COURT FILE NO.: FC-17-1427 DATE: 2020/02/21

COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, family court

RE: Cherie Fish, Applicant AND: Simon Causyn, Respondent

BEFORE: Mr. Justice C. MacLeod

COUNSEL: Diana Aoun, for the Applicant Simon Causyn, Respondent, in person

HEARD: October 9, 2019

DECISION AND REASONS

[1] This is a divorce proceeding in which the main disagreement between the parties relates to the care and support of their two children, T.C., born June 30, 2008 and M.C., born May 15, 2010. There are some minor property issues. The case came on for trial during the family law sittings in October 2019.

Background Facts

[2] The parties were married on June 8, 2006 and separated at some time in 2015. Their relationship had been tumultuous and there had been at least one other significant period of separation. They both agree that the separation in 2015 was final and there is no prospect of reconciliation. They disagree on precisely when that separation occurred but for purposes of the issues in dispute, the date does not matter. At this point they have been separated for more than three years.

[3] A significant factor in the relationship was a motor vehicle accident that occurred on August 14, 2014. This occurred during a family vacation in New Brunswick and it was a single vehicle accident. The applicant was driving. As a consequence of that accident, the respondent was rendered quadriplegic. He is able to live independently only with the support of a personal support worker and he suffers from significant health difficulties. He uses a wheelchair but is unable to sit for more than two hours without returning to bed. He has limited use of his hands although he has no fine motor control.

[4] To accommodate his needs, the trial was conducted partly by telephone and partly in person followed by written submissions. During the trial, the respondent conceded that he was not currently able to care for the children on a full time basis. So the parenting issue is narrowed to a parenting order defining how much time the children will spend in the care of each parent and how the parents will each be involved in decision making. The other issue is child support. There are certain minor property issues.

Parenting

[5] Mr. Causyn seeks an order for joint custody of the children but recognizes that the applicant should continue to have day to day care and control. He wishes to have the boys spend more time with him providing adequate supervision is in place. At some point, if conditions warrant it and he is able to provide adequate levels of supervision, he may want to have overnight visits.

[6] It is a sad reality that the respondent is not in a position to care for the children for any length of time except with the support and assistance of a care giver. His physical limitations are profound. Moreover, as the evidence discloses, both boys exhibit significant behavioural difficulties. On one occasion when the children were in his care, one of the boys became angry and ran out of the house to a nearby park. The respondent could not go after him or send his personal support worker.

[7] Despite his limitations, the respondent has much to offer his children and he has done a great deal to adjust to his current circumstances. He has purchased a home modified to suit his needs. He has transportation. He was able to come to court and to navigate the court house. He wishes to spend time with the children and this wish is reciprocated by them.

[8] The applicant agrees that the boys should spend time with the respondent providing there are appropriate supports in place. It is her position, however, that joint custody is not appropriate. She testified about years of pre-separation – and pre-accident – spousal abuse and much bitter and angry post-separation – and post-accident – communication between the parties. She testified that she was willing to consult the respondent on major issues but did not want to get into arguments or to be subjected to insulting language or communication. She considers it unworkable for the respondent to be able to veto parental decision making.

[9] The applicant also described at length the high maintenance and challenging special needs of the children and the difficulty she has had getting and maintaining appropriate educational supports. The children were pre-school or just starting school at the time of the violent car crash. The parents were both taken from the scene by helicopter. The children have both been diagnosed with PTSD. They experienced their father’s changed circumstances, the separation of their parents and the formation of a new relationship by their mother. Both boys manifest anger and impulsivity and struggle academically although their individual needs are distinct and unique.

[10] At one time the respondent had been seeking joint custody and equal parenting time but by the time of the trial, he appeared to have come to terms with the reality that his ability to supervise the children or care for their physical needs suffers from significant limitations. The respondent wishes to be consulted and to have input into any significant decisions concerning the children. He recognizes however that in many circumstances decisions cannot wait for a consensus and if there is no agreement decisions may have to be made by the applicant particularly in regard to education and medical issues. Ultimately, he agreed that the applicant would have the principal burden of child care and should have final decision making. He also recognizes the need to communicate in a respectful manner and not to allow frustration, anger or bitterness to impair co-operation or parenting. The evidence does not suggest any reason to exclude the respondent from access to information concerning the children and no reason why he should not be informed and consulted about important decisions.

[11] There is no necessity to label parenting rights as “custody” or “access”. What is important is what are currently referred to as the “incidents of custody”. Parenting orders or agreements should define where the children will reside, how much time will be spent with each parent, any terms, conditions or restrictions that should apply, how decision making will work, what information will be shared, how communication will take place and who will make decisions if there is no time to consult or consultation does not result in agreement. This is reflected in amendments to the Divorce Act [1] which will come into force in July and which replace the terms custody and access with “Parenting Orders” and “Parenting Time”. In this case I find that a parenting order is a more appropriate disposition than a custody order.

