CAYUGA COURT FILE NO.: FS-17-55
DATE: 20210202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amanda Lee-Anne McIntyre
Applicant
– and –
James Colin Lawson
Respondent
Scott DeGroot, for the Applicant
Self-represented
HEARD: January 28, 29, 30, 31 and September 28, 2020
The honourable justice m. j. donohue
REASONS FOR JUDGMENT
OVERVIEW
[1] This matrimonial trial concerned the best interests of the parties’ eight-year-old son, “A”.
[2] Each party sought sole custody and primary residence, a set holiday schedule, and child support from the other.
[3] “A” was born in August 2012 and the parents were married a year later. They physically separated by June 2015, when the child was almost three years old.
[4] The parents designed their own separation agreement, signed in August 2015, in which they agreed to have shared parenting/decision making and the residency schedule was shared equally. No support was payable by either parent. Child care costs, provided by Ms. McIntyre’s parents in Mount Hope, were to be shared.
[5] In late November 2015 when the father, Mr. Lawson, was moving, the residency of the child became primarily with the mother, Ms. McIntyre. In January 2016 the parents met and signed a set access schedule for Mr. Lawson to see his son every second weekend, from Saturday morning to Sunday evening. Exchange pick-ups and drop-offs were at Ms. McIntyre’s parents’ home in Mount Hope.
[6] In May 2016 Ms. McIntyre purchased a house in Hagersville where she registered “A” in junior kindergarten. The child has continued there and is now in grade three.
[7] Exchanges have continued every second weekend with the assistance of Ms. McIntyre’s parents, who have a close relationship with the child and cordial relations with Mr. Lawson.
[8] A temporary order by Braid, J. on November 21, 2017 confirmed alternate weekend access and provided interim sole custody of the child to Ms. McIntyre. Child support was based on Mr. Lawson’s historical income of $40,000 which he did not achieve after 2017.
[9] In 2020, Mr. Lawson, who had moved north from Hamilton to Victoria Harbour, began to have difficulty exercising his access due to vehicle problems and other financial challenges.
[10] Neither party sought to enforce the August 15, 2015 agreement at trial.
BACKGROUND
[11] Ms. McIntyre is 31 and Mr. Lawson is 47. Their son is nearly eight and a half. Ms. McIntyre has a second son now, one and a half years old, with her spouse, Mr. Sheppard.
[12] Ms. McIntyre and Mr. Sheppard have lived in the house in Hagersville for four and a half years.
[13] Mr. Lawson resided with his girlfriend, Ms. Maravich, for three years from June 2016 to June 2019 but they have parted ways. He now lives with his Uncle Roy in Victoria Harbour.
THE FATHER’S POSITION
[14] Mr. Lawson sought to have the child’s residence and school to be with him, with limited supervised access by Ms. McIntyre.
[15] He argued that Ms. McIntyre was alienating the child and interfering with the relationship that he had with his son. His submission was that there was “psychological poisoning of a young person’s mind to turn him away from the non-custodial parent”.
[16] At trial and in his submissions, Mr. Lawson sought to establish the following:
The mother abducted the child from the father;
The mother limited access to the father as much as possible;
The mother secretly relocated the child’s residence;
The mother secretly changed the child’s school;
The mother failed to communicate with the father;
The mother engaged in name-calling and put-downs;
The mother attempted to erase the father as a parent;
The child suffered serious behavioural problems in the mother’s primary care;
The mother caused the father serious financial abuse.
[17] The evidence is reviewed and considered under each of these submissions.
DID THE MOTHER ABDUCT THE CHILD?
The Parents’ Agreement
[18] From the time of their physical separation in June 2015 there was a sharing of the child’s care, with weekday babysitting provided by Ms. McIntyre’s parents in Mount Hope.
[19] The August 15, 2015 agreement provided that Mr. Lawson was to have “A” with him on Sunday night, Monday night, Wednesday night and Thursday night. Ms. McIntyre was to have “A” with her on Tuesday night and then Friday night through the weekend until Sunday evening.
[20] The agreement further stated:
This is the current arrangement that has been agreed upon between James and Amanda. They have both agreed that if a date needs to be switched here and there, that both parties will discuss the dates to switch and come to a mutually agreed upon decision.
If at any point in the future, there are substantial changes to work schedule and this arrangement needs to be altered, it will be discussed until coming to a mutually agreed upon decision and completed in writing with signatures by both parties. [sic]
[21] Ms. McIntyre testified that Mr. Lawson texted her on September 23 or 25 of 2015 requesting that she take “A” for additional time. She began to have “A” on most Monday nights and most Wednesday nights as well as her previously arranged nights.
The Change in Schedule
[22] On separation Mr. Lawson had moved to a rental in Ancaster but in November 2015 his landlord needed the unit. Mr. Lawson arranged to move to 58 Erie Avenue in Hamilton, which he would share with his mother.
[23] On November 23, 2015 Mr. Lawson asked Ms. McIntyre to take over the child’s care during the move. The child was then fully in the mother’s care.
[24] Mr. Lawson thereafter messaged that he missed his son. He sent these messages on November 26, 28, December 5, 17, 21, 28 and 29, 2015. On December 18 he advised that he would visit with “A”.
[25] Ms. McIntyre’s responses to his messages were as follows:
Inquiring about his Christmas Eve plans;
Saying “of course you can see him”;
Offering “if u want to talk to “A” just text me. If we’re doing something, he will call u when were done.” [sic];
Complaining that she had to cancel “A’s” playdate on December 18 as his visit had not been confirmed;
Inquiring if the father was confirming a visit on December 27.
[26] The evidence is that Mr. Lawson visited with “A” for roughly two hours on December 18 and ten hours on December 27.
[27] There is no evidence that he requested any other time nor that he was denied any time or contact with his son.
[28] On December 29, 2015 Mr. Lawson texted that something had to change “because I do not to get to see him anymore and you make it difficult for me when it comes to that.”
[29] Ms. McIntyre’s text in reply was as follows:
What on earth!! How can u say that I make it hard for you to see [“A”]?! YOU keep decreasing the amount of time you see [“A”]. You saw “A” for 13 hours in the entire month of December and other then [sic] one day, never asked to see him…You don’t make the effort. I’m done with you blaming everything on me….
[30] Mr. Lawson’s response was:
Fine, you want effort from me I will give it!! The new year is a new beginning for me and yes every second weekend he is with me and the days I wrote also the divorce will get started….
[31] Ms. McIntyre texted back, “So you are wanting every other weekend. Just to confirm.”
[32] The next day, December 30, 2015, Mr. Lawson texted, “Yes, one weekend you have him and then one weekend I have him.”
