CITATION: Rubalcava v. Tracey, 2017 ONSC 4978
COURT FILE NO.: 06-FL-243
DATE: 2017/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marileidy Arcelia Rubalcava (a.k.a. Marileidy Flores-Rubalcava)
Applicant
– and –
Andrew Tracey
Respondent
HEARD: September 26, 2016, November 9, 2016 and June 20, 2017
REASONS FOR JUDGMENT
Mr. Justice Marc r. Labrosse
Introduction
[1] These proceedings were commenced on January 27, 2006 by Notice of Application. The issues involved custody, access and spousal support.
[2] The trial was originally scheduled for one day to deal with the issue of spousal support as the Trial Management Judge was led to believe that the April 26, 2016 order of Justice Doyle was a final order. A voir dire was held on this issue and I concluded that the April 26, 2016 order of Justice Doyle was marked as a final order in error and that the intent of all parties at that time was that it should be a temporary order. As such, the trial proceeded on the issues of custody, access and spousal support.
[3] Although the parties estimated only one additional day to complete the trial, a third day was required. For medical reasons, the Applicant was unavailable to complete the trial in April 2017 thus requiring a further adjournment to June 20, 2017.
[4] The trial commenced on September 26, 2016, almost 10 years after the start of the litigation. During the intervening period, there has been a family court clinic assessment in 2007 which is now dated, a report of the Office of the Children’s Lawyer in 2011 which is also dated and a failed update to the Office of the Children’s Lawyer Report in 2015. In April 2009, the Applicant Mother was involved a serious motor vehicle accident and has seen her access go from supervised, to unsupervised with overnight visits, back to supervised, to supervised exchanges and now to unsupervised access and exchanges.
[5] The Father has marginalized the Mother’s parental role. He does not allow her to play much of a parental role beyond being an access parent. He does not consult her on major decisions and he has been very controlling with respect to her access with the child. However, the Father’s actions towards the Mother must be considered in light of the Mother’s behaviour towards the Father, the role she has played in the conflict between the parties, her inability to respect the terms of access and a history of questionable decisions in trying to assert her role as a parent.
[6] The Mother’s access has been inconsistent in terms of missed visits and chronic tardiness. She has made efforts over the years to educate herself, hence trying to put herself in the best position to support her child in the future. Unfortunately, the conflict between the parties has led to the Mother making poor decisions in exercising access as she does not respect the access schedule and has often exercised her parental role in a negative manner towards the Father by refusing to communicate with him in a timely manner about access visits.
[7] I am left to decide the issues of custody, access and spousal support.
[8] For the reasons which follow, I conclude that Christian should continue to benefit from the stability offered by the Father as the custodial parent. However, it is apparent that the Mother has the ability to be a much more involved parent than she has been. Christian is now twelve years of age and should benefit from having both parents involved in his life. The Mother’s inconsistent behaviour over the years and her inability to maintain a consistent access schedule leads me to conclude that a joint custody arrangement is not in the child’s best interest. The Father’s marginalization of the Mother as a contributing parent must stop and the Mother should become involved in the decision-making process for all major issues involving Christian. However, in the event of disagreement, the Father needs to have the final decision-making authority. The Mother’s access rights should be expanded to regular overnight visits with Christian and her time with Christian should increase.
[9] As for spousal support, there is no doubt that at the time of separation, the Mother had an entitlement to spousal support. This entitlement must be considered in light of the fact that the Mother did not actively pursue her claim for spousal support and has not paid child support over the years. The Mother has been able to pursue her university studies on a part-time basis without working. The Father has not sought child support nor has he sought for the Mother to be imputed an income while she studies part-time. In the end, I conclude that while there is an entitlement to time-limited spousal support, I decline to order it.
[10] Otherwise, the Mother’s time with Christian should increase significantly to the extent possible given the current transportation issues.
[11] In the end, this child has two parents who come from very different backgrounds and who both have their strengths in what they can offer him as he enters adolescence. He should benefit from his time with them, sheltered from the parental conflict with a focus on maximizing his time with both parents. If the parents are unable to agree on what is in his best interests, the Father will have sole custody and the ultimate decision-making authority, after meaningful consultation.
The Evidence
(i) Factual Background
[12] In 2004, the parties met in Mexico while the Father was teaching English and the Mother was attending an adult education program to finish her high school. They came to Ottawa for a visit and she became pregnant. The Mother returned to Mexico and the Father followed her and was present when Christian Tracey-Flores was born on April 29, 2005. The couple moved back to Ottawa and lived with the paternal grandmother.
[13] The parties separated on November 15, 2005 when Christian was about six months old after an altercation when both had been drinking and the Mother was charged with assaulting the Father. The Mother was then only allowed to return to the paternal grandmother’s house to visit Christian and breastfeed under the paternal grandmother’s supervision while the Father was at work. After the separation, the Mother was required to live on her own in shelters and in subsidized housing. The Father assumed all the financial responsibilities for Christian but did not pay spousal support to the Mother.
[14] At the time of separation, the Father was working in retail and earning approximately $21,000 per year. From 2005 to 2007, the Father testified to earning roughly $20,000 per year working at Value Village. His income over the next few years increased marginally as he began working in the insurance industry. In 2008, he worked in an entry level position with Bush Armstrong Insurance Brokers earning roughly $24,000 per year. From 2010 to 2012, he worked with AON Insurance in Ottawa earning roughly $35,000 per year. Since 2012, the Father has worked at W.H. Scrivens Insurance and his most recent financial statement dated September 23, 2016 shows an annual income of $51,000 per year.
