Court File and Parties
COURT FILE NO.: FC-19-1400 DATE: 20200326 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Catherine Ziten Lyons, Applicant AND Christopher-Joseph David Lyons, Respondent
BEFORE: Madam Justice H.J. Williams
COUNSEL: Mary Cybulski for the Applicant Michele D. Blais for the Respondent
HEARD: February 27, 2020
Endorsement
[1] The father brought a motion for a temporary order that would increase the time the three children of the marriage are in his care by one night per week. The father also seeks related orders reducing the child support he pays and with respect to section 7 expenses.
[2] The mother opposes the relief sought by the father and seeks several orders herself, including an order for certain decision-making authority in respect of the children’s health, education and daycare. The mother also seeks retroactive and on-going child support based on the father’s 2018 income, a related order for section 7 expenses and a number of other orders affecting the children.
[3] There is a great deal of animosity between the parents.
Please note:
This motion was argued on February 27, 2020, before COVID-19 swept into Ontario, changed life as we know it and, effective March 17, 2020, forced the suspension of the regular operations of the Superior Court of Justice. I am mindful that the pandemic will have altered the routines, priorities and expectations of this family. For example, I am assuming that the older children must not be in school and that the parents have made alternative arrangements for transfers from one home to the other. Further, travel to the United States, which was an issue, is not an option at present.
I have made the decisions in the endorsement based on the written and oral submissions of the parties. Where the realities of the pandemic have affected a decision or my reasoning, I have said so.
Hearsay Issue
[4] The mother argued that four letters attached to the father’s affidavit were hearsay and therefore inadmissible.
[5] The letters were identified as being from the children’s family doctor, a daycare centre owner, the oldest child’s first grade teacher and a preschool teacher, respectively. The letters were typed and unsigned. The letters all deal with parenting. The doctor’s letter is fairly neutral; she says she has no concerns about the parenting abilities of either parent. The other three letters all include positive observations about the father’s relationship with the children.
[6] The affidavit to which the letters were attached was served on the mother on November 11, 2019. The mother’s lawyer did not inform the father’s lawyer that the mother was taking issue with the admissibility of the letters until February 24, 2020, three days before the hearing of the motion.
[7] The mother’s lawyer argued that there was no reason for the authors of the letters not to have provided affidavits. The mother’s lawyer conceded that it would have been better if the objection had been raised earlier but argued that the failure to have done so does not render otherwise inadmissible evidence admissible.
[8] The father clearly seeks to admit the letters for their truth; he relies on them to prove that he is a good father. The letters are, therefore, hearsay. None of the exceptions to the hearsay rule applies. Consequently, the principled exception to the hearsay rule must apply for the letters to be admissible. This requires an assessment of whether the letters can be characterized as both “necessary” and “reliable” evidence.
[9] Dealing first with the criterion of reliability, although the letters are unsigned, I accept the father’s evidence that they were provided to him by the individuals whose typewritten names appear at the conclusion of each letter. The authors of the letters were well known to both parents. If the mother suspected that the letters were not written by their purported authors, that the authors had an improper motivation for providing the letters or that the content of the letters was so improbable that the authors must have been duped or coerced, the mother had ample time to consult the authors and to file evidence to this effect. She did not do so.
[10] I consider the letters to be reliable.
[11] I now turn to whether the letters are “necessary.”
[12] It is not in dispute that the father should have submitted affidavits from the authors of the letters instead of attaching the letters to his affidavit. This is not the more typical situation in which hearsay evidence is sought to be introduced because its originator has passed away or is otherwise unavailable. The mother conceded in her submissions that the contents of the impugned letters could have been introduced in sworn form; this was one of the arguments she raised in support of their exclusion.
[13] The criteria of necessity and reliability in a hearsay analysis work in tandem: If the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed (R. v. Baldree, 2013 SCC 35, at para. 72). The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. (R. v. Khelawon, 2006 SCC 57, at para. 49).
