Court File and Parties

COURT FILE NO.: FC-18-292 DATE: 2018/12/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANDREW WEBB, Applicant -and- JESSICA LEE WEBB, Respondent

BEFORE: Justice K. Phillips

COUNSEL: Mark W. Smith, for the Applicant Fan MacKenzie, for the Respondent

HEARD: December 13, 2018

Endorsement

[1] Andrew Webb (“Applicant”) and Jessica Lee Webb (“Respondent”) were married on April 17, 2008. There are two children of the marriage, both girls, now aged seven and five. The couple separated on June 6, 2016.

[2] A motion initiated by the Applicant was heard today. As a result of the cut and thrust of courtroom argument, considerable headway was achieved in respect of resolving various grounds of dispute. That said, there remain three areas of contention requiring disposition.

[3] First, I must determine whether there shall be a temporary order of joint custody or sole custody. Second, I must resolve disagreement about the Applicant’s income in order to put in place appropriate child support. Finally, the parties cannot agree on childcare arrangements and the manner in which the resulting expense should be shared.

Issue One: Custody

[4] The issue of joint custody versus sole custody is foremost an analysis of the best interests of the children. It is not a contest about whether one party is a better parent than the other. The decision is necessarily fact specific. I am indebted to my colleague Chappel J. who summarized the relevant components of the analysis in Thompson v. Drummond, 2008 ONSC 1975 at para 52.

[5] In the circumstances, the principal question to be determined is whether the parties can, in a workable way, communicate and cooperate with each other as necessary to advance the children’s best interests. I have decided the answer to that question is a negative one.

[6] An objective review of the evidence clearly indicates that there has long ceased to be an ability to cooperate or communicate effectively between the parties. In fact, I would go so far as to say that the relationship between the Applicant and Respondent has become quite toxic. As just two examples I note that he accuses her of having a drinking problem and of having negligently exposed their daughter to sexually inappropriate materials. The evidence does not support either claim.

[7] More problematic is the Applicant’s reaction to the order of O’Bonsawin J. arising out of a case conference on September 7, 2018. That order clearly set out that, within 60 days, he would provide two pay stubs from September 2018. This was obviously so that the Applicant’s income could be accurately determined so that appropriate child support could be put in place.

[8] Court orders are meant to be followed. This is no less so in the context of disclosure as non-disclosure thwarts forward progress toward justice. The Applicant is a highly industrious and capable federal public servant. I am certain that he could have put his hands on his pay stubs without difficulty. Instead, he chose to ignore that important part of the O’Bonsawin J. order and merely provided an affidavit about his income (not surprisingly, the Respondent does not accept the accuracy of his self-report in that regard).

[9] Child support is the right of the children. Anyone who fails to comply with a court order clearly meant to ascertain the appropriate quantum of child support is demonstrating an inability to act in furtherance of the children’s best interests. In my view, in the circumstances here, that inability is relevant when assessing the issue of custody. Why the Applicant chose not to comply with the O’Bonsawin J. order is known only to him. To this outsider, it would appear that the Applicant is unable to put the needs of the children before his own.

[10] Not only does the evidence indicate an absence of cooperation and communication, as well as an inability of the Applicant to perceive the children’s interests as paramount, things are made worse by the practical realities. The Applicant’s work takes him far away from Canada for many months at a time (there is an 11 hour time difference between Ottawa and the place the Applicant is ordinarily resident). It is hard to see how the long distances involved will not add practical obstacles to the determination and advancement of the children’s best interests on a day-to-day basis.

[11] I order interim sole custody to the Respondent.

Issue Two: Child Support and the Imputation of Income

[12] This issue will also be greatly affected by the Applicant’s unwillingness to comply with the clear court order made September 7, 2018. In the result, his asserted income is not corroborated by documentation that is readily available to him. I infer from his disinclination to provide pay stubs that the Applicant is an unreliable raconteur with respect to his finances. Given the importance of ascertaining the Applicant’s income in respect of addressing the best interests of the children, it is appropriate for income to be imputed in the circumstances.

[13] Evidence in the record enables the Court to determine with adequate precision the Applicant’s income for 2016. Given that he has essentially the same job now as he did then, I agree with the Respondent that the 2016 income provides a basis for imputing. The Applicant’s income shall be set for child support purposes at $130,000 per annum.

