COURT FILE NO.: FC 301-2017
DATE: 2020/11/17
ONTARIO SUPERIOR COURT OF JUSTICE
CHARBONNEAU, J.
REASONS FOR JUDGMENT
[1] After a regrettably long and bitterly fought legal proceeding, the parties have recently managed to come to trial having resolved many issues. The parties have filed an Agreed Statement of Facts which highlights the resolution of these issues.
Moreover, a previous final order has already substantially narrowed the issues.
[2] I annex as schedule A to these reasons the agreed statement of facts.
[3] The only remaining issues are:
• Whether the court should grant joint or sole custody?
• If joint custody is awarded, which parent should have the final say regarding important decisions affecting the child and under what terms?
• Should the court impute an income greater than the income reported at line 50 of the parties’ income tax returns to one or the other or both parties for the purposes of fixing child support and, if so what amount?
• Should the court award retroactive child support and if so, on what basis and back to when?
[4] The pa rtie s’ position
- A - Joint or sole custody
[5] The applicant father submits that it is in the best interest of the child that the court award him joint custody. He argues that the conflicts and lack of meaningful communication were created by the mother’s unreasonable conduct in the first year and a half after the separation. In the last year, communication between the parties has greatly improved and the parties have agreed to equal parenting time. There is a real risk that if the mother is granted sole custody, she will revert to her unreasonable conduct, attempt to withhold access to Gavin by the father and fail to keep the father aware of important information about Gavin. This would be very detrimental to Gavin.
[6] The father submits that this is not a case where the conflicts between the parents prevent joint custody. The conflicts arose at the time of separation and were the result of resentment each spouse entertained against each other. These conflicts have not had a negative impact on Gavin. The recent events indicate that any possible subsisting conflicts will not impact on the well-being of Gavin. That is the true test to apply in determining this issue.
[7] On the other hand, the mother submits that the court should award her sole custody on the ground of the parties’ total inability to communicate and cooperate. Counsel for the respondent writes in his final written submissions:
“2. The Applicant and Respondent have demonstrated an inability to communicate and cooperate with another in their son’s best interests. In fact, the bulk of negative interactions between the
Applicant and Respondent stem from inability to build a consensus with respect to important custodial decisions. Respondent submits that her decisions are often met with opposition and that the Applicant refuses to provide an explanation for said stances.
Therefore, the Respondent requests that Your Honour award her sole custody.”
- B - Final decision
[8] The mother takes the position that as the parent with sole custody, she should have the power to make the final decision in regard to the important decisions affecting the child.
[9] The mother submits that no meaningful communication will continue to be possible with the father in the future. She submits that the father refuses her efforts at communication. Any important decision will have to be taken within a reasonable time and the father’s refusal to communicate will prevent that and lead to stressful situations not in the best interest of Gavin.
[10] The father submits that this Court has in the past awarded joint custody while giving one of the parents the final say in case of deadlock. It is in the best interest of Gavin that his custody be awarded jointly to both parents with the final say after consultation left with one of his parents. The final decision in one area could be left to the mother and in another area to the father.
- C - Imputing Income
[11] The applicant father submits that a minimum annual income of $40,000 should be imputed to each party.
[12] The respondent mother on the other hand submits that the court should impute an annual income of $100,000 to the father.
- D - Retroactive support
[13] The respondent mother submits that the father should be ordered to pay child support based on the imputed annual income of $100,000 retroactive to the date of separation.
[14] The applicant father submits that no retroactivity should be ordered. What he has paid to date corresponds to what he was required to pay given his financial circumstances at different times. In fact, the father submits that he has overpaid support since the child is equally with both parents.
ANALYSIS
Credibility
[15] In general, I find that the mother and father tended to exaggerate the other party’s unreasonable conduct. However, I do not find the parties were deliberately
trying to mislead but were trying to tell the story of their cohabitation and the period after breakdown as they subjectively lived it. As often is the case, both lacked objectivity which prevented them from seeing some of the events as they really occurred. One exception is the father’s testimony on his financial resources which I find not truthful. I will get back to this.
[16] Both counsels submit the opposing party is not a credible witness while asserting that their client is a credible witness. Therefore, both submit their client should be the one believed when their testimony revealed conflicting evidence.
[17] I disagree with counsel’s characterization of the credibility issue. First of all, I do not believe credibility or lack of credibility in this case is an important factor in reaching a proper decision of the custody issue. Most of the time, the events speak for themselves and the conflicting evidence is more often than not peripheral to the real issue, namely the best interest of Gavin.
