COURT FILE NO.: 2769/13 DATE: 20170711 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RONALD K. RUTLAND Applicant – and – GLADYS RUTLAND Respondent
For Self For Self
HEARD: March 21, 22, 27, 28, 29, 30 and April 18, 19, 20, 21, 24, 26, 27 and 28, 2017
GAREAU J.
Reasons for Decision
[1] An application was commenced by Ronald Rutland on March 8, 2013. In that application he seeks sole custody of his two children and a restriction of the access to Gladys Rutland to daytime supervised access. At the trial of the application, Mr. Rutland was seeking custody of his children. As to access, he was seeking that Ms. Rutland not have overnight access to the children but was not taking the position that her access should be supervised.
[2] The respondent, Gladys Rutland, filed an answer dated April 26, 2013. In her answer the respondent seeks an order for custody, child support, spousal support and an equalization of net family property. At the trial of this action the respondent took the position that the children should be in her custody or alternatively that the existing shared custody arrangement by court order should continue. The applicant’s position is that the shared custody arrangement presently in place is not working and should be replaced with an order giving him sole custody of the children.
[3] This matter proceeded to trial on March 21, 22, 27, 28, 29, 30, and on April 18, 19, 20, 21, 24, 26, 27 and 28, 2017. The parties were self-represented at trial.
[4] Submissions were received orally from the parties on June 29 and 30, 2017 at which time the court reserved its judgment to be delivered in writing.
Factual Background
[5] The parties met on-line. The applicant resided in Sault Ste. Marie, Ontario. The respondent resided in the Philippines. The applicant traveled to the Philippines in 2000 to meet the respondent in person.
[6] The parties were married on October 14, 2002 in the Philippines. The respondent came to Canada in 2004 and the parties began living together as husband and wife in Canada on November 4, 2004. The parties separated on January 5, 2009.
[7] The applicant is 53 year of age. The respondent is 39 years of age. They are the biological parents of Akira Rutland, born January 11, 2006 and Iliana Rutland, born July 7, 2008. Akira and Iliana are the only children that the applicant, Ronald Rutland has. The respondent, Gladys Rutland, has a son, James Falco, born on June 21, 2012. This child is a result of a relationship that the respondent had with Joseph Falco subsequent to her separation from the applicant.
[8] There is a factual dispute between the parties as to where Akira and Iliana resided from the time of separation to the first court order, granted on March 27, 2013 by Gregson J. in the Ontario Court of Justice. The respondent mother testified that the children resided primarily with her from 2009 until the end of January 2013 when the applicant arbitrarily took the children from her. From that point, until the order of October 3, 2014, the respondent testified that she saw her children less and less frequently at the instance of the applicant. The applicant testified that from the date of separation until the order of March 27, 2013 Akira and Iliana resided primarily with him and at times the respondent showed little interest in seeing the children. It is fair to say that until March 2013, Akira and Iliana spent time at both their parents’ home.
[9] The first court order pertaining to custody and access was granted on March 27, 2013 by Madam Justice Gregson of the Ontario Court of Justice. Paragraph one of that order reads as follows:
On an interim basis without prejudice basis, order to go as follows:
(a) The children Akira Rutland born January 11, 2016 and Iliana Rutland born July 7, 2008 shall reside with the father, Ronald Rutland;
(b) The respondent shall have alternate weekend access on Saturday and Sunday from 10:00 a.m. to 5:00 p.m. commencing March 30, 2913;
(c) The respondent shall have mid- week access Tuesdays from 4:30 p.m. until 7:00 p.m. commencing April 2, 2013;
(d) The respondent shall provide the applicant with proof that the respondent has in her possession a current Epi-pen and steroid puffer for the child Akira at the commencement of each access visit.
[10] In the respondent’s answer dated April 26, 2013 she made a claim for equalization of net family property resulting in this matter being transferred from the Ontario Court of Justice to the Superior Court of Justice.
[11] The Office of the Children’s Lawyer (“OCL”) became involved in these proceedings on behalf of Akira Rutland and Iliana Rutland and issued a final report dated August 29, 2014 (Volume 1, Tab 22, Continuing Record). The recommendation of the OCL was that Mr. Rutland and Ms. Rutland share joint custody of Akira and Iliana on a parallel arrangement which essentially provides equal time with each parent. Holiday periods were recommended to be shared between the parents on a schedule recommended by the OCL.
[12] The receipt of the report from the OCL prompted a return to court of this matter and a review of the custody and access arrangements which were in place as a result of the March 27, 2013 court order. That matter was heard on September 25, 2014 and resulted in a temporary order granted on October 3, 2014 by Varpio J.
[13] The order of October 3, 2014 reads as follows:
Mr. Rutland and Ms. Rutland will share joint custody in a parallel arrangement. Day to day decisions will be made by the parent in charge. Mr. Rutland will take the lead on Education and have final decision making in that area. Ms. Rutland will take the lead on Health Care and have final decision making in that area. Extra-curricular activities will be decided with the help of a mediator or parent coach four times per year. Mr. Rutland will pay for the sessions.
Ms. Rutland will have Akira and Iliana each Tuesday from after school until Wednesday morning and every other weekend starting from after school on Thursday to Monday at school. If there is a P.D. day on a Monday after an access weekend, then the transfer will take place at school on Tuesday morning.
Ms. Rutland’s overnight Tuesday access will commence Tuesday, October 7, 2014.
Summer will be shared on a week about schedule. The children will start the summer with Ms. Rutland.