[14] The four letters are relevant to the central issue of the best interests of the children. The mother did not break any rules; a timetable for the exchange of materials had been agreed to and the father did not suggest that the mother had failed to comply with it. That said, I see no reason, other than to gain tactical advantage, for the mother not to have notified the father of her position in relation to the letters much earlier than she did. The parties had agreed that all evidence would be exchanged before the parties were questioned. Four days after the February 20, 2020 questioning and three days before the February 27, 2020 hearing of the motion, the father’s lawyer learned for the first time that the mother would be objecting to evidence the father had served in November. In my view, when the best interests of children are at issue, a litigation strategy intended to seek the exclusion of relevant evidence, particularly evidence which the party seeking the exclusion concedes could have been presented in an admissible form, is to be avoided.
[15] Having found that the letters are reliable, I find that, to assist me in “getting at the truth”, to quote from Khelawon, they are also necessary.
[16] I find the four letters to be admissible for their truth under the principled exception to the hearsay rule.
Issue #1: Parenting Time
[17] The children are seven, five and three years old.
[18] Pursuant to a consent interim interim order of Kershman J. dated November 13, 2019, the children live with the father overnight on Tuesdays and every second weekend from Friday afternoon until Monday morning. The father also sees the youngest child from after daycare until 7:30 p.m. on Wednesdays.
[19] Kershman J.’s order specifically provided that its terms were without prejudice to the right of either party to bring a motion in respect of the parenting schedule and child support.
[20] The father is now asking to have the children with him two nights each week and every second weekend. This would equalize the time the children live with each parent.
[21] The mother argued that the current schedule should not be changed at this time. At the time the motion was argued, a parenting assessment was scheduled to begin in March and was expected to be completed by June. The parties had agreed to request an early trial date and were hopeful that the matter could be added to the September 2020 trial list.
[22] The mother argued that it would be pointless and disruptive to change the parenting schedule now, when it may be changed again in the future, as a result of the assessment or following the trial.
[23] The mother also argued that the father has a history of preferring his own interests over those of the children. The mother said that her primary concern is that the father is harming the children emotionally by exposing them to adult issues, that he denigrates her and that he is so focused on the failure of the marriage that he does not act in the children’s best interests.
[24] The mother argued that the status quo should be maintained and that, before separation, she was the more involved parent.
[25] For the following reasons, I am granting the father’s request for additional time with the children:
- The test to be applied is what would be in the best interests of the children. (Children’s Law Reform Act, R.S.O. 1990, c. 12, s. 24).
- Section 16(10) of the Divorce Act, R.S.C. 1985 (2nd. Supp.), c. 3, sets out what is known as the “maximum contact” principle or rule. It provides that children should have as much contact with each parent as is consistent with the best interests of the child.
- The mother concedes that the father has basic parenting skills.
- The four letters the mother sought to have excluded from evidence raise no concerns about the father’s relationship with the children and three comment positively about the father’s caring approach to the children. The letters also suggest that the father has been an involved parent.
- The following evidence was not contradicted: that the father has made numerous requests for additional time with the children, which the mother has denied; that the father loves and has a close bond with the children; that the children have said that they want to spend more time with the father; that the father has a stable home environment; and that the father works from home and has a flexible work schedule.
- The mother argues that there has been police and Children’s Aid Society involvement in the family. It is true that the police had been called to the family home before the parents physically separated, which is obviously concerning. However, the police report states that the mother rejected the police offer of a safety plan. There has been no police involvement since the father moved out of the family home. Further, while the Children’s Aid Society investigated and concluded that the children had been exposed to parental conflict, it did not blame one parent over the other.
- The mother expressed concern that the father’s conduct is negatively affecting the children and in particular, the behaviour of the oldest child. There is certainly ample evidence of the father’s bitterness and negative attitude toward the mother. I was particularly struck by an email exchange in which the father was clearly focused on the mother’s conduct rather than a serious issue raised by the mother involving the oldest child, who had brought a knife to school. However, the father claims that the mother also denigrates him in front of the children. I am not able to conclude on the evidence that any difficulties the older child may now be experiencing are linked to time spent with the father; I consider this to be speculative at this time. All three children are now adjusting to a new family structure and rotating between two homes.
