COURT FILE NO.: FC-17-2632 DATE: 2019/06/12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pedro Flores Solano, Applicant -and- Indira Del Carmen Molina, Respondent
BEFORE: Justice D. Summers
COUNSEL: Michael D. Wonham, for the Applicant Emily E. Murray, for the Respondent
HEARD: January 15, 2019
Nature of the Proceeding
[1] This motion is about seven year old Leah and her best interests. The applicant, Mr. Solano, seeks more time with his daughter. He asks for equal parenting time or, in the alternative, that his current midweek and alternate weekend access be extended to start on Friday and include overnights.
[2] The respondent mother, Ms. Molina, opposes his request and brings her own motion. The primary relief she seeks is interim sole custody, the assistance of the Office of the Children’s Lawyer, child support including a retroactive payment and annual income disclosure.
[3] Prior to the motion, the parties resolved the property issues arising out of their marriage breakdown. On consent, Mr. Solano, is ordered to make an equalization payment to the respondent, Ms. Molina, by transferring RRSP’s to her of $21,250 by way of a spousal rollover under the Income Tax Act.
[4] The parties also consented to an order severing the remaining corollary issues from the divorce. I make that order. At the conclusion of the motion, I made a further order on consent requesting the involvement of the Office of the Children’s Lawyer to prepare a Voice of the Child Report.
Background Facts
[5] The parties were married on July 14, 2007 and separated on May 1, 2015. For the next 14 months they lived separate and apart under the same roof until the sale of the matrimonial home in July 2016.
[6] Their only child, Leah Alexandra Flores Molina, was born on July 31, 2011. Mr. Solano has two older children from his previous marriage, Elizabeth and Savannah, who are now 25 and 15 years of age, respectively. Mr. Solano continues to pay child support for Savannah. Ms. Molina does not have other children.
[7] Both parties worked full-time during the marriage. Mr. Solano lost his job as a Building Operator in February 2018. He has been unemployed since then. Ms. Molina works full-time as a Financial Clerk and in April 2018 took a second job at Farm Boy. She works on alternate weekends when Leah is with her father.
[8] Mr. Solano lives with his sister and has done so since the sale of the matrimonial home. Ms. Molina and Leah live with her parents. Her younger brother and his son also live with her parents.
[9] Attempts to negotiate a parenting agreement following the parties’ physical separation were not successful. Since then, Mr. Solano’s access schedule with Leah consists of every Wednesday from 4:30 PM until 7:00 PM, Saturday from 10:00 am until 4:00 pm and Sunday from 9:30 am until 4:00 pm on alternate weekends.
The Legal Test
[10] The sole test in custody and access matters is the best interests of the child. This determination must be made with reference to the conditions, means, needs and other circumstances of the child; see Divorce Act, s. 16(8). The court’s decision must also give effect to the principle that the child should have as much contact with each parent as is consistent with the child’s best interest; see Divorce Act, s. 16(10).
Interim Custody
[11] Ms. Molina seeks interim sole custody of Leah. She relies heavily on the status quo. She states she is the primary caregiver and argues that she has had defacto sole custody since separation. She says since Leah’s birth, she has always been the parent to take the initiative for her care. She contends that Mr. Solano chose to remain on the sidelines and did not participate in the important decisions made in Leah’s life.
[12] Mr. Solano’s application seeks joint custody. He says an interim order is not needed and asks that the court not make one. He disputes Ms. Molina’s version of his interest and involvement in their daughter’s life. He says he was and is engaged with Leah to the extent her mother will permit. He says that since separation, when Ms. Molina did not act unilaterally to make decisions for the child, they were made together without incident. He also says that to his knowledge, there are no upcoming issues to be decided.
[13] For the reasons that follow, I decline to make an order for custody as sought by Ms. Molina.
Analysis
[14] Ms. Molina sees her current role as Leah’s primary caregiver as weighing heavily in favour of her claim to be the child’s sole decision-maker. I disagree. The right and responsibility to make important decisions in the child’s life should not be conflated with the amount of time spent in the care of each parent.
