Court File and Parties
COURT FILE NO.: 668/17
DATE: 2019-01-30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Walter Warkentin, Applicant
AND: Sandra Trufal, Respondent
BEFORE: Mr. Justice J. A. Ramsay
COUNSEL: Wayne Brooks for Respondent; Applicant in person
HEARD: January 25, 28, 29, 2019 at St Catharines
ENDORSEMENT
The Applicant and the Respondent separated in June of 2017 after having lived together for 30 years. Both ask for custody of their third son, who is their only minor child. The Respondent asks for spousal support. There is insufficient evidence to justify any of the other orders sought, including restraining orders and orders about personal effects.
I am grateful to Mr Brooks for keeping the focus on the issues in this emotionally charged litigation.
Custody
The child is 15 years old. He suffered setbacks to his education as a result of leukemia which set on at age 9. He still has physical sequelae. He is emotionally immature for his age. In 2017 the mother left the family home at the insistence of FACS. Since then, apart from one month the child has lived with the Applicant.
The parties’ son Gunner has made allegations of sexual abuse against the Respondent. FACS considers them to be unfounded and the Applicant does not rely on them. The OCL (necessarily) mentions them, although the clinical assessor did not use them to come to her conclusions. I mention them only to make it clear that I do not consider them for any purpose.
The Children’s Lawyer provided a report based on a clinical assessment. No objection was filed by either party. The Respondent disagrees with the assessor’s observations of her interaction with the child. In the context of the evidence as a whole I think it far more likely that the assessor is right in her observations of what happened and that the Respondent either has no insight into her own conduct or is lying about it.
The Applicant makes serious allegations about the Respondent’s treatment of the children. They are supported by the evidence of his son Shawn and the parties’ son Hunter. The Respondent denies them. Without deciding the parties’ credibility, I would have given custody to the Applicant with access to the Respondent on terms comparable to those made by Walters J. for the following reasons, which are borne out by the clinical assessment and the child’s report card:
a. The Respondent does not see that the child attends school, while the Applicant does.
b. The Respondent has no insight into the problem she causes when she puts the child in the position of having to act like a parent.
c. The Respondent does not discipline the child or take appropriate steps to encourage him to control his behaviour.
d. The child has made progress in school while living with the Applicant.
I do make some findings of credibility. Hunter Warkentin, age 25, is the oldest of the second set of sons, i.e. the parties’ three children. Unlike most of the family, he works for a living. He left the family home at the age of 23 and works as a drywaller. I found him a credible witness. He was articulate and fair. His evidence was detailed and coherent. I did not detect any hint that his evidence was scripted or made up. And his evidence is consistent with the plain fact that the Respondent is estranged from the grown up children, while the Applicant is not. I do not accept the Respondent’s suggestion that the Applicant successfully alienated two sets of boys from their respective mothers, and that his manipulations continued to have effect after they all grew up. I note that in both cases, there was state intervention in the Applicant’s favour. The mother of the older boys was convicted of assault. The Respondent was asked to leave the home by FACS.
On the other hand, while the Applicant makes a good initial impression, I agree with Mr Brooks that on closer analysis there is an undercurrent of aggression.
The Respondent did not do well as a witness. She testified that the fact that she has no relationship with Hunter was news to her; she just found out when he testified. But she told the OCL clinician before the OCL report of August 2018, “Hunter is dead to me.”
The Respondent admitted being treated with methadone for prescription painkiller addiction. She admitted that her doctor rejected a cold urine sample that she offered. She also testified that there was a series of drug tests that were negative in the summer and fall of 2017, but she has no documentation with respect to any of them. I find that she still has an issue with drug abuse and that she physically abused her older boys. I do not think she is physically abusive to Dorian, as Hunter would agree. I do not think that either party was the victim of criminal domestic violence.
What I am worried about with respect to Dorian is that the Respondent exposes him to the conflict between the parents and cues him as to how he should act to her advantage. As an example, the Applicant has the child enrolled at St Catharines Collegiate and Vocational School. The Respondent told him that this was a bad school full of bullies. He picked up on it and complains that he wants to go to Thorold Collegiate, which is the school his mother would have chosen for him. As another example, I accept the Applicant’s evidence that Dorian skipped school and told him that he did so in order to show that he missed school with either parent.
Things do not look good for Dorian. His father failed to protect both sets of his children from inadequate mothers until the state intervened. He also allows the Respondent to be disparaged to the child. Nevertheless, I think he remains Dorian’s best hope. It is in Dorian’s best interest to live with his father and go to school.
The child has strongly expressed a preference for living with the Respondent. I think he takes this position because he is protective of her and because she does not discipline him.
Dorian looks forward to his visits with his mother. The Respondent’s departure from the family home was traumatic for him. In order to minimize the stress on Dorian and the risk that he might rebel, I propose to maintain the schedule established in Walters J.’s temporary order, which seems to be working as well as can be expected. Essentially the Respondent will have visits with the child, but will not have enough time to do much harm. She will be able to see his report cards and medical records, but she will not make decisions about his education or health. I give sole custody to the Applicant with access to the Respondent essentially on the terms ordered by Walters J.
Spousal support
The parties cohabited for 30 years, during most of which the Applicant worked full time while the Respondent stayed home with the children. At some point she gave up a job at GM. To what extent she had help from the older children and her mother, and how good a job she did at home, are both beside the point. She must be viewed as the primary caretaker of the home and children for most of the relationship. She is entitled to compensatory and non-compensatory spousal support.
The Applicant makes $57,000 a year from his General Motors pension. Gunner gives him $500 for room and board but I doubt whether that does much more than compensate for the expense of having Gunner and his wife in the house. The Respondent makes $8,219 a year from public assistance. Her mother contributes $475 a month to the household expenses, but it seems right to treat that contribution the same way I have treated Gunner’s board money, and for the same reason. I do not think that the Respondent is able to earn more because of her health, which in my view includes a continuing problem with drugs.
The Spousal Support Advisory Guidelines suggest support in a range that goes from just under $1,500 to just under $2,000 a month. Given the Applicant’s sole financial responsibility for the child, I fix child support at the low end of the range.
I make the following orders:
a. I order the Applicant to pay spousal support to the Respondent at a rate of $1,500 a month commencing July 1, 2017.
b. A support deduction order will issue.
c. I order that the Applicant have custody of Dorian Warkentin, with access to the Respondent every Saturday from 10 am until Sunday at 6 pm and every Christmas Day from 2 pm to 6 pm.
d. The Respondent is responsible for pick up and drop off. She can send Dorian by cab or transit, if she wishes.
e. Dorian shall sleep alone in his own bedroom.
f. Dorian shall be allowed to contact either parent by telephone in his discretion.
g. The Respondent is entitled to receive information about the child from educational authorities and medical and health practitioners. The Applicant is entitled to make the decisions about the child’s education and health care.
h. All other relief sought by both parties is dismissed.
- Given the divided success there will be no order as to costs.
J.A. Ramsay J.
Date: 2019-01-30