Court File and Parties
COURT FILE NO.: FC-16-803-0 DATE: 2017/04/10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephane Vincent Lupien, Applicant AND Angela Faye Carmichael, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Mr. A. Merizzi, counsel for the Applicant Ms. N. Pappin, counsel for the Respondent
HEARD: April 4, 2017
Endorsement
[1] There is a motion and cross-motion before the court. By way of his motion, the Applicant-father, Mr. Stephane Vincent Lupien, seeks an order for joint shared custody of the child of the relationship, Genevieve Lupien, born 28 April, 2007, and who is now 9 years old.
[2] There is a second child, Mckenzy Reid Derouin, born September 21, 1999, by whom Mr. Lupien recognises himself to be in loco parentis for the purposes of child support. Mckenzy is not subject of the custody dispute between the parties and he continues to reside full time with the Respondent-mother, Ms. Angela Faye Carmichael and to see Mr. Lupien according to his wishes. Both parties are content with this arrangement for Mckenzy.
[3] Ms. Carmichael contests Mr. Lupien’s motion and brings a cross-motion seeking sole custody and primary residence of the child, Genevieve and fixed access to Mr. Lupien. Ms. Carmichael also seeks child support from Mr. Lupien for the two children, Mckenzy and Genevieve in accordance with the Child Support Guidelines. She further seeks a payment of his proportional share of the children’s section 7 expenses as well as the maintenance of all dental, health and medical coverage for the benefit of the two children, Genevieve and Mckenzy.
[4] Two final items of relief sought by Ms. Carmichael, pending final resolution of all of the outstanding property issues that exist between the couple, are:
(a) Each party shall pay 50% of the mortgage payment, property taxes and home insurance expense associated with the jointly owned property located at the 299 Bradwell Way, until the property is transferred or there is a further order of the Court.
(b) Commencing April 1, 2017, the Respondent shall be solely responsible for paying all of the day to day expenses associated with the jointly owned property located at 299 Bradwell Way. The parties shall cooperate to ensure that the hydro account is transferred into the Respondent’s name only within 30 days.
(c) A restraining order against Mr. Lupien, pursuant to S. 46 of the Family Law Act restraining him from attending at the former matrimonial home for any purpose unless he has express written consent of Ms. Carmichael 24 hours in advance.
[5] Both parties seek their costs.
[6] Briefly, the relevant factual context of this motion is the following. The parties began cohabiting in May of 2002. Ms. Lupien at the time had the child Mckenzy from a previous relationship who also lived with them. Genevieve is the biological child of their union.
[7] The parties physically separated on December 24, 2015 under some unfortunate circumstances in which police were involved. The union had been in trouble for some time. At the time of the separation Mr. Lupien was charged with assault against Ms. Carmichael. He has not returned to the family residence where Ms. Carmichael continues to reside with the two children.
[8] Mr. Lupien brought an Application to deal with all the matrimonial issues between the parties in the spring of 2016. In the Application, both parties make negative allegations against each other. Clearly this motion is not the forum for determining definitively those mutual allegations, many of which are repeated in the motion material.
[9] After the separation and because of the undertakings signed by Mr. Lupien, pending the resolution of the criminal charges he was facing, there was no communication between the parties, nor could they be at the same place at the same time. With the assistance of the Children’s Aid Society who got involved in the matter, Mr. Lupien was able to continue his access to the child Genevieve until the criminal matter was heard.
[10] From the motions material, despite the unfortunate circumstances of the parties’ separation, the children appear to be doing well.
[11] The criminal matter has now been resolved and on February 8, 2017, Mr. Lupien was acquitted of all the criminal charges he was facing. Furthermore, the restraining order has been lifted so that he is no longer prevented from communicating with Ms. Carmichael and can attend the same locations as her.
[12] Mr. Lupien takes the position that the criminal proceedings between him and Ms. Carmichael did not concern the children. They did not relate to his role as a parent in Genevieve’s life. In the past, he was an involved and loving parent to his daughter and wishes to continue in that role in an active way. In fact, he claims he was the primary parent. For that reason he seeks joint and shared custody, on a weekly rotating basis.
[13] Alternatively, he seeks the primary residence of his daughter with large and liberal access to Ms. Carmichael.
[14] Ms. Carmichael seeks sole custody of her daughter. Her position is that despite the criminal acquittal, she alleges that Mr. Lupien did assault her. According to Ms. Carmichael, Mr. Lupien in the past was controlling of her and the two children. Mr. Lupien’s decisions were imposed on the whole family.
[15] Ms. Carmichael takes the position that Mr. Lupien continues to be controlling and she cites some examples of this such as the mail box key and his aggression in communicating with her after the criminal acquittal. Ms. Carmichael is not convinced, in light of this history and behaviour, that the parties are able to work collaboratively.