Christmas holidays will be split evenly with one week each. Christmas morning will alternate. In even years Ms. Rutland will have the children from Christmas Eve at noon until Christmas Day at noon. Mr. Rutland will have Christmas Day at noon until Boxing Day at noon. On even years Ms. Rutland will have New Years Eve from noon until New Years day at noon and Ms. Rutland will have New Year’s day at noon until January 2nd at noon. This schedule will alternate in odd years.
March Break will alternate each year. Mr. Rutland will have March Break in even years and Ms. Rutland will have March Break in odd years. The other option would be to split the March Break evenly in half if both parties agree.
Halloween will be with Mr. Rutland in even years and Ms. Rutland in odd years.
Easter will be with Mr. Rutland in odd years and Ms. Rutland in even years. The parent that gets Easter will have the children from noon on Sunday until Tuesday at school.
Thanksgiving will be split. Ms. Rutland will have Friday after school until Sunday at noon. Mr. Rutland will have the children from noon on Sunday until Tuesday at school.
In even years Mr. Rutland will have the children on their birthday and in odd years Ms. Rutland will have the children on their birthday. The alternate parent will have the children the day before or after as requested. It would be an option to split the day as well especially on a weekend day.
Father’s Day will be with Mr. Rutland from 10 am until the next morning and Mother’s Day will be with Ms. Rutland from 10 am until the next morning. The children will be returned to school.
Effective October 1, 2014, Mr Rutland will pay Ms. Rutland $!256 in child support at the beginning of each month based upon an annualized income of $86,883.00.
Further Mr. Rutland should pay spousal support to Ms. Rutland at %1700 per month commencing October 1, 2014. Amounts are reviewable once Mr. Rutland gets his 2013 tax information from his employer(s).
I hereby order that police services can enforce this interim order.
[14] The order of October 3, 2014 has governed custody and visitation with their parents for Akira and Iliana from October 7, 2014 to the present time. The court must consider whether this order has worked for the benefit of Akira and Iliana and whether the continuation of the order on a final basis is in their best interest. If the order is to be changed the court must determine what custody and access regime is in the best interest of Akira Rutland and Iliana Rutland.
The Issues
(a) Custody of Akira and Iliana
[15] The court did not have the benefit of an updated report from the OCL. Although an updated report had been ordered on October 19, 2015 by Madam Justice Rasaiah and again by myself on July 18, 2016, neither party completed the intake forms required for further OCL involvement and an updated report. During the course of the trial, Ms. Rutland requested that I make a further order requesting the OCL for an updated report but I declined to do so. The evidence was clear that the children were not inclined to discuss the matter further with professionals and I concluded that I had sufficient evidence to make an order that I was satisfied was in the best interest of Akira and Iliana.
[16] The applicant was upset with the conclusions of the OCL report that led to the October 3, 2014 temporary order. The applicant believes that the author of the report unfairly sided with the respondent as she “plays the victim card pretty well”. The applicant described as being devastated by the report which left him in “shock and disbelief”. Even with the passage of time the applicant testified that he is still angered by the OCL report.
[17] The applicant’s dispute to the report of the OCL was in the form of an affidavit sworn by him on May 11, 2015 which was filed as Exhibit 18 at the trial. In his affidavit and in his evidence at the trial, the applicant identifies what he perceives as weaknesses in the report, such as his belief that the OCL author “cherry picked the collaterals to show Gladys in a favourable light” or took just bits of information provided to her to produce misinformation and an incomplete report.
[18] I do not intend on spending much time discussing or dissecting the OCL report. It is a dated report, over two and a half years old. The fact is that events since the report will be more informative in deciding whether the recommendations in the OCL report make sense and whether or not they have worked since the parties have been operating under those recommendations incorporated in a court order since October 2014.
[19] The court order of October 3, 2014 provides for a joint custody arrangement whereby the parents share in the care of Akira and Iliana. The evidence at trial established clearly and uncontrovertibly that Ronald Rutland and Gladys Rutland do not get along with each other and are incapable of communicating without an argument resulting. Ronald Rutland described the level of cooperation with Gladys Rutland as being “non-existent”. As he put it, “it ends up being in a confrontation”. Mr. Rutland described “simple things” like the exchange of medications for the children turn into yelling, screaming and altercations. In cross-examination, when describing arrangements for Christmas 2016, Ronald Rutland testified that “it’s hard to agree on anything when there is zero communication and you call the police on me”.
[20] Although the parties disagree on a great deal, Gladys Rutland agreed with Mr. Rutland’s assessment that they are incapable of communicating effectively. Ms. Rutland made it clear in her evidence that she feels that she is being stalked and manipulated by Mr. Rutland. She does not want interaction with Mr. Rutland as “I feel like I’m being bullied and it’s frustrating for me”. Exchanges for Akira and Iliana are done in a public place, at the Country Style Donut outlet on Trunk Road, in Sault Ste. Marie, Ontario.
[21] Both parties were self-represented at the trial. The ongoing animus between them was evident in the way they interacted with each other throughout the trial, never resisting an opportunity to take a shot at the other. This level of discord between the parties was also commented upon by other people who gave evidence at the trial. Marilyn Sharpe, a witness called by the respondent, testified that she would hear the parties arguing from the elevator in her apartment building. Ms. Sharpe indicated that this happened a lot and the other tenants in the Cara Community apartment building, where the respondent was residing, were getting upset with the yelling going on between Ronald Rutland and Gladys Rutland. Kristen Coulter is the principal at the Holy Cross Separate School which is the school that Akira and Iliana attend. Ms. Coulter testified that there has been “parent conflict” at the school and on one occasion the police had to be called to the school. Ms. Coulter reported that Mr. Rutland was quite calm during this incident. She testified that “you were very calm and something to the extent of like, we don't want this to get into a heated argument. I think you should call the police.” Janice Benwell is a friend of the respondent, Gladys Rutland, who testified about the conflict between the parties even presently. Ms. Benwell described the conflict as never ending and a repeated theme in her evidence was the conflict between the parties which Akira and Iliana are caught in the middle of.
