J.E.A. v. A.S.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.E.A., Applicant
AND
A.S., Respondent
BEFORE: Regional Senior Justice C. MacLeod
COUNSEL: Stephen Pender, for the Applicant John Summers, for the Respondent
HEARD: January 27 – 29, 2021, February 1 – 3, 2021, May 28, 2021
Reasons for Decision
1This application was commenced on November 17, 2016 and came on for trial at the Family Law sittings in January of 2021. As the province was in lockdown in January and in-court appearances were restricted, the trial took place as a virtual trial. This involved the Zoom videoconference platform and documents shared electronically. Documents marked as exhibits were provided to the Registrar by e-mail and retained in an electronic exhibit folder.
2As the parties had advised me they were about to implement a change to the parenting schedule and because significant changes to the Children’s Law Reform Act came into force on March 1, 2021, I heard further submissions on May 28, 2021, prior to releasing my decision,.
3The following is my decision and my reasons for judgment.
Introduction
4The parties are the parents of a daughter born in 20141. The birth of the child took place during a period of co-habitation which began on October 30, 2011 and ended on August 5, 2015. Sadly, the interpersonal relationship between the parents had become abusive and their cohabitation ended with an assault, criminal charges against the respondent and a period of probation.
5It will be evident that the litigation has now gone on for longer than the original relationship and since separation, the parents have been involved in a parenting dispute which has persisted for most of the young child’s life. The child was nine months old at the time of separation, two years old when the litigation commenced and is now six years of age. There has been no direct communication between the parents in all of the intervening years. As I will describe, this has had a significant impact on the potential for joint decision making or even basic communication concerning the best interests of their child.
6In addition to parenting arrangements for the child, the issues before the court are child support, spousal support and the applicant’s claim to an interest in real property. I will deal with each of these in turn although they are, to some degree, intertwined.
Background
7As noted above, the relationship was of short duration and did not end well. The essential facts are as follows.
8The parties started dating in 2010. At that time, as he is presently, the respondent was a federal public servant. At the time, the applicant was a graduate student. She had just completed a master’s degree at Carleton University and was planning to pursue a Ph.D. There have been some interruptions in her education since that date, but at the time of the trial the applicant was just completing her Ph.D. at the University of Ottawa.
9As mentioned, when the parties started dating the applicant had just completed a post-graduate program. The focus of her research had been parasitic crop pests. It appears she was an accomplished student, having conducted research in Switzerland, written reports for Agriculture Canada and published articles and papers. She testified that it was and remains her career goal to obtain a position as a research leader with the Canadian government. In 2011 she already had significant academic and scientific contacts and was about to apply to Ph.D. programs.
10When the parties met, the applicant was working at part time jobs. She was a waitress at a local pub where the parties met. She was also working at the Carleton University greenhouse. In addition, the applicant had a busy volunteer life, carrying out tasks and projects at Environment Canada and the Canadian Museum of Nature.
11During the early part of the relationship the parties were simply dating and both of them were overseas at times. The respondent was in Sri Lanka for some time in 2010 and in May of 2011 the applicant was involved in a research project in Nicaragua. According to the evidence, the parties remained in contact, realized they missed each other, and the relationship deepened during this time.
12One of the topics of discussion while the applicant was in Nicaragua was the respondent’s plan to buy a condominium. Instead, he purchased a two-bedroom house. It was his evidence that he decided to purchase a residence where they could both live if they decided to cohabit and make a future together.
13It is undisputed that the respondent unilaterally purchased the home at E[...] Avenue while the applicant was in South America. This was the topic of some emails and as I heard at the trial, it was the cause of some anxiety and confusion. The applicant was not sure how she felt about the respondent moving forwards without her while the respondent wanted to get into the property market and to surprise the applicant with a house he hoped would delight her.
14Eventually, when the applicant returned to Ottawa, the parties decided to live together. They discussed how they could make this work financially since the respondent had full time employment, but the applicant did not.
15It is clear from the evidence that the parties discussed how they might each contribute to the property. They set up a mortgage that was divided into three portions and it was agreed the applicant would pay one portion and the respondent would pay two. During the period of co-habitation, that is what occurred and on at least one occasion the parties accelerated the mortgage payments. As a consequence, it is possible to determine exactly how much each of them contributed to paying down the mortgage.
16There is disagreement as to how the parties divided the other expenses of living together. At different times, they used credit cards belonging to one or the other and they do not agree on the history of financial contributions. In fact, the evidence shows that the sharing of expenses was one of the sources of tension. Despite not having a precise arrangement (apart from the mortgage) and despite the applicant’s sources of income being contracts, between them the parties had significant income. The applicant earned more than $30,000 and the respondent more than $100,000 in each of the years 2012 to 2014.
17Although a number of emails were produced and marked as exhibits, they do not reveal anything particularly extraordinary. As the relationship progressed, the parties discussed many things. They discussed investing in real estate and “building an empire”. They discussed investing and building a future together. As a couple they travelled, vacationed and were on the look out for investment properties. They took vacations in exotic locations such as Spain and Peru. They had weekend getaways in Montreal. In 2012 they decided to start a family together.