[16] Based on the facts of this case, and the circumstances of the parties’ separation, I am not persuaded that moving from the status quo, where both children are doing well, to a complete joint and shared custody regime would be in the best interests of Genevieve. In my view the evidence raises too many doubts about the ability of these parties to harmoniously collaborate in a joint and shared parenting arrangement which may be resolved once this matter is heard on its merits at a trial. For that reason, primary residence of Genevieve will remain with the mother.
[17] Nonetheless, Mr. Lupien should be given more time to parent his daughter. He will therefore have care of Genevieve from Thursday after school to Monday morning, when he will deliver her to her school, every second weekend. During the week preceeding the weekend when Mr. Lupien does not have the care of his daughter, he shall have one overnight, from after school until the following morning, when he shall be responsible to take his daughter to school. I leave it to the parties to agree on what day of the week this overnight should be. If they cannot agree, I can be spoken to and I shall fix the day.
[18] Genevieve shall be free to communicate with her other parent, as she wishes, when she is in the care of one parent.
[19] In the event that this matter is not tried prior to the happening of school holidays, Genevieve’s school holidays should be shared equally between her parents. I leave it to the parents to agree on how this division should be made at least one month before their happening. Failing such agreement, the matter may have to be decided by the court once again.
[20] The parties are free to agree in writing to any other or additional parenting arrangement between them.
[21] With respect to Genevieve’s school and extra-curricular activities, both parents shall be able to attend all and any of these activities. The parent who has care of Genevieve at the time of an activity shall be responsible to take Genevieve to her activity and to bring her back home. If the parent who has care of Genevieve is not able to do this, then the other parent shall have the first right of refusal to perform that role.
[22] If either parent is not able to care for Genevieve during their parent time, then the other parent shall have the first right of refusal to care for Genevieve.
[23] If any major decision relating to Genevieve’s well-being needs to be made prior to this matter being heard on its merits, such decisions shall be made jointly by both parents. Failing such agreement, after a reasonable time when the parents would be required to consult with each other, the decision shall be made by Ms. Carmichael as the parent having primary residence at this time.
[24] Communication between the parties, for the time being should be done electronically. There appears to be agreement on this issue.
[25] Mr. Lupien is not to attend Ms. Carmichael’s residence except for the sole purpose of picking up or returning Genevieve to the care of her mother when that is necessary. Otherwise, he shall not do so without the written consent of Ms. Carmichael upon 24 hours notice.
[26] On the evidence, there is no question that Ms. Carmichael is entitled to child support for the two children in her care. Based on Mr. Lupien’s declared annual earnings, the child support payable by him, in accordance with the Child Support Guidelines would be $1,483.00 per month.
[27] Mr. Lupien has raised the issue of a discounted amount of total child support payable by him in view of the fact that Ms. Carmichael is entitled to a payment of approximately $315 per month of child support from Mckenzy’s biological father pursuant to a separation agreement. The evidence showed that this child support obligation was never paid nor was it ever enforced during the parties’ cohabitation. It never formed part of this family’s resources. There may be a dispute on the evidence as to why this was.
[28] On an interim basis, I am not persuaded that it would be in Mckenzy’s best interest nor in this family’s best interests to discount the child support payable for him because of, at this point, an unknown capacity to pay on the part of a biological parent who has never provided for him. Mckenzy’s biological father, Mr. Derouin, may be added as a third party at any time in these proceedings at which point this issue may be raised again before the courts.
[29] I therefore order that Mr. Lupien pay child support to Ms. Carmichael for two children, in accordance with the Child Support Guidelines in the amount of $1,483.00 commencing January 1, 2017.
[30] There clearly remains the issue of the retroactive child support payable by Mr. Lupien to Ms. Carmichael, from the date of separation to January 1, 2017. However, I will leave the finalisation of this question to the parties to attempt to work out with the help of their counsel because there was an ad hoc, possibly unilateral, division of household and family payments made by the parties following their separation which may impinge on any final amount of retroactive child support owing by Mr. Lupien to Ms. Carmichael. Failing any agreement between the parties, this issue can be dealt with at trial.
[31] With respect to section 7 expenses of both children, the order shall be that these are to be shared by the parties on a pro rata basis proportionate to their respective income. For greater clarity, section 7 expenses shall include medical and dental expenses beyond what is covered by insurance, summer camp expenses and childcare expenses. I will leave it to the parties to determine these amounts and how they are to be paid, as they appear to have done to date. If there is any dispute, then this too can be finally determined when the matter is finally tried.
[32] Both parties shall maintain all dental, health and medical coverage available to them through their respective employments for the benefit of the two children.
[33] There are some outstanding property and property payment issues between the parties raised in this motion. The parties appeared confident that such issues might be resolved by way of mediation or through further discussions once the interim parenting question was resolved. I therefore decline to make any order with respect to the former matrimonial home or payments towards that property.
[34] The last issue is the question of costs. The Applicant shall have two weeks from the release of this endorsement to serve and file his written submissions on the costs of this motion. The Respondent shall have two weeks from that date to serve and file her written submissions on the costs of this motion. If he so chooses, the Applicant shall have one week from that date to serve and file a reply.