[22] Filed as Exhibit 1(a) to 1(x) inclusive were copies of the records from the Children’s Aid Society of Algoma (“CAS”). The records span the timeframe from April 2006 to the present day. I have reviewed these records in detail. The records are voluminous and when put together in a pile measure close to one foot in height. Without going into detail about each entry in the reports, a fair assessment of the reports in total is that both parties have reported each other to the CAS over the years. As indicated in the Society’s records there has been a “history of involvement with this family regarding family conflict”. (Exhibit 1(b)) Akira and Iliana have never been apprehended by the Society. From the Society records it appears that the parents are able to meet the needs of Akira and Iliana, at least to a sufficient level where no apprehension by the Society is necessary. The June 13, 2010 note of Renee Jefferson who is a child protection worker with the Society reads as follows under the heading “Risk Factors”:
The risk factors pertaining to this family include the family’s history of involvement and current involvement pertaining to domestic violence. The Society has had previous involvement with this family pertaining to incidents of domestic violence that has occurred as recently as January 2007 and June 2007. The mother and father appear to engage in ongoing verbal conflict and have each been charged with assaulting each other in the past. As a result of the Society’s involvement in June 2007, the family remained involved for approximately ten months in order to provide the parents with insight as to how their behaviour was impacting the children’s development and causing risk of physical harm. The above risk factors coupled with the young ages of the children and inability to self-protect create a high degree of risk of harm.
[23] The physical altercations have ceased but the verbal abuse and conflict between Ronald Rutland and Gladys Rutland continue. A case note in the file of the CAS dated February 2015 reads as follows:
It is the Society’s assessment that the children are being negatively impacted by the parents’ lack of communication and their ongoing conflict. Akira and Iliana appear not to like going to their mother’s as much as their father’s home, which may be attributed to how she interacts with them as well as any negative comments their father makes regarding Gladys. It is also the Society’s assessment that Glady’s life stressors, which she has noted are related to finances and the custody concerns she has with her ex-partners, may be contributing to her lack of skill in response to the behaviour management of the children.
[24] It is fair to say that a review of the files from the CAS reveal that the protection issues involving Akira and Iliana are related to past domestic violence in the presence of the children and the continued ongoing conflict between the parents and not about the parents not being able to meet the children’s needs although recent CAS documents in 2015 and 2016 indicate that there were incidents where Gladys Rutland was physical with Akira and that Akira has expressed her wish that she does not want to live primarily in the home of her mother.
[25] The evidence is clear from the witnesses that testified at this trial that the conflict and inability to communicate between Ronald Rutland and Gladys Rutland continues to this day. This being the case, it is difficult to conclude that the interests of Akira and Iliana would be served by a continuation of the joint, parallel custody arrangement that is in place under the provisions of the temporary order granted on October 3, 2014.
[26] It is trite law and common sense that there must be a high level of cooperation and communication between the separated parents if joint or equal parenting is to be a viable option consistent with the best interest of children.
[27] The principles set out in Kaplanis v. Kaplanis, 10 RFL (6) 373 and Johnson v. Cleroux, (2002) 24 RFL (5) 422 is still good law in Ontario. In Kaplanis, the Ontario Court of Appeal held that there must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. It was held to be an error in principle to award joint custody; (a) where there was no evidence of historical cooperation and appropriate communication between the parties; and (b) in the hope that it would improve the parenting skills of the parties.
[28] In the case of Johnson v. Cleroux the Ontario Court of Appeal observed as follows:
The law and common sense accord on the matter of joint custody – it requires a high degree of cooperation between the parents and ought only to be awarded where the parents have demonstrated the ability to cooperate.
In that case, the court held that the difficulties between the parents relating to different aspects of parenting the child and the lack of the requisite degree of cooperation between the parents did not exist to make a joint custody arrangement in the best interest of the child.
[29] It is apparent on the evidence that the joint custody arrangement presently in place is not working for Akira and Iliana. The recommendations in the report of the OCL for a parallel care arrangement for the children has been tried and, in my view, it has not worked. Another arrangement must be tried and because of the continued conflict between the parents it must be an arrangement where one parent has sole custody of the children and one parent has access or visitation. Akira and Iliana must be removed from the conflict between their parents as much as possible and this cannot be accomplished in the joint custody regime presently in place under the temporary order of October 3, 2014.
[30] Akira Rutland has special health challenges that do not exist for her sister Iliana. Karen Barban is a nurse practitioner at the Group Health Centre in Sault Ste. Marie, Ontario. She has been involved with Akira since 2009 and with Iliana since her birth. She also treats the respondent, Gladys Rutland. Iliana was described by Ms. Barban as being in good health, although she did observe that the “complicated family dynamic with mom and dad” was unfortunately affecting the children. Akira’s health challenges include eczema, allergies (primarily food allergies), and asthma. With respect to the asthma, this condition can be managed by the use of inhalers. Akira is prescribed to be on a daily Flovent and Ventalin as needed. Ms. Barban testified that Akira should use her Flovent puffer twice daily and if she does not do this, her asthma will deteriorate to the point where she has trouble breathing. With respect to the food allergies, Akira has outgrown her allergy to milk but is still allergic to eggs and nuts. This has to be watched carefully and Akira has an Epi-pen to be used in the case of an allergic reaction. Akira’s eczema condition must be closely monitored. This condition is treated by very strong medication, prednisone. Ms. Barban described the treatment plan for Akira’s eczema as follows:
Well, the treatment plan is that she should be bathed daily and in warm, not hot, water and then a moisturizer on top right away, pat her dry, put a moisturizer on to sort of lock in the moisture and then they use the prescription cortisone creams on areas that are actively flared and in some people we never really have to use that prescription cream because just moisturizing is good enough, but for others, sometimes you do have to use the cortisone on a daily basis.
