Court File and Parties

COURT FILE NO.: FS 37/16 DATE: 2017/06/02

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Marie Butler, Applicant AND: Jason Elias Butler, Respondent

BEFORE: The Honourable Justice D. L. Edwards

COUNSEL: Foluke A. Ololade, for the applicant Self-represented, for the respondent

HEARD: May 29 & 30, 2017 at Welland, Ontario

DECISION

Overview

[1] The mother, Marie Butler, brings this application. Primarily she seeks custody of the parties’ two children, Aiden Michael Butler, born April 19, 2003 and Alexa Faith Helen Butler, born November 3, 2007. She also seeks child support, spousal support and the payment of certain amounts.

[2] The father, Jason Butler, in his pleadings sought custody of the two children, but at trial submitted that a 50/50 relationship would be best for the children. He opposes spousal support, child support and most of the amounts that the mother seeks.

[3] The only witnesses at the trial were the two parties.

[4] The parties separated on April 1, 2016 when the mother took the two children and went to a women’s shelter. She then advised the father that she would only communicate about the children through her lawyer. There were certain efforts to resolve the matter, which were unsuccessful.

[5] The mother then brought an ex parte motion and obtained temporary custody of the two children by order of Justice Ramsay dated May 17, 2016. A subsequent motion with notice to the father occurred and Justice Sweeny granted temporary custody to the mother, with access to the father by order dated July 18, 2016.

[6] At the suggestion of the father, he left the matrimonial home in Fort Erie and the mother and two children returned to the matrimonial home.

[7] Subsequently, the matrimonial home was sold on September 2, 2016.

[8] The mother met her current boyfriend online and began dating in August 2016, and in November 2016 she moved with her two children into her boyfriend’s home in Burlington, which is a four-bedroom home on one acre of land.

[9] The mother testified that she pays rent of $800 per month to him and purchases food for herself and her two children. She characterized her relationship with her boyfriend as not being a common-law relationship. This despite the fact that he provides her for her personal use with a 2016 minivan, which is owned by his company, and has paid for, and taken her on a trip to Cuba and a trip to Mexico during the past winter.

[10] Since separation the mother has had physical custody of the children. Under the most recent court order the father is entitled to access every second weekend and on alternating Wednesdays. Both he and the mother testified that he is not utilizing all of his accessed time recently. The father testified that the reason for this is that he has to work two jobs in order to be able to pay the court ordered amounts for child support.

[11] The father advised that as of June 1 he will be out of his apartment and renting a room only because he cannot afford to keep his apartment. He testified that as of July 1 he would have enough money to obtain appropriate accommodation for overnight access.

Custody Issue

[12] The mother seeks sole custody of the children and submits that co-parenting will not work because of the conflict that occurs between the parties. She cited two instances when the parties have been together after separation, as examples of this conduct.

[13] She stated that she had saved a seat for the father at an event at their children’s school. She said that the father arrived and made a scene, raised his voice and embarrassed both her and the children.

[14] The father’s version of that event is that he did not raise his voice and did not make a scene. He acknowledged that he was upset because the mother had failed to advise him of two instances when the children had been home for at least two days due to illness.

[15] The mother also indicates that during the exchange of the children there is conflict. The father indicates that any conflict that occurs is as much the fault of the mother has it is his.

[16] The father also points out that the mother has intimated to him that something improper is occurring because on occasion he has slept in the same bed with his 9 year old daughter. At the same time, the father contends that the mother occasionally has slept with her son in the same bed until he was 13 years old. The mother acknowledges that it is appropriate to have a mother sleep with her son until a certain age. However, she declined to state what that age was and was unwilling to testify as to when she last slept in the same bed with her son who is now 14 years old.

[17] The mother alleges that during their marriage the father was violent on several occasions, including throwing her onto the bed and throwing her son onto the bed. The father denies such conduct and testified that it was the mother who would be violent and loud on various occasions.

[18] The mother testified that she believes that the father loves the children and was a good father. The father testified that he was very active with the children when the couple were together and took the children on many social outings.

Law

[19] Section 16(8) of the Divorce Act provides that in making an order for custody or access under the Divorce Act, “the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child”.

[20] The Divorce Act does not provide a specific list of factors to be considered in determining the best interests. However, it is helpful to refer to the non-exhaustive list of factors provided under s. 24(20) of the Children's Law Reform Act, R.S.O. 1990, c. C.12…(“CLRA”), which states as follows:

24(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 or 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 adoption order between the child and each person who is a party to the application.

