COURT FILE NO.: FC-18-FO448
DATE: 2019-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEAGHAN GAUDET
Applicant
– and –
ONDREJ HAVELKA
Respondent
Mathew Kelly, Counsel for the Applicant
David J. Lang, Counsel for the Respondent
HEARD: October 1, 2, 3 and 4, 2019
THE HONOURABLE MADAM JUSTICE D. PICCOLI
REASONS FOR JUDGMENT
Background
[1] The applicant, Meaghan Gaudet (“Mother”), and the respondent, Ondrej Havelka (“Father”), began cohabitating in 2010. They separated in July 2016. They were never married. At the time of trial, Mother was 34 years of age and Father was 45 years of age.
[2] Together they have one child, namely, Evangeline, born April 30, 2015 (“Evy”). Evy was 1 year and 3 months old when the parties separated and almost 4 and one-half years old at the time of trial.
[3] Father has two children from a previous marriage, namely, Aiden (age 18 at the time of trial) and Lucy (age 14 at the time of trial). Following his separation from Mother, Father remarried. His wife, Elizabeth Havelka (“Beth”), also has children from a previous marriage, namely, Chase and Gabriel.
[4] Upon separation, the parties had some initial settlement discussions. Father drafted a “settlement agreement” which outlined the parenting schedule. It is essentially the schedule that is in place at the current time, save and except that the day of the week has changed to accommodate the parties’ schedules. The time has not changed. The best evidence is that a separation agreement was never signed.
[5] Since the parties’ separation, Evy has resided primarily with her mother. Father has exercised periods of care on alternate weekends from Friday after school to Sunday at 6:00 p.m., one overnight during the week (currently Tuesday from after school to school on Wednesday) and a further overnight on the weeks when he does not have weekend periods of care (currently Thursday after school to school on Friday). The Order of Neill J. of November 15, 2018 confirms this arrangement and includes a police enforcement clause which expires December 31, 2019.
[6] At the time of separation, Mother lived in Kitchener, Ontario and she remained resident there until approximately one year prior to the trial, when she moved to Cambridge.
[7] Mother’s home in Cambridge is a three-bedroom home. She owns and lives in the home with her boyfriend of approximately 3 years, Matt. Evy has her own room and the third bedroom is set up as a playroom. There is a jungle gym at the home and a spacious yard. Mother and her boyfriend own a dog. Evy’s school is an 8 to 10 minute walk or a 2 minute drive from Mother’s home. Mother drops off and picks up Evy at school when Evy is in her care.
[8] Mother stayed home with Evy until September 2016 when she started a college program in civil environmental engineering. She has had to put her schooling on hold for financial reasons. She currently works Monday to Friday from 8:30 a.m. to 5:00 p.m.
[9] Evy attended Brason Academy Montessori school in Cambridge full-time for three years starting September 2016 (“Montessori school”). Evy started Junior Kindergarten at Central Public School in Cambridge in September 2019. Evy attends after school care in the same building as her school.
[10] When the parties separated, Father moved in with his parents in Guelph, Ontario. When he started dating Beth, he moved to Milton, Ontario and then Kitchener, Ontario. He and Beth moved to Burlington, Ontario in August 2019. This is 44 kilometers from Mother’s residence – or a 40 minute to 1 hour drive.
[11] When Father and Beth lived in Kitchener, Evy shared a room with Beth’s 11-year-old son. Although Father and Beth both indicated that they did not agree with Mother’s concerns with respect to Evy sharing a room with Beth’s son, Father stated that, following judicial input at a conference, he decided to find a home which allowed Evy to have her own bedroom. That is his explanation for his most recent move to Burlington.
[12] In Burlington, father resides in a home owned by his friend Eric, who he has known for 2 years and Beth has known for 14 years. The home has six bedrooms and affords Evy her own room. Father shares this home with Beth, her two children, and Eric, who has one child in University and is rarely home. Evy sleeps upstairs (on the same floor as Eric) while her Father, Beth, and Beth’s two children sleep in the basement. Eric confirmed that the basement may not be to code.
[13] Father stated that he plans to remain in Burlington and wishes to enroll Evy in a school there that has a higher rating than Evy’s current school in Cambridge. Father admits he did not discuss his move to Burlington with Mother, nor obtain her permission or a court order in advance of the move, as required by paragraph 5 of the Order of Neill J. He states the drive from Mother’s home to Burlington is less than 45 minutes.
Issues
[14] The issues that I have been asked to decide are as follows:
joint versus sole custody;
the parenting schedules;
child support (imputation of income to the respondent); and
costs
Mother’s Position
[15] Mother seeks sole custody of Evy. She states that this is not an appropriate case for joint custody given:
the lack of communication between the parties;
the lack of respect shown to her by Father;
the multiple unfounded calls to Family and Children Services (“F&CS”);
the phone calls to police;
Father taking Evy to have her ears pierced without Mother’s foreknowledge or consent; and
Father’s most recent move to Burlington in contravention of a court order requiring him to consult with her or obtain a court order in advance of the move.
[16] Mother states that she started this proceeding because Father and Beth threatened to take her to court when they returned from Europe in the summer of 2018, and that she was concerned to discover by anonymous text that Evy was sharing a bedroom with a boy.
