COURT FILE NO.: FS-19-0026-000 DATE: 2019-07-15
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.F. Self-Represented Applicant
- and -
T.F. S. Filipovic, for the Respondent Respondent
HEARD: June 28, 2019, at Thunder Bay, Ontario Mr. Justice W. D. Newton
Decision On Motion
Overview
1Based on the evidence filed on this motion, this is a “high conflict” separation. The parents [1] appear unable to agree upon many of the important issues arising from their separation. The issues arising on the mother’s motion include who are the children of the marriage, temporary custody and parenting schedule, temporary child support and s. 7 expenses, sale of the matrimonial home and division of contents, and whether a restraining order restricting the behaviour of the husband should continue.
Facts
Family History
2The parents were married in July 2009 and separated in December 2018. They have two children together, a daughter, nine, and a son, seven. The mother has two children from a previous relationship: a daughter, 18, and a son, 13. According to the mother, the father has stood in the position of parent for these children for 10 years. The father denies any obligation to these children from another father.
3Currently, both parties are agreeable to equal parenting of the two natural children but cannot agree on the schedule.
4With respect to child support, the parties disagree with respect to quantum based on disagreements about their income and whether support is payable for two or four children. The parties do not agree about daycare. Both parents are employed full time: the father is a transit driver for the City, the mother is a child protection worker with a local child welfare agency. Both have similar annual earnings.
Procedural Background to Date
5At the case conference in mid-March, Pierce J. ordered that the father was to list the contents that he wished from the home within 30 days. Failing agreement on division, the contents were to be appraised at the father’s expense. She requested that the Office of the Children’s Lawyer become involved for an assessment of the children’s needs “in this high conflict case.”
6The mother served this motion in early May, originally returnable May 16, 2019, seeking temporary orders for custody, formalized access, current and retroactive child support and special expenses, health benefit coverage and insurance, exclusive possession of the matrimonial home and sale of the matrimonial home. An order restraining harassment was also sought.
7On the original return date before Shaw J., this motion was adjourned for six weeks to allow the father to seek and retain new counsel. The father had delivered a notice indicating that he would be acting in person the previous week. Shaw J. granted the adjournment on terms which included that the mother has exclusive possession of the matrimonial home and contents pending the sale and that the matrimonial home should be listed for sale and that the parties should accept the first reasonable offer. The balance of the motion was adjourned peremptory on the father with a deadline for delivery of responding materials.
8With respect to the restraining order, Shaw J. determined that a restraining order should issue on a temporary without prejudice basis and remain in force until the return of this motion. He stated:
The respondent’s affidavit and exhibits indicate that the applicant has communicated inappropriately with the respondent, in person, by email, text and telephone calls such that they constitute, on their face, without there being responding material, reasonable grounds for Mrs. F. to fear for her psychological safety…. Mr. F. Has contacted Mrs. F. ‘s employer to determine her whereabouts. He has, without Mrs. F.’s knowledge or consent, listed on Kijiji, rooms for rent in the matrimonial home despite the fact that Mrs. F. lives in the home with the children.
This Motion
9Filed on this motion were two affidavits from the mother and one from the father totaling 44 pages of dense text, 222 paragraphs and 59 exhibits. Most of the allegations dealt with the conduct of the other parent.
10The essential positions of the parties and the facts, I find, can be summarized under the following questions.
Who are the children of the marriage?
11There is an order from the British Columbia Superior Court that allows the mother to move to Thunder Bay with the two older children and provides for some limited access to the biological father in the summer and during holidays. That order does not provide for payment of child support.
12According to the mother, the biological father has exercised very little access although the children do have a relationship with the paternal grandparents who they do visit. According to the father, the biological father has a close relationship with his two children and that the eldest child is residing with him while she attends college. The mother denies this and states that the eldest child was residing with her paternal grandparents while attending college but is returning to the Thunder Bay to attend college this fall. The mother states that the son does not visit his biological father but does visit his grandparents on holidays.
13The mother states that she gave up any claim for child support with the agreement of the applicant, so that they can move with the children to Thunder Bay. The applicant is from Thunder Bay. The respondent is from British Columbia. The father takes the position that the biological father should be paying support and his prior counsel wrote to the biological father seeking income information. The father has also hired a private investigator in British Columbia to track down the biological father and secure employment information. He states that his former lawyer received a threatening voicemail from the biological father but a fair reading of that appears to simply confirm the mother’s position that the biological father allowed the move provided that he did not have to pay child support. The message was, in effect, “leave me alone.” I did not read it as threatening.