[12] In light of the concessions made by the respondent, there is little point in attempting to detail all of the evidence about parenting. Time was spent during the trial on issues such as alleged spousal abuse that predate the accident and the separation. As noted, there was also evidence about much post-accident anger particularly when the applicant decided to separate from the respondent, end the marriage and enter into a new relationship. Ordinarily that kind of evidence would have some relevance to the parenting issues but the capacity of the respondent to physically and actively parent is now limited by circumstances. At the trial, the respondent appeared to be extremely realistic and also determined to be a positive force in the lives of the children.

[13] In light of these findings and the concessions made by the respondent during the trial, I am making a parenting order as follows:

a. The children will reside with the applicant. She will have day to day control of the children and will be responsible for day to day decision making. The applicant may register the children in schools and activities, select health professionals and obtain services for the children as may be required. b. The applicant shall consult with the respondent on all major decisions concerning the childrens’ health and education and shall consider his input and opinion. If the parents cannot arrive at a consensus within a reasonable period of time, the applicant may make the decision. c. The applicant shall make arrangements to ensure the respondent receives copies of all medical and educational information ordinarily available to or provided to parents by the service providers. Both parents shall have equal rights to access information in regard to the children. The applicant shall sign all necessary consents and ensure that service providers or professionals have contact information for both parents. d. The respondent will be entitled to parenting time with the children every weekend for at least two hours on either Saturday or Sunday but at his option this may be extended to four hours. e. The applicant will have the option to select one weekend each month when she will have the children for the entire weekend but in that case, there will be make up parenting time on one of the other weekends. On the make up weekend, the respondent may either have a longer period of parenting time or may have parenting time on both days. f. The respondent will also be provided with a means to regularly communicate with the children during the times when they are not with him. That communication may be by FaceTime, Skype, telephone or text messaging or a combination of these communication methods. g. The respondent’s parenting time shall be subject to the following conditions: i. All parenting shall be in the presence of a person capable of tending to the needs of the respondent and able and willing to supervise the children if at any time the respondent becomes incapacitated or fatigued to the point that he cannot do so himself. ii. The parenting time shall take place in the respondent’s home or in the community or at such other places as may be agreed between the parties. iii. If at any time the respondent is unable to exercise his parenting time or must cut it short, he shall immediately notify the applicant and she will make arrangements to pick up the children. iv. If parenting time must be rescheduled or shortened, the parties shall use their best efforts to schedule make up time. v. The applicant shall at all times be provided with contact information for the respondent and his PSW as well as the names of all workers and others who may be present during the respondent’s parenting time. h. Further parenting time for holidays, special occasions and overnight visits may be negotiated if the respondent is in a position to effectively parent during such times, has a support person available and the parties so agree. In all such cases the parties will discuss the matter in good faith with a view to respecting the wishes of the children and acting in their best interests. i. The parties shall at all times communicate with each other by text message or e-mail except in a case of urgency or by agreement when they may communicate by phone. All communication shall be civil and respectful and child focused. j. The parties shall not discuss any disputes they may have with each other with the children. Each parent shall teach the children to love and respect the other parent and shall not make negative comments about the other in the presence or hearing of the children. k. All terms such as restrictions on the use of corporal punishment included in the temporary orders shall continue in force and be included in the final order. The parties may also include such other parenting conditions and terms as they can agree upon.

Support

[14] Counsel for the applicant asked that income be imputed to the respondent and there be an order for child support. I am not satisfied that I have sufficient evidence to conclusively determine this issue. Clearly the respondent has no earning capacity and although he may have income from various sources, his income may be insufficient for his own significant needs.

[15] I am not persuaded on the evidence presented at trial that income should be imputed but as I will discuss, it cannot be ruled out now or in the future. There was a disturbing lack of precision in the evidence in relation to the insurance proceeds and sources of funding available to the respondent. In part this is due to partial disclosure by the respondent but in part it appeared to be a consequence of not asking the correct questions or consulting with an expert conversant with the intricacies of motor vehicle litigation and insurance law.

[16] The situation is complicated. The motor vehicle accident took place in New Brunswick and as it was a single vehicle accident when the applicant was driving, she was the at fault driver and the defendant in the tort claim. I will explain this briefly along with my reasons for ordering further disclosure and deferring the calculation of support.

[17] The first consideration is usually the earning capacity of the parent with whom the children do not reside. In this case, the respondent was a self employed carpenter but when the parties were together, they split the income. The applicant did the bookkeeping and other administrative work and the respondent performed the physical work. His declared income was only $14,000 per year. The accident effectively wiped out the respondent’s earning capacity but also ended the applicant’s employment. Now the respondent’s only source of income is from the Canada Pension Plan and insurance proceeds.