[17] Mother states that although father may be well-intentioned, he is oblivious to the impact the constant F&CS and police interviews have had on Evy; interviews which resulted from his unfounded allegations against Mother.
[18] Mother seeks a change in the current schedule now that Father has moved to Burlington, such that he has one less overnight period of care during the school year, but which affords an extension of his weekend period of care to Monday mornings to school. She states that a 50/50 schedule is too disruptive, that Evy has an established routine at her home and that she is doing well. She states that Father’s move to Burlington was not consented to and the travel from Burlington to Cambridge on weekdays, during the school year, is too long for Evy.
Father’s Position
[19] Father states the status quo since separation has been joint custody. However, he is adamant that there has been a material change in circumstances that would require him to have sole custody. The reasons he puts forward for his request for sole custody are:
the “abuse” Evy suffered while in her Mother’s care;
Mother’s neglectful care of Evy as it pertains to a vaginal and respiratory infection;
Mother’s negative comments about him which his counsel referred to as parental alienation;
Mother’s inability to “cope” and her anger issues;
he has an excellent support group; and
Evy has her own room when at his home.
[20] Father seeks 50/50 parenting time (2/3/2 schedule is set out in the draft order provided to the court, but many times Father’s counsel asked questions that implied Father was seeking a week about 50/50 parenting schedule) and that Evy’s schooling be in his jurisdiction. Father has offered to be responsible for pick-up and drop-off of Evy at Mother’s home during her periods of care in order to take Evy to school in Burlington.
[21] In closing submissions, Father added that in awarding him sole custody he could ensure that “Evy is stable and safe and protected from the Applicant’s actions”. He further submitted that sole custody would make it easier for him to deal with medical authorities and would ensure increased co-operation from F&CS.
[22] Father would like to be able to take Evy to the Czech Republic because he was born there, and he would like her to experience his heritage.
What Can the Parties Agree on?
[23] Both parties were adamant that each of them should have sole custody of Evy. In closing submissions, Father reluctantly put forward an alternate claim for joint custody. The Mother did not.
[24] Both parties gave evidence that they cannot communicate with each other. They both testified that their communication is limited; they only reach out to each other if absolutely necessary and mostly through text.
[25] In addition, they both testified that since the involvement of F&CS their relationship has become more strained.
[26] Neither party felt it was necessary to have a fixed holiday schedule. They did consent to a Christmas schedule which is reflected in the order section below.
F&CS and Police Involvement
[27] Father and/or Beth have made two direct complaints to F&CS, and reported bruising to Evy’s Montessori school, which resulted in a third complaint to F&CS made by the Montessori school.
[28] Father and/or Beth have contacted the police and the police interviewed Evy regarding Father and Beth’s concerns twice.
[29] Father’s evidence was that bruises started to show up on different parts of Evy’s body in January 2018 and that he was in shock and did not know what to do. At that time, and on January 10, 2018, he took a picture of the top of Evy’s ear. As Evy did not make disclosure he did not call the authorities. Father had no concerns about abuse prior to January 2018. He noticed bruising again in August 2018 after bath time. He was not satisfied with Mother’s explanation regarding the bruising but took no action until his October 26, 2018 report.
October 26, 2018 Report to F&CS
[30] The first report by Father to F&CS was made on October 26, 2018. Father states that this was the first time that Evy had disclosed to him that her mother had done something to her. Father noticed bruising on Evy’s face. When he asked Evy about it, she told him that her mother had squished her face in response to Evy’s statement that she missed her father. Mr. Drummond, the CAS worker assigned to this incident, confirmed that Evy disclosed this to him as well. Other witnesses also confirmed that Evy disclosed this to them (Craig and Eric). Mother denies this.
[31] When Mr. Drummond attended to meet with Father and Beth, they also produced pictures of Evy taken in January 2018 and August 2018.
[32] Mother states this report to F&CS was made by Father shortly after he was served with her Application dated October 24, 2018. F&CS met with Mother on November 2, 2018. Mother co-operated with F&CS and signed all consents required.
[33] Mr. Drummond testified that despite Evy’s disclosure, he did not believe the concern regarding the squishing of her face warranted F&CS intervention. There was insufficient evidence to determine in whose home the bruising occurred (ears, legs, and buttocks pictures were shown to him by Father and Beth), and after a fulsome investigation, he closed the file. Mr. Drummond stated in cross-examination that Evy could have been coached to make this disclosure regarding her Mother squishing her face.
[34] It is what happened during the investigation that causes me great concern. Father, on his own volition (readily admitting that his then lawyer’s letter of November 5, 2018 was incorrect in stating he kept Evy in his care as a result of F&CS advice), overheld Evy from her mother from November 2, 2018 to November 15, 2018 (13 days). He did not afford Mother any form of access during that period, although some efforts seem to have been made through counsel and there were texts on November 6, 2018 suggesting that he would allow her to have supervised access. In those texts, he stated, among other things, “so that she is safe and you are able to better prove your ability to behave properly around her and not pose a potential risk…”. On November 9, 2018, Father offered supervised access on the condition of a police enforcement clause. Troublingly, he kept Evy out of Montessori school for the entire time and unilaterally decided to get her ears pierced.