- The children are already spending four nights per week with the father. There is evidence that he is caring and available to them. I am not persuaded that increasing the time the children spend with the father by one additional night per week, thereby equalizing the time spent with each parent, would be disruptive or have a negative effect on them.
[26] Having considered all of the available evidence, I do not consider any of the mother’s reservations about increasing the time the children spend with the father to trump the “maximum contact” principle in the Divorce Act. I conclude that, on a temporary basis, the father’s request to have the children in his care for an amount of time equal to that of the mother is in the best interests of the children.
[27] In addition to alternating weekends, the father shall also have the children in his care either each week from Monday afternoon until Wednesday morning or from Tuesday afternoon until Thursday morning. The mother shall choose between the Monday and Tuesday night or the Tuesday and Wednesday night option.
[28] The new arrangement shall begin the week of Monday, March 30, 2020.
[29] Because of the COVID-19-related suspension of the court’s operations, this proceeding is now unlikely to be tried in September 2020, as the parties had hoped. The anticipated delay in the trial had no bearing on my decision in respect of this issue; I would have come to the same conclusion if the matter were proceeding to trial in September.
Issue #2: Decision-Making Authority
[30] The mother has requested an order that would enable her to make decisions with respect to health, education and daycare. In particular, the mother argues that the parents do not communicate well regarding the needs of the oldest child. The mother says that the oldest child has significant behavioural issues.
[31] I am not prepared to make an order relating to decision-making at this time. Although the parents certainly need to co-parent more cooperatively, I am not persuaded that there is an urgent need for such an order. I note, for example, that the father has not opposed some of the relief sought by the mother in her notice of motion, suggesting to me that cooperation between these parents is possible.
[32] I rely on case law presented by both parties (Bosley v. Bosley, 2016 ONSC 5877; McPhail v. McPhail, 2018 ONSC 735; Pierce v. Pierce, 2019 ONSC 5676) which suggests that an order relating to decision-making is more properly made at trial.
Issue #3: Child Support and Section 7 Expenses
[33] The father currently pays the mother $1,700.00/month in child support, the table amount under the Federal Child Support Guidelines for three children, based on an annual income of $86,000.00, which was the average of the father’s income for 2016, 2017 and 2018.
[34] The mother argued that the father should be paying on-going support of $2,249.00 based on his 2018 income of $120,949.00. She also argues that he should pay retrospective support from September 1, 2019 in the amount of $6,694.00.
[35] The father argued that if I were to grant his request for interim shared parenting, as I now have, child support should be calculated in accordance with section 9 of the Child Support Guidelines and based on a set off of the mother’s current income from her position with the federal government of $90,536.00 and his three-year average income of $86,000.00.
[36] The father earns income from employment with a company owned by his father and also through work in real estate. The father argues that his 2019 income will not be as high as his 2018 income because he set up his own real estate company in early 2019 and incurred start-up expenses. The father’s income from employment in 2019 was approximately $83,000.00 but his income from his real estate business was unknown at the time the motion was argued.
[37] The mother argued that if the father earned less in 2019 than he had in 2018, it was by choice. The mother also argued that until evidence of the father’s 2019 business earnings is available, it would be fair and reasonable to conclude that his income did not change from 2018. The father has already reimbursed himself for his start-up expenses. The mother notes that he also appears to have more than $56,000.00 in a business chequing account. There may also be an issue with respect to the father’s claimed business expenses.
[38] I agree with the mother that, until the father has obtained and disclosed documentation relating to his 2019 business income, it would be fair to assume that in 2019, his income remained unchanged from 2018.
[39] I agree with the father that, in light of my decision in respect of interim parenting, child support should be calculated by setting off the amount the lower-earning parent would pay against the amount the higher earning parent would pay.