18Initially they had no success getting pregnant and in 2013 they consulted the Ottawa Fertility Centre. Apparently, they were told there was little chance of conceiving naturally and they were considering Invitro Fertilisation. In 2013 they also had stresses in the relationship due to responsibilities and illness in the applicant’s own family. Then suddenly, in March of 2014, the applicant found herself pregnant.
19At the same time as she found herself pregnant, the applicant had been applying for a Ph.D. program. She had prepared a research proposal in collaboration with one of the scientists at Environment Canada. The respondent was supportive and, in fact, he helped her prepare her application. Ultimately, when they discovered the pregnancy, they decided to use parental leave to their advantage. The applicant was to start her Ph.D. program and the respondent decided to work on a master’s degree.
20Unfortunately, their co-habitation did not go well. With the benefit of hindsight, the respondent acknowledges that he was increasingly controlling and abusive. This took the form of name calling, silent treatment, door slamming, blocking the way, pushing, grabbing and culminated after the birth of the child in an assault. The applicant states that they were continuously discussing how they would share expenses but never seemed to come to an agreement. She describes the respondent as becoming more and more angry and having more and more extreme outbursts. Both parties testified they believe they were suffering from depression.
21After the birth of the child, there were disagreements about sharing work and about parenting. The respondent was working on a master’s degree and the situation in the household became increasingly tense. The applicant described a situation of escalating threats and violence including efforts to control her through the child. Ultimately, on the date of separation, the respondent assaulted the applicant in the presence of the baby. The details and the severity of this incident have not been established, but it resulted in police and CAS involvement.
22As a consequence of this incident in August of 2015, the respondent was arrested and charged with assault. That was the end of their cohabitation. The respondent pleaded guilty to assault and was put on probation. Initially due to terms of his interim release order and subsequently due to the probation order, the respondent was prohibited from contacting the applicant or the child except pursuant to a family court order. It appears that both parties rigidly adhered to these restrictions and, as I will describe, this resulted in the respondent playing a very minimal and constrained role in the life of the child in her early years. In fact, there has been no direct contact between the parties and they have not been together in one place other than a court room since the date of separation.
23Between August of 2015 and June of 2016, the applicant continued living at the house and she continued paying her share of the mortgage. Once the applicant left the home and the respondent could return, he sold the home. It had increased in value and, as mentioned above, the mortgage had been reduced substantially due to the accelerated payments made by each of the parties.
24For many months following separation, the respondent was unable to see the child because he was barred from contact and no court order or agreement was in place. He was able to visit on one or two occasions under the supervision of Ottawa Children’s Aid Society (CAS). In time, he was able to make arrangements through the Supervised Access Centre. Limited supervised access began in 2016 and was gradually expanded. Unsupervised access did not take place until 2018 and overnight access only began in 2019. At the time of the trial, the respondent was exercising access on one evening every second week and the child was with him every second weekend.
25I mentioned that the application was commenced in 2016 when the child was only an infant. For reasons that are not apparent, it did not come to trial until 2021. It might have done so earlier were it not for the impact of the COVID-19 emergency measures in place during most of 2020, but it is nevertheless significant that the court is now asked to deal with parenting arrangements for a school aged child. I am asked to do so without any objective evidence about the best interests of the child, the parenting skills of the parties or the views and preferences of the child. I will return to this point shortly, but it is worth observing that it is problematic.
26I heard evidence that the child has become increasingly resistant to the mid-week visitation and is behaving in an uncharacteristic manner. She has tantrums, is resistant to going with her father and acts out. Yet there is no evidence that anything inappropriate occurs during the access visits. Counsel had apparently agreed that no hearsay evidence about the child’s own wishes would be admitted. There is no OCL report and no voice of the child report. As a consequence, the only evidence is that of the parties and partisan witnesses.
27In part, this reflects the fact that certain issues are not in dispute. It is no longer the position of the applicant that the respondent’s parenting time must be supervised or that he should not have overnight time with the child. No evidence was led other than the history between the parties that the respondent is in any way inappropriate with the child and nothing has occurred in the history of the proceeding to justify a reduction in parenting time. To the contrary, there has been a pattern of slow if lurching and grudging increase in parenting time, often on the eve of a court proceeding.
28The only evidence before the court is that the father’s time with the child is enjoyable and rewarding for the respondent and the child. Still, the evidence I did hear raises significant concern about nascent alienation. Whether this is intentional or not, the structure of the access visits and the lack of communication between the parents is clearly a contributing factor.
29I was advised at the trial that the parties had agreed to eliminate the weeknight parenting time in favour of slightly extended weekends. I had believed they were going to implement this, but I have now been advised this did not take place pending my decision. I did not hear additional evidence on this point, so I am not aware of how the transitions have been since the trial date. It is safe to presume there has not been a crisis.
Analysis & Decision
Parenting
30I will deal firstly with the parenting issues because I consider them to be the most important and complex. In addition, the parenting arrangements have implications for child support. The contentious issues are parenting time and decision making.2
31As noted, the child is now six years old. I was given no evidence about the child’s views and preferences partly because of the age of the child during much of the litigation, but also because the parties had been unable to agree on involvement by the Office of the Children’s Lawyer or any other clinician. As I will come to, this caused some concern because of the evident distress the child is manifesting around the time with her father.