[21] The Supreme Court decisions in the Young v. Young, [1993] 4 S.C.R. 3, and Gordon v. Goertz, [1996] 2 S.C.R. 27, clarify that the best interests of the child has been elevated from a paramount consideration to the ultimate and only relevant issue in deciding matters of custody and access.

[22] There has been evidence provided to me with respect to the past conduct of both parties.

[23] I note that s.16(9) of the Divorce Act directs that I not take into consideration the past conduct of any person “unless the conduct is relevant to the ability of that person to act as a parent of a child”.

[24] Finally, s.16(10) of the Divorce Act directs that I give effect to “the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”.

Analysis of Custody and Access

[25] As the Divorce Act does not provide a list of specific factors to consider, I will first analyze the factors set forth in s. 24(2) of the CLRA to help me consider what the best interests of the children are with respect to custody and access.

[26] I do not directly have the views and preferences of the children. The involvement of the OCL was not requested. Father did ask that I have the children come to court to testify. That is not generally the appropriate vehicle to receive the views and preferences of the children, and I declined to do so.

[27] From the evidence, I am satisfied that both parents love and are emotionally connected to the children.

[28] The children have lived with the mother since separation and since November 1, 2016 have lived in their current home.

[29] The father currently has no accommodations suitable for the children to live in. He advises that he will acquire appropriate accommodations by July 1, but he has no specific plans.

[30] The mother is currently living with her boyfriend in his four-bedroom home in Burlington. At this time, she has the ability to provide appropriate accommodation.

[31] Neither party presented a plan for the children’s care and upbringing.

[32] I am concerned that today the father is unable to provide a suitable stable environment for the children to reside in. He has significant financial issues. In addition to his arrears of child support and ongoing child support, he has one loan for approximately $1,500 in collection. I will return to this issue when I discuss residency of the children.

[33] The ability of the parties to communicate is a relevant factor for me to consider when analyzing whether joint custody should be awarded.

[34] The Ontario Court of Appeal has made clear that joint custody should not be awarded in high conflict situations where there is an inability to communicate between the parties. Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (ON CA).

[35] In Kaplanis, the Court stated that there must be some evidence that the parties, despite their differences, can communicate effectively. It was an error in principle to award joint custody where there was no evidence of historical co-operation and appropriate communication between the parents, but rather a hope that it would improve with parenting skills of the parties.

[36] There is no doubt that the mother and father have difficulty communicating. However, I am not satisfied that these difficulties are other than those which caused the parties to separate in the beginning.

[37] The mother has alleged violence against her by the father; the father has alleged that the mother has been violent against him. I have no corroborating evidence. However, I am inclined to accept the father’s testimony over the mother’s testimony on this point, and others, for a number of reasons.

[38] The mother was reluctant to answer directly questions when the answers could be negatively construed against her. For example, she was unwilling to give her opinion as to at what age of a son it was not appropriate for a mother to sleep with the son in the same bed, and yet, clearly, she had a view as to what age it was an inappropriate for a father to sleep in the same bed with the daughter. Often, she stated that she did not understand questions when the questions were very straightforward and clear, but the answers would make her appear in a negative light.

[39] I was satisfied that the father was honest, straightforward and consistent in his answers. I also accept that he is prepared to move on and wishes to co-operate on parenting issues.

[40] I find that the father was heavily involved in the children’s lives prior to separation. He was involved with their sports activities and often took his son and daughter out for many social interactions. He assisted his daughter in enhancing her reading ability by working consistently with her.

[41] I am concerned that the mother’s actions since separation have had the effect of distancing the children from the father. After separation, she has not been communicative with him. She insisted on communicating via her lawyer. She has taken two holidays without advising him that she was going away. She did not take all of the proper steps to ensure that all of the needs of the children were taken care of. For one trip she hired a nanny and gave as emergency contact numbers while she was away, the phone numbers of her mother and her boyfriend’s mother. She did not give the nanny the father’s phone number, notwithstanding the fact that he was a volunteer firefighter for 10 years and has had extensive medical training for emergencies. Also, the mother forgot the children’s health cards and left them in her car at the airport. Had she advised the father about the holidays, and at least given him copies of the health cards, an urgent medical appointment that one of the children needed during the mother’s absence could have happened much more smoothly.

[42] She testified that she called the father on his birthday to see if he wanted to see the children. She is aware that he is working two jobs and might not be available on such short notice. Such a call made on short notice, when the father would likely not be able to see the children because of his work schedule, does not enhance the relationship. How much better it would have been for an email or text to go to the father a week or so before his birthday from the mother suggesting that the children would like to see him on his birthday, or close to that day, and asking when that might be arranged.

