COURT FILE NO.: 786/17
DATE: 2019-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Jonathan Knapp
Applicant
– and –
Keturah Lael Knapp
Respondent
Todd Hein and John Noonan, for the Applicant
Novalea M. Jarvis, for the Respondent
HEARD: March 28, 29, April 1, 2, 3, 4, 5, 15, 16, 17, 18, 23, 24, 25, 26, 30, May 3 and June 18, 2019
REASONS FOR JUDGMENT
chozik J.
A. Overview:
[1] David and Keturah Knapp were married for 13 and a half years. They have two daughters. Aleah Luthien Knapp was born on March 2, 2010 and Ember Estel Knapp was born on March 18, 2013. David and Keturah separated on February 17, 2017 when, unbeknown to David, Keturah left the family home with the children for a women’s shelter.
[2] There were four key issues to be decided at the conclusion of this 18-day trial: (i) custody, (ii) final decision-making authority with respect to the children, (iii) access or parenting time; and (iv) income to be imputed to David for child support purposes.
[3] On June 18, 2019 I released my decision with respect to these issues, with reasons to follow. I ordered the following:
a. CUSTODY: David and Keturah shall have joint custody of the children;
b. DECISION MAKING: David shall make major decisions on all medical, dental, optometrist and vaccination issues; Keturah shall make major decisions on education. Each party shall make daily decisions affecting the children’s care and decisions when the children are in his or her care;
c. PARENTING TIME: David and Keturah are to have equal parenting time, on an alternating weekly schedule;
d. IMPUTATION OF INCOME TO DAVID: For March 1, 2019 to December 31, 2019 David’s annualized income shall be set at $55,000 to determine his basic guideline child support obligations and section 7 expenses. Commencing January 1, 2020, his income is to be set at $58,000 for the purpose of child support and section 7 expenses.
[4] The following are my Reasons for those decisions.
B. Background:
[5] David and Keturah Knapp met at Trinity Western University in 2000 in British Columbia. David was 20 years old. Keturah was 22 years old. In June 2003, they were married following an engagement of two years. After finishing their studies, they owned and operated a coffee shop for a few years before moving to Ontario in 2008, where David’s family lives. Keturah’s family lives in the United States, primarily in Utah. Aleah and Ember were born in Ontario after nearly seven years of marriage.
[6] David and Keturah are both deeply committed to their Christian faith. As a child, Keturah travelled with her missionary parents in Thailand. She attended a Christian college. David testified that he discovered his faith as a teenager, at age 16. When they moved to Ontario, David and Keturah joined the Meeting House church (a Canadian Christian Church located in Oakville). David and Keturah regularly attended church, as well as bible study in a “home group” led by “elders”. They also volunteered for many initiatives affiliated with the church. Their social circle and much of their day to day lives revolved around the church. Keturah also worked at the church in an administrative capacity.
[7] At the time of the separation, David was a self-employed child and family therapist. He had been in that position at Bayridge Centre for a number of years. He testified that he was preparing to leave that job to find one with more stability and better compensation.
[8] David testified that religion is the biggest part of his life. He and Keturah discussed their religious beliefs before marriage and he thought that their beliefs were aligned. David believed that divorce is a sin for which God would punish. Over time, it became apparent to him that Keturah did not share his view.
[9] By the fall of 2016, their marriage was in trouble. They were often not speaking to each other. They slept in separate bedrooms.
[10] One of the main sources of friction emerged in the summer of 2016 when Keturah was invited to become an elder at the church. Keturah welcomed the opportunity. David testified that he was shocked that she would consider taking on this significant volunteer role at that time.
[11] An elder is expected to take the lead of a home group. According to David, an elder must take care of (spiritually and physically) the people in his or her group, like a “shepherd to the sheep”. Depending on the needs of the people, the role could take a lot of time without any extra pay. In the summer of 2016, he believed that Keturah was sick. He worried that she might have cancer, but that it would go undetected because she refused to see a doctor. Their marriage was in “shambles”. There had been divorces amongst couples at the church. David was of the view that Keturah should heal first, and that they should work on their marriage before she took on additional responsibilities at the church. For her part, Keturah did not view the role as particularly demanding, only a few extra hours a week.
[12] Michael Finnie, a pastor at the church and David spoke on at least two occasions about Keturah becoming an elder. First, they spoke in September 2016. At that time, David told Mr. Finnie about the problems in their marriage and asked Mr. Finnie to give it six months. They spoke again some time later. David was under the impression that the church was going to go ahead with the promotion, despite his objections. At that point, he decided to leave the church. David denied that his concerns had anything to do with gender roles.
[13] Michael Finnie confirmed much of the conversation as related to the court by David. Mr. Finnie had the impression that David thought he should make the decision as the husband. Mr. Finnie confirmed that David expressed the view to him that Keturah did not have a healthy relationship with God, which resulted in her health issues. Mr. Finnie confirmed that David expressed concern about the implications for their family if Keturah took on this role. He found David to be uncharacteristically angry during one visit but acknowledged that he had attended uninvited to discuss a difficult topic. As a result of their conversation, Mr. Finnie concluded that it would not be a good time for Keturah to be leading a group. To be a good elder, one had to have a good home life.
[14] Sometime prior to February 17, 2017, Keturah took a number of steps towards separation. She told her sister, Maresah Duncan, that she wanted to separate from David. Duncan, a police officer in Colorado Springs, testified that she had been concerned for Keturah’s “safety” since 2011. Her concern was based almost entirely on what Keturah reported to her during telephone conversations. Although Keturah complained that David put the children in danger, Ms. Duncan confirmed that David had the children in his care for extended periods of time, and no danger ever materialized. She had not seen anything that gave her concern during annual family trips.