[33] The parents agreed to meet on January 3, 2016 to discuss a schedule. Ms. McIntyre prepared a three-page schedule for the entire year of 2016 showing, “Jamie’s days are highlighted in grey”. The schedule provided access on Father’s Day, “A’s” birthday, Canada Day and the August 1 holiday and Christmas.
[34] Both parents signed all three pages of the schedule.
[35] Thus, Mr. Lawson began seeing “A” roughly every second weekend for the next four years.
[36] Mr. Lawson testified that he understood that the January 3, 2016 schedule was in addition to his regular weekday evening access that he had had previously. (Those had been Sunday, Monday, Wednesday, and Thursday.)
[37] He said he had requested this in phone calls. He agreed, however, that their primary form of communication was by text messaging.
[38] Ms. McIntyre testified that they did not discuss resumption of weekday access. They discussed only weekends and that was what was reflected on the signed 2016 schedule.
Analysis
[39] Ms. McIntyre’s evidence is more persuasive as there is no evidence that Mr. Lawson ever attended thereafter for a midweek access nor any evidence that he ever requested a midweek access.
[40] He did not bring a court application nor a motion in court to obtain any midweek access.
[41] There is no email or text arranging for a midweek access. At times, he requested more parenting time generally, to which Ms. McIntyre responded agreeing to meet to do so. Mr. Lawson refused each time to meet and discuss a new schedule.
[42] Mr. Lawson testified that he was “forced into” the schedule of alternate weekends. This may be so but there is no evidence that Ms. McIntyre forced it. It is more probable that Mr. Lawson’s own personal life circumstances interfered with his ability to return to an equal time-sharing situation as he had initially.
[43] In light of the decreasing time he had with “A” in the latter half of 2015, it was sensible of both parents to set up a schedule so that the child would regularly see his father on set dates. This is what the January 3 schedule shows.
[44] The evidence is that Mr. Lawson asked the mother to take over more of the child’s care; he proposed alternate weekends; he acquiesced to the schedule she proposed; and thereafter he followed the schedule except for occasionally extending his weekends to a Monday morning or to a Friday pick-up from school.
[45] The child was not abducted by the mother.
DID THE MOTHER LIMIT ACCESS TO THE FATHER AS MUCH AS POSSIBLE?
[46] Mr. Lawson’s position at trial was that Ms. McIntyre limited his time with “A” as much as possible.
[47] There was evidence in the text messages of her refusing to allow Mr. Lawson to pick up directly from school one Friday, and refusing a Sunday overnight that she said was requested “last minute”. In November 2016 after “A” had a one-day suspension from school, Mr. Lawson asked for an hour on Sunday to have a “Daddy-Son” talk. Ms. McIntyre refused, writing, “[U]nfortunately we have plans all weekend out of town….we had this planned for quite some time. We cannot change our plans.”
[48] However, there were times when she offered an extra night or agreed to his requests for more time. At Christmas she arranged for longer access times.
[49] At times, Mr. Lawson wrote saying he was not having enough time with his son. As noted above, Mr. Lawson refused Ms. McIntyre’s responding offers to review and draft a new schedule.
[50] In June 2016 Ms. McIntyre wrote asking, “[W]hen were you going to start helping pay for child-care?” Mr. Lawson replied, “When will I get to see my son more? When will he be more in my life? I am not happy only seeing him twice a month. That is not a 50/50 which we both agreed upon…”
[51] Ms. McIntyre replied, “U [sic] asked for every other weekend and u [sic] cancelled ur [sic] last weekend because of a baseball game. I’m done asking for any financial help from you for our son.”
[52] Ms. McIntyre testified that although she designated Canada Day and the August 1st civic holiday in 2016 to be access time, Mr. Lawson did not exercise it.
[53] On the weekend Mr. Lawson cancelled his access for his baseball tournament, Ms. McIntyre’s father actually brought “A” to the tournament to see his dad play baseball.
[54] In December 2016 Mr. Lawson wrote, “I would like him every weekend now and every holiday in odd years.”
[55] Ms. McIntyre replied, “I have no problem sitting down with you and discussing a new schedule but please know that this is not a dictatorship. Schedule changes are jointly made and agreed upon.”
[56] Mr. Lawson’s response was:
We do not have to sit down and come up with a schedule. It has been a Dictatorship since I moved from Ancaster. Before that I was very open about everything and never put up a fuss. Now I get him for One day and what holidays work for you and your plans. So now I want him every weekend unless you ask me if you could take [“A”] for the weekend. And 2017 He is with me on the holidays except your Birthday and Mother’s Day Nanna and Poppa’s Birthdays and special occasions if they happen. You get [“A”] the even years and I have [“A”] the odd years. 50/50. I am not demanding this, I am entitled to this. [sic]
[57] As noted, Mr. Lawson did not bring an application regarding his son. The alternate weekend schedule continued. Ultimately, in April 2017 Ms. McIntyre issued her application for custody.
[58] Mr. Lawson did not motion for increased access time. Ultimately, Ms. McIntyre motioned for interim custody, but she proposed a set access schedule that gave additional time for Mr. Lawson so that he could pick up on Friday evenings rather than on Saturday mornings. This became the court-ordered alternate weekend access.
[59] Ms. McIntyre provided access in addition to the court-ordered access such as five-day access and a week-long access in the summer of 2019. She arranged to split the March break in 2020. When COVID closed the schools, she agreed to extended visits in March, in April, and in August 2020.
[60] Access in 2020 did not happen regularly due to Mr. Lawson residing in Victoria Harbour and not having a working vehicle. He had to borrow cars. When he was unable to return “A” as scheduled, Ms. McIntyre twice had to drive there to retrieve her son.
[61] In June 2020, Mr. Lawson requested that Ms. McIntyre bring “A” to Victoria Harbour for access. She explained that, as she was on maternity leave and her spouse had been laid off, they could not afford to do the drop-off and pick-up.
[62] In the fall of 2020, when “A” was going to be studying at home “virtually”, Mr. Lawson proposed that they share the child’s care on a two week on/two week off schedule.
[63] Ms. McIntyre responded that as this was a temporary time home from school, she thought it best to keep the same schedule, but she offered that Mr. Lawson could pick “A” up earlier in the day on the Friday of his access. In her testimony, she explained that she had not wanted to disrupt the structure and routine which had been working well since March 2020 when the initial school closure had occurred. She added that in the prior eight months Mr. Lawson had rarely seen his son and had not been calling to cancel his weekends such that “A” was at his grandparents waiting for his father who did not appear. With this uncertainty, she said she did not want their son to be hurt.
[64] There is evidence that over the last four years Ms. McIntyre has invited Mr. Lawson to school events, and a birthday party for “A” at her house.
