Court File and Parties

COURT FILE NO.: 5/16 (Simcoe) DATE: December 10, 2018

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Douglas Charles Burnside, Applicant AND: Alexis Wynveen Burnside, Respondent

BEFORE: The Honourable Justice H. S. Arrell

COUNSEL: Walter Drescher, Counsel, for the Applicant Robert MacLeod, Counsel, for the Respondent

HEARD: October 22, 23, and 24, 2018

judgment

INTRODUCTION:

[1] The applicant seeks an order for joint custody and equal time with the children. He also seeks support for himself, along with child support.

[2] The respondent wishes the status quo to remain in effect with her having sole custody, based on an interim order, with access to the applicant weekly.

[3] By any yard stick, this couple have had a volatile and high conflict separation which appears to be continuing. It is not contested that they find it almost impossible to communicate directly, and generally they go through the respondent’s father or on occasion social media, which has proved problematic in the past. I will comment on that further in this decision.

FACTS:

[4] The parties’ cohabitated from 1996 until their marriage on October 8th, 2004. They separated on the 2nd of August 2015.

[5] There are three children of this marriage being Liam Wayne Douglas Burnside born March 31st, 2005; Rowan James Alexander Burnside born July 16, 2008; and Ciaran David Casey Burnside born May 10th, 2011.

[6] The respondent is a registered nurse working 12 hour shifts at the Grand River Hospital in Kitchener. She has been employed there since graduating from nursing school in 2001.

[7] The applicant, who is 45 years of age, is currently employed with Westhill Innovations on a fulltime basis as a lead hand. He has been steadily employed for the past year. Prior to that, he was unemployed for a number of years, other than some part time work and some work with a band to which he belonged. He currently earns $19.00 per hour working 37.5 hours per week. He was earning $17.00 per hour until a recent raise occurred. His income, annualized with this raise, is $37,050.00. At his old hourly rate, his annualized income was $33,150.00.

[8] To the parties’ credit, they have settled equalization. They sold the matrimonial home and divided the proceeds. All pension issues are also resolved.

[9] The respondent works 12 hour shifts from 7:00 – 7:00. She has been back to work since January 1st, 2018, after being off for approximately a year on maternity leave with her newest child from her new relationship. She works three day shifts, and 1 night shift, each cycle. She then has five days off. She gets 35 days of holidays. This two week cycle is consistent, although the days of the week vary during each cycle.

[10] The respondent’s income this year will be approximately $75,000.00 based on her evidence, and as projected in her year to date pay statements. She does not think that will change much for 2019, even though in the past she has earned up to $90,000.00 per year. She states she now takes some unpaid days off with her new baby and therefore her income is somewhat less than in the past.

[11] The respondent has sole custody of the children pursuant to an interim order of Gordon, J. dated December 21st, 2017. This order also gave access to the applicant on two nights per week. That has now changed slightly with the consent of the parties, such that the children are with the applicant in week one, Tuesday over night, and Friday over night until 5:00 pm Saturday; and in week two, the children are with the applicant both Tuesday and Wednesday overnight, in addition to Friday after school until Saturday at 5:00 pm.

[12] The applicant has paid no child support since separation. The respondent has been paying $457.00 per month for the van that has been in the possession of the applicant and used solely by him since approximately the beginning of 2016. She has paid no other spousal support.

[13] The applicant last worked in the fall of 2011 at a full time regular job, prior to the current one, with an employer called Colt Canada. This job was approximately four and a half years prior to this couple’s separation. He stayed at home with the children from then until the separation. He did not work after the separation on a regular basis until his current employment, which commenced approximately a year ago. He states that he took some courses prior to this employment to upgrade his skills and indeed took out an OSAP loan to help fund that education. Prior to that, he was on bail with the condition that he had to be with his surety and therefore could not work. He pled guilty to publishing a private intimate photograph of his wife and was put on 12 months probation. He never applied to have his bail varied to allow him to work.

[14] The applicant has had a long history of being a musician. He testified that on average he might earn $100.00 per night 50% of the time that he played. There was virtually no evidence of the frequency that the band played and of course no money trail. The respondent thought that the income from the band was more substantial but had no evidence to support her conclusion. The evidence is unclear as to what income he might have earned playing with this band over the years, or currently, but I have concluded based on the evidence before me, it was not substantial.

[15] It is agreed that the parties prior to separation grew marijuana. It is agreed they both smoked marijuana recreationally. It is further agreed that the respondent participated in the cultivation of the marijuana but I conclude she had a more minor role then the applicant.

[16] The evidence is unclear as to the amount of marijuana grown and whether any was sold commercially. There is not sufficient evidence before me to come to a conclusion in that regard and in any event, I conclude that the growing of marijuana is no longer an issue and this couple’s past history in that regard is not relevant to my current decision. I further conclude that substance abuse of either marijuana or alcohol is not an issue with these parents and that is confirmed by the evidence of Jillian Sheldrick, the investigative clinician of the Ontario Children’s Lawyer through her Section 112 report.

CREDIBILITY:

[17] A great deal of the evidence before me, which was almost primarily from the applicant and respondent, appeared to dwell on the credibility of one over the other. Each party gave evidence as to the shortcomings of the other, and of course their evidence as to why the description of those shortcomings were false.

[18] Certainly the credibility of the parties is a consideration in my decision regarding this matter, however I do not feel it is the only factor. The facts themselves, and the investigation conducted by Ms. Sheldrick, inform my decision