[18] However, the mother’s keeping of the child in contravention of the temporary order was wrong and she knows this now. She tried to justify her behaviour and when doing so she was not truthful. She paid for that in costs awards against her. I find that this conduct shows her at the time as an overprotective mother exhibiting signs of high stress and anxiety secondary to the separation. As her support worker Manon Bélair testified, when she first met her, she described the mother as lacking self esteem, very insecure, lost as to what was happening and very anxious as to how this would affect Gavin.
[19] The father’s conduct at the time of separation was a major contributor to the mother insecurity. I find the father was a very controlling person. There is evidence of this by the way he chose to end the relationship by delivering a separation letter, dictating that the mother had to remain in the house. He had already installed cameras in the house to spy on the mother. When the mother could not live in this environment, she left with Gavin to go live with her father only several kilometers away.
[20] The father then exhibited an exaggerated and violent reaction. He was furious the mother had not followed his direction to stay in the house. He phoned her and texted her to let her know his anger. In one text, he wrote:
“I hope you understand that what you have done here to me, today, will never be forgivable. Remember I begged you to be civilized for Gavin’s sake and I told you not to do anything that would jeopardize him having a healthy and happy environment moving forward. I still cannot believe that after all I’ve done, that I’m treated like this … like I was a terrible person to you or ever hurt you in any way.”
Several days later, he told her:
“If you want to see fangs honey I’ll show you fangs, I’ll show you fucking lawyers, I’ll show you everything. You don’t think a week a week is fair trust me that’s exactly what’s going to happen. You don’t give a fuck about anyone but yourself. You fucking disrespected me by doing this shit. Everything my mother bought you, everything my family has given you all fucking gone, the vehicle I bought you is gone. I have done more for you than anyone has in the last 28 years of your fucking life. I will get a fucking nanny and she will take care of him and she will raise him. Your going to need a lot of lawyer money. I will never criticize you. I begged you for this not to turn out this way. All this is on your conscious not mine. What you have done is wrong, what you have done to Gavin is wrong. I’ll give you 12 hours to bring back everything.
Remember I begged you. I wrote it on paper. Everything I’ve done for you means nothing. If you bought anything it was bought with my money, so whos is is really? The 20 grand you spent you can think its your money cause it has your name on it but that’s about all it had. Im just glad he is young enough that he wont see the bloodbath that will ensue. Stay at the farm. I got to go to work tonight.”
[21] I find that the applicant father was controlling and used demeaning language towards the respondent mother. I find his behaviour created serious stress and anxiety for the mother for which she had to seek counselling. I find that she is much stronger now.
[22] On the other hand, the father enjoys a very strong family support from his mother, sister and new partner. It is clear from the evidence that his family is financially strong. His mother and his sister own substantial real estate. His sister testified her company owns substantial assets both in real estate rentals and real estate brokerage. Although his new partner Mrs. Porcari strongly reacted against revealing her finances in open court, it is clear from her overall evidence that her financial position is substantial. She states that her company owns a construction company. She bought her house from her mother in 2019 for $700,000. She assumed the $500,000 mortgage registered on the house’s title. The applicant pays her monthly rent of $1000. She assumes all other living expenses. From the real estate holdings and the construction business, she
indicates her annual income is $90,000. She indicates that she helps to pay the applicant’s legal fees.
[23] Given the respective personal financial positions of the parties and the emotionally violent anger of the father, the respondent mother must be commended for having agreed to equal time parenting.
Issues
Sole or joint custody
[24] This issue has to be informed by many of the facts agreed to by the parties:
• Gavin is a healthy and athletic 3 years old.
• The parties have an alternating week shared parenting schedule.
• The parties communicate via Our Family Wizard since June 29, 2018.
[25] At the beginning of these proceedings, the Office of the Children’s Lawyer (O.C.L.) provided a clinician to investigate and to provide recommendations on the best custody and access regime. Barbara Mitchell was appointed to conduct the investigation and she released a report on June 28, 2018. Her recommendations were as follows:
“RECOMMENDATIONS:
It is recommended that Claudine Kosh have sole custody. Ms. Kosh will ensure that Mr. Gaffney is made aware of any professionals involved with Gavin and that the professionals are aware that Mr. Gaffney is entitled to obtain information concerning Gavin.