[15] I am not persuaded that an order for sole custody is needed or appropriate at this stage of the proceeding. The evidence on this issue is conflicting and untested by cross-examination. Moreover, I am satisfied that they can communicate when Leah’s best interests require it. Leah’s need for counselling provides a recent example. That decision was made in a reasonably timely way once the relevant information was shared. In this regard, I accept Mr. Solano’s evidence that he learned of Leah’s counselling needs for the first time when he read Ms. Molina’s affidavit. He responded promptly with his consent and said he would have done so much earlier had he been informed.
[16] If Ms. Molina has not provided Mr. Solano with a proper consent to facilitate counselling for Leah, she is to do so immediately. Mr. Solano shall sign the consent and return it to Ms. Molina within 24 hours.
Interim Access
[17] Mr. Solano argues that it is in Leah’s best interests to spend more time in his care. He claims he was an involved father during cohabitation and seeks a more complete and meaningful role in her day-to-day life than permitted in the last 2 ½ years. He asks to participate and accompany Leah to medical, dental, academic appointments and her soon to be counselling sessions. He wants to help her with homework, share her interests, participate in her activities and teach her about life. Mr. Solano asserts that he is a capable and caring parent and wants a greater presence in his daughter’s life. He says that they have a strong, loving relationship and she frequently tells him that she misses him and wishes for more time together.
[18] Mr. Solano claims that he went along with the current access schedule only to keep the peace and ease Ms. Molina’s stress as the family transitioned from one home to two. He claims there was an understanding that they would review and increase access in December 2017. When he realized this would not happen, he brought this proceeding.
[19] Mr. Solano further contends that there is animosity between the Molina and Solano families. He believes it is that ill will and the fact that he lives with his sister that is at the heart of Ms. Molina’s refusal to allow him more time with Leah.
[20] Ms. Molina is adamant that Mr. Solano was never an involved parent. She claims he was unable to perform even the most basic tasks for Leah and still does not know how to care for her. As Ms. Molina sees it, she parented Leah largely on her own. She also asserts that Mr. Solano neglected the child, was easily frustrated by her and was rough in the way he treated her. She alleges that Mr. Solano was an abusive partner and she fears he will mistreat Leah.
[21] Ms. Molina does not deny that Leah asks for more time with her father. She does deny that she agreed to review access and that their respective families have anything to do with her position. She claims that Mr. Solano is incapable of caring for Leah for longer periods, that the child is not ready for overnight access, and that the status quo is in her best interests. In this regard, she raises specific concerns around Leah’s emotional health, her behavioural issues at school, her poor sleep hygiene, and Mr. Solano’s mental health.
[22] As I will explain, I am satisfied that it is in Leah’s best interests to have more time with her father including overnight access.
Analysis
Leah’s Health
[23] Ms. Molina says Leah is stressed and suffering but admits that she has not been diagnosed. According to Ms. Molina, Leah’s pediatrician describes her as a temperamental child whose need for assistance to address problems could be related to anxiety or depression. She did not provide a report from the pediatrician. I do not attach any weight to Ms. Molina’s evidence on this point. It is hearsay.
Leah’s Schooling
[24] Leah’s report cards describe her as a bright, engaging child who shows initiative but also as one who demands adult attention by crying, pouting, and whining to have her wants and needs met. Her teachers say she has difficulty considering the feelings and opinions of others, difficulty sharing, difficulty co-operating and interacting respectfully with her peers, and difficulty resolving problems without adult assistance. This latter comment is similar to the observation allegedly made by Leah’s pediatrician. The school reports further indicate Leah’s tendency to misinterpret others as being critical of her and to interpret accidental events as signs of intentional hurt. The need to improve self-regulation is a consistent teacher comment. The teachers also suggest that Leah may benefit from counselling. As discussed above, counselling has been arranged.
