Court File and Parties
COURT FILE NO.: FC-21-028
DATE: 2021/11/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gordon Donald Schleen, Applicant
AND:
Amy Gaetane Mary Hebert, Respondent
BEFORE: Justice M. Fraser
COUNSEL: Duncan A.R. Crosby, Counsel for the Applicant
Jessica Freedman, Counsel for the Respondent
HEARD: August 11, 2021
ENDORSEMENT
Motion:
[1] The Respondent mother brings a motion requesting child support for the parties’ child, Lucas on a temporary without prejudice basis in the amount of $769.00 per month based upon the Applicant father’s income of $82,497.00.
[2] The Respondent additionally asks for a temporary order for spousal support in the amount of $550.00 per month in accordance with the mid-range Spousal Support Advisory Guidelines and the parties’ 2020 incomes.
[3] The Respondent also asks for an Order requiring that the Applicant comply with the disclosure that he was ordered to produce on April 29, 2021 within a 10 day period.
Cross-Motion:
[4] The Applicant father brings a cross-motion asking for a temporary Order that the parties share parenting time and decision-making for the child, Lucas.
[5] He additionally asks for an Order for exclusive possession of the matrimonial home situate at 154 Pleasant View Drive, Pembroke, ON.
[6] The Applicant asks that a temporary child support order issue providing that he pay the amount of $351.00 per month based upon a set off of his income with an amount imputed as income to the Respondent, more specifically $45,000.00
[7] Finally, he asks that there be an Order that no interim spousal support be payable by him to the Respondent.
Background:
Parenting
[8] The Respondent asserts that the parties began to live together in a common-law relationship in January 2010. While the Applicant maintains that the parties were married for exactly four years, he denies there was a common law relationship prior to that. The parties married on September 17, 2016. Their only child, Lucas, was born February 15, 2017.
[9] The parties separated on September 18, 2020. They remained living separate and apart in the matrimonial home until December 2020. At that time, the Respondent left the matrimonial home.
[10] The parties were able to initially cooperate with respect to the division of parenting time with Lucas. It appears that the parties initially implemented a “three days on, three days off” shared parenting schedule for the first four months following their separation.
[11] However, since January 2021 Lucas has remained in the principal care of the Respondent. The Applicant advises that he did not agree to this.
[12] The Applicant maintains that he had, prior to this time, been an active and engaged father. He maintains that he oversaw the parenting of Lucas when he returned home from work each day and that customarily the Respondent would leave the home during this time. He maintains that he also would look after other typically domestic duties in the evenings as well, such as laundry, dishes and similar household chores.
[13] The Applicant asserts that the Respondent is now manufacturing complaints against the Respondent in order to “win” the lion’s share of the parenting time with Lucas. He complains that she has been monitoring his activities, including surreptitiously taking photographs of him. He maintains that she has become increasingly antagonistic toward him without a legitimate basis for it. He asserts that over time her expressed concerns escalated by inventing increasingly serious issues as she resists his requests. He also maintains that the Respondent is motivated by her dislike of the fact that the Applicant has maintained a friendship with the Respondent’s partners former spouse and that this individual spends time with the children when they are in the Applicant’s care.
[14] The Applicant has been having parenting time with Lucas for two nights a week, Tuesdays and Thursdays from 5:15 p.m. to 8:00 p.m. and alternating weekends for one day, from 8:00 a.m. to 8:00 p.m. He has asked for additional time of every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and every Wednesday overnight, on an interim without prejudice basis. The Respondent would not agree to this.
[15] The Applicant now asks that the parties resume parenting on an equal, week-about basis. He asserts this is warranted principally given that the main risks posed by the COVID-19 pandemic have subsided, that he has a close relationship with Lucas and that it is essential an opportunity be given for this bond to continue, and that the Applicant has the assistance of his parents and that they will assist with the care of Lucas while he is working.
[16] The Respondent maintains that enlarging the parenting time for the Applicant would cause undue stress to Lucas. She states that he has been having issues with his potty training and problems with constipation which the Applicant has not been properly addressing when Lucas is with him.