[35] Ms. Porwal, the director at the Montessori school, testified that she received a call from Father on November 5, 2018 advising that Evy would not be at the school, that there were safety concerns, and that Evy was with him. Ms. Porwal stated that Evy missing school was concerning to her because everything was going well with Evy – she was happy at school and had developed good relationships.
[36] Furthermore, and despite the fact that Father and Beth initiated the F&CS investigation, they took it upon themselves to also contact the police about this same incident. Mr. Drummond testified that he did not believe police intervention was required as there were no current injuries to Evy, and she had not made any further disclosures aside from her mother squishing her face. Mr. Drummond further testified that, had he known Father was going to call the police, he would have conducted the investigation such that Evy would be interviewed simultaneously by F&CS and the police. What actually happened, was that Evy was interviewed twice: once by Mr. Drummond and once by the police with Mr. Drummond present. Father was not satisfied with Mr. Drummond’s investigation into the matter, and took it upon himself to expose his three-and-a-half-year-old daughter to a second interview by police without informing Mr. Drummond in advance of his intentions in that regard. The police also closed their file and no charges were laid.
[37] Although Mr. Drummond consulted with Dr. Baird from McMaster Hospital so that he could ensure a fulsome investigation, Dr. Baird was not called as a witness, and Mr. Drummond’s evidence in this regard is hearsay. In any event, Dr. Baird did not meet with or interview Evy and he could not reach any conclusions based on the “low quality” pictures of the bruises on her legs and buttocks. Mr. Drummond did not have pictures of Evy’s cheeks.
[38] Even though F&CS provided a letter dated November 12, 2018 indicating that they could not substantiate physical harm and that they had closed their file, Father did not immediately return Evy to her mother (see Exhibit 5, Tab 7). Instead, Mother was forced to bring an emergency motion and Evy was returned to her mother’s care on November 15, 2018.
[39] At some point following this incident, Father and Beth reported the Montessori school to its licensing board regarding their concerns as to toileting practices, and children attending the Montessori school with bruises that were unrecognized and unnoticed.
July 23, 2019 Report to F&CS
[40] F&CS was involved again on or about July 23, 2019. Father indicated that he was bathing Evy upon her return from Montessori school on a Tuesday after she had been in her mother’s care and he noticed bruising. He asked Mother about the bruising and she advised him that Evy did not leave her care with bruising. Accordingly, when Beth brought Evy to school the next day, she sought an explanation from the Montessori school with respect to the bruising. The evidence of Manju Porwal, the director of the Montessori school, which I accept, is that Beth brought Evy to school and showed the teacher bruises on Evy’s upper left thigh. As a result, Ms. Porwal reported the bruising to F&CS and a worker, Amanda Robillard, became involved. Evy was interviewed at the school at approximately 3:30 p.m. Beth arrived at the school shortly thereafter and requested to join the interview with Evy in order to provide her with a stuffed toy. This request was denied. Beth remained at the school in the event that Evy was not released to Mother. Evy was in fact released to Mother.
[41] Father and Beth went to Europe for two weeks during this investigation to the Czech Republic to visit Father’s sick aunt – his parents paid for them to attend. Evy remained in Mother’s care throughout this time.
[42] On August 6, 2019 F&CS advised that they were closing their file as they did not have protection concerns. Father did not agree with F&CS that the file should be closed. He felt the bruising and infections were indicative of neglect by Mother.
September 18, 2019 Report to F&CS
[43] F&CS was involved again on September 18, 2019 as a result of a call made by Father to the police. Father indicated that he discovered bruising on Evy’s leg when she was undressing. Carey (Beth’s ex-husband, a witness called by Father) stated that he noticed the bruise when Evy was getting out of the hot tub at the Burlington home. Carey then called Beth who took a picture and asked Father to come look at the bruise. Beth states that all five of them were in the hot tub together when they noticed the bruising (Father, Beth, Beth’s children and Evy). Beth’s evidence is that two pictures have been taken of this incident – one in the hot tub and one in the bath tub. In either case, Beth and Father discussed what to do and they decided to call the police.
[44] The police attended the home at 8:00 p.m. and interviewed Evy. F&CS became involved. Beth’s evidence as to what the police officer told her is hearsay and not admissible. As Father was residing in Burlington, it was the Halton Police Department that became involved and the police department contacted F&CS Halton. The file was then transferred to Waterloo F&CS. The workers name was Antonee. The result of this F&CS investigation was not made known until the last day of trial and both counsel agreed I could rely on the letter dated October 4, 2019 for the truth of its contents. Again, the F&CS found that Evy was not in need of protection. They did make recommendations, which included resolution of the custody and access issues, counselling for Evy, and open and clear communication.
Summary of parent’s positions regarding F&CS involvement
[45] Mother does not deny that there were incidents of Evy having bruises while in her care. Her evidence is that she did not cause the bruising. She is not concerned that Evy is being harmed while in the care of either parent. Evy is a happy, healthy child. She stated she has not hurt Evy and she does not believe Father has hurt Evy. She denies squishing Evy’s face.
[46] Mother’s evidence was that every time she raised any issue with Father, he would threaten the involvement of F&CS (Exhibit 9, Tab 1, p. 5; Exhibit 10, Tab 1, p. 8; Exhibit 7, Tab 1, p. 27). The word she used to describe this was “gaslighting”.