[15] On December 31, 2016, Keturah visited a women’s shelter. She was doing research. In the meantime, David was with the children celebrating New Year’s Eve at a mutual friend’s house. Keturah also consulted with a family lawyer at least once, in February 2017. The day before she left the family home for a women’s shelter, she left the children in the care of David’s mother, Lorna Knapp, as usual. Later, Keturah would say that Lorna was unfit to supervise David’s access time.
[16] On February 16, 2017 David came home to find Keturah, Aleah and Ember gone. He worried that Keturah had removed the children to the United States. He learned a few days later, after frantically calling and emailing their friends and family, that Keturah had fled the family home with the children to a shelter for abused women. She remained there for several months and refused David access to the children unless he was supervised. She testified that she believed that David intended to harm her and the children, to do God’s bidding.
David’s Letter to Maresah Duncan (Keturah’s sister):
[17] In July 2016 David wrote a letter to Maresah Duncan about her divorce from Casey Hale. In his letter David quoted extensively from scripture. Keturah argues now that the letter was threatening, and that it shows that David was in a dangerous state of mind. The letter could be interpreted that way, if taken out of context. Significantly, it was not interpreted as a threat at the time, by Ms. Duncan or Keturah.
[18] David testified that he did not intend to threaten Ms. Duncan with the letter, but to express his biblical position about her separation from her husband. The letter was to warn Ms. Duncan of the consequences in the afterlife of divorcing her husband without cause. According to the Bible, divorce may only be granted for reasons of adultery or abandonment. As a Christian, David felt that he had an obligation to confront and warn another Christian if he saw them living contrary to the Bible’s teachings. He testified that he would not speak this way to someone outside the faith. Ms. Duncan was a Southern Baptist. In his letter, he showed her a picture of hell to warn her. He ended the letter saying, “I love you and am praying for you”. He testified that he was terrified for Ms. Duncan because he believes she will be going to hell. He became very emotional when testifying before me on this point.
[19] Ms. Duncan testified that she interpreted David’s letter as way to get her and her ex-husband back together or to make her feel guilty. Significantly, she testified that she did not feel threatened by the letter, nor perceive any threat to Keturah from it. She told Keturah about the letter some time later. Keturah responded to Duncan that the letter was not surprising, but consistent with David’s behaviour. Keturah did not ask for a copy of the entire letter until she was well on her way to separating, sometime in December of 2016.
David’s “Warning keturah” Email:
[20] On February 5, 2017, just prior to the separation, David wrote an email to Keturah with the subject line “Warning keturah”. The email contains various passages from scripture. Keturah testified that she felt that this email was “just really scary”. It validated for her that the situation was as bad as it seemed. At trial, David testified that he felt that this email was solicited by Keturah in part to “frame” him in this litigation.
[21] For her part, Keturah admitted that she had asked David to send her a copy of what he was reading. She also testified that having the scripture references was helpful to her – she could then look at the references closely, ask others if the position was valid and have a concrete understanding of what David was saying.
[22] At the time, Keturah and David had agreed to discuss their marriage in the presence of witnesses. According to David, this is taught in the Bible. He chose Kevin Walker as his witness. Keturah chose Jennifer Kay. Keturah indicated at the time that she wanted to have witnesses present to feel “safe”. David interpreted his need to be “safe” as a need for emotional calm. They had two, two-hour meetings with Mr. Walker and Ms. Kay: the first on January 20 and the second on February 4, 2017. Neither Mr. Walker nor Ms. Kay testified that they perceived any physical danger to Keturah at these meetings. Keturah testified that she wanted these witnesses to provide “safety” in the sense that David’s tone and demeanour were scary for her.
[23] In advance of those meetings, David emailed Keturah and attempted to identify the issues to be discussed and some ground rules for the discussions, such as a time out if either of them felt they needed one. In other words, he tried to set the rules and an agenda for the meetings. After the meetings, David sent an email setting out what had been agreed on or proposed actions to be taken. Keturah testified that these emails were just “silliness”. She skimmed them briefly and was embarrassed by them. She was concerned with his focus on the next life.
[24] David testified that it was not unusual during their discussions to refer directly to the Bible for support of one’s position. Keturah had asked him to do so in an email. In his email “Warning to keturah”, David set out support from the Bible for the positions or ideas he was putting forth.
[25] Significantly, Kevin Walker was a witness in this trial. He travelled here from the United States. He was not cross-examined at all about the meetings with David and Keturah, or whether David’s views that his actions and words were consistent with his understanding of the Bible. Despite being a leader in his church, Keturah’s counsel chose not to cross-examine Mr. Walker about anything at all.
David’s Psychological Assessment by Dr. Dan Ashbourne:
[26] After the separation, at the request of the Office of the Children’s Lawyer, David underwent a comprehensive psychological assessment in order to evaluate his mental health and functioning. Dr. Dan Ashbourne of the London Family Clinic, whom I qualified to give opinion evidence on David’s psychological state, conducted the assessment. This was not a parenting assessment, a custody and access assessment or a forensic psychological assessment. This psychological assessment used best practices including a multi-disciplinary, multi-session, multi-source and multi-site approach to arrive at its conclusions.