[17] The Respondent claims that throughout the marriage, she was the primary caregiver to Lucas and that his comfort level remains with her. She asserts that the Applicant would frequently bully and verbally abuse her, both in private and in front of Lucas. She maintains that he drinks excessively.
[18] Lucas has remained principally in the Respondent’s care since January 2021. She asserts that while the parties attempted a shared arrangement at the time of the separation, it did not go well. She asserts that Lucas was experiencing night terrors, constipation, bed wetting and potty-training regression. He was also showing behavioral issues – with displays of aggression, confusion and anxiety. It was her observation that he was delegating the care of Lucas to his parents in any event. She asserts that the Applicant actively disparaged her to Lucas.
[19] The Respondent maintains that Lucas is currently resistant to spending more time with the Applicant.
Child and Spousal Support
[20] The Applicant is a salesman for Valley Window & Door in Pembroke. His income in the past four years, based upon his Notices of Assessment is as follows:
2017 - $67,122
2018 - $93,511
2019 – $96,211
2020 - $82,495
[21] The Applicant suggests that his income for 2018 and 2019 were higher than normal because of a federal government home retrofit program which has now expired and submits that his income should therefore be adjusted downward.
[22] The Applicant supplemented his income by delivering for ValleyEats. He maintains he did not work for this business at all in 2021.
[23] In 2020, the Applicant broke down his income as follows: Valley Window & Door - $77,181.98 and ValleyEats - $5,314.59.
[24] The Respondent is self employed as a hairdresser. Her income, based upon her Notices of Assessment for the past four years, has been as follows:
2017 - $11,440
2018 - $23,331
2019 - $12,045
2020 - $19,199
[25] Before they separated the Respondent worked from home in a salon he built for her in the basement of the matrimonial home. While serving clients, the Respondent’s mother would come to the home and care for Lucas. In the evening the Applicant would come home and the Respondent would go out to the gym or go for walks.
[26] The Respondent maintains that she worked initially in the relationship and marriage but that once Lucas was born, she reduced her hours so that she could be available to care for Lucas.
[27] The Applicant maintains that he did not agree to the Respondent not working during the marriage. He denies that this is not an instance where the Respondent “put her career” on hold to attend to childcare and household chores.
[28] The Respondent claims that during the COVID-19 pandemic an anonymous person contacted the Health Unit alleging that she was working in violation of the protocols and that as a result her business was shut down effective March 5, 2021. She has been since ineligible for further CERB benefits and she has been unable to find employment despite inquiring at various salons. Presently she is restricted to going to a client’s house to cut hair.
[29] While the Applicant acknowledges that the COVID-19 pandemic impacted the Respondent’s ability to work, he asserts that this has now eased and should no longer be an impediment to her working. He maintains that she is living “rent-free” at her new partners and has been receiving the CERB benefit throughout 2020. He questions whether the Respondent is making appropriate efforts to provide for her own support. He asks that an income of $45,000 be imputed to her.
[30] The Applicant has been paying child support of $426.00 per month to the Respondent for the support of Lucas in bi-monthly instalments of $213.00. Each on the 1st and 15th of each month commencing February 15, 2021.
[31] The Applicant submits that based on their incomes (hers being imputed), he should not be obliged to pay spousal support, and that, provided a shared parenting arrangement is ordered, the child support should be based upon a set off of incomes (his at $82,495.00 and her imputed income of $45,000.00)
Exclusive possession of matrimonial home
[32] The Applicant asks for an interim order granting him exclusive possession of the matrimonial home. The matrimonial home is owned in his name alone. He asserts that the Respondent voluntarily left the home in December 2020 and that she has no need to attend the home. She has removed any contents she wishes, that she and her new partner have entered the home in his absence and without his knowledge including having stayed there overnight, that his counsel has asked that the Respondent’s present partner confirm he will not attend and this confirmation has been refused.
Analysis:
Parenting time and decision-making
[33] Pursuant to section 16(1) of the Divorce Act, parenting time is to be decided by giving consideration only to what is in the best interests of the child of a marriage.