Overnight Access
[25] Ms. Molina says Leah is not ready for overnight access. The claim is that she is a sensitive child who is demanding at night – unable to fall asleep alone, often waking with bad dreams and crying out for her mother. Ms. Molina says Mr. Solano did not help with her bedtime routine when she was young and is not capable of doing so now. I do not accept the allegation that Mr. Solano is incapable of putting his 7 year old daughter to bed and comforting her should she wake up in the night. He has two older children. His eldest daughter, Elizabeth, provided an affidavit stating that he was a good father. Moreover, Mr. Solano lives with his sister who raised 3 children of her own. There is no evidence that the home Mr. Solano shares with his sister is anything other than a safe and comfortable home for overnight access.
[26] Ms. Molina expresses her concern that Mr. Solano will react to Leah’s challenges in the same negative and controlling way that she claims he used with her. I am not persuaded that Mr. Solano mistreated his wife nor is there reason to believe that Mr. Solano would mistreat his daughter.
[27] Ms. Molina also disputes Mr. Solano’s ability to provide a proper bedroom for Leah. I accept the evidence from Mr. Solano’s sister, with whom he lives, that the child will have her own room.
Mr. Solano’s Health
[28] Ms. Molina says Mr. Solano is easily upset, frustrated, cannot control his moods and is ill equipped to deal with Leah’s sometimes difficult behaviour. She refers to a letter from his doctor dated March 2018 stating that he has been struggling with major depressive disorder on and off since 2016. For this reason, the doctor saw him in November 2016 and again March 2018. These dates follow on the heels of the parties’ physical separation and Mr. Solano’s job loss. The doctor references Mr. Solano’s recent unemployment, his custody battle and confirms that antidepressant medication was prescribed in March 2018 with the recommendation that it be continued for six months. Notwithstanding this diagnosis, the context provided by the doctor, and the complete absence of any other medical information, Ms. Molina states her belief that Mr. Solano suffers from bipolar disorder – a condition that he denies. She says she must be certain that he is capable of parenting before changing the status quo. For this reason, she asked again for the assistance of the Office of the Children’s Lawyer. The first request was made on consent by order of Master Fortier dated October 16, 2018. The OCL declined involvement.
[29] Mr. Solano acknowledges his current struggle with depression and states it does not stop him from being a competent and caring parent. I accept his evidence that losing his job was stressful, that it impacted his self-esteem, and that having limited time with his daughter is difficult for him. Job loss and divorce are stressful life events; depression is not an uncommon consequence. In my view, Mr. Solano is to be commended for seeking the help that he felt he needed. Many people live with depression and are perfectly able to meet all of life’s demands. I find no evidence that Mr. Solano’s current mental health impacts his ability to care for Leah or put her best interests first.
Third Party Evidence
[30] For financial reasons, Mr. Solano lives with his sister, Maria Gareau, and has done so since the sale of the matrimonial home in July 2016. In her affidavit, she confirms sharing her five bedroom house with Mr. Solano. He has the basement living space to himself that includes two bedrooms – one for him and one for Leah. Ms. Gareau says she often sees Leah on Wednesdays and weekends when she is with her father. She observes that father and daughter watch movies together, engage in games such as “Hide and Seek”, and participate in other activities outside of the house. She says Leah is comfortable in their home, appears happy and excited to be with her father and seems sad when it is time to leave. Ms. Gareau regards her brother as a good father. I accept Ms. Gareau’s evidence. She spoke of her observations of Mr. Solano and Leah together and the home environment that she is able to share with her brother. She did not offer any comment about Ms. Molina’s parenting abilities.
[31] Mr. Solano’s daughter, Elizabeth, who is now 25 years old, said her alternate weekend and mid-week access with her father was very important to her growing up. She talks about what she learned from him and how she remembers missing him. Elizabeth wants the court to know that he was a good dad and remains a caring and attentive parent today. She also says she loves spending time with her little sister, Leah, and hopes to see more of her. Elizabeth’s evidence supports Mr. Solano’s contention that he was involved in raising his older daughters and knows how to care for a child.
[32] Ms. Molina acknowledges Elizabeth as a wonderful role model for Leah but says “she does not know the grief her father put me through in our marriage.” She claims Mr. Solano was controlling and abusive - emotionally, psychologically and verbally. She said he belittled her and damaged her sense of self-worth. Ms. Molina said she is afraid Mr. Solano will use the same negative controlling tactics with Leah.