[65] Much of the trial evidence related to Mr. Lawson having vehicle difficulties and being unable to get to the Mount Hope exchange point. Recognizing that he had no vehicle, Ms. McIntyre agreed to a temporary exchange location at a Hamilton bus stop. This did not continue for long and ultimately her father, Mr. McIntyre, began dropping off and picking up “A” at Mr. Lawson’s Rosseau street residence in Hamilton.
[66] On one occasion, Mr. Lawson drove a vehicle to the Hamilton bus stop location. He was advised by Mr. McIntyre that the child was at the Mount Hope residence to be picked up. Mr. Lawson chose to go to the police station to complain, rather than to go and pick up his son at the court-ordered exchange in Mount Hope.
[67] The recent difficulties in access result from Mr. Lawson re-locating from Hamilton to Victoria Harbour, roughly a two and a half hour drive north from the Mount Hope exchange location.
Analysis
[68] As noted above, there is no evidence that Mr. Lawson requested a midweek access after November 2015. Ms. McIntyre and her family have made significant efforts to have the access occur. As she stated, “A” misses his father and so they helped with the driving.
[69] On a review of the evidence, it is fair to say that at times Ms. McIntyre was dictatorial about the schedule; however, it is clear that she sought a stable regimen for the child rather than interference in the child’s relationship with his father.
[70] It lays with Mr. Lawson that a more expanded schedule was not implemented as he refused to discuss it.
[71] In conclusion, the evidence does not support that Ms. McIntyre was trying to limit Mr. Lawson’s access time as much as possible.
DID THE MOTHER SECRETLY RELOCATE THE CHILD’S RESIDENCE?
[72] Mr. Lawson’s position at trial was that Ms. McIntyre secretly moved the child’s residence from their former apartment on Mohawk Road, Hamilton to a house in Hagersville, Haldimand County.
[73] Ms. McIntyre testified that on February 17, 2016 she had a meeting with Mr. Lawson at the TD bank to help him take over his truck loan and remove her name. In that meeting, Ms. McIntyre told him that she was buying a house in Haldimand or Lincoln. When telling him that she was thinking of Hagersville, Mr. Lawson said he was jealous that they were moving there. She said he did not express any concerns.
[74] Mr. Lawson testified that he found out she moved to Hagersville when he was filling out a divorce application in July 2016. In a text, he asked for her full address including municipality.
Analysis
[75] His text however is consistent with his being aware that she and the child had moved. If he believed that she was still at the apartment on Mohawk Street in Hamilton, it is unlikely that he would have asked her for an address where he himself used to live for a period of four years.
[76] The mother replied with the complete address in Hagersville by text. There was no responding comment, question or concern by the father on being advised of this address.
[77] The first mention that he considered that she had moved the child without his consent was stated nearly a year later when he filed his answer in 2017.
[78] Under cross-examination, Mr. Lawson acknowledged that there was a discussion at the bank about the mother relocating.
[79] Accordingly, I find Ms. McIntyre’s evidence persuasive that she did discuss the move on February 17, 2016 and Mr. Lawson raised no objection. She did not secretly relocate the child.
[80] Mr. Lawson has known the child’s residence to be in Hagersville since at least July 2016 but he has never taken any steps to find a home closer to his son. His move two and a half hours further away from his son simply compounds the issue he complains about, being the distance between himself and the child.
DID THE MOTHER SECRETLY CHANGE THE CHILD’S SCHOOL?
[81] The agreement of August 15, 2015 provided that “A” would attend junior kindergarten and senior kindergarten at Mount Hope Public School (near the mother’s parents) and then the French immersion school for grades one to eight in Binbrook.
[82] Mr. Lawson, who has a Métis heritage, testified that he sought French language instruction for his son. Some of Mr. Lawson’s family speak French.
[83] The mother testified that the school choice was discussed with Mr. Lawson on March 9, 2016. She recalls that she had been holding some financial documents for him and he came by the Mohawk Street apartment. His girlfriend, Ms. Maravich was with him in the car. Ms. McIntyre went down to meet them in the parking lot. She said she explained to the father that since neither of them resided in the Mount Hope catchment area, the school would not accept “A” for registration.
[84] Ms. McIntyre said she suggested to the father that “A” attend school in Haldimand where she was moving. Mr. Lawson asked, “Is it in the city or the country?” and she replied, “[I]n the country”. He said, “[O]kay, as long as it is not in the city.” Ms. McIntyre therefore proceeded to register “A” at the Hagersville’s public school, which is 25 minutes away from Mount Hope.
[85] Mr. Lawson testified that he did not know this was the school until Christmas that year when the mother invited him to the child’s Christmas concert.
[86] Ms. McIntyre testified that the father never expressed concerns about the choice of school. He never raised the issue of changing schools or requesting a French immersion school.
Analysis
[87] “A” could have attended the French immersion school in grade one in the fall of 2018.
[88] However, as noted above, Mr. Lawson never moved into the catchment area of the Mount Hope/Binbrook schools, which could have accomplished that provision in the August 2015 agreement.
[89] In Mr. Lawson’s plan for custody in Victoria Harbour, there was no evidence that he was proposing a French immersion school or that one existed in that community.
[90] I accept the evidence that Ms. McIntyre was unable to register the child in the Mount Hope/Binbrook schools as neither she nor the father lived in the catchment area.
[91] The evidence is persuasive that Ms. McIntyre told him she was relocating to Hagersville and she planned to register the child in school there. It was not secretly done and Mr. Lawson has never raised the issue of choosing a different school. To the extent that he did not know the school address before Christmas 2016, it is because he never asked.
[92] The child has now attended junior kindergarten, senior kindergarten, grades one, two and three at the school. The reports show he is doing well there.
HAS THE MOTHER FAILED TO COMMUNICATE WITH THE FATHER?
[93] The father submitted that the mother did not communicate with him and withheld information about the child.
[94] Mr. Lawson was unable to provide an example or evidence of this occurring.
[95] He said her text messages to him were upsetting and so he wrote to her stating that they were thereafter to email one another. He pointed to her response of July 26, 2016 where she wrote, “I will not be emailing you.”
[96] Two days later, however, Ms. McIntyre relented to his request and emailed him on July 28, 2016 and continued to do so.
[97] There is no evidence that she failed to reply to any email or any question he sent.