[27] Dr. Ashbourne reported that David presented as personable, talkative and motivated to complete the assessment. [That observation is entirely consistent with David’s demeanour when he testified before me for six and a half days.] Dr. Ashbourne observed that David was forthcoming, but slightly distressed when discussing his relationship with Keturah. Psychological testing revealed no elevations indicative of psychopathology and was entirely within normal limits. David’s profile suggested someone who was experiencing turmoil in his life that might be the source of stress, but not to the point where prominent symptoms are observed. No significant problems were identified in unusual thoughts, peculiar experiences, suspiciousness or hostility, extreme moodiness and impulsivity, unhappiness, depression or difficulty with health or physical functioning. There were no indications of abuse dynamics or coercive control in his relationship with Keturah. David believed that Keturah may have engaged in an emotional affair. There were minimal concerns with regard to David’s risk for child maltreatment.
[28] The assessment found that the majority of David’s expression and control of angry feelings fell within normal limits compared to the general population of males over 30 years of age. David had a clinically significant score on the subscale measuring the control of suppressed angry feelings. This suggests that David expends a great deal of energy in calming down and reducing his anger as soon as possible. On this point, the report observes that David’s “development of internal controls over his anger experience and expression is generally seen positively, but it can reduce his awareness of the need to respond with assertive behaviour when it might facilitate a constructive solution to a frustrating situation.”
[29] The MCMI-IV (a standardized test) was administered to David to gather information about personality and psychopathology. Two different profiles emerged from his responses. The first was that of a well-functioning, adaptive individual with no major personality disturbances who currently may be undergoing psychological stressors and symptoms that are mainly situational and transient in nature. The second was an individual with some personality dysfunction.
[30] Dr. Ashbourne explained, and I accept and find, that when considered in the context of all of the information gathered as part of the psychological assessment, he concluded that David’s personality aligns with the first profile. Dr. Ashbourne testified that one should never rely on a single score or test or an answer to one particular question to make decisions. For an accurate assessment, psychologists look at data pulled together from multiple sources.
[31] During the psychological assessment, David acknowledged that the divorce was the most difficult life experience he ever had. The stressors and negative emotions associated with it were only temporary. Collateral sources confirmed that David was engaging in healthy self-care strategies, including exercising, eating, sleeping well, volunteering at church, going to movies with his mother, and attending a group for fathers going through divorce. He was actively reaching out for support from friends and family. He was reported to have no anger problems. His primary coping strategy to manage anger is to remove himself from a situation. The letters he wrote to Keturah and her sister using religious texts were reported by collaterals to be surprising behaviour and atypical.
Evidence of Keturah’s Collateral Witnesses:
[32] Keturah relies on the affidavit evidence and testimony of her sister, Maresah Duncan, a number of friends and co-workers from the Meeting House church. Some of these witnesses stated that they shared Keturah’s fears and concerns regarding David as a father. For the most part, much of their fears and concerns were based on what Keturah told them. As a result, I find that their evidence is simply not helpful. It does not assist me in deciding the issues in this case.
Recommendations of the Office of the Children’s Lawyer:
[33] In the fall of 2017, the Office of the Children’s Lawyer (“OCL”) commenced an investigation. Phil Subeck, who had recently come to Canada from Denver, Colorado, took this matter on as his first investigation for the OCL. At the conclusion, the OCL recommended that Keturah have sole custody and sole decision-making authority, and that David have less than equal parenting time. I am not prepared to accept the recommendations of the OCL for the many reasons outlined below.
C. Analysis:
Custody and Parenting Time:
[34] It is not the function of this court to analyze or pass judgment on the reasons why a marriage fails or to assign blame to one of the parties for the breakdown. Rather, this court’s function is to determine what parenting arrangement is in the best interests of the children and I have approached the evidence with that task in mind.
[35] Keturah argues that she should have sole custody and decision-making authority. She argues that David’s parenting time with the children should be less than equal. She submits that she was the “primary” caregiver to the children, and that David has not and is not capable of making decisions in the children’s best interests. She argues that she is more attune to the children’s needs and that her love, affection and emotional ties with the children are stronger than those of David. She also argues that she and David cannot work together to make decisions for the children because of the dynamics of power and control in their relationship. To this end, Keturah points to the circumstances of their separation to argue that David, in part due to his rigid religious beliefs, was controlling, abusive and a threat to her and the children. She also relies on the recommendations of the OCL that she have sole custody and decision-making authority.
[36] David argues in favour of joint custody, equal parenting time and parallel decision making. He submits that Keturah is a good mother. He is a good father. The children need equal time with both parents. However, he is concerned that the parties may not be able to make joint decisions on medical issues. Thus, he seeks parallel decision making.
[37] On a custody application, this court is governed by section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Section 16(9) of the Divorce Act provides that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Section 16(10) sets out the “maximum contact principle”: a child should have as much contact with each parent as is consistent with the best interests of the child, and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Generally, maximum contact with both parents is in the best interests of a child (Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27, at para. 25; Berry v. Berry, 2011 ONCA 705, 343 D.L.R. (4th) 501, at paras. 12 and 13; B.V. v. P.V., 2012 ONCA 262, at para. 15.
[38] Section 20 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, establishes a presumption that parents are equally entitled to custody of a child. Section 24 of that Act sets out the factors to be considered in determining the best interests of the child.
[39] The onus is on the parent who seeks to restrict the other parent’s access to demonstrate why that parent’s access must be restricted. There must be a justification to avoid shared parenting or reduce access. (Folahan v. Folahan, 2013 ONSC 2966; Wilson v. Wilson, 2015 ONSC 479)
[40] In my view, the best interests of the children in this case demand that David and Keturah have joint custody, parallel decision-making authority and equal parenting. David shall make major decisions on all medical, dental, optometrist and vaccination issues; Keturah shall make major decisions on education. Each party shall make daily decisions affecting the children’s care and decisions when the children are in his or her care.
