julie after a period of transition.
[26] In the discussion section of OCL2, at pages 16-19, the author provides her opinions. With regard to religion, she states:
Throughout the custody and access proceedings, the children remained in Mr. and Mrs. Lemon’s care and Ms. Lemon was granted access but ordered not to discuss her religion with them. This clinician believes that it is in the best interest of the children to know their mother fully, including being exposed to her values and beliefs. Parental views, opinions, and values are a part of a child’s cultural heritage. To be meaningful, there must be real freedom of communication, not censored by arbitrary restrictions. This clinician enquired into whether the exposure to duality of religion posed a risk of harm to the children, and the evidence in this case did not establish such a risk of harm. So long as the matters of care and upbringing, education, including religious instruction are being adequately attended to, even though that religious instruction may seem contrary to the beliefs held by the other party, that other party does not have the right to interfere. There is no “right” to limit the access parent’s ability to share his or her religious views with the children, unless that is shown not to be in the child’s best interests. All parties have the right to religious input into the children’s life.
The Canadian Charter of Rights and Freedoms was created, in part, to preserve and enhance the multicultural heritage of Canada. Indeed, exposure to a duality of religions can benefit children. Based on this, with giving the children the opportunity to know two different faiths so they can learn from both and, perhaps, in the fullness of time, they may be able to choose what religious convictions and beliefs they want to guide their lives.
[27] With regard to the relationship of the children with Julie and with Sean and Dawn, the author says that despite the ongoing conflict, Dana and Evin have developed significant relationships with both parties. Ms. Hamil includes the following:
In 2010, Ms. Lemon sought the assistance of Mr. and Mrs. Lemon when she was having a difficult time. At that time, all parties made a verbal agreement that Mr. and Mrs. Lemon would care for the children until Ms. Lemon obtained stable housing, a career and was mentally strong enough to care for the children. Ms. Lemon has made great strides since that time and has ensured she has the necessities for the children.
[28] Then, in the parental plan sub-section, the author says:
… Historically, Ms. Lemon had a history of emotional and physical instability. Since June 2014, Ms. Lemon has maintained a positive relationship with her common-law partner, Ms. Lafrance; she has obtained stable full-time employment and is stable in her residence. ….
… Based on the information gathered while conducting this investigation there is no reason to believe that Ms. Lemon cannot provide appropriate care for the children full-time.
[29] Ms. Hamil testified at the trial. She conceded a lack of experience with the type of conflict present in this case. When asked about her opinions regarding religion and children, she said they were from articles she read but she was unable to identify the articles.
[30] When asked about the change in recommendation, Ms. Hamil first mentioned the agreement was for Sean and Dawn to return the children when Julie became stable. On cross examination, she denied her recommendation was based upon the agreement. When pressed about job and home stability, she admitted she did not have the information that Julie quit her job, went on social assistance in the summer of 2016, and moved to Oshawa. Ms. Hamil declined to comment on these changes and her recommendation. Further, Ms. Hamil admitted she did not contact any of the children’s teachers and conceded reliance upon Julie for her stabilization conclusions even though in her first report she questioned Julie’s credibility as follows:
Throughout the investigation, Ms. Lemon’s credibility was questionable. She was noted to make a number of inconsistent statements and never acknowledged any responsibility and frequently blamed others for her circumstances. Her allegations and statements appeared to be motivated by the initiation of the custody and access proceedings. It was also noted that Ms. Lemon had recently developed a new relationship with a woman in the Toronto area, which likely prompted her sudden move there with the children.
Education
[31] Two teachers were called as witnesses, Sandra Benvenuto and Beth Grainger. The school records of Dana and Evin, from the same public school from 2011 to 2016, were introduced as exhibits. The school has a diverse community of students from different cultures and different religions. Because of this diversity, no religious holidays are emphasized. The children fit in. They dress appropriately and are always neat and tidy. Both are doing well in school with Dana excelling. There were tardiness issues but nothing major.
[32] Ms. Benvenuto taught Dana. She described Dana as a happy child, confident, outgoing, with a sense of humour. Dana made friends easily and had no problem with relationships.
[33] Ms. Benvenuto also taught Evin. She described Evin as a happy child, always smiling, kind, very respectful, but did struggle to make friends. Evin needed extra help which she gave him.
[34] Ms. Benvenuto said Dana had anxiety and cried when she was going to visit Julie. The teacher described her reaction as a “melt down.” Dana said she did not want to go. It happened five or six times when she taught Dana during the school year 2014-2015.