[15] The Mother’s January 2006 Financial Statement shows her earning $1,380 per year. At trial she estimated having earned roughly $5,000 per year from 2007 to 2012. Since then, she reports to earning annual income of approximately $9,000 per year from social assistance. Her most recent financial statement dated November 9, 2016 shows an annual income of $9,132 per year.
[16] While both parties’ evidence of their earnings was weak and based on approximations and some sworn financial statements, neither party challenged the evidence of the other and it is the best and only evidence available in this trial.
[17] Following the November 15, 2005 incident when the Mother was charged with assault, she was removed from the paternal grandmother’s home and Christian continued to live with his Father. In 2007, the parties participated in a Family Court Clinic assessment which resulted in a recommendation by Dr. Weinberger that the Father have sole custody of Christian with the Mother having unsupervised access on a stepped up schedule. Dr. Weinberger’s report is now significantly dated however he comes to a number of conclusions which are not favourable to the Mother and found her to be somewhat immature and not entirely credible. He noted her efforts to obtain counselling and community supports but concluded that she is not ready to be a custodial parent. Dr. Weinberger also gave credibility to the issue that the Mother had issues with alcohol consumption.
[18] In 2009, the Mother was hit by a motor vehicle while standing at an intersection and this caused her mobility to be significantly limited. She developed a dependency on prescription medication which impacted her parenting ability. The Mother testified that she has been off prescription medication since January 2011.
[19] Following the FCC assessment and until December 27, 2010, the Mother had liberal, unsupervised access with Christian which included overnight visits. At that time, the Father was advised that the Mother was taking an excessive amount of painkillers and was mentally unstable. The Father then terminated access and brought an emergency motion which resulted in a Temporary Order with Interim Minutes of Settlement and the Mother’s access became supervised at a supervised access centre. There was a further order by Roberston J. granting interim custody to the Father. The frequency of access was reduced to twice per month with two telephone calls per week. The Mother’s use of prescription medication was verified at the time but has since resolved. There is no evidence to suggest that this continues to be an issue.
[20] In June 2011, the Office of the Children’s Lawyer became involved and prepared a report which is included as part of the Trial Record. It is also dated. A disclosure meeting was held on September 19, 2011 and the OCL report is dated October 6, 2011. The report concludes that both parents have strong relationships with Christian. The Father is noted to have been a reliable parent in Christian’s life. The Mother is seen to have established a strong bond to Christian. Both parents are seen to have made mistakes which resulted in distress for Christian. The communication between the parties is found to be lacking and the issue of alcohol and marijuana consumption is left as a question mark for both parents. The 2011 OCL report is much more favourable to the Mother than the 2007 assessment by Dr. Weinberger and it attests to her efforts to improve herself as a parent by taking anger management and parenting classes.
[21] The OCL report makes no recommendation on the issue of custody as it was to be negotiated between the parties. This appears to have never been done. As for access, the Mother’s access visits were agreed, by the parties at the disclosure meeting, to move to unsupervised. There was also a recommendation that the parties have equal access to Christian’s educational and medical professionals. Finally, the parties were to attend joint counselling to address the challenges of post-divorce parenting. This appears to have never been done.
[22] It is unclear as to why the OCL fails to make recommendations on custody and access. Neither party summonsed the clinician to testify at trial.
[23] In 2015, an order was made to obtain an update to the 2011 OCL Report. However the Mother did not complete the intake documentation to allow for the update to proceed.
[24] The Trial Record filed by the parties does not include all of the Temporary Orders made during this litigation. Interim custody to the Father was ordered by Robertson J. on March 26, 2011. This order included supervised access to the Mother. On June 27, 2014, a further Temporary Order by MacKinnon J. however all the details are not legible in the Endorsement Book and there does not seem to be a transcribed Temporary Order in the file. It appears that MacKinnon J. put an end to the supervised visits in favour of supervised exchanges.
[25] During the course of the trial, I made a temporary order putting an end to the supervised exchanges and put in place a more expanded temporary access order. Since the date of my temporary order, the parties have been able to participate in some expanded access but there continues to be ongoing difficulties with the Mother’s lack of respect for the access schedule. Overnight access has yet to resume.
(ii) Areas of Disputed evidence
[26] The main areas of disputed evidence turn on the Father’s historical control over the Mother’s access and the views of each party on how that access has been going.
[27] The Father has testified to his concerns about the Mother’s erratic behaviour, her past addiction to prescription medication, concerns over alcohol use and the Mother’s inability to maintain a consistent access schedule. He focusses on a pattern of chronic tardiness and a refusal to respect the established limits to the access schedule: see Exhibit #16.
[28] The Mother testified to the Father’s controlling nature and how he has used the issues surrounding the use of prescription medication and the 2006 physical assault to limit her parenting rights. Given Christian’s age, she says there is no reason that she should not have overnight access with Christian and that her access time should significantly increase. She feels she should have equal parenting time although she states that she does not want to upset Christian’s schedule and simply wants to maximise her access time while understanding that there are certain transportation issues and limits caused by her university schedule.
[29] The Mother disputes that she has been inconsistent in exercising access but agrees that she has been required to miss access visits due to health and other justified reasons. The Mother disputes the Father’s claims as to her lack of respect for the access schedule. She says that if her access time was increased, she would not need so much time with Christian on Skype and it would not be so difficult to end access visits.
[30] As for the Mother’s history of being late for pick up and drop off, she claims that it is difficult for her given that she relies on public transportation.