[41] Much of my assessment of the children’s best interests rests on whether I accept Keturah’s evidence about the events that transpired in their home and David’s attitude and behaviour towards her and their children. In the end, many of the conclusions in this case are driven by my views about the credibility and reliability of her evidence. Ultimately, I was not persuaded and do not accept significant aspects of Keturah’s evidence.
[42] In particular, I do not accept that:
a. Prior to the separation, she was the primary parent. I find that David and Keturah grew to have a more or less equal or shared parenting arrangement.
b. David was a neglectful or abusive father. I find that while their parenting styles may be different, both Keturah and David are loving and competent parents.
c. Keturah genuinely feared for her safety or that of her children when she fled to the women’s shelter. I find that her flight to the shelter and subsequent conduct was aimed at gaining a tactical advantage in this litigation.
d. David’s mental health or religious views were genuine reasons for concern.
(a) The “Primary” Parent and Parenting Arrangements Prior to Separation:
[43] Keturah claims that she was the primary parent to the children, and as such has a closer bond with the children. She argues that David was a neglectful parent who left all the parenting responsibilities to her.
[44] I am not persuaded that Keturah was “always” the primary caregiver to the children. Although I accept that she had primary caregiving responsibilities when she was on maternity leave, the responsibility for parenting shifted to a co-parenting role as the children grew older and Keturah returned to work.
[45] It is often said that becoming a parent does not come with a “how to” manual. Parenting is a live and learn experience. As such, parenting abilities and skills evolve over time, with experience, as they did in this family. I find that the concerns Keturah expressed about David’s minimal parental involvement were exaggerated. David is clearly a devoted father and spent a great deal of time caring for the children.
[46] David testified that prior to the separation, based on his version of the schedule, the children were in his exclusive care approximately 40-44 per cent of the time. They were exclusively in Keturah’s care approximately 20 per cent, and exclusively with his parents or other family about 15 per cent of the time. David worked a compressed work week on Mondays and Thursdays from 9 am to 9 pm. He would leave the home at 8:00 am and return home at 10:00 pm. Some weeks he spent a portion of a third day a week networking and building up the business.
[47] On Tuesdays and Wednesdays, when David was off, Keturah would look after the children’s morning routine but after 8:30 am David was responsible for them while Keturah went to work. According to David, he and Keturah were “a team” in the evenings when she got home. She would spend time with the children, while he would get dinner ready. If she had work responsibilities, David would look after the children’s evening routines.
[48] While I do not accept David’s mathematical calculations, I find that David and Keturah parented the children together. As the children grew, Keturah chose to work increasingly long hours. By the time of their separation, she was working 30 to 40 hours a week. This left David as a primary parent at least some of the time. The co-parenting arrangement is confirmed in the hundreds of text messages and emails between the parties in the months prior to separation.
[49] David was home alone with the children on Tuesdays. He organized play dates, outings and spent considerable time with his sister, Jennifer Thomas and her children. He also cared for the children on Wednesdays. On Thursday, his mother Lorna Knapp looked after the children. Keturah was off work on Monday and Fridays and she looked after the children on those days. Often, she had work or volunteer responsibilities on those days, weekends and evenings. Weekends were spent as a family and childcaring responsibility was shared, although David also enjoyed recreational opportunities such as rock climbing.
[50] On the evidence, I find that Keturah and David worked mostly as a parenting team. This is confirmed by the many text messages and emails between the parties as well as witnesses. David’s mother, Lorna Knapp, his sister Jennifer Thomas, and his brother, Phillip Knapp, all provided evidence that they saw David with the children on a regular basis before and after the parties separated.
[51] These witnesses confirmed that David was a good father and spent at least equal time parenting the children. They identified no concerns with his parenting ability. The witnesses did not disparage Keturah. They were trying to be objective with their evidence. Each readily acknowledged the strengths and weaknesses of David and Keturah. They all acknowledged that Keturah was a good mother who loves her children. Their evidence was credible and reliable.
[52] When Keturah came home from work, she would “relieve” David and take over parenting responsibilities while he made dinner. It makes sense that, since she was very concerned about diet, that she packed lunches. She may have had some valid complaints that David did not pull his full weight, but these concerns do not, in my view, rise to a level where I could find that she was the primary parent.
(b) David was Not a Neglectful or Abusive Father:
[53] Keturah claims that she should have sole custody and decision-making authority, and that David’s access time with the children should be limited, because he is a neglectful and abusive father. I reject Keturah’s claims in this regard. Significantly, the OCL identified no concerns with David’s parenting ability. None of the witnesses who testified had any direct evidence that David was neglectful or abusive to the children either before or after the separation.
[54] The fact that there were no genuine concerns about David’s parenting of the children is further confirmed by the fact that Keturah left them with him when she travelled for work. In November 2016, Keturah left the children in his care for five days while she travelled to Vancouver for work. On New Year’s Eve, she worked at the church and left the children with David for the evening. David cared for the children most of that day. She continued to leave the children in his care right up to the date she chose for the separation. If there had been genuine concerns about David’s mental health in the weeks or months leading to the separation, which would impact his parenting abilities, Keturah – a very protective parent – would never have left the children in his care.
[55] After the separation, the CAS conducted an investigation and concluded that David was no threat to the children. The Crisis Outreach and Support Team (“COAST”), also found that David was no risk to himself or others. The OCL concluded that David was a competent parent.