[35] Both teachers described Dawn as helping out with school events. Both also said Dawn was responsive when school issues involving the children were brought to her attention.
Disputed Facts – Resolution
[36] I heard the evidence of Julie. I was not impressed. She came across as cocky and flippant. For example, when asked why she did not contribute to the expenses of the children’s eyeglasses and Evin’s medication, Julie responded, “If you can’t afford it, give them back.”
[37] Substantively, I question her credibility for a number of reasons. Julie made every effort to portray herself in the best possible light even if it was contrary to fact. She testified she enrolled the children in a Toronto school the very next day after removing the children from their Windsor school and moving to the city. In truth, as verified by the school letter, she did not enrol the children until the next week, about six days later. Moreover, for child tax credit purposes, Julie falsely claimed her children were living with her when they were not. Canada Revenue Agency now is seeking the return of more than $18,000 from Julie. In sum, I do not accept the evidence of Julie unless it is supported by other independent evidence that I do accept.
[38] Perhaps the most significant result of my general caution with regard to the evidence of Julie is the identification of the time when Sean and Dawn commenced their full-time care of the children. I find that it was in April of 2010, when Julie arrived at their doorstep after being evicted from the home of her mother.
Positions of the Parties
Sean and Dawn
[39] The core argument of the appellants is their ongoing stable home environment for the children. The children have been raised by them in their home and with their other children for the last seven years. The children are part of their family. They are doing well in school and participate with the family in practicing their faith. To uproot these children from this safe, stable and known family environment is not in the best interests of the children.
[40] Moreover, Julie remains in no position to care for these children. The income generated by her retail job situation remains unstable as shown by her need to seek financial assistance from Ontario Works last summer. Her current partner relationship is uncommitted. Each partner lives as a separate unit. It is not a stable family unit. Her housing situation too is not stable. Julie has a separate month to month lease with her partner’s brother for part of his home. To uproot and disrupt the current stable home environment for the environment proposed by Julie is not in the children’s best interests.
Julie
[41] Julie says her arrangement with her brother to care for her children was intended to be temporary until her life stabilized. Julie says she has demonstrated that her life is stable now. She has a good job with the retailer, Roots, and has the support of her partner with whom she has a three-plus-year stable relationship. The proposed home environment is good, safe, and stable. The other residents in the home, her partner and her partner’s brother, are good people committed to her children. All of this has been confirmed by the second report of the OCL. The recommendations in that report are correct and should be followed.
Biological Fathers
[42] The biological fathers of these two children, Jamie Leon Buber and Glenn Thomas Cole, respectively, have played no role in these proceedings. Indeed, they have played no role in the lives of their children. They were never married or in a committed relationship with Julie. Their addresses are unknown. Julie was given custody of her children by a Michigan court in 2009.
Legal Principles
[43] An award of custody, pursuant to the Children’s Law Reform Act, is determined on the basis of the best interests of the child. More particularly, the pertinent sections of s. 24 are as follows:
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4) [violence]; or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) [violence and abuse]
Principles Applied
[44] Both Sean and Dawn, on the one hand, and Julie, on the other, are claiming custody of two beautiful children, Dana and Evin. Using the structure of s. 24(2) of the Children’s Law Reform Act, I make the following findings:
a. love, affection and emotional ties
[45] It is very clear from the evidence that the children are loved deeply by both parties and the children love both parties. The children have a significant bond with Sean and Dawn who have raised them for the last seven years. They call them mommy and daddy. It is also true that the children love their biological mother, Julie. In addition, they are beginning to form a relationship with Julie’s partner, Sophie.
b. views and preferences
[46] The two OCL reports provide the best evidence of the preference of the children. The children do enjoy their access visits with Julie but it is clear that they wish to remain in the care of Sean and Dawn. I so find.
c. length of time in stable home environment
[47] Dana and Evin have lived in the care of Sean and Dawn for over seven years. I find this has been a stable, loving, and positive home environment.
d. ability and willingness to provide
[48] Sean and Dawn certainly are able and willing to provide Dana and Evin with guidance and education as well as the necessaries of life. Indeed, they have done so admirably for the last seven years.