[31] Of relevance to child support, the Father is not claiming any. He stated that he would be concerned that if the Mother paid child support, she would not be in a position to provide for Christian when he is with her. However, the Father notes that the Mother has been attending university on a part-time basis and that it has been her choice not to work part-time while attending school.
[32] On the issue of spousal support, the Mother states that she has an entitlement. She was encouraged to leave Mexico and come to Canada. Following Christian’s birth, the parties separated and she has been left to support herself with a few part-time positions and principally through the receipt of social assistance. She agrees that she has chosen not to work part-time in order to focus on her studies in order to graduate and find a good job that will allow her to support herself and Christian.
[33] The Father’s position on spousal support does not dispute entitlement. He focuses on her failure to pursue the claim for spousal support after 10 years, his inability to pay, that he has never sought that the Mother pay child support and the fact that the Mother has chosen to study part-time and not work during her studies as the main reasons that he should not pay spousal support. Further, he stated that he cannot afford to pay spousal support but he has not really challenged the Mother’s entitlement to spousal support.
Statutory Provisions and Principles
(i) Custody and Access
[34] As the parties were never married, the issues surrounding custody and access are governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[35] Section 20 of the CLRA provides that the father and mother of a child are equally entitled to custody of the child. Custody has been described as a “bundle of rights and obligations,” referred to in the Act as “incidents of custody”, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities: see Khairzad v. McFarlane, 2015 ONSC 7148 at para 21.
[36] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities: see Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.).
[37] The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the CLRA provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”
[38] Section 20(5) of the CLRA defines the term access as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”
[39] Section 24 of the CLRA deals with the best interests of the child. This section directs that the merits of an Application dealing custody and access must be determined on the basis of the best interests of the child. The relevant factors which the court is required to consider in carrying out the best interests analysis are set out in ss. 24(2) and (3):
Best interests of child
(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, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).
[40] The list of factors set out in s. 24 of the CLRA is not an exhaustive list. The court is not required to specifically enumerate and analyze the specific criteria set out in section 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide: see Walsh v. Walsh, 1998 CanLII 7134 (ON CA).
[41] As the Mother does not contest the Father’s ongoing role as a custodial parent and she is not seeking sole custody, the criteria in paras. 24(2) and 24(3) must be considered in light of the parties’ ability to co-parent together and if joint custody would be in Christian’s best interests.
[42] In Khairzad v. McFarlane, Justice Chappel provided a very helpful analysis of how a court can approach an assessment of sole custody vs. joint custody. She reviews the more traditional views as expressed by the Court of Appeal (see Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA) and Ladisa v. Ladisa, 2005 CanLII 1627 (ON CA)) that there needs to be a reasonable measure of communication and cooperation in place, and which is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Justice Chappel also highlights the merits of a joint custodial order where it is necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties: see Khairzad at para 32.
ii) Spousal Support
[43] As the parties were not married the statutory provisions setting out the purposes and factors to determine the quantum and duration of spousal support are set out in ss. 33(8) and 33(9) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”):
33(8) An order for the support of a spouse should:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including:
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) [Repealed]
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents.
(v) any housekeeping, child care or other domestic service performed by a spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support.
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(vii) any other legal right of the dependant to support, other than out of public money.
[44] The parties did not present any relevant case law to address the issue of spousal support. When considering the circumstances of the Mother when she came to Canada, I have considered how other courts have dealt with claims for spousal support in an immigration context such as: Carty-Pusey v. Pusey, 2015 ONCJ 382 and Singh v. Singh, 2013 ONSC 6476. In Singh, Price J. acknowledged that while a short union does not presumptively indicate entitlement, there might nevertheless be a compensatory basis for support where there is a short relationship. In that case, the wife had left her career prospects in order to immigrate.
[45] There is also a body of case law which has considered the issue of short-term marriages or cohabitations. Lawyers often argue for short time limited support which is typically fixed at the number of years of marriage or cohabitation. The assessment of a short-term cohabitation is also influenced by the age of the child and the custodial arrangements.
Analysis
Custody and Access
[46] It is clear from the evidence that both the Mother and Father love Christian very much. Furthermore, both parties support each other’s place in Christian’s life. The Mother understands that there are limits to her ability to exercise access with Christian given her ongoing studies and Christian’s schedule, which she does not want to disrupt. The Father also testified that he deems access between Christian and his mother to be beneficial for him and he has supported expanding the access, with the encouragement of the OCL and the Court.
[47] I am very concerned with the dynamic between the Mother and Father. The communications between them have led me to conclude that the Mother is not respectful of the Father’s desire for Christian to have stability in the access schedule and the need for a proper routine and communication surrounding access. Consequently, the Father has marginalized the Mother’s parental role by excluding her from the decision-making process.
[48] I have considered the approach taken by Justice McGee in Fraser v. Fraser, 2016 ONSC 4720, where joint custody was deemed appropriate due to the mother’s marginalization of the father, her lack of any real effort to co-parent and her irrational hostility towards his new partner. While all these factors are not present in this case, there are similarities.
[49] In the end, the decision must be based on Christian’s best interests and I conclude that the Father should continue to have final decision-making authority for him. I have considered the merits of an order for joint-custody with final decision-making to the Father only in the event of disagreement but I feel that this may lead to further conflict between the parties and that it would create uncertainty for Christian as he enters the very important stage of adolescence.