32There is no doubt that the mother has had the primary care of the child since separation and it is undisputed that the child is thriving in her care. The only area of concern is the evident inability of the mother to foster a natural and generous relationship between the child and her father and the nascent signs of alienation which were described in the evidence. This is a very significant concern.
33The father’s role in the child’s life has been circumscribed. In the period immediately following separation, this was the result of bail conditions and a probation order. Those conditions prohibited direct or indirect contact with the applicant and the child and prohibited the respondent from being within 200 metres of anyplace where either of them were except for court appearances or as permitted by a family court order.
34The consequence of this has been that the respondent has been unable to see the child unless he could obtain a court order. And, remarkably, the applicant and the respondent have not communicated with each other except through counsel or in a court room during this entire period of time. I am not in a position to determine whether this is justified or not. The respondent appears to have done nothing to force the issue and the applicant was traumatised by the physical assault which she recalls as including strangulation. The respondent pled guilty to assault but not to those facts it seems, and I have no doubt that as a government employee he can ill afford a criminal record. He could not put himself in the position of breaching his conditions.
35The pattern revealed by the access history is that the respondent has only been able to obtain expanded access sporadically and often as a result of a court appearance. The history of that access is as follows:
a. There was no access from August of 2015 until May of 2016 except for one or two visits supervised by the CAS. The parties were unable to agree on a third-party supervisor and the respondent had applied to the Supervised Access Centre which had a waiting list.
b. In May of 2016 the respondent began to exercise access at the Supervised Access Centre. Despite those visits going well, the parties were unable to agree on an expansion of access or to access in the community.
c. In November of 2016, the applicant started this application. In the application she asked for sole custody and supervised access.
d. In February of 2017, at a case conference before Master Fortier, the parties agreed to an order for supervised access. Access was increased to four hours at the Supervised Access Centre every two weeks.
e. In September of 2017 at a Settlement Conference, the parties agreed to unsupervised access on Saturday and Sunday for four hours each day. Pick up and drop off were to take place through the Supervised Exchange Program or in the presence of a third party (but not the respondent) at Tim Horton’s.
f. In early 2018 the parties agreed to an expansion of access, but not to overnight access. Ultimately the respondent brought a motion.
g. In February of 2019 there was a contested motion following which the respondent was granted expanded access every second weekend from Saturday at 9:30 until Sunday at 6:15 and mid-week access on Wednesday evenings. The respondent also sought the involvement of the OCL, but this was opposed. Justice Beaudoin refused the order because he believed the matter to be on the eve of trial and because of the age of the child (4 ½). There had been two settlement conferences.
h. At some point prior to the trial, access was expanded to include Friday evenings on access weekends. At the trial the parties agreed to eliminate the mid-week access and expand the weekend access to include Thursday evening.
i. Throughout this period, the applicant has insisted on third party supervision of pick up and drop off and also that it take place in a public place. The applicant continues to oppose direct contact between the parents even if the exchange is at Tim Horton’s or in front of the YMCA.
j. At trial, the applicant agreed to use a communication application such as 2houses.com or ourfamilywizard.com, but she had refused to do so up to that time.
36I pause to note the delay between March of 2019 and the date of trial. As noted, the child was only 4 ½ when the motion was argued in February of 2019 and the matter was expected to proceed to trial shortly thereafter. It does not appear that it was placed on a 2019 trial list and of course the COVID-19 pandemic struck in February of 2020. In-court appearances were suspended on March 17, 2020 and only emergency matters could proceed. Ultimately this matter was placed on a virtual assignment court list in December of 2020 and as noted above, it came to trial in February of this year. By that date, the child was 6 ½, but the case had been prepared for trial when she was much younger.
37At the trial, the respondent gave evidence. This was the first time he has had an opportunity to address the applicant directly. It is also the first time that the applicant became aware that although the respondent pled guilty to assaulting her, he did not acknowledge nor recall that during the assault he was choking her.
38According to the respondent he pleaded guilty to simple assault, but I was not provided with a transcript or with the facts that were read into the record. I will not be making a finding about the specifics of the assault or the level of violence. Suffice to say that the applicant experienced it as terrifying and traumatic, that the respondent admits he pinned her to the bed and knelt on her chest and he also admits that the child was present. It was a significant act of violence.
39As part of his terms of probation imposed in August of 2015, the respondent participated in the “New Directions” program through Counselling and Family Services Ottawa. At trial the respondent spoke eloquently about insight he had gained during that program, how he had come to terms with his own abusive childhood and that his eyes were opened to the fact that he had behaved abusively during the relationship. He indicated that before the program, he had not realized that slamming doors and refusing to communicate was abusive and manipulative. He testified that he had never really recognized that pushing or grabbing a partner was assault. Finally, he acknowledged that whatever his recollection of events, the experience of the person who suffered abuse is legitimate and real. This expression of insight and remorse struck me as sincere. It is corroborated by the letter of completion he received from the program commenting favourably on the respondent’s development of self awareness.