[98] There is a wealth of evidence in the texts and emails that she did communicate and keep him up to date in a timely way:
April 2016 she sent him the child’s dental x-rays;
November 2016 she advised of a school incident;
December 2016 she advised the date of the Christmas concert;
December 2016 she replied to the father’s request for more access time by suggesting they sit down and discuss a new schedule (he refused);
February 2017 she again offered to sit down to discuss a new schedule (he refused and his response was, “I want to fight for him and to have him reside with me. Either agree to my weekends, or you take weekends. Out of 7 days I want my 50/50 And I will fight you for everything until I get him”);
June 2017 the mother sent a detailed email about how well the junior kindergarten year went;
October 2017 she advised of a school incident and a school meeting;
February 2018 she wrote that the child was acting out in school and she invited the father to meet with the teacher;
April 2018 the mother advised that the child had lice;
May 2018 the mother asked the father to consent to have their son do a therapy program called REACH;
June 2018 the mother advised him of the Donuts for Dads event at school and asked if he would like to attend;
July 2018 she advised that “A” had a toothache and she was booking an appointment with the dentist;
July 2018 the mother advised the dental outcome and the costs;
September 2018 the mother advised that she had taken the child to emergency and why;
November 2018 the mother wrote that she ordered school photos and was sharing them with the father;
November 2018 the mother advised the date of the parent-teacher night and said that the father was welcome to attend;
November 2018 the mother explained that she and the child had been in a motor vehicle accident, that the child had been seen by the doctor, but was not injured;
December 2018 the mother advised about the child’s dental treatment;
December 2018 when the father wrote ten short questions about “A’s” life, the mother promptly replied with a detailed eight-paragraph email;
December 2018 the mother advised the date of the Christmas concert and offered the father a ride as she knew he did not have a vehicle;
April 2019 the mother advised of Grandparents’ Day at the school and invited the father’s mother to attend.
[99] In contrast, there is evidence of Mr. Lawson failing to communicate about the child.
[100] He discovered that Ms. McIntyre’s spouse had a knife collection and was understandably concerned. Rather than ask her about it, he called the Children’s Aid Society to investigate. (They did so, closed their file and Ms. McIntyre’s spouse voluntarily disposed of the collection to avoid concerns.) When asked why Mr. Lawson did not speak to Ms. McIntyre directly, he testified that he would if she was “communicating without overwhelming me”.
[101] A court order of November 21, 2017 directed the parties to communicate through an app called “TextNow”. Ms. McIntyre began using it. Mr. Lawson stated that her messages from February 2018 to August 2018 did not reach him. He never advised her that TextNow was not working for him.
[102] Ms. McIntyre made several offers to meet to discuss schedules, to discuss how to handle some behaviours in their son, and to discuss the child’s wellbeing. Mr. Lawson consistently refused. One of his responses was:
You want to have a joint conversation why so you can twist that around, no thanks
[103] In August 2020 Ms. McIntyre agreed to an extended access visit. Mr. Lawson kept the child an additional seven days and did not respond to any of her messages. She finally called police to do a wellness check on her son. Mr. Lawson’s explanation for not answering was, “[W]hy should she worry when [“A”] is with his dad?”
[104] The failure to communicate is only demonstrated on Mr. Lawson’s part.
DID THE MOTHER ENGAGE IN NAME-CALLING AND PUT-DOWNS?
[105] Mr. Lawson’s position was that he was abused; that the mother emotionally and psychologically harassed him.
[106] The evidence shows that Ms. McIntyre wrote in December 2015 that Mr. Lawson was “immature” and that he was “pretending to be a victim”. Another time in 2016 she described him as “pathetic” for having his girlfriend respond by email for him.
[107] Otherwise, over the five years there is no evidence that she engaged in name-calling, put-downs, or communicating in a disrespectful manner.
[108] Mr. Lawson on the other hand wrote a number of accusatory and rude or snide messages. An example in 2017 is:
Have you ever noticed our son? Like really payed [sic] close attention to him?...I will send out CAS again because of this if I don’t get any answers from you. Any real answers from you.
[109] In fact, it was Mr. Lawson who was told by the Children’s Aid Society to be “mindful of the tone and content” of his “electronic communications”.
[110] There was no evidence of any negative talk in the mother’s household regarding the father.
[111] There was evidence that the child heard negative talk in the father’s household:
“Your mommy stole you away from me.”
“Artists are stupid.” (Ms. McIntyre being artistic)
“Tina (Mr. Lawson’s girlfriend) hates Mommy.”
“It’s Mommy’s fault that Dad lost his jeep.”
[112] Ms. McIntyre’s trial evidence was supportive of Mr. Lawson’s relationship with their son.
“A” is excited to see his father;
“A” wants to go on access visits;
“A” says he has fun with his father;
She had her father deliver and pick up “A” for access because he “missed” his father;
There were emails where she told the father how excited “A” was about an upcoming visit;
She helped her son create a Father’s Day gift using Mr. Lawson’s childhood photos;
She made efforts to ensure access on Father’s Day.
[113] The evidence does not support that the mother harassed the father with name-calling and put-downs.
DID THE MOTHER ATTEMPT TO ERASE THE FATHER AS A PARENT?
[114] Mr. Lawson submitted that Ms. McIntyre was trying to erase him as a parent. He pointed to two documents wherein the child was identified with the surname “McIntyre” rather than “Lawson”.
[115] Ms. McIntyre testified that she has not sought to change the child’s surname; that the two documents were prepared by third parties who must have assumed the child’s last name was the same as hers; and that she has always used Lawson as the child’s name. This is supported by the school records and the medical records.
[116] Mr. Lawson gave some testimony of the child having a negative relationship with him.
“A” drew a picture of Daddy and drew a line across it;
“A” does not trust him;
“A” blames his father for not protecting him;
“A” thinks his father is mad at him;
“A” says, “You don’t love me”;
“A” says, “Why don’t you want me?”
[117] These descriptions are inconsistent with Ms. McIntyre and her father, Mr. Ron McIntyre’s, evidence of the good relationship between Mr. Lawson and “A”.
[118] Mr. Lawson himself gave evidence that he and “A” had a good relationship and that “A” said, “[W]hen I grow up and get married I will live with you!”
[119] In an early text message in June 2016 Ms. McIntyre asked if they had had a fun visit. Mr. Lawson replied, “We had a blast.” Ms. McIntyre wrote, “…P.S. Happy Father’s Day. We made an amazing little boy.” The father replied, “Yes, we did.”
[120] The negative reports that Mr. Lawson describes may well stem from visits where the child was ready and waiting to be picked up for visits and the father did not come nor did he call to cancel.
[121] The idea of being an “erased parent” stems from how Mr. Lawson feels about the situation and how he describes himself. He even posted a photo of himself and “A” on social media stating that he was an erased parent. (He quite properly has since taken down that post.)
[122] The conclusion on the evidence is that “A” loves his father very much, looks forward to the access visits, and would like to see his father more often.
[123] The court does not find that the mother has made efforts to erase him as a parent.
IS THE CHILD SUFFERING SERIOUS BEHAVIOURAL PROBLEMS IN THE MOTHER’S PRIMARY CARE?