[50] I thus conclude that the Father should have sole custody. In coming to this conclusion, I have considered the totality of the evidence upon which I make the following findings:
(a) The Father has been a stable parent for Christian since his birth and has demonstrated an ability to provide for him. The Mother has not materially challenged this;
(b) Both parents are equally able to provide love, affection and emotional ties with Christian;
(c) Although the OCL report is dated, it reflects that Christian has a strong relationship with both parents and benefits greatly from what they bring to his life. He is affectionate with both parents;
(d) The Father has clearly been the parent to provide a stable home environment. He has been a reliable parent for Christian and provided stable, consistent routines and stimulating extra-curricular activities. The Mother should not be faulted for the path her life has taken since Christian’s birth. She was faced with establishing herself in Canada without any family supports and has worked to obtain an education with the goal of one day providing for Christian. However, when considering the ability to provide a stable home environment for Christian, it is only the Father who is able to do so at this time. As noted by the CAS in Exhibit #11, the Mother is in a position to become much more active in Christian’s life. Her ability to have overnight access has been limited by her currently living in one bedroom apartment. Both she and Christian would benefit from a two bedroom residence where she can offer better accommodations for Christian for longer periods of time;
(e) The OCL report suggests that both parents have the ability and willingness to provide Christian with guidance and education. Both have their strengths in what they can offer him. However, when considering the necessaries of life, the Father is the parent who is able to provide this while the Mother continues on her path to obtain a university education and eventual employment; and
(f) The consideration of permanence and stability of the family unit clearly favours the ongoing custodial role of the Father. He has and continues to provide permanence and stability and has demonstrated more willingness recently to expand the Mother’s access.
[51] The evidence suggests that understandably, the Mother’s role in Christian’s life has been less focussed on being the role of a custodial parent. They play together and do activities but her parental role has been marginalized as a result of the conflict between the parents. I do not however solely blame the Father for this. The e-mail exchanges between the parties reflect that the Mother has attempted to affirm her role as a parent by refusing to co-operate with the Father, by failing to properly communicate about upcoming access visits in a timely fashion and by exhibiting what can only be described as chronic tardiness for the start and end of access visits. The result is that the access schedule is not respected by the Mother. Christian has demonstrated emotional distress at being separated from his mother and I conclude that this has been caused by the absence of a consistent start and finish to the access visits. The Mother justifies this by saying that if she had more time with Christian, she would not be so reluctant to let him go at the end of a visit. This perspective is misguided in my view and has the contrary effect that neither the Mother nor Christian want to respect the access times. The Mother has shown a lack of respect towards the Father by making him wait for pick-ups and drop-offs and by failing to exercise access in a consistent manner.
[52] Furthermore, the Mother has made poor choices when attempting to exercise her role as a parent. She has refused to authorize the Father and his family to take trips with Christian, she has refused to provide information access visits which was reasonably requested by the Father and she has refused to provide reasonable details about access and tried to justify it by saying that access visits could be “a surprise”. The Mother has also shown up unannounced at Christian’s school and Spanish school and at his summer camp on non-access days in trying to see him and has involved Christian in adult discussions involving the conflict between the Mother and Father.
[53] As for the Father, there is no dispute to his consistent parental role and that he has fulfilled it admirably. Christian does very well in school, relates well to others and has many interests and enjoys many activities as set out in the OCL report. There is no issue with the Father’s ability to act as a parent for Christian.
[54] Despite the obvious positives that can be found in the Mother’s relationship with Christian, the entirety of the evidence leads me to conclude that the parents have been unable to attain a level of mutual respect and co-operation which would allow them to work effectively as joint-custodial parents. Both parents share in the blame. However, I am tasked with determining what is in Christian’s best interest and I conclude that it is to maintain the Father’s decision-making ability but subject to meaningful consultation with the Mother on all major issues.
[55] In order to allow the Mother a meaningful parental role in Christian’s life, I will order that the Father be responsible to maintain all relevant information about Christian’s life on the www.ourfamilywizzard.com website and that until the Mother earns sufficient income to pay child support, the Father will pay the Mother’s annual cost to register for www.ourfamilywizzard.com. He will maintain a calendar of activities for Christian, both at school and extra-curricular. All school events and medical appointments will be indicated and the Mother will be entitled to attend.
[56] The Mother will be told of all major issues affecting Christian and there will be meaningful consultation with her prior to making any major decision. There must be communication in advance of a decision and the Mother must have an opportunity to provide her views. The Father would then advise her of his decision and the reason for not following the Mother’s view.
[57] I have considered the history of allegations of alcohol abuse by the Father against the Mother and I conclude that there is insufficient evidence to allow me to conclude that the Mother has an ongoing problem with alcohol abuse. While the Mother may not have been diligent to all the Father’s requests for alcohol screens, she has done a number of them which have provided negative results. More importantly, the Father testified that he is confident that Christian is able to identify and communicate situations where alcohol may be a factor with the Mother. I conclude that no specific order needs to be made on this issue other than specifying that neither parent will consume alcohol while in a caregiving role.
[58] As for access, there was consensus between the parties that the Mother’s access should be expanded to include overnight access. As the Father has assumed most of the transportation duties and the Mother has acknowledged that she does not want to interfere with Christian’s weekday schedule by spending considerable time on the bus travelling to and from the Mother’s residence, I am of the view that the Mother should maximize her time with Christian by spending three of every four weekends with him in her care, provided that she is able to provide him with proper sleeping accommodations which are appropriate for his age. At this time, I understand that she does have a sofa-bed available and this should be sufficient for overnight access to take place at the Mother’s residence
[59] I have considered the proposed access schedules of both parties and I conclude that it is in Christian’s best interest to have longer term access with the Mother in order to maximize their time together and reduce the conflict associated with the Mother’s failure to maintain a consistent access schedule. Having more frequent short-term access has not worked well for these parties given the high number of exchanges. Also, while I will order that the Mother be responsible for picking up Christian, I would hope that the Father will assist with the pick-ups by the Mother to limit the time Christian must spend on the bus.