[14] On an interim basis, it is ordered, pursuant to the relevant Child Support Guidelines, that commencing September 1, 2018 and on the first day of each month thereafter, the applicant shall pay to the Respondent child support in the amount of $1,838.00.

Issue Three: The Day Care Expenses

[15] I agree with the Applicant that the Respondent should provide receipts or other documentation supporting her assertion that she is indeed paying her sister $1,100 per month for day care expenses. I am not prepared to order that he share in such an extraordinary expense in the circumstances. Although I can accept that the amount sought is within what could be called a normal range, it is unclear why the Respondent unilaterally chose to move the children from the daycare facility the couple chose to use whilst together. That facility was quite a lot cheaper and I have not heard about why it became unsuitable. The Respondent cannot reasonably expect the Applicant to pay increased costs as a result of her unexplained choices. In the circumstances, while I agree that the Applicant should pay a share of the daycare expenses I have decided to cap his contribution at $350 per month.

Conclusion

[16] As a result of the above, and in accordance with the negotiated agreements arrived at between the parties before and during the hearing this Court orders that:

Adjournment

1. The Applicant’s application to adjourn the motion is dismissed.

Mobility

2. The Applicant’s mobility claim to have the children go with him to his next posting to Astana, Kazakhstan is dismissed as abandoned.

Legal Custody

3. This court orders sole legal custody to the Respondent in respect of Claudia Aylet Webb (born December 11, 2011) and Beatrice Laelle Webb (born October 20, 2013). The Respondent shall consult with the Applicant prior to any major decisions regarding the children’s health, welfare or education. The Respondent shall inform the Applicant of all major decisions related to the children.

4. Both parties shall be authorized to obtain information from professionals involved with the children including but not limited to teachers, school officials, doctors and dentists.

5. Neither party shall change the children’s names without the other’s written consent.

Physical Custody/Parenting Time

6. Provided he is in Ottawa, the Applicant shall have the children in his care: a. during the school year, from Fridays after school to Sunday evenings; b. during Christmas Break 2018, from the last day of school before the Christmas Break (i.e., December 21st) to the evening of December 23rd and from December 25th at noon to December 30th when the Applicant leaves Ottawa; c. during March Break 2019, for up to seven (7) consecutive days; and d. during the summer of 2019, Monday mornings to Thursday afternoons.

7. For the summer of 2019, both parties shall have the option to have the children in their care for up to seven (7) consecutive days.

8. The Applicant shall electronically communicate with the children three (3) times a week with the specific times and dates to be arranged by the parties.

Child Support

9. Commencing on September 1, 2018 and on the first day of each month thereafter, the Applicant shall pay to the Respondent child support of $1,838.00 for Claudia Aylet Webb (born December 11, 2011) and Beatrice Laelle Webb (born October 20, 2013) based on the Applicant’s estimated annual income of $130,000.00 and pursuant to the 2017 Guidelines.

10. The parties shall each maintain their respective employment medical/dental/vision benefits for the children as long as the children qualify for such coverage.

11. The parties shall proportionately pay the children’s section 7 expenses.

12. The Applicant’s proportionate share of the children’s section 7 expenses is 65% and the Respondent’s proportionate share of the children’s section 7 expenses is 35%.

13. On an interim basis, commencing on September 1, 2018 and on the first day of each month thereafter, the Applicant shall pay to the Respondent $350.00 per month for the children’s childcare expenses.

14. If a party seeks reimbursement for a non-medical section 7 expense (i.e., special or extraordinary), the party shall obtain the other party’s written consent in advance of incurring such an expense. Consent shall not be unreasonably withheld. A party shall reimburse his/her share of the section 7 expense to the party that paid the expense within 30 days of receiving a receipt.

15. If a party seeks reimbursement for a medical/dental/vision section 7 expense (i.e., special or extraordinary), the parties shall cooperate to submit such within 30 days of a request to their respective insurer. The party who did not pay for the expense shall endorse cheque(s) from his/her insurer and provide to the other party with his/her proportionate share of the expense.

Costs

16. I have considered the parties’ respective submissions as to costs. In particular, I have considered their means, the complexity of the issues argued, each party’s litigation conduct throughout as well as the results achieved. I have decided that the Respondent shall be partially indemnified for her costs in the amount of $6,500.00 which amount is payable by the Applicant within 30 days and which shall be enforceable by the Family Responsibility Office.

Justice K. Phillips Date: December 17, 2018