[56] It is clear that David and Keturah have different parenting styles. They agreed in principle on religion and importance of family. However, there were many areas of disagreement between them. Jennifer Thomas testified that she saw David and Keturah fighting over many simple things such as whether to allow the children to have a cookie after dinner or what board game to play. She felt that they could not agree on very many things and that they were both equally unreasonable in these disagreements. They said things to each other that she and her own husband would not say to each other.
[57] Based on David and Keturah’s evidence, the areas of disagreement between them included how to challenge the children, teach them acceptable risk taking, the nature and quantity of activities the children should engage in, the degree of structure they required, schooling, discipline, healthcare and diet. In some areas, such as schooling, vaccinations and diet, David relented. At times, Keturah relented to David’s views on discipline. Both experimented with time-outs and tried spanking for a while but then moved away from it. Significantly, David sought out the input of supports from the church and family on many parenting and marital issues. I find that he wanted and tried to do the right thing. What is clear is that both David and Keturah did their best to be the best possible parents for the children. For two individuals to come together as a family to parent children is not without challenges.
[58] I am not prepared to find that David was a neglectful or abusive father. Keturah’s allegations in this regard are simply unsupported. She appeared in many instances to project her own anxieties onto ordinary situations (such as putting a child’s head under water to teach her to swim) or to exaggerate the danger or risk (such as the risk of leaving balloons in the house while the children are supervised by David). She required David to put bells on the shoe laces of the children when he took them camping so that they would not get lost. He complied with her request. Her evidence, in the context of all of the evidence, does not lead me to conclude that David is neglectful or abusive to the children, or that he cannot or does not make decisions that are in the best interests of the children or that his parenting time should be restricted.
(c) and (d) David was not a Genuine Threat to Keturah: His Mental Health and Religious Views are not a Concern:
[59] Keturah argues that at the time of the separation and for some time before, David was a threat to her as a result of his deteriorating mental health and increasingly rigid religious views. She argues for sole custody, decision making and limited access based on his conduct at that time. I reject her evidence in this regard.
[60] I am not persuaded that David was ever a threat to Keturah. During the marriage, David never threatened or hurt Keturah or the children. He tearfully recalled an incident in 2008, years before the children were born, when, in anger, he threw a pillow at Keturah when they were lying in bed. He asked God for forgiveness, he vowed to work on himself, and imposed a rule not to discuss marriage after 10:30 pm when they were both vulnerable. David testified before me over the course of six and a half days. He was vigorously cross-examined. In the end, I found his evidence compelling and generally consistent with other objective evidence. He was not experiencing any mental health crisis. He does not subscribe to any religious views that would justify hurting his wife or children. He had no intention of doing so.
[61] The only incident reported by Keturah was that David threatened to hit her with a phone in around 2011. Keturah testified before me that the incident made her feel scared, unsafe and threatened. Her evidence is undermined by a police occurrence report dated February 17, 2017, which reflects that Keturah told the police that she could not recall the details of the incident and could not recall if she felt threatened by David at that time.
[62] The most compelling evidence that David had no intention of harming Keturah or the children is the manner in which he responded when he found Keturah gone.
[63] Rather than “explode” or “go postal” as it is alleged he was expected to, when he discovered Keturah and the children gone, he wrote polite and pleading emails to Keturah and others. Neither the tone nor the content of what he said in the emails suggests in any way that David was on the verge of rash or harmful conduct.
[64] If David was experiencing a mental health crisis or subscribed to controlling and religious views that could lead him to harm his wife, then one would have expected these to manifest when Keturah left the family home. Experience suggests that there is no more dangerous time than when the wife leaves to an undisclosed location without warning and takes the children with her. In this case, there is no hint of anger or threat in David’s reaction to her departure. His emails are respectful, polite and pleading asking Keturah and others whether she and the children are safe. He could not have expected that anyone would see or use these emails later. His response was genuine. And it was neither rash, angry or threatening.
[65] The letter David wrote to Duncan in the summer of 2016 was not, in my view, intended or received as a threat. This letter, taken out of context, might raise concerns. When viewed in context of all the other evidence in this case, it is clearly not intended by David or perceived by its readers to be threating. Duncan expressly testified that she was not threatened by the letter.
[66] Similarly, the “Warning keturah” email David wrote does not raise concerns when taken in its proper context. David and Keturah were discussing their marriage with witnesses present. David’s witness, Kevin Walker, was never asked about the email or any of the scripture references used by David. Keturah testified that she asked for the scripture references to check them for herself, consult about them with others as to their accuracy and to make sure she understood David’s position correctly. I accept David’s evidence that Keturah asked him for that email for that exact purpose. It was not intended or received as a threat.
[67] In the end, I am not satisfied that Keturah had a genuine fear of David. I reject her evidence that she was the victim of a power and control dynamic. There are many examples in the evidence that make clear that Keturah was a powerful and controlling woman. For example, Duncan confirmed that Keturah threatened David with divorce if he went against her wishes on vaccinations. Lorna Knapp confirmed that Keturah yelled at David in front of a gathering of people for giving an extra marshmallow to the children. When David had one of the children vaccinated, Keturah phoned the family doctor and yelled at them over the telephone.
[68] Keturah left the family home with the children in a clandestine manner, without any real evidence of any imminent danger from David. She discussed separation with her sister many months before she ultimately left. She told her sister that she wanted to wait until after Christmas so that the children had good holidays. She attended at the women’s shelter on December 31, 2016 to research it. Before she ultimately fled to the shelter, she consulted with a family lawyer and obtained legal advice. She also visited the police. She carefully researched and calculated her departure. This alone is not inconsistent with a real or genuine fear for one’s safety. However, in the context of all of the evidence in this case, I find that Keturah’s evidence or perception of danger is either false or exaggerated. In my view, it is quite possible that she fled to a shelter not out of a fear of David, but to achieve a tactical advantage in this litigation.
