COURT FILE NO.: FS-17-0181-00 DATE: 2018-11-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

S. M. W. Shanks, for the Applicant Applicant

• and -

G.C. M. Petryshyn, for the Respondent Respondent

HEARD: October 15-19, 2018, at Thunder Bay, Ontario Mr. Justice W.D. Newton

Decision On Application

Overview

[1] The issues in this application are: (i) custody of the son [^1]; (ii) access or parenting arrangements; (iii) quantum of child support; and (iv) quantum and duration of spousal support for the mother.

[2] Neither party makes a claim for retroactive child or spousal support. The parties settled all property issues prior to trial.

The Facts

[3] For the most part, the facts are not seriously in dispute. In addition to the parties, the mother called a friend and the son’s current daycare provider as witnesses. The father called his brother and the mother’s sister.

[4] The Applicant mother is 29 years old. The Respondent father is 30 years old. They started dating in February 2013 and commenced cohabitation when their new house was constructed on November 28, 2014. They were engaged to be married in January 2015. Their son, now three years old, was born in […] 2015. The parties separated on June 14, 2017, without marrying.

[5] Both parties were employed before, during, and after the relationship. The mother was on maternity leave for one year following the child’s birth in […] 2015. She was off for medical reasons a few months in advance of the child’s birth.

[6] The mother is employed as a nurse, part time, at the local hospital. Her earnings before deduction of union dues were:

2014 $57,184 2015 $41,780 2016 $31,118 2017 $41,523

[7] The mother works on a six week .5 rotation, working 17 days out of 42:

Week 1 Monday, Tuesday: 7:30 a.m. to 3:30 p.m. Week 2 Thursday, Friday, Saturday: 7:30 a.m. to 3:30 p.m. Week 3 Wednesday 7:30 a.m. to 3:30 p.m.; Thursday, Friday: 3:30 p.m. to 11:30 p.m. Week 4 Friday, Saturday: 7:30 a.m. to 3:30 p.m. Week 5 Sunday, Wednesday, Thursday, Friday: 7:30 a.m. to 3:30 p.m. (usually) Week 6 Thursday, Friday, Saturday: 7:30 a.m. to 3:30 p.m.

[8] The father is employed as a lineman for a company owned by his uncle. His earnings before deduction of union dues were:

2014 $118,445 2015 $123,934 2016 $139,610 2017 $124,262

[9] Both parties disagree about the projected income of the other for 2018. Into the future, the father argues that he will be working less to accommodate shared parenting. He also argues that the mother should be working more than half time.

[10] Central to this dispute is the amount of time that the father was working out of town during the relationship and whether that pattern will continue in the future. Indeed, it appears that one of the major precipitating causes of the breakdown of the relationship was the amount of time the father worked out of town, during which he was not able to assist with what the mother described as a “colicky” baby.

[11] Post-separation the father had limited access. Between June 14, 2017, and October 2017, the father had about 44 ½ hours of access limited to visits during daytime hours on weekends. He had no overnight access until interim access was ordered by Fregeau J. on December 12, 2017. That order provided for temporary joint custody with the son residing primarily with the mother but residing with the father on alternate weekends from Thursday at 5:00 p.m. to Sunday at 6:00 p.m. The father and mother agreed to modify the commencement of this access schedule so that the father’s alternate access would occur on the weekends when the mother was scheduled to work in any event. The parties disagree about additional access asked for and granted.

Custody

[12] Although the mother asserted that the parents could not communicate effectively to parent, the evidence discloses no significant difficulty in making decisions in the best interests of the child. Neither parent disputes the other parent’s love and affection for their son, that the son has a bond with each, nor that each is a good and capable parent.

[13] The son will be attending school starting September 2019. No decision is necessary yet. Each agree that the schools should be visited and that a French immersion program will be selected in either the Catholic or public school system depending upon which school seems most appropriate. Both agree that the son is to be raised in the Catholic faith, but neither is particularly religious. The only healthcare dispute has been over administration of the flu shot. The father did not object to the flu shot but wanted to follow the doctor’s recommendation that a flu shot later, with an improved vaccine, might be more effective.