[34] Section 16(3) sets out the factors a court must consider in determining the best interests of a child. Primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being.
[35] Parenting determinations at temporary motions are challenging as decisions are being made without the benefit of a full evidentiary record. Temporary orders are intended to provide a “band-aid” solution pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the child requires a change.
[36] A status quo was established following the parties’ separation and while it would seem that the parties initially agreed upon a shared parenting arrangement, this changed in January 2021. Since then Lucas has remained in the Respondent’s primary care.
[37] The Respondent maintains that this change occurred due to the child showing signs of stress with the shared arrangement. She suggests that the parties agreed that the Applicant’s parenting time would be gradually expanded upon once the issues were addressed which seemed to be that this expansion has not happened. The Applicant asserts that he agreed to reducing his parenting time with Lucas on a temporary basis only and that a return to a shared arrangement was contemplated and is now overdue.
[38] The parties’ differing positions on what was contemplated by them when the parenting arrangement was changed in January 2021 underlines why it is challenging to make determinations on temporary motions, based upon affidavit evidence alone. I conclude, however, that regardless, a new status quo was created, namely Lucas remained primarily in the care of the Respondent.
[39] I am not prepared to impose a change in the parenting arrangement at this juncture which would significantly alter the residential arrangement which has been in place since January 2021. Lucas is young. There is no dispute that Lucas was having difficulty adjusting to the shared arrangement and therefore a new status quo has been in place for almost a year. Lucas’ difficulty adjusting to a shared arrangement could be due to a number of reasons, and it could very well be attributable to where Lucas it at in his social development and not as a result or fault of any one of the parties. Given the conflicting evidence before me, it is not possible in any event to determine why a shared arrangement was not working or whether it is likely to work at this juncture. It would be preferable therefore given that this is a temporary order, to have a parenting arrangement in place which is less of a departure from the present status quo.
[40] That stated, I do conclude that the Applicant’s parenting time with Lucas should be expanded. I do not see the concerns with Lucas’ ability to adjust to a shared arrangement to require the present level of restriction to the Applicant’s parenting time with him.
[41] In this respect I conclude that a temporary order should issue providing that the Applicant is to have parenting time with Lucas every second weekend, from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Additionally, the Applicant should have parenting time with Lucas every Wednesday overnight.
[42] Also, I consider it appropriate in this instance to make a temporary order that both parents shall have joint decision-making.
Child support
[43] Given the interim parenting arrangement, child support should be payable by the Applicant to the Respondent based upon the child support guideline amount for his 2020 income of $82,497.00. A without prejudice temporary order shall therefore issue that the Applicant shall pay the sum of $769.00 per month for the support of Lucas.
Spousal support
[44] I decline to make an order for spousal support on a temporary basis. A proper determination of the Respondent’s entitlement needs to be made on a full evidentiary record. The merits of the claim in its entirety should be dealt with at trial.
Exclusive Possession of the Matrimonial Home
[45] The Applicant asks for an Order for exclusive possession of the matrimonial home. The Respondent vacated the home in January 2021 and she has not submitted that she wishes to return. The Applicant complains that the Respondent and her partner have attended the home without his knowledge or consent. In the circumstances, and to encourage that the parties remain civil in their interactions in particular, I consider it appropriate to grant the Applicant’s request for a temporary order for exclusive possession of the matrimonial home, being 154 Pleasant View Drive, Pembroke, ON.
Disclosure
[46] It was unclear to me what, if any, disclosure remains outstanding from the Applicant pursuant to my Order made on April 29, 2021. This issue was not made the focus of argument. Notwithstanding, it would be my expectation that the disclosure ordered be made in a timely fashion and therefore to the extent any disclosure remains outstanding, the Applicant is to comply with that Order within 10 days’ time.
Costs
[47] If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before November 17, 2021. The Respondent may file submissions concerning costs on or before November 24, 2021. In that event, cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by November 24, 2021, then there shall be no order as to costs.
M. Fraser J.
Date: November 8, 2021