[124] Mr. Lawson raised some of the child’s behavioural issues with an inference that they were due to the mother’s care of the child.
[125] In November 2016 the four-year-old “A” was suspended from junior kindergarten for a day after he threw the contents of his cubby and said he wanted to “kill everyone”.
[126] Ms. McIntyre spoke with the child and the teacher and reported at length to Mr. Lawson about the incident. The rest of the school year passed without incident.
[127] Mr. Lawson did not argue that the mother’s handling of this issue was deficient in any way or connected to anything that she did or did not do.
[128] In June 2017 when Mr. Lawson was returning the child to the grandparents’ exchange location, Ms. McIntyre was present. The child screamed and jumped to the back of the car, crying. Mr. Lawson’s evidence was that the four-and-a-half-year-old yelled, “[If] you want me, take me now!”
[129] The child’s grandfather picked the child up and took him inside. Mr. McIntyre testified that “A” calmed down as soon as he was inside and cuddling with his mother.
[130] In five years of exchanges, this is the only incident where “A” expressed distress at leaving his father and being returned to his mother. It appears to have been an isolated incident.
[131] In October 2017, in senior kindergarten when “A” was five years old, some behaviours arose when he got upset or frustrated. Ms. McIntyre said his reactions were amplified. The school record stated “A” said the staff were “trying to kill him” and he uttered self-harm threats.
[132] Ms. McIntyre advised Mr. Lawson that there was to be a parent-teacher conference with the teacher, the educational assistant and the principal. Mr. Lawson did not attend. A behaviour safety plan was created after that meeting using a behaviour log. Ms. McIntyre sought consent from Mr. Lawson to arrange counselling but he did not respond. Later she was able to get counselling through the school. In May 2018 she reviewed the issue with the family doctor who found the child to be well-behaved. Ms. McIntyre testified that the issue resolved.
[133] Again, Mr. Lawson did not argue that the mother mishandled the issue in any way or that it was caused by something she did or did not do.
[134] In December 2019 “A” had an incident in grade two when he was seven years of age. He was upset and knocked over a desk and chair. Ms. McIntyre arranged for counselling and invited Mr. Lawson to be in on the discovery meeting. He declined to attend.
[135] There is no criticism of how she handled this issue.
[136] Mr. Lawson repeatedly alleged that Ms. McIntyre “allowed” their son to be sexually abused when the child was five and six years of age. He contacted the Children’s Aid Society a number of times, who investigated and found no protection concerns.
[137] The behaviour was “sexual play with a same age peer” which, from the court’s perspective, was normal curiosity. “We showed each other our penises.”
[138] Ms. McIntyre discussed with “A” and his friend that this was inappropriate behaviour. She discussed with the doctor to check if she did the right thing. She invited Mr. Lawson to meet with her to jointly discuss it. He declined.
[139] In November 2018 Mr. Lawson wrote the Children’s Aid Society stating that the child was doing self-harm. At trial, the court was not given any evidence of this apart from the school incident noted above, in the fall of 2017 where “A” threatened self-harm.
[140] In submissions, Mr. Lawson referred to behaviours for which there was no evidence or testimony at trial:
Nail-biting;
Bed-wetting;
Night terrors;
Excessive worrying;
Decreased self-confidence;
Sexual behaviour beyond the child’s age.
[141] The school records and medical records report that the child is thriving. Ms. McIntyre describes “A” as a very happy, smart, caring, little boy, who loves his mother and his father.
[142] In sum, there is no evidence that the child is suffering serious behavioural problems. The issues that have arisen have been appropriately dealt with by the mother. Mr. Lawson has been kept informed and he has declined to be involved in the decision-making or discussion when the problems were addressed.
HAS THE MOTHER CAUSED THE FATHER SERIOUS FINANCIAL ABUSE?
[143] Mr. Lawson alleges that Ms. McIntyre caused him serious financial abuse which led him to depression.
[144] The evidence reveals that there are a number of factors unrelated to the mother which led to his financial crunch.
[145] He had previously declared bankruptcy in 2003. His credit was still poor when the couple were married in 2013. He required Ms. McIntyre to co-sign the loan for his F150 truck purchase.
[146] In the August 15, 2015 agreement, Mr. Lawson agreed to take steps to assume the debt for the truck and remove her name from the loan. Inexplicably, he blames her for this being a financial difficulty in 2016. Actually, she helped him with the financial paperwork, arranged bank meetings for the new loan, and suggested he purchase a less expensive vehicle, which eventually he did.
[147] In June 2016 Mr. Lawson moved in with Ms. Maravich for the next three years. He agreed to pay her $350 towards rent but never paid it. It should be noted that for all of 2016 and much of 2017 he was employed at East Hamilton Radio earning $40,000 per annum.
[148] In September 2017 he broke his collarbone playing baseball and was off work for an extended time, initially on sick benefits.
[149] In November 2017 Braid J. made a temporary without prejudice order for child support based on his prior income of $40,000. He never brought a motion to vary that order, despite his income being markedly reduced. The medical note expected his return to work in January 2018.
[150] After a year, Mr. Lawson returned to East Hamilton Radio working at a lower paying job for 18 to 25 hours a week because he had problems with his shoulder and arm after his baseball injury. He worked there a year and then took a leave of absence in November 2019. He said he took the leave of absence because:
He needed to prepare for this trial;
He was in emotional distress; and
He could not live on $53 per week (with the FRO garnishment).
[151] It should be noted that Mr. Lawson was ordered in June 2018 to provide a letter from his doctor relating to his prognosis and any limitations on his ability to work; and he was to provide a letter from East Hamilton Radio on their ability to provide alternate employment due to his injury. Mr. Lawson never provided this evidence to Ms. McIntyre nor the court.
[152] In June 2019 he broke up with Ms. Maravich. It is not clear where he was living after that time.
[153] In 2020 Mr. Lawson has not looked for work at all and was collecting Ontario Works.
[154] It has been up to Mr. Lawson to apply to the court to vary the temporary order based on medical evidence and information from his employer. He did not do so.
Analysis
[155] The child has been in the primary care of the mother for five years. Mr. Lawson’s total child support payments of $7,366.93 amount to only $123 per month over that time frame. The mother has had to financially support the child with almost no assistance from Mr. Lawson. Neither did he contribute to childcare costs which she incurred so that she could work to support the child. At times she has worked two jobs and run two small businesses to earn income.
[156] Mr. Lawson asks the court to find that he has been victimized by Ms. McIntyre and in particular, that she has been financially abusive toward him. The evidence simply does not support such a finding.
[157] While the court recognizes that Mr. Lawson has faced a number of challenges, it is time for him to stop blaming Ms. McIntyre for the difficult circumstances in which he finds himself. He must accept responsibility for his role in his current situation.