[14] The communication, and particularly the “Family Wizard” communication, indicates that, for the most part, the parties can cooperate and make joint decisions.

Access

[15] I was satisfied on the evidence that the mother has been controlling and restricting access to the father. She refused to provide her work schedule to the father throughout this litigation, and it was not until the evidence was adduced at trial that the father learned of the mother’s actual work schedule. The mother claimed that she did not want to provide her work schedule because she was fearful that the father would attend at her workplace. There is no evidence that the father ever attended the mother’s workplace or threatened to attend her workplace or that there was any rational basis for this assertion.

[16] The mother and her parents videotaped every access exchange. The father was required to pick up and drop off his son at the mother’s residence. She has resided with her parents since separation. The father always attended with a witness who remained in his vehicle.

[17] The mother’s friend, who had never met the father prior to separation, testified that she saw the father “yelling and over talking” the mother on an exchange. She testified that he appeared frustrated. In cross-examination, she admitted that there was never any physical aggression.

[18] The father’s brother, who was present for the majority of the exchanges, testified that he never saw the father yell at the mother during the exchanges. He testified that the exchanges were “stressful” because of the videotaping.

[19] An incident involving the daycare provider demonstrates the mother’s controlling and uncompromising attitude. The father contacted the daycare provider for more detailed receipts. The daycare provider testified that she told him that she prepared the receipts in a certain way in a telephone conversation, and she testified that she thought the father was satisfied with that explanation. Shortly after that conversation, the daycare provider received a letter from the father’s lawyer asking for detailed receipts. The day care provider testified that she thought that she was then being harassed and sent a picture of the letter to the mother. The mother complained to the police that the father was in breach of a court order and was making unwanted phone calls to the daycare. The police confirmed that there was no breach of a court order. Text messages between the father and the daycare provider show only polite and friendly communication.

[20] On another occasion the father attended at the mother’s to take his son across the border for a short visit. The father completed the appropriate documentation for such a visit, but the mother would not surrender the child’s passport unless the father signed a further document the mother had prepared. The document purported to say that the father acknowledged that he would return the passport. The father refused to review or sign the document without his lawyer’s advice, and therefore, the planned trip was aborted.

[21] The father proposes that the parenting arrangements move gradually to a shared parenting, week on/week off, schedule commencing January 2019. The father testified that his employer, his uncle, is accommodating and would allow the father to adjust his work schedule to accommodate parenting. Counsel for the father filed confirming correspondence from the employer at trial. The father’s plan is to work out of town, if required, on the weeks that he is not parenting but that he would not take out of town work assignments in the weeks in which he parents his son. Indeed, he has taken Fridays off work every second weekend since the temporary order for joint custody and increased access was made in December 2017. Both he and his brother testified as to the support that is available from the brother, his wife, who is currently on a leave of absence from work, and other family members. The evidence was that the son has a close relationship with his cousin, the brother’s son, who is a few months older. The boys are described as “best friends” and will be starting school together next fall, although it is not known whether they will attend the same school. The father has not pursued any inquiries about additional formal daycare in advance of securing additional parenting time.

[22] The mother argues, in essence, that the status quo, with her as primary parent, should continue as it is in the best interests of their son. She points to the stability of the parenting since December 2017 and the daycare that she has in place. She testified that when she has to work an evening shift that she has assistance from her parents.

[23] Neither parent offered any additional evidence on “best interests”.

Child Support

[24] The parties do not significantly disagree on how child support is calculated. The mother argues that the father’s “banked time” should be included in income. The father’s evidence was that there was no “banked time” at present and argued that, in any event, it should be included in income when it is received as income. I agree.

[25] Section 7 expenses are to be shared pro rata.

[26] The parties also agree that child support and section 7 expenses shall be adjusted annually based on the prior year’s assessment.

Spousal Support

[27] While an entitlement to spousal support was admitted, the parties were significantly apart on the issue of duration of support.