40I found this testimony compelling and a testament to the benefits of the New Directions Program. It would be beneficial for judges who order participation in that program to hear that at least for the respondent, it was in his words, a “life changing experience”. The respondent apologized for his past behaviour and testified that he understands the experience would have been deeply distressing for the applicant. He testified that he understands the applicant would have been hurt, angered and scared. The respondent commits himself to communicating with the applicant only on parenting issues and to dedicating himself to being the best father he can be to the child.
41I believe him when he says this, but it does not follow that I should force the applicant to be alone with the respondent or to converse with him directly. That is a decision she would have to make herself for the sake of the child and in order to normalize the relationship. I encourage her to do so, but of course it would have to take place in circumstances that are both physically and psychologically safe for her. I will not compel her to put herself in the physical presence of her abuser no matter how sincere the respondent may be in his expression of reform and remorse. The applicant has agreed that the parties may communicate using a digital parenting application rather than communicating through counsel. That at least is a step towards more normal communication, and it is past due.
42I heard considerable evidence about the abuse experienced by the applicant as the relationship deteriorated. I also heard evidence from the respondent and from his sister about his own experience of childhood physical and verbal abuse. As mentioned, however, this was not a trial to determine the gravity of the assault or the cause of the respondent’s anger management issues during the relationship. There is no allegation that the respondent is currently a danger to the applicant or that his parenting time with the child exposes the child to anger or violence. As far as I can determine, the only relevance of this evidence now is to explain the reluctance of the applicant to have direct contact with the respondent and to oppose the proposal for joint parenting time. But there is no suggestion now that the respondent cannot be trusted with the child. He has demonstrated, at least, sufficient parenting capacity to be trusted with the child for days and nights at a time.
43The applicant herself has seldom, if ever, witnessed the respondent interact with the child. The only witnesses to the respondent’s current parenting skills were his own friends and family and observations of the exchange by friends of the applicant. Albeit there was no objective or professional assessment, all the evidence that was before the court indicates that the respondent has a positive relationship with the child when she is with him and that his interactions with her were appropriate. It is conceded by the applicant that when the child was younger, visits at the Supervised Access Centre were positive.
44The applicant’s position at trial was not that the respondent could not be trusted with the child. Her proposal was to lengthen the weekends so that he would have more overnights in a row but to eliminate the mid-week visit because it was difficult to organize and was distressing to the child. While disagreeing with the details of the proposal, the respondent is in agreement with the idea that the mid-week evening visit is not working well.
45I heard very concerning evidence about difficulty with transitions. Several witnesses described the child acting completely out of character and having tantrums when it was time to go on an access visit, particularly the mid-week access visit. This suggested that the transitions are deeply traumatic for the child, but here, again, I was not assisted by any professional evidence. Furthermore, counsel were at pains not to put any comments by the child before the court. So, although I had ample evidence of the child acting out and resisting access, I have no insight as to what the child would say beyond hearing that she sometimes verbalized not wanting to go to see her dad. All of the evidence indicated that the respondent was patient and appropriate with the child and there was no evidence that he ever acted inappropriately despite the child engaging in some very oppositional behaviour at the time of some of the visits.
46The mother has wittingly or not contributed to the access difficulties. She refuses to meet the respondent face to face so that all transitions are at a public location in front of the YMCA and are supervised by friends of the mother. Quite apart from the likelihood that the child must notice that her mother and father have no normal interaction, the access arrangements are almost calculated to be distressing for the child. For example, one of the witnesses who supervised the pick-up and drop-off for mid-week access is in the habit of bringing her own daughter over to visit the mother and child. Then the child is taken by the friend of her mother to visit her father while her own friend (the caregiver’s daughter) remains at home with the applicant. The child must therefore leave her mother and her friend to go and see her father. It is not surprising that situation has produced a less than optimal outcome. All witnesses agree that the child acts out in a most uncharacteristic manner, demonstrating defiance, anger and sadness. This creates a scene and must be very upsetting to all concerned.
47Despite the distress in transition, the evidence is also consistent that once the father has the child in his care, the relationship between father and daughter seems to observers to be normal and loving. There is no evidence that anything inappropriate goes on at the father’s house.
48As mentioned, the court has not been assisted by any neutral observation, home visits or professional advice. Moreover, the parties themselves had agreed to eliminate the mid-week access in favour of extending weekend access. So, without any professional advice, without any evidence of the child’s own wishes and with no neutral evidence, the court is asked to adjudicate competing parenting schedules and competing visions of how decision making should operate. I addressed this with counsel. I considered adjourning the trial for a voice of the child report, but ultimately, I concluded that further delay would not be beneficial particularly in the middle of the pandemic at the time of a provincial lockdown.
49The respondent believes he has been purposefully excluded from the child’s life and gives various examples of unilateral decision making by the applicant. For example, the applicant has decided the child should be vegetarian. The applicant has made all decisions about extra curricular activities, schooling, medical and dental care. In addition, at least until the time of the trial, the applicant was resistant to using communication tools such as Our Family Wizard or 2 Houses.
50The respondent proposes shared parenting with a gradual increase in parenting time until the parties have equal time with the child. He then proposes alternating weeks although he acknowledges this should be phased in and not happen immediately. He also proposes joint decision making.