[60] I have considered the history of tardiness by the Mother for pick-ups and drop-offs. As previously stated, her non-respect of these times has been chronic. The fact that she relies on public transportation could be a factor at times however the history demonstrates a lack of respect by the Mother. I accept the Father’s position that Christian should not be left in public places to wait for his Mother. It is for this reason that the Mother should pick Christian up from the Father’s residence so that he is in a safe place if she is late. This is not meant to condone the Mother’s non-respect of the access schedule but it also reflects her request that pick-ups be from their respective residences. If the parties want to agree otherwise, they may obviously do so but the Father will be entitled to return to the terms of the order should he deem it appropriate.
[61] The Mother has submitted that the Court should view the Father’s actions in this litigation as parental alienation, domestic abuse and a form of child abuse: see April 21, 2017 Affidavit filed as Exhibit #22. As a result, she feels that family reunification therapy is required for Christian and herself to repair the effects of the parental alienation by the Father. I completely reject any suggestion by the Mother that the Father has alienated the child from her. To the contrary, the Father has bent over backwards to accommodate the Mother’s inability to maintain a consistent access schedule. He has assumed most of the transportation responsibilities to avoid having Christian spend his access time with his mother on the bus. While the Father is responsible for the marginalization of the Mother from the decision-making process, it certainly does not amount to parental alienation. The Father has been consistent in supporting Christian’s access time with his mother throughout these proceedings during the assessment process, the OCL investigation and in his testimony at trial. He wants a reliable routine for Christian and the Mother’s inability to maintain that routine has been at the source of much of the conflict. Furthermore, the Father has demonstrated increased flexibility with access and additional access times during the course of the trial although he could have gone farther by encouraging overnight access. I do not fault him for his preference to await the results of this trial. The reason that there is no need for family reunification therapy in my view is because the Father has supported the Mother’s access with Christian. He simply needs to start allowing her to have a voice in the decision-making process as part of meaningful consultation.
[62] I have also considered the Father’s allegations that the Mother once threatened to leave for Mexico with Christian. This issue has been brought back over the years by the Father. Firstly, this comment was made at the time of separation in November 2005 when the Mother said she was leaving to return to Mexico. There was no issue of abduction or no threat that the Father would never see Christian again. There is no evidence that the Mother ever contemplated an abduction of Christian to keep him with her in Mexico. I find that this comment was made 11 years ago and could never be sufficient to allow the Court to conclude that there is any risk that the Mother may abduct Christian if she were permitted to travel with him. Furthermore, Christian is now at an age where any failure to return him to this jurisdiction after a trip would not be successful given Mexico’s participation in the Hague Convention. Provided that a trip was properly documented with return tickets purchased and adequate communication between Christian and the Father, the Mother should be permitted to make a short trip to Mexico to introduce him to her family during the extended access time she will have during the summer or as otherwise agreed by the parties.
[63] As for the desired access schedule, the Mother did not provide one with her closing submissions but the Father did. The Mother did set out many of the details of her desired access schedule in her April 21, 2017 Affidavit filed as Exhibit #22 and during her testimony on November 9, 2016. During the trial, she also provided a proposed access schedule and terms in Exhibits #13 and #14 but none at the end of the trial as requested by the Court. The Mother clearly wants more time and I am of the view that the Father’s proposed access schedule is overly conservative. If the Mother has suitable accommodations for Christian, expanded overnight access should commence immediately but I do not agree that she should have access every weekend. Given that her access will extend to overnights, weekend access on three of every four weekends will allow for Christian to have increased and longer periods of access with the Mother and the Father will also have Christian for a full weekend once per month. The Mother will also have expanded access with Christian during the holidays and summer months to allow for longer periods of access time.
[64] With respect to weekday access, the Mother should have a minimum of one evening per week where she can pick Christian up from the Father’s home and spend the evening with him either locally near the Father’s residence or to return home with her if the time permits, from 4:00 pm to 8:00 pm. She would be responsible to arrange for his dinner. At such point when the Mother can provide transportation to school in the mornings and respect Christian’s routine, this weekday access may evolve into overnight access. However, both parties have agreed that it is not in Christian’s best interest to have a long bus trips in the morning.
[65] As for ongoing communications with Christian either by Skype or by phone, the Mother will be entitled to two fifteen minute communications per week to allow her to touch base with Christian. At this point, I do not propose to schedule them at specific times. The Mother should be able to arrange for these communications directly with Christian to determine his availability. However, I am prepared to hear from the parties if this proposed way of dealing with these communications is opposed.
[66] Finally, the Father has requested a mechanism to impose sanctions for the Mother’s inability to respect the access times. I decline to impose such sanctions. I will order the Mother to respect access times and to be consistent in exercising access as per the access schedule. Should the Mother not do so and continue as she has, this may be the subject of a future motion to vary the access schedule.