[43] The father testified that when separation first occurred in April 2016 and he moved to Burlington, the mother through her counsel was adamant that it was not in the best interests of the children for them to be relocated to Burlington from their home in Fort Erie where the children had friends and schoolmates. However, that appears to not have been an issue when the mother decided to move in with her boyfriend in Burlington in November 2016, seven months later.

[44] Although there are some communications issues between the parents, I am not satisfied that they rise to the level that one parent should be granted sole custody. Further, I find that the mother is more responsible than the father for such difficulties. I am not prepared to reward such conduct. I find that it is in the best interests of the children that the father remains integrated in their lives, and in the life decisions that must be made for the children.

[45] In the circumstances, I award joint custody of Aiden and Alexa to the parties.

[46] The question of the children’s primary residence must also be considered.

[47] Currently the father does not have appropriate accommodations for them. He submits that if he is given a few months without having to pay child support that he could accumulate enough funds to acquire such a residence. He also submits that if he had the children 50% of the time, there would be no need for child support, and then he could afford to work less hours. That would allow his work schedule to be more flexible and allow him to be with the children.

[48] The law in Ontario requires that child support be calculated even in 50/50 arrangements. With rare exceptions, there is a calculation of child support against the income of each parent, followed by a setoff. That results in the higher income parent paying child support, albeit on a lower level than where one parent has primary residency of the children.

[49] I cannot make an order about residency of the children based upon only a general indication that the father will have appropriate accommodation sometime in the indefinite future. I must make a decision based upon the current situation.

[50] I have concluded that it is in the best interests of the children that their primary residency be with the mother and I so order.

[51] The parties have both indicated that communication between them has been difficult. The father indicates a willingness to get past that. I am concerned that oral communication at this time will exacerbate the issue.

[52] For that reason, I order that the parties communicate through Family Wizard, or such other electronic program that they agree upon, which will maintain a permanent record of their communications.

[53] The issue of the father’s parenting time is a difficult one in this situation. It is not because of any concerns about the father and his ability to parent. Rather it is because of the work schedule that the father has and his current living accommodation.

[54] The father works full time at the Credit Bureau of Canada from 7:00 am to 3:30 pm Monday through Friday, except for Wednesdays when he works from 12:30 to 9:00 pm, plus with three hours on one weekend day. In addition, he works part time at Community Living. He says that he picks up whatever shifts are available, as he is trying to make ends meet while he pays child support and arrears of child support.

[55] I am satisfied that the father should be reintegrated into the children’s lives as soon as possible, and to the greatest extent possible. However, until he has appropriate accommodations, he may not have overnight parenting time.

[56] I order that until the father has accommodations where the children can sleep each in a separate bed, the father’s parenting time shall be limited to day visits.

[57] Until the father has such accommodation, his parenting time shall be no less than once every weekend during the day for four hours and once during the week for three hours. The father shall provide as much notice as he can reasonably provide and the mother shall accommodate this notice to the extent that she can. This will require co-operation and understanding from both parents who must keep in mind that it is their children that they are harming if they are uncooperative, and recognizing that such parenting time must also accommodate the children’s schedules. This is but the first of a great many times when they will have to put the interests of their children ahead of their own animosity for each other.

[58] I further order that once the father has accommodation where each child can sleep in his/her own bed, the father shall provide written notice to the mother. Commencing the second weekend after such notice, the father’s parenting time for a period of two months shall be as follows:

Every other weekend from Friday at 6:00 pm until Sunday at 7:00 pm, and on alternating weeks from Wednesday at the end of school until Thursday at the beginning of school.

[59] After the two-month period has expired, the father’s parenting time shall be as follows:

Every other weekend from Friday after school until Monday before school, and on alternating weeks from Wednesday at the end of school until Friday before school. In the event that a PD day occurs on the Friday or Monday of the father’s parenting time, his parenting time shall begin on the Thursday after school, if the PD day occurs on the Friday, or extend till Tuesday before school, if the PD day occurs on the Monday.