51I can understand the attraction to the respondent in such a proposal, particularly faced with what may be the beginning of parental alienation. The sole test to be applied, however, is the best interests of the child. I am not persuaded on this evidence that joint decision making has any prospect of success as of the date of the trial. Hoping that communication will improve after the trial is not a basis for a joint decision making regime. There must be some evidence that the parties have the wherewithal to make it work. 3 On the other hand, it may be possible to lay the groundwork for better communication and consultation in the future.
52Pursuant to the amendments to the Children’s Law Reform Act, the court is to consider specific factors in assessing the best interests of a child and in making a parenting order. 4 The relevant sections read as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
53Subsections (5) and (6) are important subsections. They contain the presumptions of maximum contact and the presumption that past conduct should not define a parenting relationship. On the other hand, they are not absolutes. Subsection (6) is not a mandate to order joint parenting or equal parenting time in every case. Parenting time must be consistent with the best interests of the child. Similarly while parents are both entitled to participate in decision making, where the rights of one of the parents have been suspended by agreement or by circumstance, it would not be in the best interests of a child to automatically impose joint decision making if that is not workable.
54In this case, the situation is immensely complicated by the history of domestic violence. The respondent, to his credit, acknowledges that he was abusive and controlling and acknowledges that the experience of that abuse may have been very significant for the applicant. The respondent deserves a chance to continue building a healthy relationship with his daughter, but it is a consequence of the manner in which the parties separated that the applicant has not been willing to be alone with the respondent and the respondent has not been in a position to more strenuously push for greater involvement in his daughter’s life.
55As a result, the reality is that the applicant has had the principal care of their daughter and has made most of the decisions during her entire lifetime. The mother’s interim responsibility for education and daycare decisions was confirmed at the motion in February 2019. The question is whether at this point in time based on the evidence at trial, it would be in the best interests of the child to disrupt this status quo by imposing joint decision making and equal parenting time. I do not think that can be justified at this time on this evidence. On the other hand, there is good reason to give the father a greater role than he has been able to exercise to date. Parenting is a work in progress. The parties will be at this for many years to come.
56I agree with the parents that reducing the number of transitions may be helpful. I also agree it would be fair to increase the length of the weekend access to take in more of the week. As mentioned, the applicant’s proposal is for access to begin after school on Thursday and continue until Monday morning every second weekend. The respondent agrees to this as a starting point although there is some difference between their draft orders as to the starting time and the arrangements for pick up and drop off if it cannot be done at school. The parties also agree that if the weekend falls on a long weekend, the parenting time would be extended to take in the extra day.
57I am concerned about the applicant’s messaging around the respondent’s parenting time and the factors contributing to oppositional behaviour around the access time discussed above. Eliminating the weeknight parenting time in favour of longer weekend access is certainly worth a try. The applicant has also agreed to counselling for the child. While I do not think it wise to leap to joint decision making, it is not reasonable for the applicant to continue making decisions for the child without consulting the respondent. The respondent is entitled to a far greater role than he has been allowed to exercise to date. He is entitled to be informed and consulted about significant decisions in the child’s life as far in advance as possible.
58The parties have agreed to begin direct communication using the 2 Houses parenting program. Their communication is to be respectful and child focused. Effective immediately, the parties are to register and make use of 2 Houses or by mutual consent, Our Family Wizard or another similar service for electronic information exchange and communication. Each parent will be responsible for their share of the costs. The applicant is to ensure that all information regarding the health, education or well being of the child which comes to her or to her home is posted to the service where it may be accessed by the respondent.
59Joint decision making is not a viable option given the history of lack of communication. Still this is not an excuse for failing to consult the respondent or to keep him advised of what is going on in the child’s life. The respondent has the right to be advised and consulted and to participate in special events such as school concerts or activities that are open to parents.
60Although I am not prepared to order joint decision making and thereby give the respondent a veto, I am ordering the applicant to consult with the respondent to seek his opinion and to provide him with as much advance notice as possible of any significant decision relating to the child’s health, education, religious upbringing or dietary choices.5 The respondent shall also keep the applicant informed of any information relating to any of these subjects which come to his attention. Both parents shall have access to health, education and other records normally available to parents.
61The parties will have to negotiate changes to the parenting schedule. That is inevitable. They can do so by making requests for changes through the 2 Houses program and each of them will be required to accommodate reasonable requests made by the other particularly if the purpose of the change is for the child’s benefit. The alternative will be to adhere to the relatively rigid and simplistic parenting schedule which I will put in place as the default.
62I am not prepared to order equal parenting time. In fairness, the respondent is not asking me to do so now. He proposes a phase in period with an eventual move to equal shared parenting but for the reasons discussed above, I consider it premature to pre-determine what may be in the child’s best interests after a new parenting schedule is initiated and the impact of that change can be assessed.
63Of course, the respondent would like to lengthen the times, but I cannot assess how well this proposed access schedule will work in comparison to the schedule the parties were following prior to the trial. A better approach will be to review the parenting time after the new schedule has been in place for a year and perhaps once the tensions and pressures of coping with the COVID-19 epidemic have started to abate.