[31] Akira is of an age where Ms. Barban expects her to take some responsibility for this treatment but it still requires the monitoring and supervision of an adult to see that the treatment plan is followed properly. If the treatment plan described above is not followed for Akira her eczema is “out of control”, as Ms. Barban described it. This “out of control” condition is what Ms. Barban observed with Akira on April 30, 2015 when she examined her. Ms. Barban testified that she has never seen Akira’s eczema in a worse condition than she saw on that appointment. Ms. Barban testified that “when I saw her, she had been scratching at her skin and was having difficulty walking due to the lesions behind her leg”.
[32] Other witnesses also testified about the difficulties that Akira has with her eczema. Heather Rutland is the sister of the applicant and an aunt to Akira and Iliana. Heather Rutland described Akira as a “kid who is in crisis” who scratches at herself and claws at herself when she is at her mother’s or has to go back to her mother’s home. Heather Rutland believes that the stressful environment at the home of Gladys Rutland leads Akira to scratch and claw at her skin and when she has to return to that environment Akira acts out in this manner. Heather Rutland testified that she has seen Akira when she returns from her mother’s home and sees Akira’s raw skin from scratching and clawing herself. It was the evidence of Heather Rutland that when Akira returns to her father’s home and is in his care for a period of time that Akira’s skin has cleared up.
[33] Ruth Ann Bellerive Wilson is the mother of the applicant’s current partner, Raquel Thibeault. Ms. Wilson testified that she has seen Akira when she has returned from the home of Gladys Rutland and has observed Akira’s skin to be “raw” and “scratched up”, especially on the back of her legs. Ms. Wilson also corroborated the testimony of Heather Rutland that Akira’s skin improves and her skin is less irritated when Akira is at the home of her father for a period of time. Mr. Rutland’s partner, Raquel Thibeault testified that when Akira comes from her mother’s home she and Ronald Rutland have to stop doing things for three days to take care of Akira’s skin. This is because Akira’s skin is neglected at her mother’s home and at time her eczema is so bad that Akira has difficulty walking. Ms. Thibeault related on occasion when the day following a visit with Gladys Rutland, Akira was in so much pain and discomfort the could not walk and Ms. Thibeault had to carry Akira home from the Mike’s Mart store because Akira was in so much pain and discomfort.
[34] This theme of Akira’s skin condition worsening while at the home of Gladys Rutland was repeated by Ronald Rutland in his evidence to the court. It was the evidence of Ronald Rutland that he started noticing Akira clawing at her skin more aggressively in the summer of 2014 and this became more frequent and pronounced once Akira’s extended visits with her mother started in the fall of 2014. Entered as Exhibit 15 were a series of photographs and videos depicting Akira and Iliana. Akira’s skin condition can be followed in these photographs and videos. At times Akira’s skin looks good and at other times it is clear that her eczema is “out of control” (to use Karen Barban’s phrase) and that she is in discomfort. There is on particular video that is upsetting where Akira is crying and obviously in a great deal of discomfort and distress due to the open wounds on the back of her legs from scratching and clawing at her skin. It is the evidence of Ronald Rutland that Akira experiences these problems with her eczema after returning from her mother’s home and great improvement to Akira’s skin takes place while she is in her father’s home and a focus on the treatment of her condition takes place. This evidence of Ronald Rutland is supported by the evidence of numerous other witnesses who testified at this trial.
[35] Ronald Rutland and his partner Raquel Thibeault were able to describe in detail what they do to treat Akira’s eczema when she is in Mr. Rutland’s care. What they do follows the treatment plan described by Karen Barban. Ms. Thibeault described in detail the bedtime regime followed for Akira that includes her bath and the application of medicated cream and Vaseline on Akira’s entire body. Ms. Thibeault described the process as “hard” that it is a “tiring job” but indicated in her evidence that it is done every night for Akira when she is in the care of Ronald Rutland. I accept completely Ms. Thibeault’s evidence about this and find as a fact that Ronald Rutland is dutiful in providing Akira the treatment she requires when she is in his care.
[36] I find on the evidence that the same cannot be said about the mother, Gladys Rutland. Ms. Rutland indicated in her evidence that when Akira is in her care she has a bath two to three times a week and more often would have a shower. Ms. Rutland indicated that sometimes Akira does not want to take a bath and that sometimes she makes her and at other times she does not. Gladys Rutland acknowledged in her evidence that over the past few years Akira has had more difficulty with her eczema. In her evidence Ms. Rutland committed to being more attentive to Akira’s eczema in the future and will insist Akira have a bath every day even though Akira wants to have a shower. Gladys Rutland indicated in her evidence that “maybe I need to be more attentive to Akira. She needs more attention” thereby acknowledging that she has not in the past been as attentive to Akira’s medical condition as she should have been.
[37] Karen Barban had concerns about Akira’s behaviour so a referral was made to Dr. Norma Bolduc. As Ms. Barban indicated in her evidence concerning the referral,
Also she has eczema and she had been scratching at herself so badly and I wasn’t sure if that was sort of a traumatic emotional response or the fact that the eczema was so out of control that she was actually itchy.