THE FATHER’S PLAN FOR PRINCIPAL RESIDENCE AND SOLE CUSTODY
[158] Mr. Lawson, both in January and in September of 2020 testified that he was uncertain about his plans. He candidly stated, “I am still trying to figure out my game plan.”
[159] At times his proposal was to continue to live in Victoria Harbour at his uncle’s house and have “A” attend a school 15 minutes away. He was considering trying to work up there installing “Alcolocks” in cars as he had done recently in Hamilton. He said he wanted to involve the child in the native centre with his extended family to connect with his Métis heritage.
[160] His evidence in September 2020, however, was that he was not talking to his family up there. His only support was his uncle. Even his best friend had “disappeared”.
[161] At other times Mr. Lawson testified that he planned to go back to his employer, East Hamilton Radio, “if they would accept” him. There was no proposal as to where he would live or what school “A” would attend. Later his evidence was that he could not afford to live in Hamilton.
[162] The future he describes is extremely uncertain.
[163] His proposal was that he be the sole decision-maker and that initially access with “A’s” mother would need to be supervised. No reason or explanation was given for this request.
[164] Mr. Lawson gave a great deal of testimony of poor mental and emotional health. He presented to the court as being emotionally fragile.
He moved to Victoria Harbour because “it was either a mental institute or live on the streets”;
He showed great difficulty remembering dates, times, and admitted to being confused;
In September 2020 he said he could not remember much, as the year had been a “fog”;
His former girlfriend said that in 2017 and 2018 he had been depressed and isolated himself;
He said he has been in a “struggling depressive state”, that he needs to “seek help” and that he “can’t focus on a job right now”.
[165] All things considered, the evidence does not show that Mr. Lawson’s personal circumstances can provide the best principal residence for their son.
THE MOTHER’S PLAN FOR PRINCIPAL RESIDENCE AND SOLE CUSTODY
[166] Ms. McIntyre proposes that “A” continue to reside with her in Hagersville in the house which she owns with her spouse of five years, and with “A’s” new baby half-brother.
[167] “A” would stay in the school where he has attended five grade levels and is doing well.
[168] He would continue to see his maternal grandparents in Mount Hope every week, with whom he is very close. He would see his mother’s extended family (great grandparents, aunt and cousins) with whom his mother is on good terms.
[169] Ms. McIntyre proposes that she be “A’s” sole decision-maker.
Analysis of Principal Residence and Sole Custody/Decision-Making
[170] Section 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that the sole consideration for the court in making an order for custody (and access) is the best interests of the child as determined with reference to the condition, means, needs and other circumstances of the child.
[171] A child needs stability and routine. Ms. McIntyre has proven that she can provide this.
[172] The evidence supports that she has responsibly dealt with behavioural issues as they arose, tried to involve Mr. Lawson, and consulted with professionals to respond to the issues.
[173] The evidence supports that she has made efforts to keep Mr. Lawson in the child’s life and kept him informed.
[174] The plan proposed by Mr. Lawson is too uncertain and his life is too unsettled for the court to consider his plan as a reasonable or even viable option.
[175] The court applauds Mr. Lawson’s desire to connect both himself and the child to their Métis heritage. This can still be pursued in their access time together.
[176] The child has long resided in a stable home surrounded by loving family, doing well at the same school for nearly five years. His best interests are served by ordering this to continue.
[177] Neither parent sought an order for joint decision-making. Mr. Lawson has consistently refused to participate in discussions around decision-making. The court is satisfied that Ms. McIntyre has made considered decisions in the best interests of “A” and so this is ordered to continue.
[178] The court orders that Ms. McIntyre is to provide the child’s principal residence and have sole custody and sole decision-making.
ACCESS
[179] The alternate weekend access has proven successful in maintaining a strong and loving relationship between Mr. Lawson and his son. The exchange point at the grandparents in Mount Hope has been successful as neutral ground. Mr. Lawson and Mr. McIntyre have had cordial, respectful interactions. Mr. Lawson’s future residence is uncertain and so this exchange location shall continue.
[180] It is in “A’s” best interests that access continue on alternate Friday evenings from 5:00 p.m. until Sunday at 6:00 p.m. as proposed by Ms. McIntyre, with exchanges at 3094 Trinity Church Road, Mount Hope.
[181] Mr. Lawson testified that his vehicle has been in the shop for many months causing him to miss many of his access weekends. Mr. Lawson is to notify Ms. McIntyre 24 hours in advance if he has to cancel a visit. The child must not be kept wondering whether his father is coming or not.
[182] Neither party proposed any video access via Skype, FaceTime, WhatsApp or Zoom. The court is of the view that this would be of benefit to the child every Wednesday evening and on every missed access weekend. If the parties are unable to agree to a schedule for this, or if the parties wish to make submissions that such video access is not appropriate, they are to contact the court in St. Catharines within seven days of this decision for me to arrange a timetable for submissions in writing.
[183] The holiday schedule was agreed to by the parties as follows in addition to the residence schedule and overrides the regular schedule in the event of conflict:
New Year’s Eve/New Year’s Day
(a) [“A”] will reside with the Applicant in odd-numbered years and with the Respondent in even-numbered years, from 10:30 a.m. on December 31 until 6:00 p.m. on January 1.
Family Day Weekend
(b) [“A”] will reside with the Respondent in odd-numbered years and with the Applicant in even-numbered years from Friday at 5:00 p.m. until Monday at 6:00 p.m.
March Break
(c) [“A”] will reside with the Respondent on March Break in even-numbered years from 5:00 p.m. on the Friday at the commencement of March Break until 6:00 p.m. on the Sunday prior to return to school. The schedule will be reversed in odd-numbered years.
Easter Weekend
(d) [“A”] will reside with the applicant on Easter weekend in odd-numbered years and with the Respondent in even-numbered years from Friday at 5:00 p.m. until Monday at 6:00 p.m.
Mother’s Day
(e) If [“A”] is not otherwise with the Applicant on this weekend, [“A”] will reside with the Applicant on Mother’s Day weekend, from Friday at 5:00 p.m. until Sunday at 6:00 p.m.
Victoria Day Weekend
(f) [“A”] will reside with the Respondent on Victoria Day weekend in odd-numbered years and with the Applicant in even-numbered years, from Friday at 5:00 p.m. until Monday at 6:00 p.m.
Father’s Day
(g) If [“A”] is not otherwise with the Respondent on this weekend, [“A”] will reside with the Respondent on Father’s Day weekend, from Friday at 5:00 p.m. until Sunday at 6:00 p.m.