[47] Mother states that Evy is an active child and gets bruises all of the time. She states these are normal bruises and that she has not taken her to the doctor in relation to the bruising because she does not feel there is anything extraordinary about the bruising. Mother states she fears that if Evy does anything fun and bruises herself, Father or Beth will call F&CS.
[48] Mother states that the most serious injury sustained by Evy was in July 2017 when she was in a car accident while in Father’s care. She puts no blame on Father for this incident.
[49] Evy’s maternal grandmother confirmed that Evy is a very active child who loves to jump around. She is concerned about how the F&CS and police interviews are impacting Evy. She herself has never been contacted by F&CS.
[50] Father did not agree with the F&CS closing its file for the first two reports, which were the only reports before the court prior to the final day of trial. He testified that he feels he is the only person advocating for Evy. Father acknowledged that it is negative for him to continue making complaints to F&CS, but he stated the larger issue is the bruising and his daughter’s safety.
[51] Beth gave evidence about what she termed “abnormal bruising”. She relied on her experience in her previous employment with F&CS and with daycares. She stated that although Mother may not have caused the bruising, the bruising nonetheless occurred in her care.
[52] Beth agreed that constant interviews might negatively impact Evy, but she believes that it is still important to report the abuse.
[53] Mr. Drummond gave evidence that three complaints in less than one year is concerning. He noted that it is not healthy for Evy to be routinely interviewed by F&CS and police.
[54] I asked each of Father’s witnesses who were present when pictures were taken of the bruising how Evy reacted. Each responded that they distracted her and attempted to make it seem like it was not a big deal. The witnesses who gave evidence regarding this attempted to downplay the picture taking and the questions. I cannot accept that the constant questioning of Evy and picture taking of her is in her best interests. This is taking a toll on her, as demonstrated by Evy wetting her pants when asked by the Father and Beth about an incident in school where she took home a stuffed sheep that was not hers to take.
[55] There was no medical evidence led regarding the bruising or the alleged abuse. The police videotape of the interview with Evy was also not provided to the court. There is no evidence to confirm that Evy was abused by Mother or while in her mother’s care, and I decline to make that finding.
Additional Concerns Raised by Father
[56] Father then asked the court to consider two emails: one from December 6, 2012 and one from March 23, 2013, which Mother sent to Father. These emails were sent before Evy was born. They were provided to the court in support of Father’s position that at the time they were sent, Mother had issues with alcohol and anger, and was unstable. He stated these issues continue today. I do not accept this suggestion, as there is no evidence that Mother has anger or alcohol issues.
[57] Father states that Mother gets overwhelmed and cannot ask for help – she wants to keep up appearances. He stated she is an insecure person. He thought that having Evy would help her “understand better” and improve her coping skills.
[58] The fact that Father left Evy in Mother’s full-time care shows me that these concerns are not seriously held by Father and are simply another attempt to disparage Mother.
[59] Father also raised that mother was neglectful in that Evy suffered two vaginal infections (first week of January 2018 and January 26, 2018), as well as a respiratory infection in the winter of 2018 while in the care of her Mother. Father addressed these concerns by taking Evy, not to her doctor, but to a walk-in clinic. He also purchased the medication for the infections. Although there is no dispute that Father addressed these infections, I do not accept that these infections are signs of neglect. There was no evidence led to substantiate such a finding.
Evy’s Schooling
[60] Mother’s evidence, as it pertained to schooling, is that when Father lived in Kitchener, he wanted Evy to attend school in Kitchener starting in September 2019 because it was across the road from his house. Once he moved to Burlington in August 2019, the Kitchener school was no longer an option as neither parent lived in that jurisdiction, and accordingly she registered Evy in a school in Cambridge.
Who Should Have Custody of Evy and what should the parenting schedule be?
[61] The merits in respect of custody and access to a child shall be determined on the basis of the best interests of the child.
[62] In assessing the child’s best interests, s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”), provides that the court consider all of the children’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 familial relationship between the child and each person who is a party to the application.
[63] Section 24(3) of the CLRA speaks to when past conduct can be considered and s. 24(4) requires the court to consider whether a person has committed violence or abuse against any child in assessing that person’s ability to act as a parent.
[64] There are a number of Court of Appeal decisions that deal with the issue of sole versus joint custody, including: Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.); Ladisa v. Ladisa (2005), 136 A.C.W.S. (3d) 872 (Ont. C.A); Ursic v. Ursic (2006), 149 A.C.W.S. (3d) 103 (Ont. C.A); Rigillo v. Rigillo, 2019 ONCA 548.
[65] In Jackson v. Jackson, 2017 ONSC 1566, 278 A.C.W.S. (3d) 572, Chappel J. summarized the law with respect to custody. At para. 65, Her Honour held that the decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, several general principles have emerged from the jurisprudence to assist the court in the decision-making process. These can be summarized as follows:
i. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven.
ii. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children.
iii. The quality of past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.
iv. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests.
v. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together.
vi. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The question to be determined is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.
vii. There must be a clear evidentiary basis for believing that joint custody would be feasible.
viii. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances.
ix. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children.
x. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.
In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication.
Analysis
[66] Although both parents are fit and generally able to meet Evy’s needs, I agree with the parties that this is not a situation where joint custody should be ordered.