[33] Mr. Solano acknowledges that their marriage was unhappy and they argued but he denies domestic abuse. I accept his submission that Ms. Molina’s characterization of him as controlling and abusive spouse is inconsistent with his initial willingness to go along with the access terms that she wanted and the patience that he has demonstrated since then. As already stated, I am not persuaded that Mr. Solano was an abusive spouse.
[34] Ms. Molina’s brother and sister also provided affidavits in this motion. Her brother, Enrique Jorge Molina, admitted that he was not very involved with his sister and Mr. Solano during their marriage and saw them only at family gatherings. On those occasions, he asserts that his sister was Leah’s primary caregiver on those occasions. He says he believes her to be a good parent.
[35] Ms. Molina’s sister, Amalia Molina, also admitted that she did not know Mr. Solano very well but claims concern that he will put his needs ahead of Leah’s and not care for her properly. She describes her sister as an attentive, nurturing and loving mother. She says she was always the parent looking after Leah while Mr. Solano was often busy with work. She says Mr. Solano preferred to spend time with the other men at family gatherings but recalls that he would sometimes play with Leah.
[36] I put little weight on the evidence of Ms. Molina’s siblings regarding Ms. Solano’s parenting abilities. Both admit they did not know him well during the marriage nor do they know him now. I accept their evidence that Ms. Molina is a loving and attentive parent. Mr. Solano does not suggest otherwise.
[37] Ms. Molina says “stability and a well-rounded family” are essential for Leah to get through her current challenges. Ms. Molina says how she can always count on her parents to be there for Leah and how much Leah loves them. She says the environment she provides for Leah meets her needs.
[38] My overall assessment of Ms. Molina’s evidence is that she does not consider Mr. Solano’s relationship with Leah to be as important as her own, or as integral to Leah’s best interests. In my view, the following statements indicate that for Ms. Molina, the line between her needs and Leah’s needs may have become somewhat blurred. She states:
(i) “She is my only child and she is my life. I do not believe that the applicant is capable of meeting Leah’s needs in overnight visits.”
(ii) “We are happy, and we are a team. I am fully capable of taking care of my daughter on my own. I have been doing so since her birth and will continue to do so. The applicant claims he is a good parent. I disagree. Throughout our marriage, I was the involved and responsible parent.”
(iii) “Based on my experience with him as a wife, I believe that Leah may suffer down the road while [sic] because of his constant arguing and mood swings. I do not want Leah to go through the same trauma that I went through with him just to satisfy his parent needs. The current situation is working and fits Leah’s needs without causing undue stress.”
[39] I find that Mr. Solano also offers Leah a supportive environment and a loving family that includes her two step-sisters. It is important that she be afforded the same meaningful opportunity to know and create memories with her paternal family that she has enjoyed with her maternal family. I find it is in Leah’s best interests to have more time with her father including overnight visits on the weekends. This change shall commence with the first access weekend following the end of the school year. However, considering the behavioural concerns raised by Leah’s teachers and her pediatrician, the counselling she requires, and the uncertainty around Mr. Solano’s future employment, I am not prepared to make further changes to the access schedule except to order that weekend access commence Friday afternoon. To be clear, I order that Mr. Solano shall continue to have access every Wednesday but it will now start at 4:00 pm and end at 7:00 pm. His alternate weekend access will start at 4:30 pm on Friday and end at 4:30 pm on Sunday.
Child Support
[40] Mr. Solano lost his employment in February 2018. He received a severance package and eventually employment insurance benefits. When the motion was heard, he had not yet secured another job.
[41] On March 26, 2018 at the case conference, Justice Audet made a consent order pursuant to Minutes of Settlement providing for interim without prejudice child support of $256.00 per month. This amount corresponds with annual income of $30,000 – an amount slightly in excess of the annualized unemployment insurance amount of $28,446. Payments began March 1, 2018.