[38] Dr. Norma Bolduc is a physician at the Group Health Centre in the Child and Youth Mental Health Department. She treats children under the age of 18 years that are experiencing mental health difficulties. Dr. Bolduc first met with Akira on June 22, 2016. She has had five sessions with Akira. Dr. Bolduc reported that the referral from Karen Barban indicated that Akira was experiencing anxiety and that there was family discord and that Akira had been scratching herself. Karen Barban was concerned about whether the scratching was a form of self-mutilation. Dr. Bolduc indicated that Akira reported to her that she had suicidal thoughts. Dr. Bolduc indicated that “I felt that she possibly had unspecified stress/trauma disorder”.
[39] When Dr. Bolduc was asked whether she was unable to unearth the root cause of Akira’s stress and trauma, Dr. Bolduc provided the following response to the court:
So, from her perspective, she had noticed a change in her mental state or emotional health when she had to go split her time between her parents’ households. So, when she had to start spending time with her mom, she noticed that her mood changed and she was having days where she was feeling down, stressed and mad she said. This is – was particular when she was at her mom’s house, however, as time went on, she was starting to experience symptoms of a low mood at her dad’s house, as well as anxiousness. She also described to me that she was experiencing intermittent nightmares with hyper alert and there had been a change in her desire to participate socially and, therefore, she was starting to withdraw from her social friend group and was spending more time with her sister. She also had said to me that she had been called names in the past by her mom, as well as slapped by her mom in the past as well and so that’s where the trauma-related symptoms would come in as well.
[40] When Dr. Bolduc was asked about whether there has been a reduction in Akira’s anxiety since Dr. Bolduc has been treating her, Dr. Bolduc provided the following response to the court:
So, as time went on, it became more and more clear to me, particularly on our third and fourth and fifth visit that she was primarily experiencing these symptoms while she was at her mom’s house and she was not experiencing them as much at her dad’s house and, therefore, if she’s not experiencing functional impairment across the board at both homes, it no longer would meet the criteria for the diagnosis. And so she, as time went on, said that things were better at her mom’s house, however, that she would still feel stressed, experience a low mood and sometimes would still be mad at her mom’s house.
[41] As of her last appointment with Akira in March 2017, Dr. Bolduc reported that Akira was still experiencing a lot of stress and anxiety at being at her mother’s home.
[42] As to whether Akira’s scratching of her skin has dissipated over time, Dr. Bolduc indicated that her practice is not dermatology but responded based on what Akira has told her as follows:
..and so basically, when she first started seeing me, I was told that her skin condition gets worse when she goes to her mom’s house. In one of the appointments, I think it was in July of 2017, she had mentioned that she doesn’t have her creams at her mom’s house and so that may worsen her condition if she doesn’t have her creams. She also has told me that when she is stressed, mad, or anxious – experiencing, you know fluctuations of her emotions, that sometimes she will scratch herself, however, she’s never identified that she’s doing it to harm herself.
[43] Akira has reported to Dr. Bolduc that she does not want to go to her mother’s home for overnight visits. Akira finds the overnight visits stressful. Dr. Bolduc also indicated that Akira “also mentioned in her last appointment that she finds it difficult that her parents fight”. Akira finds the parental conflict stressful and Dr. Bolduc is of the view that for the sake of Akira this should come to an end sooner than later.
[44] In addition to Dr. Bolduc, Akira has told other people that she does not want to go to her mother’s home for overnight visits. Heather Rutland testified that both Akira and Iliana do not want to spend overnights at their mother’s home. She testified about an incident as recent as March 2017 where the children were crying and in an obvious upset state when they had to return to their mother’s home. Akira has disclosed to Heather Rutland that she did not feel safe being at her mother’s home for overnight visits. Heather Rutland reported to the court that she found Akira and Iliana much happier in 2012 and 2013 when they were not required to go to their mother’s home for overnight visits. Heather Rutland made it clear in her evidence that she was not suggesting that Akira and Iliana did not love their mother or want to spend time with her. It was Heather Rutland’s evidence that the children want to see their mother but they have been consistent in expressing their wish that they do not want to spend overnights at their mother’s home.
[45] Raquel Thibeault gets Akira and Iliana prepared for school each school day morning. Ms. Thibeault testified that often on days Akira and Iliana are to return to their mother’s home from school they are tearful and upset in the morning and don't want to go to school. Ms. Thibeault indicated in her evidence that this does not happen every time but the majority of the time they have to go to return to their mother’s home after school the children react in this upset manner.
[46] Ronald Rutland testified that it is Akira and Iliana’s wish not to go to their mother’s home on an overnight basis. In fact, in the summer of 2014 the children were so upset about having to go that he withheld overnight visits, admitting that it was the first and only time that he breached an order of the court. Akira and Iliana have also reported to various child protection workers with the CAS that they do not want overnight visits at their mother’s home. (Exhibit 1(a) to 1(x)). In particular, as recently as February 5, 2017, Melinda Chapman, a child protection worker with the CAS visited with Akira and Iliana at their school. Her case note from that visit reads as follows:
The children had no concerns to report other than they did not want overnight visits at their mother’s, however, they could not provide a concrete example as to why they did not want overnight visits.
[47] Gladys Rutland expressed surprise and disbelief at the suggestion that Akira and Iliana do not want to spend overnights at her home. She indicated that the first time she heard such a suggestion was at the trial and that “I cannot believe it”. It is the position of Gladys Rutland that there is no reason for Akira and Iliana to feel that way and what they have told others is not the true expression of their feelings despite the fact that they have indicated this to professionals, such as Dr. Bolduc, and workers with the CAS.