[67] By way of summary, all of the factors discussed above support an order for sole custody in favour of the Father, subject to meaningful consultation with the Mother. There will also be generous access to the Mother. Having regard for the Mother’s commitment to Christian and her importance in his life, I have included terms in the custody order requiring the Respondent to consult with her on all major issues respecting Christian, and granting her the right to directly obtain information from any professionals and schools involved with the child. With respect to time-sharing, the order which I am making strikes a balance between the importance of frequent contact between Christian and his mother to support their relationship and the child’s need for structure, consistency and predictability during the school year. The access schedule goes further than either party did in their submissions but I have attempted to include provisions which will avoid uncertainty in the future. Either party may seek to have an appointment with me, maximum two hours, to provide their submissions on how the access schedule and provisions should change to better fit the realities of their respective lives. Any such request will be made to the trial co-ordinator within thirty days of the release of this decision.
Spousal Support:
[68] On the first day of trial, the Mother indicated that her claim for spousal support was time limited from November 15, 2005 being the date of separation to the date she received her Work Permit on December 31, 2010. It should be noted that the only Work Permit filed as an exhibit is dated January 30, 2009. Later during the trial, the Mother seemed to change her view on the duration of spousal support and sought an order for time-limited spousal support until she graduates from her university studies.
[69] It was the Mother’s evidence that she did not pursue spousal support during these proceedings because she was intimidated by the legal system and barely spoke English. Also, she was worried that her claim for spousal support would upset the Father and he would deny her opportunities to see her son.
a) Was the Mother a “spouse”?
[70] As a precondition to an award of spousal support, the Mother must qualify as a “spouse” for the purposes of s. 30 of the FLA. If she does fit under the definition of “spouse”, then the question moves on to if she has an entitlement to spousal support.
[71] Section 29 of the FLA defines “spouse” for unmarried couples as being two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are the parents of a child.
[72] While the parties in this case did not cohabit for a period of up to three years, we must consider if they were in a relation of some permanence given that they had a child together. This issue can easily be answered in the affirmative given their decision to move from Mexico to Canada to live with the paternal grandmother and raise their child in her home. This indicates an intention to attach a degree of permanence to the relationship, irrespective of how short lived this plan eventually was. The Mother filed many letters which evidence the permanent nature of their relationship at the time.
[73] I conclude that the parties were spouses to each other.
b) Was the Mother entitled to spousal support?
[74] Section 30 of the FLA states that each spouse has an obligation to provide support for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[75] It is well settled that the issue of entitlement to spousal support can be found on a compensatory, non-compensatory or contractual basis.
[76] Other cases where one spouse will relocate to come to Canada to live with the other spouse often involve sponsorship agreements. There was no evidence here of any such type of agreement. The Mother is thus left with establishing her entitlement to spousal support on either a compensatory or non-compensatory basis.
[77] When considering compensatory grounds, short-term relationships are less likely to produce a situation where there is a need to relieve the detrimental economic effects of the marital breakdown. In the case of the Mother, I find that she has not established entitlement on compensator grounds as in leaving Mexico to come to Canada, the Mother did not leave a career or other work which she was not able to replace in arriving in Canada. Furthermore, the Mother did not forego opportunities for career advancement in deciding to move to Canada with the Father or as a result of staying at home with the child. The relationship ended prior to the Mother having a work permit and being allowed to work in Canada.
[78] I thus conclude that the Mother did not suffer an economic loss or disadvantage as a result of the roles adopted during the cohabitation. Furthermore, the Mother did not confer an economic benefit to the Father upon which she was not adequately compensated.
[79] This leaves the issue of entitlement to be established on non-compensatory grounds, meaning the Mother’s need at the time of the breakdown. I have considered the following factors:
(a) The actual period of co-habitation in Canada was less than one year and the Mother did not get used to a lifestyle upon which she became dependant;
(b) The Mother came to Canada with the Father in circumstances were both parties would have been fully aware that she could not work until she received a work permit. The evidence at trial is that she obtained the work permit on January 30, 2009 (see Exhibit #10);
(c) The Father was well aware that the Mother would have been entirely dependent on him when they moved to Canada. The move was thus done with the Father knowing that that he was able to support the Mother while she was living with him at the paternal grandmother’s residence;
(d) After separation, the Mother was unable to meet her own basic needs and she was required to live in shelters and in assisted living. The Mother’s evidence on her living accommodations after separation was not challenged; and
(e) The evidence demonstrates that the Mother faced economic hardship following the separation.
[80] I conclude that the Mother has established entitlement on non-compensatory grounds.
[81] When considering the quantum of spousal support, the Mother’s entitlement existed back on November 15, 2005 being the date of separation. A significant problem here is that the Mother did not pursue the issue of spousal support until the matter proceeded to trial almost 11 years later. I have considered her explanation that she was intimidated by the legal system and that she did not want anger the Father as lacking in merit. The Mother was represented by counsel when the proceedings were initiated until February 2011 and the issue of interim spousal support should have been explored.
[82] I have also considered the Father’s position that the Mother has not demonstrated efforts to obtain employment to pay child support while pursuing her university studies on a part-time basis. The Father could have sought for income to be imputed to the Mother after she obtained her Work Permit and pushed for her to pay child support. The Father has thus supported the Mother’s choice to obtain a university degree by not pursuing a claim for child support.