It is recommended that a gradual plan for expanding Mr. Gaffney’s time with Gavin be put in place as follows:
a) For a one-month period that Mr. Gaffney’s access be every Tuesday from 8:00 a.m. to Wednesday at 8:00 a.m. to Sunday. One week the Saturday access will end on Sunday at 8:00 a.m. and for the second week access will end on Sunday at 6:00 p.m.
b) For a one-month period Mr. Gaffney’s access with be every Tuesday from 8:00 a.m. to Thursday at 8:00 a.m. with the Saturday/Sunday access remaining the same.
c) If Ms. Kosh is uncomfortable with seeing Mr. Gaffney, she is welcome to have a family member bring Gavin for the exchange.
The above schedule is recommended keeping Gavin’s young age in mind. It is recommended that the parents engage the services of a Parenting Coordinator to assist in modifications when Gavin is older such as each parent having Gavin for full alternate weekends, to reduce the number of transitions, to provide for vacation periods and to incorporate changes such as Gavin attending day care or school as well the parents potential changing situation.
It is recommended that the parents use a resource such as www.ourfamilywizard.com as an assistance for them to communicate and for organizing the schedule.”
[26] The recommendations of Mrs. Mitchell were founded on the facts revealed by her investigation and the principles applying to custody and access of a baby. Her report sets out the following basis for her recommendations:
“… This writer observed Gavin to be comfortable in both homes and that he responded positively to both parents.
Ms. Kosh was Gavin’s primary caregiver prior to the parental separation. …
… When observed with Gavin, Mr. Gaffney showed an ability to attend to Gavin’s needs. Mr. Gaffney attests that he is Gavin’s primary caregiver when Gavin is with him. While there is no way to completely verify this, when observed Gavin was comfortable with his father and Mr. Gaffney was competent.
Both parents present as competent and able to care for Gavin. …
… The plan outlined is intended to support a more shared arrangement at present and is not intended to be a lifelong schedule. The recommended schedule involves a number of transitions and does not give either parent extended time with Gavin, something that will likely be desirable when he is older. …
… The parents presently have a great deal of conflict. Ms. Kosh reports feeling intimidated by Mr. Gaffney. Mr. Gaffney expresses frustration with Ms. Kosh. This writer does not see a level of collaboration that would make joint custody feasible. Ms. Kosh has been the parent who has mainly seen to Gavin’s medical needs and has done a good job. While Ms. Kosh does not want to be in the same room with Mr. Gaffney she has shown that she will share information about Gavin with Mr. Gaffney. Therefore, it is recommended that Ms.
Kosh have sole custody.
… As mentioned, a separation when a child is still very young can be challenging. While communication regarding habits such as feeling and sleeping are important, there is a limit to how much information can reasonably be shared. Excessive questioning and sharing runs the risk of increasing conflict. The writer urges both parents to accept that Gavin is well cared for in the other home and to focus on their own time with Gavin.”
[27] At a motion brought by the mother, Justice Maranger, on July 20, 2018, made a temporary without prejudice order granting the mother sole custody of Gavin. Justice Maranger considered the initial report of Mrs. Mitchell and accepted her recommendation of sole custody but not her suggested parenting schedule. The order remained in the form of Maranger J’s endorsement and was never formally taken out. The issue of sole or joint custody was never revisited in the many subsequent motions
although the parenting schedule was gradually increased to eventually providing equal parenting time.
[28] The applicant immediately filed a dispute to the O.C.L. report.
[29] Unfortunately, as set out in the agreed statement of facts, the trial did not proceed as scheduled. As a result, the O.C.L. was asked to file an updated report. That report was released on November 22, 2019 by Mrs. Mitchell.
[30] At the time of the updated report, the father’s parenting time with Gavin had increased to approximately 3 days per week.
[31] Mrs. Mitchell maintained her recommendation that the mother have sole custody. However, she recommended an equal parenting schedule of the type 4/3/3/4 every 14 days with equal sharing of holidays and summer school break.
[32] Her recommendations were based on the following facts and principles:
“Gavin continues to make good progress.
Dr. MacDonald, his physician, reported that Gavin is doing well. There is concern about a speech delay. Gavin was referred for a speech assessment that occurred in September 2019 and he has commenced speech therapy.
As he did in the original report, Gavin presented as comfortable with both of his parents. Ms. Kosh showed a good ability to play and interact with Gavin as well as set limits. Mr. Gaffney also showed a good ability to play and interact with Gavin as well as set limits. Mr.