[28] The father argued that the mother could be earning more income and should transition to full-time employment once their son is in full-time school commencing September 2019. It was demonstrated in evidence that the mother has applied for very few jobs within the hospital offering more hours, that she prefers not to work night shifts, and that there are some, albeit limited, opportunities for her to secure full-time employment on her preferred unit. The father argues that spousal support should be limited based on the short duration of the relationship and should end at September 2019. The mother argues that spousal support should be payable until the child reaches the age of 18 to give the child the same standard of living in each home and points to the significant discrepancy in earnings.

[29] The father projects the mother’s 2018 annual income to be $51,200.00 based on her earnings to September 30, 2018. He projects the mother’s full time earnings to be about $70,000. He projects his earnings to be approximately $117,000 for 2018 and approximately $110,000 for 2019 and subsequent years based on his altered work schedule if a shared parenting schedule, week on/week off, is ordered. The father indicated that his employer could place him on salary at $110,000 annually to even out his earnings.

The Law

Custody and Access

[30] An application in respect of custody of or access to a child must be determined on the basis of the best interests of the child.

[31] Section 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, provides:

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 familiar relationship between the child and each person who is a party to the application.

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.

[32] As was stated by the Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] W.D.F.L. 1005, at para. 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another.

Spousal Support

[33] Section 30 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) states that “[e]very spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”

[34] Subsection 33 (8) of the FLA sets out the purposes of spousal support as follows:

Purposes of order for support of spouse

(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).

[35] Subsection 33 (9) of the FLA sets out considerations for the determination of the amount, if any, and duration of spousal support as follows:

Determination of amount

(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: 1997, c. 20, s. 3 (3). (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, (v) 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, (vi) any housekeeping, child care or other domestic service performed by the 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, (v.1) REPEALED: 2005, c. 5, s. 27 (12). (vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependant to support, other than out of public money.

Analysis and Disposition

Custody

[36] As indicated, I am satisfied that the parties have demonstrated the ability, if not the willingness, to effectively parent jointly. It is in the child’s best interest, considering all of the factors set out in s. 24(2), for the child to be raised by both parents. I have considered the child’s past parenting history, the abilities and willingness of the parents to provide for the child, and the plans proposed by each parent. I am very satisfied that each party has the ability to parent their son. There shall therefore be an order for joint custody. I encourage the parties to seek appropriate counselling should issues arise in putting joint custody into practice.

Access

[37] I am also satisfied that it is in the child’s best interests that he be parented by each parent equally and that this transition to a shared parenting schedule be in place before the child starts full-time attendance at school in September 2019.

[38] Therefore, on the next week that the father has his son, parenting will continue as in the past from Thursday at 5:00 p.m. to Sunday at 6:00 p.m. On the subsequent scheduled exchange, and thereafter, the father shall parent from Wednesday at 5:00 p.m. to Sunday at 6:00 p.m.

[39] Effective the first exchange in February 2019, and thereafter, the father shall parent from Tuesday at 5:00 p.m. to Sunday at 6:00 p.m.

[40] Effective the first exchange to the father in April 2019, shared parenting will begin with the father parenting from Monday at 5:00 p.m. to Sunday at 6:00 p.m. on alternate weeks. Once the son is in full-time attendance at school in September 2019, the transitions will occur at the end of school.

[41] Until school commences, the party who begins parenting will pick up the child at the residence of the other. Each parent shall ensure that the exchanges are not videotaped.

Child Support

[42] Child support shall be payable by the father to the mother in the amount of $1,079 per month based on the father’s 2017 income of $123,496.00 and the mother’s 2017 income of $41,523 (net of RRSP and union dues) until April 2019 when shared parenting begins. From April 2019, with offset, the child support payable by the father to the mother will be $712 per month.

[43] Section 7 expenses will be paid 75% by the father and 25% by the mother.

[44] Thereafter, child support and s. 7 expenses will be adjusted annually on June 1 commencing 2019.

Spousal Support

[45] In determining the quantum and duration of spousal support, I have considered that the mother’s ability to achieve self-sufficiency was somewhat compromised by the decision to have and raise a child for the family. I find that there is no specific calculable overriding loss which resulted from the relationship or the parties’ roles adopted throughout the relationship. I further find that neither conferred a substantial career enhancement opportunity to the other. I accept that the father worked overtime and out of town to pay for debts relating to the parties’ new home. I have also considered the significant disparity in income.