[60] The father’s parenting time with respect to holidays is as follows:

(a) During the Christmas holiday, from December 24th at 12:00 noon to December 25th at 12:00 noon, every odd year; and from December 25th at 12:00 noon until December 26th at 7:00 pm. on all even years. The remaining Christmas vacation days parenting time shall be in accordance with the regular parenting schedule. (b) Good Friday, from 12:00 noon until Easter Sunday at 6:00 pm in odd numbered years, and Easter Sunday at 6:00 pm to Easter Monday at 6:00 pm, in even-numbered years; (c) In even numbered years the father shall have the children from school break until Wednesday at noon during the March Break, and from Wednesday after school break until Sunday 7:00 pm on odd numbered years. (d) Two weeks of summer vacation annually, which shall be non-consecutive. The father shall have first choice of weeks in even-numbered years and shall provide his dates in writing to the mother by April 1 annually, and in odd numbered years the mother shall provide her dates when she does not want the father to exercise his two weeks in writing to the father annually, by April 1. In such years the father shall advise the mother of his dates by May 1. (e) Father’s Day, from 10:00 am to 7:00 pm, if it does not fall on the father’s parenting weekend. Mother’s Day shall be spent with the mother regardless of whether that is the father’s parenting time or not. (f) Halloween, every odd year from after school until 8:30 pm. (g) The father shall give the mother 24 hours prior notice of cancellation of parenting time whenever he is unable to exercise his parenting time with the children.

[61] Notwithstanding the holiday schedule, until the father has the necessary accommodation, the holiday parenting time for such holidays shall only be during the day.

[62] The party to whose home the children are moving to shall pick up the children at school or at the other party’s home. The parties shall not communicate during the exchange and shall remain in the building until the other party has driven away.

Financial Issues

[63] The mother raised a number of financial issues.

[64] First, she seeks 71% of a mortgage payment that she made during separation. This money came from the parties’ joint account. This was an account into which the joint funds had been placed during marriage. I decline to make an order for this amount.

[65] Second, she seeks $1,250 for a loan that she took out while the parties were together, to pay the deductible with respect to a motor vehicle accident that the father had.

[66] The father submits that he too has a loan from the marriage that he is responsible for. That loan is with MoneyMart and totals $1,500 inclusive of interest. He testified that he incurred that loan during the marriage to pay for family related matters.

[67] I order that these loans offset and that the mother pay to the father the sum of $250, being the net difference.

[68] Third, she seeks $154, being 71% of daycare costs for Alexa for the month of March 2017, and I so order.

[69] Fourth, she seeks 71% of all lease payments made by her on the 2007 Malibu for the period from April 2016 until March 2017.

[70] On December 7, 2016 Justice Sweeny made a temporary order that, in part, dealt with the Malibu. He ordered that the vehicle be sold and that the father pay 71% of any shortfall. He left to the trial the issue of the monthly payments on the lease and the insurance. This order was a temporary order and made without the benefit of the oral evidence. The vehicle was not sold. It was recently repossessed, but there is a shortfall on the lease payout. I am satisfied that I have the authority to make findings of fact with respect to the Malibu and am not bound by Justice Sweeny’s order.

[71] I find that the vehicle was retained by the mother at her request and that she utilized the same until she determined that she no longer wished to do so. I am satisfied that the mother used that vehicle during that time, and that the total cost for that period of time should be borne by her. I decline to order the father to make any contribution with respect to these payments.

[72] Fifth, she seeks 71% of the balance of the debt outstanding on the lease for the Malibu vehicle in the amount of approximately $6,000. The mother testified that the payout October 26, 2016 was $7,221.96. She also stated that she used the car until she was laid off in March 2017.

[73] I am satisfied that this obligation was assumed by the mother when she took over control of the vehicle and used it to get to and from work. I do not accept that she was unable to pay for the car after she was laid off. I find that she stopped using the car when her boyfriend lent her a 2016 minivan for her own use. I decline to order that the father contribute to this debt.

Spousal Support

[74] The mother claims spousal support because she was laid off in March 2017. She seeks spousal support until she obtains a new job.

[75] For approximately the last half of the marriage, the mother worked and was paid approximately $12 per hour.

[76] Currently she receives Employment Insurance of $600 per month, child support of $824 per month, and Child Tax credit of $1,100 per month.

[77] With respect to her efforts at becoming re-employed, I am satisfied that the mother has not made sufficient efforts to get a job. She testified that she made applications via an online service at the time she was laid off, but she was unable to provide any further evidence about any follow-up steps that she has taken since then.

[78] The mother was earning $12 per hour at her job. She could find another job, perhaps not doing what she had previously been doing, but which could earn her a similar amount. I find that she is underemployed and deem her income to be $12 per hour or $22,000 per year.

[79] Although the mother remained in the home for the first seven years of the marriage, there is no evidence that her career was harmed. Prior to marriage, she was an erotic dancer. For the last six years she was employed at a Bell subsidiary as a manager.