Summer Vacation
(h) [“A”] will reside with each party for two non-consecutive weeks during [“A’s”] summer vacation. The Applicant and Respondent will advise each other by May 15th of their chosen weeks, with the Respondent having first choice in odd-numbered years and the Applicant having first choice in even-numbered years.
Canada Day
(i) [“A”] will reside with the Applicant on the Canada Day holiday in odd-numbered years and with the Respondent in even-numbered years, from July 1 at 10:00 a.m. until July 2 at 10:00 a.m.
Labour Day Weekend
(j) [“A”] will reside with the Applicant on every Labour Day weekend from Friday at 5:00 p.m. until Monday at 6:00 p.m.
Thanksgiving Weekend
(k) [“A”] will reside with the Respondent on Thanksgiving weekend in odd-numbered years and with the Applicant in even-numbered years, from Friday at 5:00 p.m. until Monday at 6:00 p.m.
Christmas Eve/Morning and Christmas Day
(l) [“A”] will reside with the Respondent every year from 10:30 a.m. on December 24 to December 25 at 5:30 p.m. and with the Applicant every year from 5:30 p.m. on December 25 until 10:30 a.m. on December 27.
Other Holidays/Special Occasions
(m) [“A”] will spend all other holidays and special occasions in accordance with the regular residence schedule.
[184] Currently, Mr. Lawson rents or borrows a vehicle for access. While Mr. Lawson has no working vehicle of his own, the court orders Ms. McIntyre to share the driving by picking up the child at the end of the following access visits to ensure they occur;
March break;
Easter weekend;
Father’s Day weekend;
Summer vacation;
Christmas.
CHILD SUPPORT AND SECTION 7 EXPENSES
[185] Ms. McIntyre has been steadily employed, but for a year’s maternity leave for her youngest child in mid-2019.
[186] Her income has been as follows:
2017 $34,395;
2018 $41,756;
2019 $27,715.
[187] Mr. Lawson’s income stream has been disrupted by his injury, impairments, and choices.
[188] In 2017 he made $41,340 working at East Hamilton Radio and sick benefits following his shoulder injury.
[189] Benefits were extended to August 1, 2018 due to his medical condition. He began working at East Hamilton Radio doing a lower paying but less taxing job on October 29, 2018. His actual income in 2018 was $14,728.
[190] Mr. Lawson continued at East Hamilton Radio until November 2, 2019 when he took a leave of absence. From his record of employment, it appears that he actually earned slightly less than $8,000 in 2019.
[191] In 2020 he collected Ontario Works which again is less than $8,000 for the year.
IMPUTATION OF INCOME
[192] Ms. McIntyre seeks the court to impute income of $40,679 stating that Mr. Lawson has failed to provide medical evidence of disability after January 18, 2018.
[193] There is evidence in the papers he filed at trial that his benefits were continued based on a “medical condition” until August 1, 2018. His doctor and his physiotherapist agreed to a graduated return to work plan to see if he could “tolerate” the work.
[194] Mr. Lawson testified that his job had been installing electronics and stereos in cars. After his injury his arm did not function properly doing the required work under the dash. For this reason, he took the lesser paying job installing “Alcolock” breathalyzers for persons charged with impaired driving. The appointments were based on clients, so his hours fluctuated between 18 and 25 hours. He testified that he worked all the hours that they gave him.
[195] His medical evidence indicates that his shoulder required surgery and was plated. It is persuasive that his physiotherapist and his doctor noted a return to work “as tolerated”. This is sufficient evidence to accept that Mr. Lawson is unable to earn the $40,000 as he had previously.
[196] It is evident that he made best efforts to do this alternate job in 2019 but it did not garner enough income for him to support himself or support for his son.
[197] Mr. Lawson has made no effort to be employed in 2020. He testified that emotionally he could not do so; however, there is no medical evidence to support that he has been disabled for such emotional or mental reasons.
[198] In September 2020 Mr. Lawson said there were no jobs due to the COVID virus. The court recognizes that there are some difficulties with employment in these challenging times (Ms. McIntyre’s spouse was laid off); however, Mr. Lawson admitted that he did not even look for work. He submitted that he was not working so he could focus on this trial. The trial however took five days (four days in January and one day in September) and in the meantime he has been free to seek out employment.
[199] As of 2020 it is apparent that Mr. Lawson is choosing to be unemployed while being supported on public funds and the assistance of his uncle.
[200] Mr. Lawson has a duty to seek out reasonable employment opportunities that will maximize his income potential so as to meet the needs of his child: see Vodden v. Furgoch, 2019 ONSC 953 at para 129.
[201] Section 19 of the Child Support Guidelines allows the court to impute an income to a parent.
[202] Even the most modest jobs at minimum wage ($14 at 35 hours per week) would garner an income of $25,480.
[203] The court accepts Mr. Lawson’s actual income for 2017, 2018, and 2019 for calculating guideline child support but imputes income of $25,480 for 2020 and ongoing.
COMMENCEMENT OF THE RETROACTIVE CLAIM
[204] Ms. McIntyre is entitled to retroactive child support from April 2017 when she commenced her application and gave notice of the claim.
[205] She is requesting the court order retroactive support to December 1, 2015 when she took over the child’s primary care and at a time when Mr. Lawson was fully employed.
[206] This would work a severe financial hardship on Mr. Lawson in light of his current financial difficulties and in light of his having no assets or savings to draw upon.
[207] Ms. McIntyre had advised Mr. Lawson that she was not seeking financial support from him. Her application was the first notice to him that she was making such a claim.
[208] The court is not prepared to order retroactive support before the notice of April 2017.
CALCULATION OF RETROACTIVE SUPPORT
[209] For nine months in 2017 (April to December) based on an annual income of $41,340 Mr. Lawson was obligated to pay child support of $374 under the Child Support Guidelines (“CSG”). He should have paid $3,366.
[210] In 2018 on an annual income of $14,728 Mr. Lawson was obligated to pay $73 per month under the CSG. He should have paid $876.
[211] In 2019 his income was below the guideline support level.
[212] In 2020 on the imputed annual income of $25,480 he was obligated to pay $204 per month under the CSG. He should have paid $2,448.
[213] For two months in 2021 on the imputed annual income of $25,480 he is obligated to pay $204 per month under the CSG in the amount of $408.
[214] The total retroactive child support that is owed is $7,098.
ON-GOING SUPPORT ORDER
[215] Commencing March 1, 2021, based on an imputed annual income of $25,480, Mr. Lawson shall pay child support of $204 per month under the CSG.
CHILDCARE COSTS (SECTION 7)
[216] In the August 15, 2015 agreement Mr. Lawson agreed to honour childcare costs for Ms. McIntyre’s parents who provided babysitting service. In his answer he acknowledged that he owed $900. Ms. McIntyre requests that this be paid.