[46] As such, spousal support is appropriate but should be time-limited and reviewable only upon a change in circumstances.

[47] I accept that the mother’s ability to earn more income has been affected by the disproportionate parenting in the past and I find that, once the equal parenting schedule is in place, she will have the ability to earn additional income and transition to full-time employment, especially after the child is in school commencing September 2019.

[48] I conclude that spousal support should be based on the projected 2018 income of $117,000 for the father and $57,000 for the mother which gives a range of $596, $1,041, and $1,639, but that the support decrease over time. Effective the first month following the release of these reasons, the father shall pay to the mother spousal support in the amount of $1,041 per month until December 31, 2019. Thereafter, the father shall pay to the mother spousal support in the amount of $818 per month until December 31, 2020. Thereafter, the father shall pay to the mother spousal support in the amount of $596 per month until December 31, 2021. The obligation of the father to pay spousal support shall end December 31, 2021 subject to a material change in circumstance.

Order

1. The parties shall have joint custody of the child born, C.C., […], 2015.
2. The parties will continue to utilize the Family Law Wizard App for all communication concerning the child, C.C.
3. Commencing the second next access visit, the Respondent shall have access to the child from Wednesday at 5:00 p.m. to Sunday at 6:00 p.m. on alternate weeks and any other reasonable access arranged by the parties through the Family Law Wizard on forty-eight (48) hours written notice.
4. Commencing the first access visit in February 2019, the Respondent shall have access to the child from Tuesday at 5:00 p.m. to Sunday at 6:00 p.m. on alternate weeks and any other reasonable access arranged by the parties through the Family Law Wizard on forty-eight (48) hours written notice.
5. Commencing the first access visit in April 2019, the Respondent shall have access with the child alternate weeks from Monday at the conclusion of school to the following Monday at the conclusion of school, or 5:00 p.m. if Monday should be a holiday, or until such time as the child begins attendance at school.
6. Each parent shall further be entitled to have a visit of up to five (5) hours in length with the child during the time that the child is in the primary care of the other, upon forty-eight (48) hours written notice through the Family Law Wizard App.
7. In addition to the above noted access, subject to any agreement to the contrary, each parent shall have access with the child as follows:
   1. The child will spend each Mother’s Day with the Applicant and each Father’s Day with the Respondent between the hours of 9:00 a.m. and 8:00 p.m. irrespective of the normal access schedule.
   2. The child shall be with the Respondent from 10:00 a.m. to 8:00 p.m. on the child’s birthday ([…]) in 2018 and in alternative years thereafter. The child shall be with the Applicant on the child’s birthday for the same hours in 2019 and in alternative years thereafter.
   3. Commencing in July of 2019, the parties will have alternative weeks of access with the child throughout the summer. However, should either party wish to have a longer vacation with the child during the months of July and August, he or she will give the other parent written notice of such intention on or before April 30 of each year. The Applicant will have priority in 2019 and alternative years thereafter to exercise such access, and the Respondent will have priority in 2020 and alternate years thereafter. If either parent chooses to exercise such extended access with the child, any time that the other parent’s access is reduced, the lost time shall be made up during the summer period.
   4. Once the child is in attendance at school, the parties will alternate the school March Break, with the Respondent having the child during the March Break in 2021 and alternate years thereafter and the Applicant having the child in 2022 and alternate years thereafter.
   5. Commencing in 2018 and alternate years thereafter, the child will be with the Applicant from December 24 to December 25 at noon and with the Respondent from December 25 at noon to December 26 at 5:00 p.m. In 2019 and alternate years thereafter, these dates shall be reversed. Once the child is in attendance at school on a full-time basis, in addition to the above-noted Christmas access, each of the parties shall be entitled to one-half of the remaining Christmas school vacation, with specific dates to be established by the parties.
   6. Commencing in 2020 and alternate years thereafter, the Respondent shall be entitled to the Easter vacation with the child which will commence Thursday at 5:00 p.m. and end on Monday at 5:00 p.m. In 2021 and alternate years thereafter, the child shall spend such Thanksgiving vacation with the Respondent from Friday at 5:00 p.m. to Monday at 5:00 p.m.