[80] Although she testified that she is paying rent of $800 and not living in a common-law relationship, I do not accept that evidence. She provided no supporting evidence with respect to that payment. She also testified that her boyfriend has given her the use of a company car for her personal use. She resides in his four-bedroom home in Burlington. She was taken on a trip to Mexico and one to Cuba during the past winter, and her boyfriend paid for those trips. She does not deny that she began dating him in August 2016 and has lived with him since November 1, 2016. She refused to provide any financial information about her boyfriend.

[81] I find that the mother has no demonstrated need for spousal support, whereas the father has demonstrated that he is in a difficult financial position to the extent that he has given up his apartment and will be renting a room for the month of June.

[82] I dismiss the mother’s request for spousal support.

Child Support

[83] The children are primarily resident with the mother. The father is obligated to pay child support. That would be true even if there was a 50/50 sharing of parenting time, albeit the amount would be calculated on a setoff basis resulting in the father, who in this case has the higher income, paying a lower amount of child support than is the case where the children are resident with the mother.

[84] There is a temporary order of Justice Sweeny dated July 18, 2016 ordering child support based upon an income of $55,000 for the two children in the amount of $824 per month. I see no reason to alter that order.

[85] There is some confusion about the exact arrears with the Family Responsibility Office, but it appears that the arrears are now close to $1,600. The exact calculation will be left to the Family Responsibility Office to calculate.

[86] The father testified that his income for 2017 will be $50,000. He stated that he works a full time job at The Credit Bureau of Canada at a salary of $48,000 and at a part time job at Community Living where he earns between $400 and $600 biweekly. I find that for child support purposes his income for 2017 shall be deemed to be $55,000.

[87] I order that the temporary order of Justice Sweeny regarding child support shall remain unaltered and child support payments shall remain the same.

[88] With respect to any child support arrears, I order that they be paid at the rate of $50 per month. I am satisfied that it is in the best interests of the children that the father has the opportunity to get his financial situation resolved; acquire appropriate accommodation so that the children can have overnight accommodations and become more fully reintegrated into their lives.

[89] Child support shall be enforced through the Family Responsibility Office.

[90] The father shall maintain his children on any health benefit program that is available to him at his employment and shall provide the necessary information to the mother.

[91] Medical expenses not covered by that plan shall be s.7 expenses.

[92] Given the father’s financial position, I am not prepared at this time to add to his financial burden by ordering that he obtains additional life insurance beyond what he has through his work. I order that the father shall maintain the life insurance that he has through work in the amount of $50,000 and designate the children as beneficiaries, and shall provide annually evidence to the mother of this policy.

[93] Based upon the parties’ respective incomes, $55,000 and $22,000, the father shall pay 71% and the mother shall pay 29% of any s.7 expenses. Such expenses must be prior approved by each parent via Family Wizard.

[94] Annually the father and the mother shall each provide the other with a copy of his/her income tax return, together with his/her Notice of Assessment. This shall be provided within 30 days of the receipt of his/her Notice of Assessment.

Summary

[95] In summary, I order:

(a) Joint custody of Aiden Michael Butler, born April 19, 2003 and Alexa Faith Helen Butler, born November 3, 2007 be granted to the parties; (b) The parties shall communicate about the children via Family Wizard or another program that is electronic and stores a permanent record of the conversations and upon which they agree; (c) Primary residence of Aiden and Alexa shall be with the mother; (d) The father’s parenting time shall be as is set out in paragraphs 55, 56, 57, 58, 59, 60 and 61 above. (e) The loans of the parties of $1,250 and $1,500 shall be offset and the mother shall pay to the father the sum of $250; (f) The mother shall be responsible for the balance owing on the lease of the Malibu and shall indemnify and save harmless the father from such debt; (g) The father shall pay the mother the sum of $154 for daycare of Alexa for the month of March 2017; (h) The order of Justice Sweeny dated July 18, 2016 regarding child support shall remain and child support for Aiden and Alex shall remain at $824 per month based upon an income of $55,000. (i) Child support arrears, if any, shall be paid at the rate of $50 per month; (j) Child support shall be enforced through the Family Responsibility Office. (k) The father shall maintain the children as beneficiaries of the $50,000 life insurance policy that he has through work and shall provide evidence of the same annually to the mother. (l) The father shall maintain the children under his benefit program that he has through work. Any medical expenses not covered by the plan shall be s. 7 expenses. (m) Section 7 expenses shall be paid as follows: 71% by the father, 29% by the mother. Section 7 expenses shall be prior approved by both parents via Family Wizard.

[96] I note that the children are now living in Burlington, as are both parents. Any future court proceedings with respect to the children should occur in the jurisdiction where the children are living.

Costs

[97] I am satisfied that success was divided. I make no order as to costs.

Edwards J.

Released: June 2, 2017