[40] Therefore, on an interim basis, beginning April 1, 2020, the father shall pay the mother monthly child support based on an income of $120,000.00 for him and $90,536.00 for her. The set off amount is $462.00, which is the amount the father shall pay.
[41] The parties shall also pay section 7 expenses in proportion to these incomes.
[42] I recognize that the COVID-19 pandemic may have an impact on the parents’ income in the future, at least in the short term. This was not a factor in my decision about on-going child support. However, I do not propose to address the issue of retrospective child support at this time. I urge the parties to communicate and cooperate to make whatever adjustments are necessary and fair after the father’s 2019 income has been determined.
Issue #4: Schools for the Youngest Child
[43] The parties agree that the youngest child shall attend Zida Academy commencing in April 2020 and Holy Spirit Catholic Elementary School with her brothers in the fall of 2020.
Issue #5: Summer Parenting Schedule
[44] The mother is asking for “up to 10 consecutive days” with the children and argues that the father should have two five-day periods.
[45] The parties agree that the two boys may attend science camp in Toronto.
[46] Unless the parents are able to agree otherwise, each parent shall have two periods of five days with the children. I am basing this decision on the fact that the youngest child is not yet four years old and, consequently, I accept the father’s submission that a 10-day uninterrupted separation from one parent is a long stretch.
[47] It is not clear to me whether the mother is asking for the boys’ time at the science camp to be included in or addition to her vacation time with the children. If it is to be in addition to her vacation time with the children, the father, at his option, shall have additional vacation time with the children of an equal number of days.
Issue #6: Passports and International Travel
[48] The mother requests orders permitting her to renew the children’s passports without the father’s signature and for each parent to travel internationally with the children during their parenting time on three weeks’ notice and without the other parent’s consent.
[49] The father had signed the passport renewals but then withdrew his consent without informing the mother that he had done so.
[50] The father is concerned about international travel because the mother is having a relationship with a Florida resident; the father is concerned that the mother may wish to relocate to Florida.
[51] I consider the surreptitious nature of the father’s conduct to reflect extremely negatively on the father.
[52] The mother shall be permitted to renew the passports without the father’s signature.
[53] I am not prepared, however, to grant the order requested by the mother at this time, not on the basis of the father’s submissions, in respect of which I make no finding, but because of COVID-19. International travel, including travel between Canada and the United States has been restricted since this motion was argued, may look very different in the foreseeable future or beyond and may raise health-related issues that could affect the best interests of children.
[54] On an interim basis, neither parent shall travel internationally with the children without the consent of the other parent.
Issue #7: Mother’s Day and Father’s Day
[55] The parties agree that the children shall be with the mother from 10 a.m. to 7 p.m. on Mother’s Day and with the father from 10 a.m. to 7 p.m. on Father’s Day.
Issue #8: Expedited Trial
[56] At the time the motion was heard, the parties expected the parenting assessment to be complete by June and agreed that the proceeding should be placed on the September 2020 trial list when ready for trial. The timing of the trial is a matter to be dealt with once the parenting assessment has been completed and the scope of the court’s operations are known.
Costs
[57] If the parties cannot agree on the costs of this motion, the father may deliver written submissions of no more than three pages in length within 14 days of the date of this decision; the mother may deliver written submissions in response of no more than three pages in length within 14 days of the date of receipt of the father’s submissions; the father may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the mother submissions.
[58] The costs submissions may be filed by sending them to me by email at scj.assistants@ontario.ca.
Date: March 26, 2020
COURT FILE NO.: FC-19-1400 DATE: 20200326 ONTARIO SUPERIOR COURT OF JUSTICE RE: Catherine Ziten Lyons, Applicant AND Christopher-Joseph David Lyons, Respondent BEFORE: Madam Justice H.J. Williams COUNSEL: Mary Cybulski for the Applicant Michele D. Blais for the Respondent
ENDORSEMENT Madam Justice H.J. Williams