64One of the complications is pick-up and drop-off. The applicant now proposes that the father have parenting time from 3:30 p.m. every second Thursday until 9:00 a.m. the following Monday or Tuesday if it is a long weekend. The respondent proposal is similar except that he proposes his parenting time start at 6:00 p.m. on Thursday.
65The point of these times in the applicant’s proposal would be to have the pick-up and drop off take place at school without any direct contact between the parents. By contrast, the respondent’s proposal would be to pick the child up after his work day on Thursday and, while he is prepared to return the child to school or pre-school day care following the weekend, he is proposing a direct exchange between the parties in a public place on the Thursday evening and at times when there is no school.
66As we know from the provincial government announcement this week, there will be no in-person schooling in Ontario until September so for at least the next three months pick-up and drop-off from school will not be an option. As I have already indicated, I am not prepared to force the applicant to meet directly with the respondent until and unless she is prepared to do so.
67Rather than trying to micromanage the matter with insufficient evidence about possible outcomes, it seems more appropriate to assign the responsibility for parenting. It will then be the responsibility of each parent to make arrangements for the care of the child during their parenting time and it will be the responsibility of each parent to ensure the child is transferred to the other parent at the appropriate time. One of the purposes of the legislative amendments is to move the focus from parenting as a possessory right to parenting as an exercise of responsibility. Parenting time is the time during which each parent is primarily responsible for the care and well being of the child.
68In my view, the appropriate disposition is to provide the father with parenting time every second week as proposed but rather than the court trying to determine how to manage work schedules, day care arrangements or other matters which are currently in flux due to COVID, it is a matter of assigning the responsibility to each of the parents. Had the court accepted the father’s proposal for equal parenting time, the respondent would have been responsible for the care of the child during his parenting time even if he was at work just as the applicant is during her time. Similarly, under the proposals set out in the draft orders, the father would be responsible for after school care on Fridays. There is no reason he should not have the same responsibility on Thursdays.
69In addition, while I have not accepted the proposal for alternating weeks, I do take into account the loss of the mid-week access and the respondent’s wish for significantly more time and responsibility. In my view this can be accommodated by starting his parenting time at 12:00, noon on Thursday and continuing until 12:00, noon the following Monday (or Tuesday on holiday weekends). This allocation of parenting time will mean that during the school year when school is in physical session, the father will be responsible for the care of the child starting at the end of the school day on Thursday and he will be responsible for getting the child to school on Monday or Tuesday as the case may be. When school is not in session, the father will be responsible to pick the child up from a place designated by the mother and to return the child to a suitable place on the Monday or Tuesday before noon. The mother will be responsible for ensuring the child is available for pick-up, properly equipped for the visit and for encouraging the child to look forward to time with the other parent.
70I am not ordering that pick-up and drop-off take place precisely at noon, but rather that will be the time for the change in responsibility for parenting. If the child is in day care, summer camp or school, the pick-up and drop-off will be at the beginning or end of the program day.
71School is not in physical session at present and will not be until September. Consequently, if there is no day care or summer camp in progress, pick up and drop off will have to continue in a public place and unless the applicant is prepared to be in proximity to the respondent, it will have to be arranged through intermediaries. This arrangement is not for the benefit of the child - in fact, as discussed above, it may be contributing to the difficulty around transition – but is for the mother’s psychological and emotional well being. As such, it will continue to be the mother’s responsibility to make the arrangements for an intermediary and she is to do so in a manner that will promote the parenting time rather than discouraging it. The respondent is obliged to respect the applicant’s continued wish to minimize direct contact and to take reasonable steps to accommodate it.
72To be clear, the applicant may select the location and designate an intermediary, but it her responsibility to ensure the child is available at the start of the respondent’s parenting time. It is the respondent’s responsibility to make arrangements to pick-up the child and it is his responsibility to return the child to the designated location at the end of his parenting time. As punctuality has been an issue, the respondent is to be available at least 10 minutes before the time fixed for the exchange.
73In July and August, the parties agree they should each have two uninterrupted weeks with the child, but they disagree as to whether the weeks should be consecutive or not. In my view, the weeks should not be consecutive this year due to the significant changes in the schedule and the restrictions on travel that continue in place. In future years, two consecutive weeks may be appropriate, but that is a matter which is better left to the parties to determine in the fullness of time. I am not in a position to manage the future vacation schedules without knowing how these arrangements will work in practice or knowing what circumstances may be in future years.
74The father also proposes numerous changes to the parenting schedule to accommodate the parent’s birthdays, Mother’s Day, Father’s Day, Thanksgiving and Easter. Some parents find those sorts of changes to the schedule to be practical and others do not. Another way to deal with it is simply to continue with the regular schedule. Generally, on a schedule of every second weekend, one of the parents winds up with the majority of long weekends in any given year. In this case, given the lack of cooperation and communication in the past, the most practical manner of arranging the schedule is to create a simple default schedule and then to permit the parties to deviate from that schedule by mutual consent.
75This can be achieved by assigning the father Thursday to Monday weekend time every second week and adding the extra days on long weekends. Similarly, unless the parties otherwise agree, the summer weeks can be established by simply adding a week to the father’s second weekend in each month. The mother may take the child on vacation for a full week at any time which does not interfere with the father’s parenting time. Should the parties wish to adjust the schedule so that the vacation week runs from Sunday to Saturday rather than from Tuesday to Tuesday, they can do so by mutual agreement.