14On the material filed, I am satisfied, on this temporary motion, that the father does stand as parent with respect to his non-biological children.
Can the parents effectively communicate to parent?
15The affidavits filed demonstrate that, at present, the parents cannot communicate effectively to parent. The report from the social worker assigned by the Office of the Children’s Lawyer is pending. During argument both the mother and father advised that they would agree to use My Family Wizard to communicate regarding the children and I order that they do so. The cost is to be borne equally.
16The conduct of the father as evidenced through the evidence in the affidavits and contained in his own emails demonstrate inappropriate, nonconstructive, and hurtful conduct to the children. This includes threats of financial retaliation against the mother and improperly involving the children in this dispute.
17Accordingly, on a temporary basis, the mother shall have decision-making authority with respect to the two children of this marriage and, subject to the British Colombia order, decision-making authority with respect to the other two children.
What parenting schedule is in the best interests of the children?
18The current schedule has the two children moving between the households twice per week, on Wednesday morning or evening and on Saturday evening or Sunday morning on alternate weeks.
19The father imposed this schedule since, according to him, it suits his work schedule. His work schedule involves him working Sunday evening, Monday, Thursday, Friday, Saturday in the days and with Tuesday and Wednesday off.
20The mother deposes that the children are not coping well with the frequent transitions and argues that a week on/week off schedule would allow the children maximum time with each parent and allow them to settle into a routine. The mother submits that the transition should occur at school.
21I am satisfied that it is in the best interests of the children to reduce the number of transitions and put in place a week on/week off schedule with the exchanges occurring Sunday afternoon at 4:00 p.m. Because school is not in session, transitions are to occur at the parking lot of the Walmart off Dawson Road. Because the non-harassment order will continue, the mother and father shall not be present together at the transitions. The parent who is receiving the children on a transition will send a designate to receive the children and the parent dropping off the children may attend.
22The parent with whom the children are with each week, is the parent responsible for arranging suitable daycare. The reasonable daycare expenses are to be shared equally.
What child support is payable?
23Based on the historical tax returns, the income of the parents are roughly equivalent at about $64,000 annually. The father argues that his income is less and has submitted a letter signed by him professing this. Going forward, income shall be adjusted annually based on the notices of assessment to be done by July 1, each year. Pending that recalculation, the child support payable by the father to the mother shall be $307 per month representing shared parenting of the two children and sole parenting of the other son. Because the status of the other daughter is not known at this point there will be no child support payable for her pending confirmation of her education in the fall. These calculations are based on the father’s income of $64,113 and the mother’s income of $64,026.
24Childcare and other s. 7 expenses are to be shared equally. No order is made with respect to s. 7 expenses for the eldest daughter pending confirmation of her enrollment.
25This order for temporary child support is effective May 1, 2019. This order is without prejudice to the parties’ claim for retroactive child support and s. 7 expenses.
26Incidental to child support, the father shall name the three youngest children beneficiaries under a life insurance policy available through his employment with the mother to be named as the children’s trustee.
27Both parents shall maintain extended health coverage for the children.
What temporary orders need to be with respect to property?
28The contents of the matrimonial home will remain in the matrimonial home for the use of the mother and the children subject to adjustment on equalization as previously ordered by Shaw J. on May 17, 2019.
29The mother will select the listing agent for the sale of the matrimonial home.
Should the restraining order continue?
30Having reviewed the father’s affidavit evidence with respect to the restraining order, I am satisfied that it is appropriate for the restraining order to continue except that the father may communicate with the mother regarding parenting issues via My Family Wizard. Any other communication by the father shall be with the mother’s counsel. The evidence disclosed no satisfactory explanation for the conduct that prompted Shaw J. to order the initial temporary restraining order.
31For clarity, paragraphs 1 – 4 of the order of Shaw J. dated May 17, 2019 shall continue except to permit the use of My Family Wizard.
Costs
32The mother is entitled to her costs of this motion. Within 21 days the mother shall deliver her costs submissions limited to three pages plus costs outline plus authorities. Thereafter the father shall have 10 days to respond subject to the same limitations. If no cost submissions are received within 21 days then costs will be deemed settled.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: July 15, 2019
1In this decision, I will use generic descriptors to the extent possible so that the privacy of the parties, their children, and their extended families is respected.