   7. Commencing in 2019 and alternate years thereafter, the child will be with the Respondent on Halloween from 4:00 p.m. to 8:00 p.m.
   8. In addition, each parent shall be entitled to additional reasonable access on reasonable notice to the other parent.
   9. Each parent shall also be entitled to reasonable telephone and electronic access with the child while he is in the other parent’s care.
   10. Neither party shall be entitled to change the primary residence of the child from the City of Thunder Bay without prior agreement of the parties or further Order of the court.
   11. All exchanges of the child shall occur at a mutually agreed upon location, failing agreement, the party who begins parenting shall pick up the child at the residence of the other.
   12. The passport shall be in the custody of the Respondent and delivered as required to the mother upon (forty-eight) 48 hours notice, arranged through the Family Law Wizard.
8. Yearly the parties shall exchange copies of their Income Tax Returns and T4’s and Notices of Assessment on or before May 30 of each year, commencing May 30, 2019.
9. Child support shall be paid as follows: a. Based on the Respondent’s 2017 income of $123,496.00 and the Applicant’s income of $41,523.75, commencing October 1, 2018, the Respondent shall pay to the Applicant for the support of the child the sum of $1,079 per month until April 2019 when shared parenting begins and then, with offset, the child support payable by the Respondent to the Applicant shall be $712 per month. b. Commencing June 1, 2019, child support shall be adjusted and shall be based on the respective incomes of the parties in 2018. The child support shall be calculated under the Child Support Guidelines, O.Reg. 391/97 setting off the amount payable by the Applicant against the amount payable by the Respondent. c. Commencing in November 2018, s.7 expenses shall be paid 25% by the Applicant and 75% percent by the Respondent. d. Section 7 expenses shall be adjusted in May of each year commencing in May of 2019, based upon the respective incomes of the parties for the previous year. e. Other than childcare required by the parties to attend work or school, all other s. 7 expenses will require the consent of both parties prior to such expense being incurred, with consent not to be unreasonably withheld. f. Each party shall maintain a life insurance policy on his or her life either through employment or privately at the minimum level of $200,000 and shall name the child as the beneficiary of such policy for so long as he is a child and entitled to support. Each party shall be entitled to name a trustee of their choice for such insurance policy. g. In addition, each party shall name the child as a beneficiary of any extended health or dental benefits available to them through their employment and shall maintain such coverage for so long as the child is a child entitled to support. h. There will be no retroactive child support paid.
10. Spousal Support shall be paid as follows: a. Commencing December 1, 2018, up to and including December 31, 2019, the Respondent shall pay to the Applicant for her support the sum of $1,041 per month. b. Commencing January 1, 2020, and up to December 31, 2020, the Respondent shall pay to the Applicant for her support the sum of $818 per month. c. Commencing January 1, 2021, and up to December 31, 2021, the Respondent shall pay to the Applicant for her support the sum of $596 per month. d. Upon payment of the above noted amounts, there shall be no further spousal support paid by either party to the other. e. There will be no retroactive spousal support paid by the Applicant to the Respondent or by the Respondent to the Applicant.

[49] If further particulars are required to give effect to this order, the parties may book a further brief attendance before me through the trial coordinator.

[50] If costs are sought the party seeking costs shall deliver their costs submissions within 21 days of this decisions release. The other party shall have 14 days to respond. Written submissions are limited to five pages, plus costs outline, plus authorities. Once submissions have been exchanged, the parties are to arrange a one hour attendance before me through the trial coordinator. If no costs submissions are received within 21 days, costs will be deemed settled.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: November 5, 2018

COURT FILE NO.: FS-17-0181-00 DATE: 2018-11-05 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: S. M. Applicant - and - G.C. Respondent DECISION ON APPLICATION Newton J. Released: November 5, 2018 /sab

[^1]: In this decision I will use generic descriptors to the extent possible so that the privacy of the parties, their child, and their extended families are respected.