[48] Both Ronald Rutland and Gladys Rutland have health difficulties but none of those difficulties impair or prevent them from caring for Akira and Iliana. Mr. Rutland suffers from crones, colitis, arthritis and psoriasis. He indicated in his evidence that he has learned to live with these conditions although he misses eight to ten days off work each year as a result of his medical difficulties. Karen Barban has been the nurse practitioner for Gladys Rutland since 2009. She testified that Ms. Rutland is physically healthy. Ms. Barban described Ms. Rutland’s physical health as good. As to her mental health, Ms. Barban described Ms. Rutland as being stressed. Ronald Rutland has long suspected that Gladys Rutland has some mental illness that exhibits itself in bizarre behaviour that he attributes to her. The medical evidence does not bear this theory out. Gladys Rutland was referred to the psychiatry department at the Group Health Centre in February 2013. This referral was at Ms. Rutland’s request. She was assessed and tested for depression, anxiety and bi-polar disorder. The assessment and testing were negative. Ms. Rutland was experiencing symptoms of extreme distress so she was referred to Dr. Cook for a borderline personality disorder assessment. Dr. Cook did not make a borderline personality disorder diagnosis for Ms. Rutland. The consultation note from Dr. Cook dated February 28, 2013 reads as follows:
Based on the interview today, we could not diagnose borderline personality disorder, although some of the behaviours noted in the appended reports might be suggestive of that diagnosis. However, they may simply reflect maladaptive behaviours arising from the stress of intensive difficult relationships. Certainly, she may benefit from interventions aimed at addressing these behaviours, such as dialectical behaviour therapy for borderline personality disorder even if she does not qualify for that diagnosis. She can discuss that further with Ms. Arvin (ph) or Ms. Runnings. As well, she might benefit from other stress reducing therapies, including mindfulness or cognitive behaviour therapy. We encouraged her to continue to use counselling resources as she feels necessary. At the moment there is no recommendation for psychiatric medications. Certainly, she could be referred for repeat psychiatric assessment if there is any new or different information available or if her presentation changes.
[49] As I have previously indicated the continuation of a joint custody, parallel custody arrangement between the parents is not in the best interest of Akira Rutland and Iliana Rutland. The situation that would work best for them requires one parent to have their primary care with the other parent to have structured time with the children. This is the only way that the children will be able to be removed, as much as they can be, from the continued conflicted and dysfunctional relationship of their parents. This relationship of Ronald Rutland and Gladys Rutland has already had a negative effect on both children resulting in a general withdrawal in the children, an aggravation of Akira’s skin condition and medical intervention for Akira who is being treated for anxiety by Dr. Norma Bolduc. Given all of this, it is abundantly clear that the present arrangement of sharing the care of the children between the parents is not working. The evidence of Ronald Rutland and Gladys Rutland was of very little assistance in determining what is in the best interest of Akira and Iliana with respect to custody and access. Much of the evidence given by each of them was focused on describing how poorly treated they had been by the other; there was very little helpful evidence from either party about what might be best for their children. As a result of this, the court has had to concentrate on the evidence of individuals other than the parties, and in particular, on the evidence of the professionals that have been involved with Akira and Iliana to determine what is in their best interest with respect to their living arrangements.
[50] It is clear that both parents are capable of taking care of Akira and Iliana. Having said this, on the evidence before the court, I conclude that the father is more attune to Akira’s medical challenges and more committed to following through with the treatment plan prescribed by the medical professionals who are treating Akira. There is a regular regiment in place at the father’s home to treat Akira’s eczema whereas the mother has no such regular routine in place in her home consistent with the ongoing care required for Akira’s eczema. The mother acknowledged this fact in her evidence and although she indicated that she is committed to “be more attentive to Akira”, as she put it, there is no guarantee that she will follow through on that.
[51] The court cannot ignore the comments made by the children, especially Akira, about being more comfortable at dad’s home, less stressed at dad’s home and not wanting to spend overnights at their mother’s home. These comments have been made to many people and although it is easy to discount these comments to individuals that may have a vested interest in this litigation, such as Heather Rutland and Raquel Thibeault, Akira has made the comments to professional people she is involved with such as Dr. Norma Bolduc. I accept Dr. Bolduc’s evidence that Akira has indicated to her that she feels stress and anxiety at her mother’s home, that she does not want to go to her mom’s home overnight and that she finds the overnight visits stressful. Based on the evidence, I find that Akira’s stress/trauma related disorder is not helped by being forced to spend time at the home of her mother against her wishes. I am cognizant of the fact that the wishes of an 11-year-old child are not determinative, however, in my view, they should be afforded significant weight given the destructive relationship between the parents and the unique medical challenges that Akira faces. The court should attempt to find a solution that optimizes the happiness of the children, optimizes the medical care that Akira requires and reduces the stress level that she is experiencing. In my view, this can best be accomplished if Akira was primarily in the care of her father. This is not a situation where Akira and Iliana should be separated. The parents acknowledge that the children are close to each other and enjoy a good relationship. This was also the evidence of the other witnesses who know Akira and Iliana and testified at the trial and this is apparent in viewing the various photographs filed as exhibits in the trial; photographs produced by both the mother and the father.
[52] Although Akira, in particular, does not want to visit her mother on an overnight basis, I am of the view that some overnight access is warranted so that the children and their mother continue to develop and strengthen their relationship with one another. On the evidence, the overnight visits should not be as frequent or as lengthy as presently in the October 3, 2014 temporary order. A reduced overnight schedule will hopefully reduce Akira’s stress and alleviate some of the medical difficulties, such as the anxiety and difficulties with her skin that she is currently experiencing. A reduced visitation schedule will also ensure that Mr. Rutland will have an increased opportunity to monitor Akira’s eczema and provide the required treatment for it.