[49] Julie certainly wants to provide the best for her two children. I do not doubt that. Whether she is able to do so remains an open question for me. Her life is an example of instability with constant changing of education, jobs and residences. Has Julie finally settled down? I want to believe she has, but there has been too little time for a more confident endorsement. In the past year, Julie has quit one job, gone on social assistance, moved to a residence significantly farther away from Sean and Dawn, and reconnected with employment in a different city. Those changes are a concern to me because it shows a continuation of the lack of stability. As I see it, the one big positive is her relationship with Sophie. I was impressed by Sophie when she gave evidence before me. She is an organized, strong, and no-nonsense person. But will that relationship last? It has lasted over three years but there are signs of a lack of full commitment. They are not married. They do not have joint finances. They have separate month-to-month leases for the purpose of protecting Sophie’s brother if the relationship ends. I simply cannot and do not find this to be a stable home environment.
e. plan for care and upbringing
[50] The plan proposed by Sean and Dawn is a continuation in the same home, with the same schools, the same religious commitment, and the same activities engaged in for the last seven years here in Windsor.
[51] The plan proposed by Julie is to move the children to Oshawa five hours away, enrol them into new schools, and seek counselling. The home is a single family residence owned by Sophie’s brother, Matthieu. Living in the home would be Matthieu, Sophie, Julie and the two children. Matthieu and Sophie commute to Toronto for work every workday. The commute is two hours each way. Matthieu and Sophie are out the door at 6:00 a.m., before the children wake up for school, and return about 6:00 p.m., after the children have had dinner. They can provide no help to Julie during school days. Matthieu has the only car; once he leaves for work there is no car for Julie. She can walk the children to and from school. Julie works a retail job with no set hours but includes evenings although she claims her job will adjust to her needs. Julie plans on having an after school program from which Sophie can pick up the children, if Julie has to work. In sum, the proposed plan has far too many variables for comfort. I cannot and do not find that it would provide stability for the children.
f. permanence and stability
[52] I find that Sean and Dawn provide a permanent and stable family unit. Despite her desires and beginning efforts, I am unable to make the same finding with regard to Julie’s proposed family unit.
g. ability to parent
[53] Based on all of the evidence, Sean and Dawn are markedly better able to act as parents for Dana and Evin than is Julie. The ability of Julie to parent remains to be seen. Julie’s admitted desire to be the “cool aunt” by, among other things, smoking marijuana with the older sons of Sean and Dawn causes me much concern.
h. relationship
[54] Julie is the biological mother of Dana and Evin. Sean is the biological uncle of the children and Dawn is Sean’s wife.
Determination on the Merits
[55] Based on all of the evidence, and having regard to the factors in the Children’s Law Reform Act described above, I find that it is in the best interests of Dana and Evin to remain in the sole custody of Sean and Dawn.
[56] I decline to follow the recommendations of OCL2. In addition to the above findings, the stabilization conclusions of the author were founded upon the word of Julie, which I find to be unreliable. Moreover, Julie’s claimed stability circumstances – job, residence, social assistance – changed after the report was written. Further, the author did not communicate with the children’s teachers and was unaware that Julie’s conduct during visits did create at least a risk of emotional harm to the children.
ACCESS
[57] The current distance between the homes makes frequent access very difficult, expensive, time consuming and not in the best interests of the children. I agree with the proposal of Julie that the access should be one weekend per month from Friday at 7:00 p.m. to Sunday at 5:00 p.m. Given the travel distance, the parties should make efforts to include extended weekends, when possible. The access visits shall not occur during weekends when the family of Sean and Dawn are involved in religious events such as “assembly” weekends and “memorials.” Julie shall have the children for four weeks during the months of July and August. The exact dates, and whether the weeks are continuous or split, shall be worked out by the parties. Julie shall have one week during the school break at Christmas and half the time during the school March break. The parties shall exchange the children at an agreed location in London, Ontario.
[58] One additional issue remains: whether Julie should be allowed to celebrate holidays when the children are with her. This is problematic because it not only brings in religious beliefs but it has been the source of stress and anxiety for the children as found by the WECAS and as seen by Ms. Benvenuto, Dana’s school teacher. Indeed, King J. entered an interim order dated October 23, 2015, which contained the following:
- The respondent [Julie] is directed not to include the children in any activity or festivity that is contrary to the religious beliefs of the applicants [Sean and Dawn]. While I acknowledge that the applicants’ religious beliefs preclude the celebration of any holidays, they acknowledge and I order that some leeway in terms of access is permissible with respect to the more secular holidays (ie, Victoria Day, Canada Day) as these generally do not include the type of festivities and celebrations that can occur on the religious holidays and birthdays.
[59] The entry of this order seemed to have calmed the waters of the initial anxiousness, both by the children and by Sean and Dawn, over Julie’s conduct during access visits. Now Julie seeks to revisit this condition asking for the following: “The Respondent shall be allowed to celebrate holidays with the children, in accordance with the wishes of the children.”