[42] Ms. Molina seeks retroactive child support for a period in 2016 although the claim in her pleading is for support effective March 1, 2018. There is no dispute that Mr. Solano paid child support following separation. He says he paid in accordance with his income whereas Ms. Molina claims there was a period of approximately 4 months in 2016 when support was not paid.
[43] Ms. Molina also claims seeks payment of $1,773 for the period between January 1, 2018 and July 5, 2018. She calculates this amount at $650 per month based on Mr. Solano’s employment earnings (including severance) less the $256 paid each month after March 1st.
[44] I decline to make the orders sought. If retroactive support is pursued, a pleading amendment is required and the issue is one to be addressed at trial on full and tested evidence.
[45] Mr. Solano acknowledges that an adjustment may be owed for 2018 but argues that the amount is appropriately determined when they exchange their 2018 Notices of Assessment. I agree. Considering his loss of employment in 2018 and receipt of employment insurance, it was a somewhat unusual income year. In these circumstances, I find it appropriate to calculate the difference between what he paid and what he should have paid when his final income for 2018 is known.
[46] If the parties have not already done so, they shall exchange their 2018 Notice of Assessment within 7 days of the release of these reasons and calculate the amount of child support owing. If Mr. Solano is unable to pay the full amount before the end of June, the balance shall be paid in six equal monthly instalments commencing July 1, 2019.
[47] Ms. Molina also seeks a contribution to Leah’s section 7 expenses for the years 2015 to the present. In addition to the reasons given above for not ordering retroactive support for time that predates the application, I am also without evidence of how the parties shared expenses during that period including the 14 months that they lived separate and apart under the same roof. I am also without evidence regarding the net, after tax, cost of daycare actually incurred by Ms. Molina.
[48] Mr. Solano does not challenge certain post-application s. 7 expenses. He agrees to pay his proportionate share of daycare, dental, orthodontic and naturopathic expenses provided he receives satisfactory information why Leah, at age 7, required an orthodontist and a naturopath. Subject to Ms. Molina providing proper daycare expense calculations and the explanations sought, Mr. Solano shall pay Ms. Molina his proportionate share of these costs. If the parties cannot agree on the terms of payment once the total amount is known for 2018 and 2019 to date, I may be spoken to.
[49] Mr. Solano does dispute other expenses. For instance, he does not agree that gummy supplements are a legitimate s. 7 expense and although he does not object to Leah’s participation in martial arts, he opposes the claim for financial reasons while he is unemployed. I agree that gummy supplements do not fall within the meaning of s. 7 expenses and considering Mr. Solano’s current financial situation, I decline to make an order in relation to the cost of martial arts.
[50] To summarize, my order is as follows:
- There shall be no order for interim custody.
- Mr. Solano shall continue to have access with Leah every Wednesday from 4:00 pm until 7:00 pm.
- Commencing with Mr. Solano’s first scheduled access weekend following the end of classes in June 2019 and on alternate weekends thereafter, access shall commence Friday at 4:30 pm and continue until Sunday at 4:30 pm.
- If the parties have not already done so, they shall exchange their complete 2018 Income Tax Returns and Notices of Assessment within 7 days from the release of this endorsement. Within the following 7 days, the difference between the amount of child support paid and the amount owing for 2018, if any, shall be calculated based on Mr. Solano’s total income for 2018. If he is unable to pay the full amount owing within 30 days, the amount shall be paid in six equal instalments commencing July 1, 2019.
- The parties shall exchange their complete Income Tax Returns and Notices of Assessment annually commencing in June 1st, 2020.
- The parties shall alternate taking Leah to her medical, dental and counselling appointments.
- I urge the parties to agree on costs. If they are unable to do so, Mr. Solano shall have three weeks to provide me with his Cost Submissions and Ms. Molina shall have three weeks after that to provide her Costs Submissions. Each party’s submissions shall not exceed two pages in length exclusive of Offers to Settle and Bills of Costs. If submissions are not received within the allotted time, the issue of costs will be deemed settled between the parties.
- All other claims are dismissed.
Justice D. Summers Date: June 12, 2019