[67] The parties are not able to effectively communicate regarding their child. They have been unable to set aside their personal differences and focus on Evy. Father’s decision to constantly involve the authorities in these matters, to subject Evy to picture taking and interviews, and to take Evy to have her ears pierced without Mother’s consent show poor judgement on his part. Although I believe Father loves his child dearly, he seems unable to accept the effect of these decisions on Evy and on his relationship with Mother. These parents are not able to work together to make decisions that are in Evy’s best interests. Father’s more recent move to Burlington (a location devoid of any other family), without Mother’s knowledge or consent, and his position that Evy attend school in Burlington, also show a lack of insight into the impact of such a change on Evy.
[68] Father gave evidence that he wants Evy to have a healthy relationship with her mother and that he does not want to be a single dad, but this is not borne out by his actions or his plan.
[69] When asked in cross-examination why he felt a 50/50 care schedule would ensure Evy’s safety, Father responded that based on his proposed schedule he would see her every three days and, as such, could monitor her safety. Respectfully, this makes no sense.
[70] Ms. Porwal provided evidence that she has no concerns at all with respect to Mother’s parenting of Evy and that her observation was that she was loving, caring and affectionate. She testified that Mother and maternal grandmother did “a fantastic job”. In terms of Father, she has had less exposure to him. She did note that Beth performed many of the exchanges and observed that Evy was tired after her weekday periods of care with Father.
[71] Mother has been the primary caregiver to Evy since birth. She has been the one who has taken Evy to the doctor (Father took Evy to a walk-in clinic), to enroll her in Montessori school and to enroll her in her current school.
[72] I do not doubt Father’s evidence that Mother was talking negatively about him and in no way do I condone that – it must stop, and I will make an order in that regard that applies to both parents. What Father fails to understand, is that even if he is not speaking negatively about Mother, his behaviour shows how little he respects her parenting role. His conduct has been unreasonable, and it marginalizes Mother. His evidence was confusing; he alleges abuse and neglect but then backtracks and states he is not accusing Mother of abusing Evy, but rather that Evy is being abused while in her care. This distinction is unhelpful and insincere, and suggests that Father would be unable to promote a close and loving bond between Mother and Evy, should he be awarded sole custody.
[73] I find that Mother is better able to make decisions that are in the best interests of Evy, including maintaining a positive relationship between Evy and Father. Accordingly, Mother will have sole custody.
Ability of Each Parent to Act as a Parent
[74] Both parents love their child and can parent Evy. Their relationship has deteriorated since F&CS’ involvement. Hopefully, the closure provided by this judgment will serve to de-escalate the situation.
Love, Affection and Emotional Ties
[75] The parties agree that Evy loves, has affection for and is emotionally tied to both of her parents. It was clear to me from the testimony of the maternal grandmother and from the Montessori school director that Evy is also bonded to her maternal grandmother.
Child’s Views and Preferences
[76] Evy has not expressed any views and preferences.
Length of Time Evy has been in a Stable Home Environment
[77] Evy has resided primarily with Mother since separation, save for the 13 days she was overheld.
[78] Mother has maintained a stable home environment for Evy – she has moved once since the parties’ separation, she has maintained the same preschool, school, and doctor for Evy. Father, on the other hand, has moved four times since the separation and his proposal for schooling does not provide for stability.
[79] I find on balance that Mother can provide a more stable home environment.
Guidance, Education, Necessities of Life and Special Needs
[80] Evy has no special needs.
[81] Father has raised allegations of abuse. This abuse is not verified by the police or F&CS. There was no medical evidence or police evidence provided despite the allegations made. The Montessori school has positive comments about Mother’s caregiving. Other than a comment about squishing her face, Evy has made no disclosure that her mother has harmed her, nor did any of the witnesses see her being harmed. There was a conflict in the evidence as to the marks on Evy’s face which are said to be a result of the squishing. Cary indicated the marks on her face they were bright red when he saw them, and Beth stated they were faded. In either case there is no evidence linking the bruising on Evy’s face to Mother’s actions.
[82] Mother’s plan for schooling is preferable. Father has moved at least 40 minutes’ drive away. Father’s proposal would require that Evy spend half of her school days in the car for at least one and a half hours each day. Evy is only four. This is not in Evy’s best interests.
[83] Both parents can provide the necessities of life.
Plan
[84] I find Mother’s plan to be the better plan. It will allow Evy to remain in a home she has lived in for over a year, in a school she has started this year, under the care of the same doctor and in the primary care of her mother who has been her primary caregiver since birth.
Permanence and Stability
[85] I find Mother has been more stable and permanent. Father has moved a number of times and his more recent move to Burlington is not focused on Evy even though he claims it was to provide her with a separate bedroom.
Reasons Applied to the Law
[86] In allocating parenting time, I give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of that child.
[87] Other than scheduling difficulties when Father returned from Europe in 2018, there is no evidence in this case that Mother has been withholding access. Father on the other hand overheld Evy for 13 days. Father’s move to Burlington, including the impact of travel time upon Evy, is problematic and cannot support a shared parenting regime during the school year. Nor do I accept that it would be better for her to attend school in Burlington, a place where she has never lived and where she would not know anyone other than the members of Eric’s household.