[18] Subsequent to the accident, the respondent has no ability to work or earn income. He has been declared “catastrophic” and he receives statutory accident benefits from his Ontario motor vehicle insurer. It is his evidence that he receives no “income replacement benefits” although he could not explain why that is the case. In any event, if he did receive IRBs based on his pre-accident earnings, they would not likely exceed $10,000.00 per year. More significantly, he receives the maximum caregiver benefit which includes a maximum of $6,000.00 per month for attendant care. Mr. Causyn essentially requires attendant care 24 hours per day because he is always at risk for breathing difficulties and occasionally needs assistance.

[19] The maximum monthly attendant care benefit does not come close to covering full time attendant care. As a consequence, he has been relying on family members or a barter system. One of his strategies has been to provide free rent to a tenant in exchange for being on call at night. In this way he has paid personal support workers during the day and his tenant during the night. Unfortunately, there are gaps in this system from time to time when a tenant leaves or when a personal support worker quits or is fired. The point here is that the income from statutory accident benefits comes in the form of reimbursement for costs incurred or direct payments to service providers and it does not meet all of Mr. Causyn’s needs.

[20] Mr. Causyn also had a tort claim which he pursued in New Brunswick. Since it was a single vehicle accident, any negligence on her part, no matter how small the fault would have resulted in 100% of the liability. That action was settled at the policy limits of $1,000,000.00. This sounds like a lot of money but of course it represents only a portion of the damages which might have been awarded had there been more insurance available.

[21] No doubt a term of the settlement would have been to waive any claim against the applicant for amounts over the policy limits. Regardless, it is the fact that the applicant was the at fault driver and the respondent suffered losses for which he has arguably not been fully compensated. The equities would weigh against any claim for spousal support and so it was appropriately abandoned at the trial. It remains unclear whether any income can appropriately be imputed to the respondent and if he should be required to pay child support. He did receive a significant lump sum.

[22] The evidence is that Mr. Causyn used the million dollars to purchase and renovate the home where he lives and to purchase the various assistive devices that were not covered by his accident benefits. He does not believe that any component of the settlement was for loss of income due to the modest amount of his pre-accident earnings. It seems probable that there was a significant shortfall between the settlement and the actual needs of the respondent. It is also his evidence that the money has all been spent.

[23] Some of that money was spent frivolously. He bought gifts for family members. He bought a small plot of land that had previously been in his family. He bought toys and games for the children. It appears however that the majority of the settlement funds were spent to provide him with suitable accommodation and the wherewithal to live his daily life. He now appears to be subsisting on a limited fixed income and the settlement funds are no longer available.

[24] The evidence at trial was very unsatisfactory. Neither party put in evidence the details of the New Brunswick tort claim or the settlement. Neither party or the applicant’s counsel seemed to have any clear understanding of the statutory accident benefits regime, precisely what benefits were being paid and what had been declined. Although the respondent produced a print out of the benefits he had received, it was unclear from the evidence what the “burn rate” is, whether he is entitled to further benefits and for how long or whether he is likely to face a shortfall.

[25] Similarly, the respondent should have provided a complete breakdown of the settlement funds he received, what he had spent the money on and how much was left. I also need a better understanding of all of his sources of income and how all of this interrelates.

[26] I am deferring the decision on child support for the moment.

[27] The respondent shall have 30 days from the release of these reasons to provide the following:

a. An up to date schedule of all accident benefits paid to him since the date of the accident and the amounts which remain available to him as the result of his catastrophic designation. b. A copy of the pleadings in the tort action, a copy of the minutes of settlement and the breakdown of the funds received by him. c. A breakdown of the disposition of the settlement funds including the exact amounts paid out to family members, the amount spent to acquire and renovate his home and any other expenditures funded by the settlement. d. An up to date list of all other sources of income including CPP disability, ODSB or other private or government funding.

[28] If the financial information is not provided within the time specified or such longer period of time as may be granted if the respondent requests an extension, the applicant may renew the request that a negative inference be drawn and income imputed.

[29] Alternatively, the parties may still resolve the issue of support by agreement and so advise me. Subject to being satisfied that the agreement is reasonable and meets the needs of the children, I will likely approve and accept it.

Personal Property

[30] The parties are each entitled to return of the personal property discussed at the trial. I find that the leather jacket is the property of the applicant.

[31] If the property cannot be returned, each party will be entitled to a monetary judgment.

Divorce

[32] Grounds for divorce are readily established by separation of more than one year. The divorce will be severed from the outstanding corollary relief issues and a divorce may issue.

Costs

[33] I will entertain submissions on costs once the issue of support has been resolved.

Mr. Justice C. MacLeod Date: February 21, 2020

[1] Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am.