[53] Accordingly, there will be a final order that Ronald Rutland have sole custody of Akira Rutland born January 11, 2006 and Iliana Rutland born July 7, 2008. As the sole custodial parent he will have the responsibility to make decisions concerning the children’s health, education and welfare. With respect to ongoing access, the respondent mother shall have alternate weekend access from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. That will reduce the overnight visits for Akira and Iliana to two each month. In addition, the respondent shall have access to the children each Wednesday evening from after school to 7:30 p.m. when school is in and from 12:00 noon to 7:30 p.m. when school is out.
[54] Holiday access shall be as follows:
(a) Mr. Rutland shall have the children each Father’s Day. If Father’s Day falls on a weekend that Ms. Rutland is scheduled to have the children, she shall have the children only on the Saturday;
(b) Ms. Rutland shall have the children each Mother’s Day from 10:00 a.m. to 7:00 p.m.;
(c) Halloween, Easter, Thanksgiving and the children’s birthday shall be shared between the parents as provided for in paragraph 7, 8, 9 and 10 of the order dated October 3, 2014 granted by Varpio J.;
(d) The respondent mother shall have the Christmas holiday access from December 25 at 2:00 p.m. to December 27 at 2:00 p.m. and from December 30 at 2:00 p.m. to January 1 at 2:00 p.m. The father shall have the children for the balance of the children’s Christmas school vacation period.
(e) March break will be divided equally between the parties with the applicant to have the first 4 days (Saturday, Sunday, Monday, Tuesday) and the respondent to have the last 4 days (Wednesday, Thursday, Friday and Saturday) each year. The pick up time shall be at 10:00 a.m. and the return time shall be at 7:00 p.m. for the mother’s days with the children.
(f) The current summer holiday schedule under the order of October 3, 2014 provides that this is shared between the parents on a week about schedule. The exchange day is on Sunday at 10:00 a.m. At the time this judgment is released Mrs. Rutland will have had the children on the week of July 2nd, with Mr. Rutland to have the children the week of July 9th; the children going back to Mrs. Rutland the week of July 16th and so on. This summer access schedule of week about will end as of Sunday, July 23, 2017 when the children go back into the care of Mr. Rutland. At that time the alternate weekend access schedule provided for in paragraph 53 will start with the first alternate weekend the children are with their mother to be Saturday, August 5, 2017 and the first Wednesday the children are to be with their mother to be Wednesday, August 9, 2017. Commencing in 2018 and thereafter the respondent mother shall have summer access with the children during one week in July and one week in August of each year, being from the second Sunday in July at 10:00 a.m. to the third Sunday in July at 10:00 a.m. and the second Sunday in August at 10:00 a.m. to the third Sunday in August at 10:00 a.m. Otherwise, throughout the summer months the mother’s alternate weekend access with Akira and Iliana shall continue.
[55] If the respondent’s access commences after school or ends when Akira and Iliana return to school the children shall be picked up at school and returned to school. At other times, the access exchange for the children shall be at the Country Style Donut Shop on Trunk Road in Sault Ste. Marie, Ontario with the applicant father to provide all transportation for the delivery of Akira and Iliana for access and to pick them up after access has been concluded.
[56] The Sault Ste. Marie Police Services, the Ontario Provincial Police and the Royal Canadian Mounted Police are directed to enforce the terms of the custody and access provisions set out in paragraphs 53 and 54.
[57] In reaching this decision with respect to where Akira Rutland and Iliana Rutland will reside and on what terms and conditions, I have considered what is in their best interest on the basis of the evidence that I have heard and have considered and applied the principles set out in section 24 of the Children’s Law Reform Act, R.S.O. 1990, C. 12, and the applicable jurisprudence.
(b) Child Support
[58] The children Akira Rutland and Iliana Rutland will primarily reside with the applicant father which entitles him to child support from the respondent mother. The applicant did not make a claim for child support in his application dated March 8, 2013. At trial the applicant indicated in his evidence that he was not seeking child support from the respondent if he was successful in his claim for custody of the children. Accordingly, no order will be made for child support at this time. In any event, the respondent mother is currently unemployed. Filed as Exhibit 69 is the respondent’s updated financial statement sworn on April 27, 2017. In that financial statement the respondent deposes that her current income is mainly comprised of the spousal support currently being paid by the applicant pursuant to the temporary order granted on October 3, 2014. Without an imputation of income to the respondent, no order of child support would be made at this time given the respondent’s limited income and, in any event, none is being sought at this time by the applicant father.