[83] The circumstances of how the Mother came to Canada, with the encouragement of the Father are obviously very relevant. The Father encouraged her to come to Canada and after the separation, did not support her financially but did take on all the responsibilities of supporting Christian. The circumstances of this short-term cohabitation are very different from other short-term marriages where time-limited spousal support orders are appropriate. In this case, the entitlement to spousal support would certainly extend beyond the term of the co-habitation. The Mother’s initial position that it should have continued until the date she obtained her first Work Permit was not an unreasonable position to take. However, given the facts surrounding the Mother’s choice to attend university on a part-time basis while not otherwise working to try to support Christian, there is no situation where I would have entertained any time-limited support to extend for more than five years and certainly not until she completed her university studies.
[84] Finally, when proceeding with the calculations for spousal support under the Spousal Spousal Support Advisory Guidelines (Ottawa: Dept. of Justice, 2008) at the time of the separation when the Father was earning $21,000 per year and the Mother was earning $1,380 per year, the ranges are $26 (low) - $30 (mid) - $35 (high). While the Court recognizes that these ranges are only guidelines, it is relevant to consider that the high end of the range would have remained below $55 per month until at least 2012 when the Mother was earning $5,000 per year and the Father was earning $35,000 per year. The amounts are thus marginal and do not take into account that the Father has assumed most of the transportation costs and costs related to special expenses.
[85] In these circumstances, the Court is very sympathetic to the fact that the Mother has been required to live in shelters and in subsidized housing. However, the Father has not earned sufficient income to justify an award of spousal support considering that he has financially supported Christian on his own and continues to do so.
[86] I conclude on this issue that given the Mother’s failure to pursue spousal support for 11 years, the Father’s limited income, the marginal monthly amounts that are payable under the Spousal Support Advisory Guidelines, the fact that the Father has assumed most of the transportation costs and costs for special expenses and the fact that the Father continues to support the Mother’s desire to attend university on a part-time basis by not seeking any child support from her, I decline to make any order for spousal support to the Mother.
Terms of Order to Issue
[87] On the basis of the foregoing, a final order shall issue as follows:
Custody, Consultation and Information Sharing:
The Respondent Father shall have sole custody and primary residence of the child Christian Tracey-Flores, born April 29, 2005 (“the child”).
The parties shall have the right to make daily decisions respecting the child while he is in their care.
The Respondent shall consult with the Applicant and keep her apprised of all significant matters relating to the child, including important matters relating to his health, welfare, education, religious instruction and extracurricular activities.
The parties shall advise each other of all important events, functions, or appointments for the child in a timely manner, and both parties shall be entitled to participate in these events, functions or appointments, subject to the recommendations of any third party professionals involved in same.
The Respondent shall provide the Applicant with the names and contact information for any professionals involved with the child forthwith upon the professionals becoming involved.
The parties shall both be entitled to consult independently with and obtain information, including documentation, from all professionals or others involved with the child, including but not limited to the child’s schools, medical professionals, counsellors, or third party caregivers, without the consent of the other party, which consent is specifically dispensed with.
In the event that any professional involved with the child requires executed consents, despite the terms of para. 6 herein, the parties shall execute the consents required, in a timely manner and in the format directed by the professionals, authorizing the other party to receive complete disclosure of information and documentation regarding the child.
Emergency Decisions and Contact Information:
In the event that the child experiences a medical emergency, the parent with the child will notify the other parent of the emergency immediately. The Applicant shall have the right to make emergency medical decisions respecting the child if in the opinion of the attending physician the time required to obtain the Respondent’s consent would place the child at risk.
Both parties shall be named as emergency contacts with the child’s school(s), or with any other organizations involved with the child.
The Child’s Legal Documents:
- The child’s passport, birth certificate, social insurance card and other legal documents shall remain in the Respondent’s possession. The Respondent shall provide the Applicant with photocopies of all such documents and shall provide the Applicant with the passport if she requires it for travel.
Regular Access:
- For the purposes of this paragraph, the school year is defined as the period commencing Labour Day Monday at 10:00 a.m. and ending on the Sunday immediately following the last day of school in June at 7:00 p.m. The Applicant shall have access to the child during the school year according to the following schedule:
a. Week One:
i. Wednesday evening from 4:00 p.m. until 8:00 p.m.; and
ii. From Friday at 4:00 p.m. until Sunday at 5:00 p.m. If the Friday is a Professional Activity Day or a holiday, her access shall commence on the Thursday at 4:00 p.m.. If the Monday is a holiday, his access shall extend to Monday at 5:00 p.m.
b. Week Two:
i. Wednesday evening from 4:00 p.m. until 8:00 p.m.; and
ii. From Friday at 4:00 p.m. until Sunday at 5:00 p.m. If the Friday is a Professional Activity Day or a holiday, her access shall commence on the Thursday at 4:00 p.m.. If the Monday is a holiday, his access shall extend to Monday at 5:00 p.m.
c. Week Three:
i. Wednesday evening from 4:00 p.m. until 8:00 p.m.; and
ii. From Friday at 4:00 p.m. until Sunday at 5:00 p.m. If the Friday is a Professional Activity Day or a holiday, her access shall commence on the Thursday at 4:00 p.m.. If the Monday is a holiday, his access shall extend to Monday at 5:00 p.m.
d. Week Four:
i. Wednesday evening from 4:00 p.m. until 8:00 p.m.
- For the purposes of this paragraph, the school summer break period is defined as the period commencing the Sunday immediately following the last day of school in June at 7:00 p.m. and ending on Labour Day Monday at 10:00 a.m.
a. During the school summer break period, the Applicant shall have access to the child for two full non-consecutive weeks. Such weeks shall replace two of the normal weeks where weekend access takes place.
b. During the school summer break period, the Respondent will be entitled to have the child with him during two full non-consecutive weeks during which time the Applicant will not have access and there will be no requirement to make up the Applicant’s lost access time.