76I agree that the Christmas vacation should be divided and if the parties do not make a different arrangement, the respondent should have the first week in odd numbered years and the applicant should have the first week in even numbered years. March break should be divided in similar fashion with the applicant having the first half of the week in odd years and the respondent in even years. Of course, the parties may prefer to agree to alternating full weeks particularly if they wish to travel with the child. I have no doubt there will be other reasons that the schedule has to be adjusted. There may be events involving extended family on either side. The child has a right to know both of her families and to benefit from her mixed heritage. Requests for changes to the schedule may be communicated through the 2 Houses website and both parents are to accommodate reasonable requests providing that in doing so the needs and interests of the child should be the guiding principle.
77If the parties cannot work out the details of the parenting schedule, I encourage them to make use of a skilled family mediator. There is no justification for the ongoing involvement of lawyers in parenting decisions or in day to day communication. At the trial, the parties advised that they were prepared to utilize the online communication tool and both parties affirmed their belief that it is in the child’s best interests to have a full and loving relationship with the other parent. The respondent acknowledges that, apart from his concern that the applicant is not promoting his involvement with the child, she is an excellent mother. The applicant conceded that the relationship between the child and the respondent is a positive one and she acknowledged that he has developed significant parenting skills over the past several years.
78There is, of course, a final task for the parties and their lawyers and that is to formalize the court order. To the extent that there are additional specific terms from the draft orders that should be included in the order, if they are on consent, I am also content that they form part of the order. If there remain details that should be included and over which there is disagreement, then for that limited purpose, counsel may arrange a further attendance to address those matters.
Child Support
79There can be no issue that the respondent is liable to pay child support. He should have paid the table amount for one child for each year since separation and is to continue to do so until further order or agreement. According to the financial statements, the respondent’s income is $132,830.00 and the applicant’s income is $41,903.00.
80Counsel agreed on the amount that should have been paid for child support after adjusting the respondent’s income for union dues. The amount owing to the date of trial is $18,960.00 and the current table amount is $1,271.00 per month.
81The respondent should also be contributing a proportional amount of s. 7 expenses. That proportion based on current income shown in the sworn financial statements is 76%.
82The difference between the position of the parties concerning retroactive child support is whether the carrying costs of the home and other expenses paid by the respondent during the period the child and the applicant were residing there should be characterized as child support. In my view they should not.
83As I will discuss, there is a claim for spousal support and a claim for an interest in the property. The respondent is not entitled to a double deduction. In my view it is more appropriate to weigh the contributions by the respondent in the analysis of spousal support and unjust enrichment than to offset those contributions against child support. Child support is the right of the child and I conclude that it is preferable to apply credits for support in kind elsewhere.6
84I therefore find that the amount submitted by the mother is owing for retroactive child support.
Property
85The applicant makes a claim for unjust enrichment. This is based on her contributions to the respondent’s home. The background to this set out above. The parties had agreed to a split the mortgage on the home into three portions with the respondent paying the first two portions and the applicant paying the third. They also agreed to accelerate the payments and it had been their intention for the parties to share in the increase in value in accordance with their contributions. This agreement is implicit in the documents and in the behaviour of the parties when they accelerated the mortgage payments and it was confirmed by the respondent in response to a question posed by the Court.
86I agree with counsel for the respondent that this case was not pleaded on contractual principles and accordingly the evidence was not presented nor argument made in that manner. If there was a binding contract between the parties then it is not clear what all of the terms were or whether the applicant fulfilled her obligations, particularly since she stopped paying the mortgage when she abandoned the premises. The fact remains however that the parties had structured the mortgage payments with a view to the applicant earning a share of the proceeds of sale. This is a relevant consideration in determining if it is fair for the respondent to retain the sale proceeds without sharing them with the applicant.
87There is no doubt that the respondent paid the down payment of $90,000, paid for repairs to the foundation and contributed the lion’s share of the mortgage payments. The portions into which the mortgage debt were divided were not equal. Still, the applicant paid down her portion of the mortgage by a significant amount with the expectation that it was an investment. There is no juridical reason to permit the respondent to retain those funds. At a minimum the applicant should be entitled to recover the amount she contributed. That amount is $28,072.00.
88By contrast, the respondent had paid $93,342.00 over the same period of time. The respondent paid his share of the mortgage even when he was not living in the home and he took over all of the mortgage once the applicant left the home. At that time the mortgage payments were $1,225 biweekly or roughly $2,600 per month. Between the down payment, the foundation repairs, the respondent’s contribution to the mortgage up to June of 2016 and his mortgage payments after that date, the respondent had contributed close to $211,000.00 to the equity in the property. At trial, he calculated that the applicant had contributed roughly 12.5% of the total which on these numbers appears to be more or less accurate.