Gaffney’s situation has changed since the initial report in that he is now living with a new partner and her children. Gavin’s interaction with Ms. Pocari (sic) was
positive and he appeared to enjoy playing with the other children present.
As was the case in the original report, there are no concerns about the parenting capacity of either parent. Both Ms. Kosh and Mr. Gaffney are competent and caring parents who are able to meet the needs of their son. The issue of Ms. Kosh’s mental health was addressed by Dr. Laplante who reported based on contact as recent as October 2019 that Ms. Kosh’s mental health is good and that her emotions were considered normal in the situation of a difficult custody battle. Ms. Kosh also continues to use Maison Interlude as a support when necessary.
Based on the information gathered there is no reason for each parent not to have equal time with Gavin.”
[33] At trial, Mrs. Mitchell explained that even with the new information that has come to light since filing her 2 reports, she still recommends sole custody because she believes the parents will be incapable of agreeing on important decisions for Gavin.
[34] I am of the view that joint custody substantially represents the parties’ situation as it exists today. The child continues to strive while spending equal time with both parents. Gavin is now attending pre-school which is approximately half-way between the two parent’s residence. The main area of conflict was occasioned by the transfers. That cause has been eliminated and the episode of conflict greatly reduced. The passing of time has had a beneficial effect. The mother through counselling has regained a lot of her self confidence. There is no evidence that the father has displayed harassing conduct since he has had equal time with the child. The paramount consideration is the best interest of the child and joint custody clearly works.
[35] I am of the view that the only factor which militates against awarding joint custody is the area of the making of important decision affecting Gavin. A more reasonable way
of addressing this difficulty is by allowing each parent to make the final decision in a given area. I therefore order that the mother will have final say on all health issues and the father all final say on all issues relating to school. However, I order that the final decision maker must fully inform and take into consideration the other parent’s views and comments before making the final decision.
Income
[36] The parties have already agreed on their line 150 income for the years 2017, 2018 and 2019.
[37] For those 3 years, the applicant declared $37,948, $20,762 and $26,625 respectively. For those same 3 years, the respondent declared $36,747, $21,181.60 and $14,118 respectively.
[38] The parties separated on November 11, 2017 and the applicant father commenced this application on December 15, 2017. Given his letter to the wife and the time it takes to hire a lawyer and have the lawyer prepare the court documents, I find this was well thought and planned in advance of November 15, 2017. The husband tells the court he was layed off from his construction job in December 2017. He started living with Mrs. Porcari in January 2018 less than two months after the separation and less than one month after having been laid off. He is now self-employed in the construction business as a Labour & Materials Management Consultant. I note that Mrs. Porcari is herself in the construction and real estate industry and declares $90,000 annually from her enterprise. She owns with her brothers Serco Realty Group and Serco Construction Ltd.
[39] The applicant is much more than an ordinary construction worker. He has been successful in offering his special expertise as a Labour & Materials Management Consultant. Prior to his bankruptcy in August 2015, he operated a large heating and
plumbing company known as Gafftech Solutions Inc. which generated $50 million dollars per year in revenue.
[40] When he was laid off in December 2017, he was employed by 8248885 Canada Inc. (824 Inc.). He testified the company is owned by his sister. His sister however is a full-time teacher living very far from the head office of that company. The respondent testified that the employees of Gafftech Solutions Inc. continued to work for 824 Inc. and wore the same uniforms.
[41] The applicant is not a credible witness when it comes to declaring his true finances. I find that the applicant continued to work for 824 Inc. after December 2017 and continued to be paid. I find that the applicant, with the help of his sister, and Mrs. Porcari has continued to be gainfully employed since separation and has deliberately underdeclared his income.
[42] For example, his pay stubs from 824 Inc. for 2017 indicate a total income of
$45,768.72 while he only declared $37,948. in his 2017 Income Tax returns and his sworn financial statement dated March 26, 2018. He did not declare his Employment Insurance Benefits for the period of November 2017 to April 2018. In his application for 2020, Ontario Trillium Benefit and Property Tax, he declared that he paid realty tax of
$5000 tax. At trial, he admitted not having paid tax on that property.