[217] Mr. Lawson is ordered to pay the babysitting costs of $900.
[218] While Ms. Lawson was employed, she also incurred daycare costs for before and after school daycare at Koala T Care Daycare between September 2017 and June 2019.
[219] Mr. Lawson submitted that he could have provided this care rather than incur the cost. This ignores the evidence that he was injured in the fall of 2017 and later lost his vehicle, so he would have been unable to provide this care.
[220] The total amount of daycare costs was $2,910.17. Ms. McIntyre requested 50 per cent of the costs be attributed to Mr. Lawson.
[221] In light of his injury and the much lower income that I found Mr. Lawson to have in 2018 and 2019, the more appropriate sharing of this cost is 40 per cent. This more accurately reflects his proportionate share.
[222] The court orders Mr. Lawson to pay $1,164 for the daycare expenses.
[223] The total s. 7 expenses he is to pay is $2,064.
CREDIT FOR PAYMENTS MADE
[224] The total arrears of child support ($7,098) and s. 7 expenses ($2,064) are $9,162.
[225] Mr. Lawson has paid support totalling $7,366.93, which is to be credited toward these arrears, leaving a balance owed of $1,795.07.
[226] A Support Deduction Order shall issue.
ADDITIONAL PARENTING ORDERS
[227] Ms. McIntyre proposed a number of parenting orders which clarify obligations and responsibilities of both parents.
[228] Mr. Lawson made no submissions on these parenting orders. A number of them are to his benefit and I expect he would support the orders.
[229] Overall, they serve the best interests of the child and the court finds them to be helpful and appropriate and are to apply to both parents.
[230] The court orders as follows:
Neither parent will smoke when “A” is present. Further, each parent will take all reasonable precautions to ensure that third parties do not smoke when “A” is present.
Neither parent shall speak ill of each other in the presence of the child, “A”. Each parent will take all reasonable steps to ensure that third parties do not speak ill of the other parent in the presence of the child, “A”.
If “A” needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency.
Ms. McIntyre and Mr. Lawson shall have the same right and entitlement to information from third parties relating to health, education and welfare of the child without the necessity of any release, direction or acknowledgement executed by the applicant or respondent and this shall constitute sufficient release, authorization and direction to any third party for the release of such information.
Ms. McIntyre and Mr. Lawson shall use their best efforts to provide each other with any information relating to the health, education or welfare of the child, of which they become aware of in a timely basis where the information is not likely to come to the parent's attention otherwise. Such information includes:
a. advanced notice of appointments with medical or paramedical professionals;
b. contact information or changes in contact information for third parties involved with the health, education or welfare of the child such as teachers, principals, school boards, coaches, doctors, dentists, leaders, counselors or clergy;
c. schedule of extracurricular activities;
d. medical, psychological or other assessments or reports on the child;
e. advanced notice of any public or ceremonial events of a child including concerts, recitals, games, graduations, religious rights of passage.
Ms. McIntyre will apply for a Canadian passport for “A”. Mr. Lawson will sign the passport application. Ms. McIntyre shall keep the passport.
Mr. Lawson shall not travel with the child outside of the Province of Ontario without the consent of Ms. McIntyre. Such consent will not be unreasonably withheld.
If either party plans a vacation with “A”, that party will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact “A” during the trip.
If either party plans a vacation without “A”, that party will give the other a telephone number where he or she can be reached in case of emergency or if “A” wishes to contact that parent.
ADDITIONAL DISCLOSURE ORDER
[231] Ms. McIntyre sought mutual disclosure orders in her draft order. Mr. Lawson made no submissions. I am satisfied that the orders are appropriate.
[232] The court orders:
If a request for disclosure is made by Ms. McIntyre or Mr. Lawson, the following information will be provided to the other within 30 days of the request:
(a) The documents required in s. 21(1) of the Guidelines that have not previously been provided;
(b) Current information about “A’s” special or extraordinary expenses;
(c) Current information about a party's claim of undue hardship, if any, and his or her household's standard of living;
(d) Details of Canada Child Benefit or other child benefits received in the previous year and anticipated in the coming year; and
(e) Any other information needed to review child support.
(f) This may be asked for once a calendar year or in the event of a material change in circumstances.
MR. LAWSON’S SUBMISSION MATERIALS
[233] Mr. Lawson, as a self-represented party, did the best he could in submissions. He improperly included other proposed evidence, which the court could not consider as it was not submitted and tested in the trial. This included articles by authors offering opinion evidence.
[234] Mr. Lawson made a number of improper claims for which there was no evidence nor were they pled in his answer, such as a claim for psychological and emotional damages to himself and the child.
[235] The court must make its decisions based on issues as pled, for which it has jurisdiction, on evidence led at trial.
CONSENT ORDERS
[236] The parties agreed on the holiday schedule as noted above.
[237] In the course of the trial Mr. Lawson agreed that the divorce may be severed and that Ms. McIntyre may file for divorce.
[238] They agreed that s. 7 expenses would be shared in proportion to incomes.
[239] The court orders:
In the event that Ms. McIntyre incurs special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, Mr. Lawson and Ms. McIntyre shall share these in proportion to their respective incomes.
Before incurring any s. 7 expenses for which she seeks reimbursement, Ms. McIntyre shall advise Mr. Lawson of the amount of the proposed expense and obtain his consent in advance of incurring the expense (where possible), such consent not to be unreasonably withheld.
Ms. McIntyre and Mr. Lawson will share, in proportion to their respective incomes, the costs of “A’s” post-secondary education. Prior to determining each party's obligation to the child's post-secondary educational costs, Ms. McIntyre shall first deduct a reasonable contribution to these expenses expected from the child including from summer or part-time employment, bursaries, grants, or scholarships.
COSTS
[240] If the parties are unable to resolve costs, Ms. McIntyre may file written submissions on costs within 14 days. Mr. Lawson may file responding written submissions within 14 days thereafter. Submissions are not to exceed three pages, plus costs outlines, case law, and any applicable offers. If required, Ms. McIntyre may file reply submissions seven days thereafter.
[241] Such written submissions are to be forwarded to my chambers in St. Catharines at 59 Church Street, St. Catharines, L2R 7N8 or may be emailed to my assistant at St.Catharines.SCJJA@ontario.ca.
[242] Falling receipt of costs submissions, within 40 days of this judgment, the issue of costs will be considered settled and the file closed.
M. J. Donohue J.
Released: February 2, 2021
CAYUGA COURT FILE NO.: FS-17-55
DATE: 20210202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amanda Lee-Anne McIntyre
Applicant
– and –
James Colin Lawson
Respondent
REASONS FOR JUDGMENT
M. J. Donohue J.
Released: February 2, 2021