[60] Make no mistake, this is not a conflict between different religions. Julie is not active in any religion and was raised in the Jehovah’s Witness faith. She left the faith when she was in her twenties and now makes no secret that she does not want the children raised in that faith. This is true even though she left Dana and Evin in Sean and Dawn’s care, knowing that her brother was actively involved in the faith. From the evidence, I find that the efforts of Julie to have the children participate in activities contrary to the Jehovah’s Witness faith has been done intentionally as revenge or spite against Sean and Dawn, the parties seeking custody of her children. Her motivation has no religious purpose but rather is to upset her opponents. The problem is that it upsets the children too. In the unique facts of this case, I disagree with the OCL author, Ms. Hamil. The effort by Julie is not to introduce or educate the children into other religions or beliefs, it is to torment Sean and Dawn. Thus, I shall keep in place and make permanent the order of King J.
CHILD SUPPORT
[61] As the non-custodial parent, Julie is obligated to pay child support. From the information provided at trial, Julie works for a Roots Canada store in Oshawa making $12.50 per hour. She says she is listed as part time but works full time. Estimating a 35 hour work week, Julie is making $21,875 per year from this employment. In accordance with the Child Support Guidelines, O. Reg. 391/97, as amended, the guideline rate for this income for two children is $344 per month. Julie shall pay guideline child support commencing on August 1, 2017.
[62] Julie also is responsible for her share of the special or extraordinary expenses of the children. Evin has ongoing medication needs and both children wear eyeglasses. Given her income and the income of Sean at approximately $50,000 per year, I find Julie is responsible for 20 per cent of all special or extraordinary expenses of the children.
COSTS
[63] Despite the length of the trial, which was extended in part by the conduct of the respondent in losing a half day for the failure to have a witness available, and given the financial position of Julie, I find that the imposition of costs is inappropriate in this case. Given the second OCL report, the trial position of Julie cannot be said to have been without support. No costs are awarded.
ORDER
[64] For the reasons set out above, I make the following order:
The applicants, Dawn Charlotte Lemon and Sean Lemon, shall have sole custody of the children, Dana Imzadi Lemon, born January 24, 2005, and Evin Sarek Wesley Lemon, born November 17, 2007.
The respondent mother, Julie Anne Lemon, shall have access to her children, Dana Imzadi Lemon and Evin Sarek Wesley Lemon, as follows: a. Once each month, on a weekend agreeable to both parties, from Friday at 7:00 p.m. to Sunday at 5:00 p.m., unless it is a long weekend then the times are to remain the same but the days of the week will change; the agreed weekend shall not be unreasonably withheld; b. Four weeks during the summer months of July and August. The weeks are to be agreed upon by the parties which said agreement shall not be unreasonably withheld; c. One week during the school break at Christmas and half the time during the March school break, the exact periods to be agreed upon by the parties which said agreement shall not be unreasonably withheld; d. The regular monthly weekend access visits shall discontinue during the months of March, July, August, and December, when the other access visits occur; e. The parties shall exchange the children for these access visits at an agreed location in London, Ontario, which said agreement shall not be unreasonably withheld; and f. The respondent mother, Julie Anne Lemon, shall not include the children in any activity or festivity that is contrary to the religious beliefs of the applicants; solely non-controversial secular holidays, such as Victoria Day and Canada Day, are not deemed contrary to the religious beliefs.
The respondent mother, Julie Anne Lemon, shall pay to the applicants, Dawn Charlotte Lemon and Sean Lemon, child support for the two children, Dana Imzadi Lemon and Evin Sarek Wesley Lemon, the sum of $344 per month commencing on August 1, 2017, and continuing on the first of every month thereafter. The quantum of support is based on the respondent mother’s imputed income of $21,875 per annum and the Child Support Guidelines.
The respondent mother, Julie Anne Lemon, shall pay to the applicants, Dawn Charlotte Lemon and Sean Lemon, 20 per cent of all special or extraordinary expenses of the children, Dana Imzadi Lemon and Evin Sarek Wesley Lemon, specifically including, but not limited to, eyeglasses for the children and medication for Evin. The percentage is based on the respondent mother’s imputed income of $21,875 and the imputed income of $50,000 for Sean Lemon.
There will be no order as to costs.
“original signed and released by Munroe J.” Kirk W. Munroe Justice
Released: July 5, 2017
COURT FILE NO.: FS-13-13066 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DAWN CHARLOTTE LEMON and SEAN LEMON Applicants – and – JULIE ANNE LEMON, GLENN THOMAS COLE JAMIE LEON BUBER Respondents REASONS FOR JUDGMENT Kirk W. Munroe Justice