[69] There was never any violence between the parties. There was never any threat of violence between the parties. There is little of substance to support Keturah’s contention that she had to leave with the children in the manner she did. There was no evidence that the children were at risk or that David could not provide adequate care. Keturah unilaterally deprived the children of their home and the life they had by removing them. She made no attempt to reach an agreement on custody or access prior to her abrupt departure. Spouses who have a genuine concern for their own, or their children’s safety should be, and are, free to leave the home without worrying that it will impact later decisions by the court. However, in this case, by fleeing to the shelter in the absence of any real basis for such a fear, and without making any effort to work towards a less destructive accommodation, Keturah’s actions were not justified or reasonable and not in the best interests of the children. (LiSanti v. LiSanti, 1990 ONCJ 4229, [1990] O.J. No. 3092 (Prov. Ct.); Kapitanchuk v. Kapitanchuk, [1991] O.J. No. 2404 (C.J.); Butler v. Butler, 2017 ONSC 3411; Daniel v. Daniel, 2016 ONSC 1326; K.(V.) v. S.(T.), 2011 ONSC 4305)
[70] Having regard to all the evidence, I am of the view that sole custody is not in the children’s best interests. I have found that Keturah’s allegations of David’s instability, threats and neglect are unfounded. David was an involved parent. There were no concerns with his ability to parent. The allegations made against him in this litigation, and the manner in which Keturah left the family home, show clearly that she is (was) intent on minimizing David’s role as a father. Maximum contact is in the children’s best interests. To ensure David’s continued role as a parent, it is my view that joint custody is appropriate. There is also no justification for restricting his parenting time or reducing the children’s access to him.
Decision Making:
[71] Although I am of the view that David and Keturah should have joint custody, there are legitimate concerns about their ability to consult with one another and reach joint decisions. It is clear to me that both David and Keturah care deeply and equally for their children. As in most cases, each brings their own strengths to the lifelong work of parenting.
[72] Evidence of the parties’ inability to communicate or compromise permeates the record in this case. While it is important for the parties to continue to try to discuss parenting, and reach consistent decisions day to day, it is apparent to me that for now at least, they cannot share major decisions. I am of the view that parallel decision making is appropriate. In particular, I am not persuaded that Keturah, were she left as the sole decision maker, would make decisions with respect to the medical, dental and other healthcare needs that are in the best interests of the children. At the same time, I have no concerns about Keturah making decisions on education.
[73] During the marriage, decisions about the healthcare of the children were made jointly. While Keturah scheduled appointments and usually took the children to various healthcare providers, David participated in the decision making. Keturah would do the research, consider the issues and then share those with David, and together they would decide on a course of action. For example, Keturah did not want to vaccinate the children. David did. Together, they agreed on a delayed schedule for vaccinations.
[74] During the marriage, David, who believes in traditional medicine, was a counterbalance to Keturah, who believes strongly in alternative treatments. Alternative treatments may be appropriate in many circumstances. However, the evidence reveals that at times Keturah interpreted or reported the recommendations of the pediatrician and dentist inaccurately. Jennifer Thomas testified that Keturah had an “irrational fear” of Western medicine. Keturah’s evidence on these issues gives rise to serious concerns about her credibility and reliability as a witness, and her ability to make healthcare decisions that are in the best interests of the children.
[75] After separation, the OCL recommended that Keturah vaccinate the children as recommended by Dr. Qazi. The OCL recommendation that Keturah have sole custody of the children was based, at least in part, on her promise to do so.
[76] The medical records show that despite her promise, Keturah wanted Dr. Quazi to recommend that only one vaccination be given to the children every four to six months. An entry in the medical record states that on June 13, 2018 Keturah attended with Ember at Dr. Quazi’s to discuss Ember’s immunization status. The record further states the following:
Both parents are separated now. Have a court case going on. Dad is pushing for vaccinations to be completed and she is fighting it. She wants me to recommend that the girls should be getting one shot at a time and every 4-6 months. Explained to her that it will be too long to complete entire schedule this way. According to immunization guidelines they can get 2 shots every 4 wks without any problem since they have no allergies and also no problem with vaccines done so far. Seems quite upset about it and wants to think about it. [Emphasis added]
[77] After meeting with Dr. Quazi, Keturah reported the results to David. In an email dated July 10, 2018 Keturah told David that Dr. Quazi “felt good about catching them up with 1 vaccine every 4-6 months”. Keturah’s statement to David is clearly contrary to Dr. Quazi’s record. At no point did Dr. Quazi agree that one vaccine every 4 to 6 months was acceptable. Keturah either deliberately misrepresented to David the doctor’s recommendations or she wanted the vaccinations postposed so badly that regardless of what the doctor said was in the children’s best interests, Keturah saw and heard what she wanted to.
[78] On another occasion, Keturah misrepresented to David the recommendations of the children’s dentist, Dr. Khanna. In June 2018 Aleah had several cavities. The record from Dr. Khanna indicates that the dentist recommended filling the cavities in the traditional way. Keturah was worried about Aleah getting a needle, so she sought an alternative treatment. The dentist explained that there is an “SDF” treatment. Keturah testified in court that the two – SDF and filling cavities – were equivalent treatments. I accept David’s evidence that they are not the same. The fact that Keturah reported and perceives them as equal or the same gives rise to significant concern about her ability to make major medical or health decisions in the best interests of the children.