[88] I find that it is in the best interests of Evy that she reside primarily with her mother during the school year. However, I see no reason why Evy cannot reside with the parents on a more equal schedule in the summer months. Instead of the current schedule, each parent should have two non-consecutive weeks of time in July and two non-consecutive weeks of time in August “summer holidays”. These weeks can become consecutive when Evy is older and more able to sustain longer periods of time away from her respective parents. Mother shall have her choice of summer holidays in even numbered years and Father in odd numbered years.
[89] In arriving at this decision, I have expressly referred to the maximum contact principle and reviewed the following Court of Appeal decisions: Rigillo; Kagan v. Brown, 2019 ONCA 495, 306 A.C.W.S. (3d) 790, Doncaster v. Field, 2019 NSCA 61, 307 A.C.W.S. (3d) 556. Although these three decisions deal with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), there is a similar provision in the CLRA, namely s. 20. Section 20 states that both parents are equally entitled to custody of a child.
[90] The maximum contact principle is not absolute. The legislation obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests. If other factors show that it would not be in the child’s best interests, the court can and should restrict contact: see Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-118.
Child Support and Imputation of Income
[91] Mother asks the court to impute an income to Father and asks him to pay the proper child support retroactive to the date of separation. Father accepted the chart provided by Mother as to what payments he made since separation: Exhibit 30.
[92] Father has not paid any child support since October 2018.
[93] Father states that he has not been obliged to pay child support since he started school as his income does not meet the threshold requirement for him to pay child support. He states that when he graduates, he will earn more than he earned at his last job, even in his first year as an apprentice.
[94] Mother started college in September 2016, put her schooling on hold in late 2018 as she could no longer afford to attend. At present, Mother is a project coordinator with Bio-Fed Engineers and earns $39,000 per annum.
[95] In November 2017, father was laid off from his position with Cambridge Elevating. He received Employment Insurance from the date of his lay-off until August 2018. As a result of the lay-off, father qualified for a second career program which helps people return to school with a government subsidy. This subsidy pays for school fees, tuition, books, parking and provides an income of $948 per month or $11,376 per annum. He called this a once in a lifetime opportunity.
[96] In September 2018 Father commenced attending Conestoga College in the Electrical Technician (Industrial Program). His schooling starts the first week of September each year and ends by the end of April each year. He is in his second and final year at Conestoga College. Father testified that he attends school five days per week and has between 23 to 28 hours per week of class. He will graduate in April 2020. He states that when he graduates, he will earn more than he earned at his last job, even in his first year as an apprentice.
[97] Father states that between November 2017 and September 2018 he looked for work. He was searching for something that could accommodate his child care responsibilities. He states that he applied to Costco and then other mechanical companies. Other than his oral evidence, there was no evidence provided as to his job searches and the results of same. I have no evidence as to whether he applied for minimum wage positions or not.
[98] Father has not worked part-time since he started school. Father states that he chose not to pursue part-time work so that he could focus on his studies and take an active role with Evy and rebuild his relationship with his older children. He also stated that he has a support system that allows him not to work.
[99] His parents have gifted him money since he started his schooling, but he could not quantify the amounts. He pays rent of $300 per month and contributes to the groceries. Beth’s income sources are the child tax benefit and child support.
[100] His evidence was that from April 2019 to September 2019 he worked on renovating Eric’s home to provide Evy her own room. The owner provided the materials and he did the work for free.
Analysis
[101] Section 19 of the Child Support Guidelines deals with imputing income. Section 19(1)(a) reads as follows:
The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.
[102] To assist courts in assessing the applicability of s. 19, the Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), set out a three-part test at para. 23:
Is the spouse intentionally underemployed or unemployed?
If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?
If the answer to #2 is negative, the court must decide whether it should exercise its discretion, and if so, what income is properly imputed in the circumstances.
There is no need to find a specific intent to evade child support obligations before income be imputed. Look at whether the act is voluntary and reasonable (paras. 25-27).
The payor is intentionally under-employed if they choose to earn less than they are capable of earning (para. 28).
Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children, in order to meet this legal obligation, a parent must earn what she is capable of earning (para. 32).
[103] In Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, the Court of Appeal made clear that the onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding: para. 28.
[104] Read in context and given its ordinary meaning, “intentionally” means a voluntary act: Drygala, at para. 28. In Drygala, the father acted intentionally when he chose to pursue his educational goals rather than work. His unemployment was a voluntary choice. It was not due to market forces such as a lay-off, termination or reduced hours of work. The Court found that the payor parent must always consider their familial obligations first when making their employment decisions. An intention to avoid child support is not required.
[105] Based on my review of the evidence, as set out in the preceding paragraphs, I find that Father is intentionally unemployed. As in Drygala, there is no doubt that Father acted “intentionally” within the meaning of s. 19(1)(a) when he chose to attend college rather than work.
[106] I must now consider whether the intentional unemployment is justifiable. As mentioned, Father states that he chose not to pursue work so that he could focus on his studies and take an active role with Evy. If Father’s unemployment is required by Evy’s needs or required by his educational needs (and those needs are reasonable), the unemployment would be justifiable, and it would be improper for the court to impute income.
[107] The burden is always on the payor parent to establish the reasonableness of his or her educational needs: Drygala, para. 38. Unreasonable education decisions will be rejected by the court. See for example: Carter v. Spracklin, 2012 ONCJ 193, 213 A.C.W.S. (3d) 974; Eden v. Grondin, 2018 ONCJ 116, 289 A.C.W.S. (3d) 350.