(c) Spousal Support
[59] The parties were married on October 14, 2002 and separated January 5, 2009. They had a marriage of just over six years in which two children were born. The respondent is entitled to spousal support. Under the present order, the applicant is paying the sum of $1700.00 per month based on an income of $86,883.00 per year. The evidence disclosed at trial indicates that in 2016 the applicant had a gross income of $72,223.65. It was Mr. Rutland’s evidence that this level of income was higher than he usually earns given the fact he sold three weeks of vacation time back to his employer in the year 2016. The applicant’s financial statement sworn on June 10, 2016 indicates that he has a history of annual earnings as follows:
2012 - $84,353.00 2013 - $75,868.00 2014 - $69,152.00 2015 - $66,429.33
The evidence of Mr. Rutland was that the year 2012 was an anomaly in that he worked an extensive amount of overtime and double shifts that year thereby elevating his income. The average of Mr. Rutland’s earnings in 2014, 2015 and 2016 is $69,234.88. On the evidence before me, I find that Ronald Rutland has a gross income of $70,000.00 per year for the purpose of calculating spousal support
[60] The financial statement of the respondent sworn on April 27, 2017 (Exhibit 69) indicates that the respondent presently has no employment income. It was the evidence of Gladys Rutland that she has not worked since the fall of 2016 due to stress, primarily the stress of the court proceedings. In the past, Gladys Rutland had retail related employment that paid her minimum wage. Her work experience since she arrived in Canada in late 2004 has been at call centres, clothing stores, a bakery and food outlets such as Tim Hortons and Dairy Queen. Income tax documentation filed as Exhibits 50 to 56 inclusive indicate an earnings history for Gladys Rutland as follows:
2013 - $14,212.00 (primarily from social assistance) 2014 - $11,666.98 (primarily from social assistance) 2015 - $3,235.00 2016 - $2,825.00
[61] It is obvious that the respondent has had minimal income and has a need for spousal support. This being said, now that the court proceeding is concluded a large stressor for Ms. Rutland should be removed and she should be able to return to the work force to assist herself financially. On the facts, I am not prepared at this time to impute income to Gladys Rutland for the purposes of spousal support. Based on Mr. Rutland’s income of $70,000 per year and no income for the respondent, the Spousal Support Advisory Guidelines provide for a range of support from $405 to $539 monthly with a mid-point of $472 per month.
[62] Upon reviewing the financial situation of both parties, including their current sworn financial statements filed at the trial, I conclude that the appropriate quantum of spousal support is $500 monthly.
[63] Accordingly, the applicant Ronald Rutland shall pay to the respondent Gladys Rutland the sum of $500 per month for spousal support, commencing July 1, 2017.
(d) Arrears of Support under the Order of October 3, 2014
[64] Ronald Rutland’s wages are currently being deducted by the Family Responsibility Office for child and spousal support payments pursuant to the temporary order (Exhibit 37). This payment totals $2956.00 per month. Mr. Rutland has fallen in arrears under the support order. Filed as Exhibit 70 is a statement from the Family Responsibility Office indicating that as of February 15, 2017, Ronald Rutland is in arrears in the amount of $33,137.23.
[65] By the terms of the new arrangement for Akira and Iliana, Ronald Rutland will have the children primarily residing in his home and will have the full financial responsibility of providing for the children’s financial needs. Given this fact, there should be a repayment of the arrears by way of a monthly instalment, which should provide Mr. Rutland with more financial flexibility to provide for the ongoing financial needs of Akira and Iliana and the ongoing expenses to be incurred for their care and wellbeing.
[66] Accordingly, Ronald Rutland will be permitted to pay the arrears accumulated at the rate of $500 monthly and the deduction by the Family Responsibility Office for payment of the arrears shall be limited to that amount each month with these payments to commence on July 1, 2017.
(e) Equalization of Net Family Property
[67] The respondent has made a claim for a division of net family property. She did not file a net family property statement at the trial of this action. The applicant filed a net family property statement dated June 10, 2016 which appears at Tab 23 of the trial record. That statement indicates that Ronald Rutland is in a negative net family property of $33,929.69. Of course, for the calculation of net family property that negative number would be reduced to zero. The net family property calculation was reviewed by Ronald Rutland in his evidence at trial. The respondent did not challenge Mr. Rutland’s evidence on this in cross-examination and during her evidence Gladys Rutland did not take great exception to the net family property statement of the applicant or the numbers in it. The major asset is the home at 60 Adrian Drive, Sault Ste. Marie, Ontario. This is the matrimonial home. Parts of the home are unfinished inside. It has a value of $55,000 with a mortgage that exceeds this value. There is no equity in this home. Even if the net property as of the date of marriage and the excluded property claimed in the net family property are reduced to zero, the debts of this family exceed the assets and there is no equalization payment owing to equalize the net family property positions of the parties.
[68] The main difficulty is that the applicant has a pension through his employer, Essar Steel. The amount of the applicant’s pension interest has not been valued. This was to be done but the evidence of the applicant was that the fee to have the pension administrator value the pension could not be paid and Gladys Rutland would not pay her half share of the fee. Gladys Rutland disputes this but took no steps to have the applicant’s pension interest with Essar Steel valued so this amount would be available for the trial of this action.
[69] The pension interest of the applicant would be for a period of just over six years. The amount for a period of this short duration would likely not be large. When reviewing the net family property statement of the applicant filed, if a modest amount is attributed to the applicant’s pension, it is likely that the debts will still exceed the assets. Having said this, I am not prepared to guess or speculate about the value of the applicant’s pension. The fact is that there is no proper evidence before the court as to the pension value. Without that evidence that court is not in a position to adjudicate on this issue. I am prepared to accept on the evidence before me that not including the pension interest of the applicant his net family property is zero. There would be no equalization payment owing by the applicant to the respondent based on this calculation. Any amount owing to the respondent would be limited to half of the value of the applicant’s pension at Essar Steel from the date of marriage, October 14, 2002, to the date of separation which I find to be January 5, 2009.
[70] The respondent is at liberty to pursue the issue of her interest in the applicant’s pension with Essar Steel at a later date upon a proper valuation of the pension being completed and all the evidence required for this issue to be adjudicated being properly before the court.
[71] This remaining issue which is limited in scope can be adjudicated on a long motion by affidavit evidence without the parties experiencing the delay and costs that would result in a protracted hearing.
(f) Costs
[72] Given the financial positions of the parties, this is not an appropriate case for the awarding of costs. Any costs order that the court would make would only ultimately negatively affect Akira Rutland and Iliana Rutland. Accordingly, there is no order of costs.
Gareau J.
Released: July 11, 2017
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RONALD K. RUTLAND - AND – GLADYS RUTLAND REASONS FOR DECISION Gareau J.
Released: July 11, 2017