[43] There is no evidence providing a reasonable explanation for the substantial decrease in the applicant’s income at or around the time of separation given the applicant’s expertise and his contacts in the construction industry through his own experience and the help of his sister and Mr. Porcari. For 2014, in his return he declared $91,620; for 2015, he declared $97,810 and for 2016, he declared $74,200. I do not believe him when he states that his real income suddenly went down into the
$20,000 to $30,000 range at the time of separation,
[44] I therefore impute an income of $80,000 annually to the applicant for the purpose of calculating child support.
[45] On the other hand, the evidence does not disclose that the respondent has the ability to earn much more than what she is presently earning. She has no special training which could be transferred into civil life. However, she is young and healthy. With the end of this litigation which occupied much of her time, I find she has the ability to earn in the range of her income for 2017 and 2018.
[46] In the past, she had her income as a reservist with the army and, except for 2014, always had a very modest income. According to the notices of reassessment, her income for 2015 was $7,145 and for 2016, $1316. The parties started their romantic relationship in 2016 and Gavin was born on June 3, 2017. In anticipation of the birth, the parties started cohabiting in March 2017. The respondent’s low income in 2015 and 2016 is probably due in large part to the start of their relationship, her pregnancy and her period of maternity leave. In any event, her highest annual income goes back to 2014 and would appear to be abnormally high when compared to the years 2015 to 2019. As noted by the respondent’s counsel, counsel for the applicant did not question the respondent about her past income. In his written submissions, Mr. Delaney reviews the respondent’s pay stubs and submits that the respondent choses to work only 15 hours per month. The respondent testified that she accepts all the hours she is offered by the Canadian Armed Forces.
[47] In 2018, the respondent’s sources of income were from employment insurance and Ontario Works benefits. She is presently being financially helped by her father who does not charge her rent and her sister who allows her to use one of her cars.
[48] I am satisfied that the income reported at line 150 or her income tax returns truly reflect her income for the years 2018 and 2019 and that her income in 2020 is approximately $14,000 as it was in 2019. Now that the stress and anxiety of the
separation and litigation are over, I believe she should be able to return to her earnings pre-separation and I input an income of $30,000 to her for 2021.
Child Support and Retroactivity
[49] The evidence does not disclose any valid reason why the child support should not be retroactive to January 1st, 2018.
[50] The child support must be calculated differently at different times to take into account the time spent by the child with each parent.
[51] From January 1st , 2018 to June 25, 2019 (period one), the child resided with the mother. From June 25, 2019 to December 31st , 2019 (period 2), Gavin spent 3 days out of 7 with his father. From January 1st, 2020 to December 31, 2020 (period 3), Gavin spends equal time with his parents. Therefore, for period 1, the full guideline amount namely $745.00 monthly will be payable by the father based on his imputed income of
$80,000.
[52] For period 2 and 3, the amount payable by the father in accordance with the provisions of section 9 of the Child Support Guidelines, taking into account the respective income of each parent, namely $80,000 for the father and $14,200 for the mother.
[53] Starting on January 1st, 2021, the calculation will take into account the imputed income of the father of $80,000 and the imputed income of the mother of $30,000.
[54] The parents will share the future special and extraordinary expenses proportionately to their respective annual income. For 2021, the ratio will be 62.5% for the father and 37.5% for the mother.
[55] Therefore, for period 1 effective January 1st, 2018 the child support is fixed at
$745.00 per month. For period 2 and 3, the child support will be $683.00 being the difference in the applicable guideline amount for each parent. Obviously, the conditions, means, needs and other circumstances outlined in section 9 (c) greatly favour the father and could attract a higher amount payable by him. However, I have already taken these into consideration, at least in part, when imputing an income of
$80,000 to the father.
[56] Starting in January 1st, 2021, the monthly child support will be $489.00.
[57] The father is entitled to be credited with the amount of child support he has already paid when determining the amount of arrears. Counsel should be in a position to make the necessary calculations. If for some unknown reasons they cannot agree, they can communicate with me. The arrears shall be paid within 90 days.
[58] Counsel for the mother shall prepare the order in accordance with these reasons and submit it to counsel for the father for his approval as to form and content.
[59] Finally, counsel may provide me with brief written submissions on costs: the respondent, within 20 days, the applicant 15 days thereafter and then 5 days for a brief reply if absolutely necessary.
The Honourable Justice M.Z. Charbonneau
Released: November 17, 2020
COURT FILE NO.: FC 301-2017
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER KEVIN GAFFNEY,
Applicant
– and –
CLAUDINE HEIDI KOSH,
Respondent
REASONS FOR JUDGMENT
Charbonneau, J.