[79] On another occasion, when David wanted to take the children to an eye doctor in Georgetown, Keturah told David that they already had an eye doctor they saw regularly in Milton. The parties obtained the records of the Milton eye doctor. These records revealed that Keturah first scheduled an appointment for Ember after David had already scheduled one in Georgetown. The only other time either child saw the Milton eye doctor was when Aleah would have been three years old. I reject Keturah’s suggestions that the records must be missing an entry and that either child had an “unofficial eye exam” that would not be reflected in the eye doctor’s records.
[80] I also heard evidence that when one of the children was getting a needle, Keturah refused to have the doctor use an alcohol wipe to sanitize the injection site. Another time, when David had Dr. Quazi administer a scheduled vaccination, Keturah called the doctor and yelled at her over the telephone. In my view, the evidence is replete with examples of Keturah unreasonably trying to control the healthcare of the children, sometimes in an apparent attempt to gain some advantage in the litigation that is simply not in the best interests of the children
[81] Keturah argues that she should have sole decision-making authority because of David’s and her inability to work together to make joint decisions regarding the children. I accept that the parties are not able to work together. I do not accept that this inability to work together is the result of David being controlling and overpowering. There is ample evidence in the record before me that when it comes to medical care and diet, Keturah is dogmatic and controlling. She is unwilling to work together with David or compromise. For example, the children reported to David that Keturah would smell their breath when they returned to her from time with David to see if they had eaten sugar. Similarly, Aleah reported to Jennifer Thomson that she could not eat a gummy candy because Keturah checks her teeth. Lorna Knapp recalled that Keturah was rigid in her views about diet, particularly sugar.
[82] The inability of the parties to make decisions together in this case requires that decision making be assigned to one parent or the other. In this case, I have determined that medical decisions should be made by David. To balance this out, I have determined that decisions on education should be made by Keturah.
The Investigation and Recommendation of the Office of the Children’s Lawyer (“OCL”):
[83] My conclusions with respect to custody, decision-making and parenting time are not consistent with the recommendations of the OCL. As set out earlier, I do not accept the recommendations of the OCL that Keturah have sole custody and decision-making authority, while David’s parenting time should be restricted. The following are my reasons for rejecting the OCL’s recommendations.
[84] First, I do not accept a number of factual premises upon which the OCL based its recommendations. For example, I do not accept that Keturah was the primary parent at the time of the separation. I do not accept that there are concerns with David’s mental health. I do not accept that David’s letter to Maresah Duncan or email to Keturah were intended or received as threatening. In this regard, I note that I have had the benefit of hearing extensive evidence about these factual matters, tested by cross-examination, and submissions by the parties.
[85] Second, I am compelled in law to give effect to the principle of maximum contact and the principle that any restriction on access must be justified. The party seeking to restrict access bears the onus of justifying it. In my view, Mr. Subeck may have misapprehended this legal onus in recommending that David’s parenting time be restricted.
[86] Mr. Subeck concluded that David was a fit and competent parent, but that there was “no reason” why he should have more or equal time with his children. Mr. Subeck observed that the children appeared to enjoy their time with David.
[87] David supervised them appropriately and actively interacted with them in a “fun manner”. He comforted them appropriately and allowed alone time as requested. He encouraged healthy eating. Ultimately, Mr. Subeck observed that there were no concerns with David’s parenting. The children appeared to have strong connections to both parents.
[88] At the same time, Mr. Subeck recommended that Keturah have sole custody and decision making, and that David’s parenting time be limited. Mr. Subeck testified that David having four overnights in fourteen days was “sufficient”. He saw no reason to increase or have equal time with the children. When asked whether there was any reason why David could not have the children 50/50, Mr. Subeck responded that there was no reason it should be half time. He testified that since the children were not asking for increased overnights, he chose not to recommend them.
[89] This approach is not consistent with the legal principles I must apply. The principles demand that there must be justification for reduced access and that the onus is on the parent seeking to restrict access to show why it should be restricted. This onus is not met in this case.
[90] Third, Mr. Subeck appears to have accepted Keturah’s allegations that her relationship with David was abusive. Mr. Subeck concluded that joint custody was not a viable option because Keturah said that she did not feel that her beliefs are respected by David. He called Keturah the “victim” during his testimony. I rejected Keturah’s evidence that she was physically or emotionally abused by David.
[91] Fourth, Mr. Subeck decided that Keturah should have sole custody because he accepted her word that she was historically the primary caregiver for the children. I rejected Keterah’s position in this regard. Mr. Subeck acknowledged that David clearly spent a great deal of time with the girls during the week and that this was confirmed by collaterals. Mr. Subeck did not have the benefit of the emails and text messages between the parties in the months leading up to the separation, which were put before the court.
[92] Mr. Subeck acknowledged that David was capable of making decisions in the children’s best interests, he simply was not the one who made those decisions historically prior to separation. Mr. Subeck acknowledged that if a finding was made that pre-separation parenting was equal (i.e. that Keturah was not the primary parent), then this would impact his recommendation regarding sole custody.
[93] In making his recommendations for interim sole custody and restricted parenting time, Mr. Subeck did not have Dr. Ashbourne’s psychological assessment. He made his interim recommendations prior to receiving that report. He did not discuss his interim custody recommendation at the first disclosure meeting. This is significant because at the time he recommended that Keturah have interim sole custody, Mr. Subeck believed that there were legitimate concerns about David’s mental health.