Holidays and Special Occasions:
The terms set out in paras. 15 and 16 herein regarding holiday periods and special occasions shall supersede the regular access schedule in the event of any conflict. The regular time-sharing schedule shall resume after the end of the periods referred to in those paragraphs.
The Applicant shall have the child for the following holiday periods:
a. On even numbered years, from December 24th at 12:00 p.m. until December 25th at 12:00 p.m.
b. On odd numbered years, from December 25th at 12:00 p.m. until December 26th at 8:00 p.m.;
c. On Easter weekend from Saturday at 7:00 p.m. until Sunday at 8:00 p.m. during even numbered years;
d. On Thanksgiving Sunday from 10:00 a.m. until 8:00 p.m. during odd numbered years;
e. On the child’s birthday, if on a weekday, from 4:00 p.m. to 8:00 p.m. and if on a weekend which is not an access weekend, from 11:00 a.m. to 5:00 p.m.
f. On May 5 (Cinco de Mayo) Celebration, if on a weekday, from 4:00 p.m. to 8:00 p.m. and if on a weekend which is not an access weekend, from 11:00 a.m. to 5:00 p.m.
g. On Mexican Independence day Celebration, if not on an access weekend, from 11:00 a.m. to 5:00 p.m.
- The Respondent shall have the child on Father’s Day, and the Applicant shall have the child on Mother’s Day from 10:00 a.m. until 8:00 p.m.
General Terms Regarding Custody and Access:
The parties shall keep each other apprised of their current addresses and telephone numbers at all times.
The Father will be responsible to maintain all relevant information about Christian’s life on the www.ourfamilywizzard.com website and that until the Mother earns sufficient income to pay child support, the Father will pay the Mother’s annual cost to register for www.ourfamilywizzard.com. He will maintain a calendar of activities for Christian, both at school and extra-curricular. All school events and medical appointments will be indicated and the Mother will be entitled to attend all appointments and events provided that she does not interfere with Christian’s time in the Father’s care.
The access arrangements provided for herein may be varied upon the mutual consent of the parties, based on both parties’ assessment of the needs and best interests of the child. The parties shall use their best efforts to give each other at least forty-eight hours’ notice of any proposed changes to the access schedule.
The Applicant is ordered to respect the terms of this access order and specifically the times for the start and end of access visits and the communication provisions for any proposed changes.
The parties shall abide by the following principles in their relationship with each other and their contact with the child:
a. They shall absolutely refrain from denigrating each other in the presence or within earshot of the child.
b. They shall absolutely refrain from engaging in any disputes with each other in the presence of or within earshot of the child, and from involving the child in any manner in conflicts which may arise between the parties.
c. They shall not use the child to pass messages or documentation on to each other.
d. They shall encourage the child to have a strong and positive relationship with both parents, and shall use all reasonable efforts to foster a meaningful relationship between the child and extended family members.
The Mother will pick up the child from the Father’s residence for access visits and the Father will pick up the child from the Mother’s residence after access visits.
The Mother is responsible to arrange for the child’s transportation and punctual attendance at extracurricular activities when they occur during access times. Both parents will consider the logistics of access and transportation issues when signing the child up for extracurricular activities.
Neither party will consume alcohol or non-prescription drugs while in a caregiving role.
Both parties will make reasonable efforts to adjust the access schedule to accommodate Christian’s activities and the Mother’s university course schedule and allow for make-up time in the event of missed access time.
Travel:
The written, notarized consent of both parties shall be required to travel with the child outside of Canada. The parties shall provide each other with at least 30 days’ notice if they wish to travel with the child outside of Canada. The non-traveling parent shall not unreasonably withhold consent, and in the event that consent is given they shall execute and provide a notarized consent to travel or any other documents required to permit the other party to travel with the child. The traveling parent shall pay the costs of obtaining any such documents.
A party planning a trip with the child either within or outside of Canada shall provide the other party with full details of the proposed trip, including dates of travel, location of travel, airline names and flight numbers, written confirmation of round-trip travel being purchased, hotel names and addresses, and contact information to the other parent at least 72 hours in advance of the departure date for weekend travel and 30 days in advance for travel which exceeds 4 days. They shall also advise the other party in advance of any changes to these details.
If the Mother misses any access time with the child during the Father’s travel, such missed access time shall be made up to the Mother.
Child Support:
There are no current obligations to pay child support. Either party may commence proceedings for the payment of child support subject to the normal family law rules.
For so long as the child is a dependant pursuant to the FLA, the Applicant and the Respondent shall provide updated income disclosure to each other each year in writing by June 1st of each year commencing on June 1, 2018, in accordance with s. 24.1 of the Child Support Guidelines (Ontario), and the same disclosure again by June 1st each year.
Costs:
- If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by October 1, 2017. Any responding submissions shall be served and filed by October 15, 2017. Reply submissions shall be served and filed by October 21, 2017. No cost submission shall exceed 5 pages in length, excluding attachments.
Justice Marc R. Labrosse
Released: 2017/08/22
CITATION: Rubalcava v. Tracey, 2017 ONSC 4978
COURT FILE NO.: 06-FL-243
DATE: 2017/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Marileidy Arcelia Rubalcava (a.k.a. Marileidy Flores-Rubalcava)
Applicant
– and –
Andrew Tracey
Respondent
REASONS FOR JUDGMENT
Justice Marc. R. Labrosse
Released: 2017/08/22