[108] I must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. Father is not to be excused from his child support obligations in furtherance of unrealistic or unproductive career aspirations.
[109] Father is studying to become an Electrical Technician. He indicated that he is confident in his ability to find work and that, within a couple of months of completing school, he should have full time work earning more than what he earned in 2016 and 2017. I also note that he has successfully completed over half of the program. Accordingly, I find that Father is pursuing a realistic and productive career.
[110] Next, I must determine what is required by virtue of those educational needs. Father has the burden of demonstrating that unemployment or under-employment is required.
[111] How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the payor is excused from pursuing part-time work? Could the program be completed over a longer period with the payor taking fewer courses so that he or she could obtain part-time employment? If the rigors of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the payor take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs: Ibrahim v. Hilowle, 2018 ONCJ 726, 298 A.C.W.S. (3d) 334.
[112] Although I accept that Father’s return to school is not unreasonable, I see no reason why he cannot be working part-time during the school year and full-time for the months of May to August of each year. He led no evidence to indicate that the rigors of his program preclude part-time employment, nor did he provide a reasonable explanation for why he did not work full-time in the non-school months. I do not accept that his age prohibits him from working part time. In fact, little evidence was led on the issue of his lack of employment or the reasons for same.
[113] Furthermore, I do not accept that his child care responsibilities prohibit him from working, particularly given that Mother works full-time and has Evy in her primary care.
[114] I also find that Father is relying on the generosity of those around him to avoid working. Child support is the right of Evy and although Father may be benefiting from this generosity, it does not improve Evy’s standard of living.
How much income to impute?
[115] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered include age, education, experience, skills, health, availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain: see Drygala, para. 45.
[116] Father’s evidence was that as a first-year apprentice he could earn more than he earned at his last employment, that third year apprentices earn $35 per hour and that in the future he could earn upwards of $100 per hour.
[117] Father’s line 150 income has been:
2015 – $29,023.74
2016 – $31,245.64
2017 – $34,588 *layoff occurred in November 2017
2018 – $19,986: $8,128 Employment Insurance benefits and $11,858 Career Benefits
[118] Accordingly, his income for support purposes is:
2016 – his line 150 income of $31,245.64
2017 – his line 150 income of $34,588 as this allows him the months of November and December to be searching for work
2018 – in January 2018 the minimum wage in Ontario was $14 per hour. For 4 months of the year he could work 37.5 hours per week or ($9,093). For 8 months of the year he could work part time 12.5 hours per week ($6,062). We must then add the $11,376 income from the second career program. I have not added the employment insurance income as that would be double dipping given the imputation of income during the period of receipt of employment insurance. Total income is $26,531.
2019 – same as above, save and except that the parties agree that the second career income that year is $14,000. Therefore, his imputed income for 2019 is $9,093 + $6,062 + $14,000 = $29,155.
[119] I have not included in income the gifts he receives from his parents as they were not quantified.
[120] I expect, given Father’s evidence, that he has already commenced a job search. Child support should be reviewed immediately once he obtains employment, or a further imputation of income may be warranted.
Payments Received to Date
[121] Father confirms that he made payments in accordance with Exhibit 30. He was paying child support since separation, but he was not paying the correct amount.
[122] I calculate the retroactive amounts owing as follows::
For the months of August 2016 to December 2016, Father paid a total of $875.36. Based on his 2016 income he should have paid $260 per month or $1,300. Therefore, he owes $424.64.
For the year 2017, Father paid a total of $2,519.92. Based on his 2017 income for the months of January to November 2017, his child support obligation was $298 per month. The Guideline amounts changed and therefore in December 2017 his obligation was $299 per month. He should have paid $3,577. Therefore, he owes $1,057.08 for 2017.
For the year 2018 I impute an income of $26,531 to Father. In that year, he paid child support of $1,796.10. He should have paid $216 per month or $2,592 per annum. Therefore, he owes $795.90.
For the year 2019 I impute an income of $29,155. He should have paid $248 a month or $2,976 the year. He paid no support that year and accordingly he owes $2,976.
I find the total amount owing by father to be $5,253.62.
Section 7 Expenses
[123] Father kept Evy out of Montessori school from November 5, 2018 to November 15, 2018 and, as a result, a subsidy was lost for this period of time. There was also a further amount owing. Mother provided father with an invoice she was required to pay from Montessori in the sum of $689.86. She asked him to pay $524.54, in large part because the majority of the bill was in relation to the time he kept Evy back from school from November 5, 2018 to November 15, 2018. Father did not dispute the amount, but did not believe that any amount was owed. Mother paid the bill and Father owes both his proportionate share generally and the entire expense for the time he kept Evy out of Montessori school: (Exhibit 7, Tab 1; Exhibit 8).
[124] The cost of before and after school is $26 per day. Father has not contributed to this cost. Mother does not seek this payment be retroactive. I find this is a proper section 7 expense and Father is to pay his share of this expense from October 1, 2019 and ongoing. Based on the parties’ 2019 incomes, Father’s proportionate share is 42.8%.
[125] I do not accept Father’s suggestion that family members can be called upon to provide before and after school care. No concrete plan was provided for this proposal, nor does it promote consistency and stability.