89The applicant testified that during cohabitation, she believed she was paying almost all of the expenses. The evidence does not persuade me that this is the case. Certainly, both of the parties accumulated credit card debt, but in addition to the expenses of living, they were taking vacations and dining in restaurants. The evidence is insufficient to satisfy me that there was unjust enrichment of the respondent beyond the contribution to the mortgage discussed above. But for the specific and purposeful contribution to the accumulation of equity by means of the divided mortgage, the evidence would not persuade me to award a constructive trust on Pettkus v. Becker principles.7 On the other hand, while intent and expectation of the parties is not definitive in considering unjust enrichment, the fact that the applicant accelerated the mortgage payments under the belief she was investing in the property is in this case a proper consideration. It would be unjust to permit the respondent to appropriate that investment.
90The property was sold in December of 2016 for net proceeds of $258,307.19. It had appreciated in value. I conclude that it would be unjust for the respondent not to share the increase. In my view, it would be fair for the respondent to pay the applicant 13% of the net proceeds. I would round that number to $33,600.00.
Spousal Support
91The parties were spouses within the meaning of the Family Law Act as they had co-habited for more than three years and had a child together. This is not disputed and it is not disputed that there would have been some obligation to pay spousal support post-separation in accordance with need and ability to pay.
92The evidence is unpersuasive that in this short-term relationship, the applicant sacrificed career prospects or delayed her education for the benefit of the respondent. There was an interruption in her studies due to the pregnancy and the fact that she became a single parent following separation. This is a factor in extending entitlement to spousal support, but that support would not be indefinite.
93The parties co-habited for under four years. They have been separated for five years. Spousal support should have been transitional support to assist the applicant in completing her studies, establishing her career and obtaining full time employment, taking into account the delay occasioned by her parenting responsibilities.
94On a needs analysis, the applicant was entitled to short term spousal support. Here, however, the respondent’s contributions to the household expenses, hydro, property taxes and car loan should be taken into consideration. It is important not to double count the mortgage contributions because those were for the purpose of preserving the respondent’s own property interest and building up the equity in the property. That they also provided the applicant and the child with shelter for less than market rent was a benefit, but I would not count the mortgage payments as credit against a spousal support obligation.
95I would give credit for the payment of heat, hydro, property taxes and car loan, but that would not necessarily be a dollar for dollar scientific calculation. The benefit of continuing to live in the house and having many of the household expenses paid for is simply a matter that should be taken into account in assessing whether spousal support is owing retroactively to the date of separation or not.
96Were I to award periodic spousal support in addition to the child support and share in the property, I would put the support at the low end of the range in the Spousal Support Advisory Guidelines and the low end of duration. Amongst other things, the applicant has improved her financial situation since separation.
97In these circumstances, any support I awarded would be arrears of support, but it would have to be adjusted to take tax into account. In my view, a lump sum would be more appropriate to satisfy the respondent’s support obligation in these circumstances.8 Taking into account all of the factors discussed above, I fix that obligation at $24,000.00.
Summary and Conclusion
98In conclusion, the parenting time will be adjusted as set out above. Communication is to take place using 2 Houses. The father is to be consulted on all important decisions but will not have a veto although he will of course have the right to seek a court order if he considers that the decision is harmful to the best interests and well being of the child. The parents will both be required to do everything reasonable to foster a positive relationship between the child and the other parent.
99The draft orders contain many provisions requiring the parents to speak respectfully to each other and to teach the child to love and respect the other parent. These provisions are to be included in the final order and counsel may arrange to speak to the matter if they cannot agree on the wording.
100With respect to child support, the respondent is to pay the table amount for one child commencing on January 1, 2021 as well as 76% of all reasonable s. 7 expenses going forwards.
101The respondent is to pay the following lump sums:
a. Child support arrears to December 31, 2020 fixed at $18,960.00
b. $33,600.00 is to be paid as compensation for the applicant’s investment in the property; and,
c. $24,000.00 will be paid as one-time lump sum spousal support.
Costs
102I encourage counsel to agree on costs but I will otherwise hear submissions.
103I also thank counsel for their efforts to make the virtual trial proceed smoothly.
COURT FILE NO.: FC-16-2497
DATE: 2021/06/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: J.E.A., Applicant
AND
A.S., Respondent
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Stephen Pender, for the Applicant John Summers, for the Respondent
REASONS FOR DECISION
Regional Senior Justice Calum MacLeod
Released: June 15, 2021
Footnotes
- Because decisions of the court are published, the name and birthdate of the child has been suppressed and initials are used for the names of the parents.
- When this application was commenced and at the time of the trial, the terms were “custody” and “access” but prior to releasing this decision the amendments to the Children’s Law Reform Act came into force.
- See Kaplanis v. Kaplanis, (2005) 2005 CanLII 1625 (ON CA), 10 RFL (6th) 373, (2005) 249 DLR (4th) 620 (Ont.CA)
- RSO 1990, c. C.12, as amended to April 19, 2021. The amendments came into force on March 1, 2021, following the trial, but before the reasons were released.
- Somewhat similar to what was ordered in Poselyk v.Nardes, 2020 ONSC 1012, the mother will be obliged to consult but in the case of a deadlock she will continue to have the final say over health, education and activities..
- See DBS v. SRG, 2006 SCC 37, [2006] 2 SCR 231
- 1980 CanLII 22 (SCC), [1980] 2 SCR 834
- See the analysis in Davis v. Crawford, 2011 ONCA 294