[94] Mr. Subeck maintained those concerns about David’s mental health despite Dr. Ashbourne’s clear findings that such concerns were unfounded. Mr. Subeck simply did not accept Dr. Ashbourne’s conclusions. Mr. Subeck did not quarrel with Dr. Ashbourne’s credentials but took issue with the methodology used despite the fact that he is not a psychologist. For example, Dr. Ashbourne concluded that David had no issues with anger management. Mr. Subeck did not agree with this conclusion and saw the comments in the report about David’s attempts to suppress his anger as very concerning. Having had the benefit of hearing Dr. Ashbourne’s extensive evidence about how the psychological assessment was conducted, the way in which the results of testing are properly interpreted and the reasons for conclusions, I find that those conclusions are sound.
[95] Mr. Subeck misinterpreted the report. He remained unreasonably concerned about David’s mental health. Significantly, Mr. Subeck concluded that because Dr. Ashbourne did not find any abuse dynamics, the report must be wrong: Mr. Subeck concluded that the report was not based on accurate information and therefore was not helpful to him. His concerns about David’s mental health lingered and that was why he refused to recommend an increase in the parenting time. Having heard all of the evidence, (including the 6.5 days of evidence from David, most of it under cross-examination), I find that there are no legitimate concerns regarding David’s mental health.
[96] In the end, the OCL recommendations are founded upon a number of conclusions and assumptions that I have rejected. Those recommendations are therefore unpersuasive.
D. Imputation of Income:
[97] The issue in this case is the quantum of income that should be imputed to David. Keturah argues that an income of $115,200 and $249,600 should be imputed to David for the purpose of calculating child support. She argues that David is deliberately underemployed and that these are reasonable amounts based on a 35-hour work week as a counsellor with David earning $65 and $180 per hour.
[98] David acknowledges that he is underemployed. David has a bachelor’s degree in psychology and a Master’s Degree in counselling. Prior to the separation, he was registered as a psychotherapist at Bayridge Centre working as a counsellor. For three years - 2014 – 2016 - David’s average income was $55,000, not including RRSP income cashed and after small business deductions. He worked a compressed work week, working two days of 12 hour days each seeing clients. He often spent an additional half a day a week on business development, paperwork and other administrative tasks.
[99] Some months after the separation, David stopped working as a counsellor. He testified that the stress and trauma he experienced as a result of the separation and surrounding circumstances made it difficult for him to carry on counselling other people. He was unable to connect with his clients, and received a number of complaints from clients. He left his employment. Dr. Ashbourne, when asked, testified that stopping counselling in the circumstances was a “good idea”.
[100] In November 2017, David started teaching English to children in China on the internet. He is paid per student. He does this in the early morning hours approximately 15 to 21 hours per week. He earns a fraction of what he candidly admits he could be earning. He testified that once this litigation is concluded, and the parenting time and decision making around the children are finalized, he expects to be able to return to work as a counsellor at some point in the future. For 2019, he submits that his income should be imputed at $55,000. Commencing in 2020, he submits his income should be imputed at $58,000.
[101] For parents to meet the legal obligation to support their children, they must earn what they are capable of earning. Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, permits the court to impute income to a parent who is intentionally underemployed. Intentional underemployment does not require bad faith or intention to evade child support. The reasons for the underemployment are irrelevant. If a parent is earning less than he or she could be, he or she is intentionally underemployment. To determine the amount, if any, to be imputed the court must consider what is reasonable in the circumstances and the factors include age, education, experience, skills and health of the parent (see Drygala v. Pauli (2002), 2002 ONCA 41868, 61 O.R. (3d) 711).
[102] Here, the evidence establishes that Mr. Knapp earned an average of $55,000 as his gross income, per year for three years prior to separation. The business deductions he claimed are justified and reasonable.
[103] David testified that in Ontario a full-time position in social work is typically 35 hours a week. This is due to the emotional demands of the job. Typically, of these hours 70 per cent is face-to-face work with clients and 30 per cent is paperwork or administrative tasks. No evidence was adduced to contradict David’s evidence regarding a typical work week in this field. His evidence in this regard makes sense.
[104] Contrary to Keturah’s submission, I find that it is not reasonable to impute income to David based on an hourly rate assuming that he would see and bill clients for 40 hours a week. That is simply not how, on the evidence before me, the counselling industry works. It would be akin to assume an income for a lawyer based on billings of 40 hours a week, when the reality is that a lawyer working 40 hours a week does not translate into billings of 40 hours a week. There is much unbilled work. A rational basis is required for amount of imputed income (Pustai v. Pustai, 2018 ONCA 785, at paras. 45-50).
[105] Comparisons with jobs available to David adduced by Keturah at this trial were inadequate. Many of the job postings were outside of Halton, in Toronto for example, where incomes are not necessarily the same. Many of the advertised positions were for different types of counselling work or work David was not qualified to do. Those comparisons are of little assistance in assessing what David is reasonably capable of earning.
[106] The best comparison in this case is past experience. Therefore, I have used what David was capable of earning before the separation as a guide for imputing income to him.
E. Costs of this Trial:
[107] The parties are encouraged to agree upon appropriate costs for this trial. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicant may have 14 days from the release of this decision to provide his submissions, with a copy to the Respondent. The Respondent shall have 14 days to file responding written submissions, and the Applicant shall have a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.
Chozik J.
Released: December 17, 2019
COURT FILE NO.: 786/17
DATE: 2019-12-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
David Jonathan Knapp
Applicant
– and –
Keturah Lael Knapp
Respondent
REASONS FOR JUDGMENT
Chozik J.
Released: December 17, 2019