ORDERS
[126] This court orders that:
The applicant mother, Meaghan Gaudet, shall have sole custody of the child, Evangeline Dorothy Havelka (“Evy”), born April 30, 2015.
Evy’s primary residence shall be with the applicant.
The respondent father, Ondrej Havelka, shall have Evy in his care as follows:
(a) every Tuesday from after school until Wednesday morning before school;
(b) on the weeks when he does not have a weekend period of care, he may attend to Cambridge on alternate Thursdays and he may have care of Evy from after school until 7:00 p.m. in Waterloo Region. If the father returns to reside within 25 minutes of the mother’s residence, then this period of care shall be extended to Friday morning at school;
(c) every other weekend from Friday after school, or 4:00 p.m. when school is not in session, to Monday delivery to school, or 9:00 a.m. when school is not in session;
(d) each parent shall have two nonconsecutive weeks of time in July and two nonconsecutive weeks of time in August as “summer holidays”. When the child turns 8 years of age either parent may apply for the weeks to transition to consecutive without the need to demonstrate a material change in circumstances. The applicant shall have her choice of summer holidays in even numbered years and the respondent in odd numbered years. The parent having first choice shall advise the other parent of his or her selected weeks by May 1 of the applicable year. The other parent shall respond by June 1 of each year to confirm his or her selected weeks.
(e) the respondent shall have Evy in his care every year from December 23 at noon to December 24 at 9:30 p.m.;
(f) the applicant shall have Evy in her care every year from December 24 at 9:30 p.m. to December 26 at noon;
(g) the parties shall equally divide all other holidays and special occasions as discussed and agreed upon in advance; and
(h) such further access as the parties may agree upon in advance, in writing, or on at least twenty-four (24) hours’ notice.
Neither party shall remove Evy from the Province of Ontario without written permission of the other party, such consent not to be unreasonably withheld, or further court order.
Both parties shall have direct access to the child’s medical, dental, and school records. Both parties may make inquiries and be given information directly by teachers, doctors, dentists and other professionals working with the child.
Both parties shall be able to attend and participate in Evy’s extracurricular and school events.
All non-major day-to-day decisions affecting Evy shall be made by the parent with whom she is residing with on any given day.
Should either parent need to make an emergency medical decision concerning Evy, that parent shall inform the other parent of the decision immediately. In an emergency situation, either parent may contact the extended family of the other parent if the parent they are attempting to contact is unavailable.
Both parents shall ensure that Evy is permitted to contact the other parent by telephone, if Evy requests, and shall facilitate reasonable telephone, Facetime or Skype access at such times as can be agreed upon.
The respondent shall provide all transportation to and from access.
Mother shall not move Evy’s residence more than 30 kilometers from her current residence and father shall not move Evy’s residence any further than it is from the mother’s current residence without the other’s prior written consent or a court order.
Each party is required to provide the other party notice of any change in their address, telephone number and employment, within fourteen (14) days of such change.
The parties shall communicate with one another in a child focused, polite and respectful manner.
Neither parent shall disparage the other or the other’s extended family in the presence of, or in earshot of Evy, nor shall either party allow any other person to do so.
The respondent shall sign the child’s passport application and return it to the applicant within five (5) days. The applicant shall hold the passport and all other government-issued documents for the child, and shall provide the respondent with notarial copies of all such documents within thirty (30) days of this Order. Should the respondent travel with the child in accordance with paragraph 4 herein, the applicant shall provide him with such original documents as are necessary to facilitate travel not less than 48 hours prior to departure and the respondent shall return the original documents to the applicant at the conclusion of the travel period.
Commencing January 1, 2020, and on the first of each month thereafter, the respondent shall pay child support to the applicant for the support of Evy in the amount of $248 per month, based on an imputed income of $29,145 and in accordance with the Child Support Guidelines.
The respondent’s arrears of child support are fixed in the amount of $5,253.62 as at December 31, 2019. The respondent shall pay arrears at the rate of $100 per month commencing June 1, 2020 and on the 1st of each and every month thereafter until paid in full.
The respondent shall pay the sum of $524.54 towards Evy’s past Montessori school expense within 30 days.
Commencing October 1, 2019, the parties shall share the cost of all agreed upon special or extraordinary expenses for Evy (agreement not to be unreasonably withheld) in proportion to their incomes. Such special or extraordinary expenses shall include the net cost for Evy’s before or after school care with the Waterloo Region District School Board. Either party shall reimburse the other party for their share of any proportionate expense within thirty (30) days of being provided with proof of payment of such expense from the other party.
The respondent shall advise the applicant forthwith upon obtaining employment and child support shall increase to reflect his annualized income effective on the first day of the month immediately following the commencement of his employment.
Costs
[127] If the parties are unable to resolve costs, Mother may file written submissions on costs within 21 days. Father may file responding written submissions within 14 days thereafter. Submissions are not to exceed four pages, plus costs outlines, caselaw and any applicable offers to settle. Should submissions not be received within the timelines set out herein, no costs will be ordered as payable by either party.
D. Piccoli J
Released: December 20, 2019
COURT FILE NO.: FC-18-FO448
DATE: 2019-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEAGHAN GAUDET,
Applicant
– and –
ONDREJ HAVELKA,
Respondent
REASONS FOR JUDGMENT
D. Piccoli J
Released: December 20, 2019