Court File and Parties
COURT FILE NO.: FS-17-2144 DATE: 2021-12-23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tina Louise Julien Applicant
– and –
Andre Christian Julien Respondent
Counsel: Sean Johnson, for the Applicant Evan Chang, for the Respondent
HEARD: April 9, 12, 13, 15, 16, 19, 20, 21 and 23, 2021 and June 22, 24, and 25, 2021
D. Fitzpatrick J.
Background
[1] The fundamental issue in this twelve-day trial was whether the Respondent was a parent during the relationship to the Applicant’s two children from her prior marriage, Abraham born November 23, 2005 and Emmanuel born December 30, 2007.
[2] The Applicant says that the Respondent was a father to Abraham and Emmanuel. She seeks financial support for them and herself. The Respondent denies he had a parental relationship with the children and opposes any support obligation to them or the Applicant. The Respondent does not seek an order for access to the children.
[3] Both parties agree that the relationship was short. They met online in April, 2014 and shortly following commenced a relationship. The Respondent proposed at Christmas, 2014. The parties began to cohabit at May, 2015 and married on September 26, 2015. The parties agree that the date of separation was February 28, 2017 when the Respondent moved out of their shared home. The Respondent last shared time with the Applicant and the children on March 27, 2017 when he returned to the matrimonial home for one evening to celebrate his birthday. This chronology presents a twenty-two-month period of cohabitation and seventeen-month marriage.
Trial Evidence
[4] The evidence presented by the witnesses for both sides was straightforward.
[5] The Applicant testified that the children’s biological father John Mulcahy suffered from mental health issues and was diagnosed as bipolar. Mr. Mulcahy had a minimal relationship with the children that had reduced to no contact at all prior to the commencement of her relationship with the Respondent.
[6] The Applicant told the Court that she met the Respondent online in April, 2014. They quickly commenced a relationship meeting in person for the first time close to Easter, 2014. The Applicant testified to initial and ongoing discussions about the importance of family. The Applicant’s evidence was that the Respondent expressed his interest in being a father to her boys and to wanting a child together. The Respondent was introduced to Abraham and Emmanuel within about a month of their first date. The Applicant testified that she accepted the Respondent’s proposal of marriage to her made just before Christmas, 2014.
[7] The Applicant testified that the Respondent and the children were “like family” commencing early in the relationship while the parties were still dating and continuing. The Applicant described the dynamic as a “parenting partnership” where the parties shared the parenting for the boys. The Respondent worked daily from a computer located in their shared home. The Applicant testified that the Respondent’s work did not allow him to care for the children much during the day. However, she says that the Respondent was an involved parent at all other times. She says the Respondent shared in the cooking of family meals, grocery shopping, laundry, household cleaning, outdoor grounds work and took the boys to their respective extracurricular activities.
[8] According to the Applicant, there were only two parenting responsibilities that were not shared. The Applicant acknowledged that she was the one who scheduled and attended the children’s medical appointments. The other responsibility not shared was respecting the financial support for the family unit. The Respondent was the one who provided and managed all finances for the household.
[9] Emmanuel is autistic, developmentally delayed and essentially non-verbal. That said, the Applicant testified to the Respondent having a “special” relationship with Emmanuel. The Respondent shared meals with Emmanuel, bathed him and participated in Emmanuel’s bedtime routine, took him to and participated with Emmanuel in his swimming, took him to the park, and vacationed with him before and during the marriage to Mexico, Florida and Muskoka. The Applicant described how the Respondent would “take the lead” with Emmanuel such as holding his hand when walking and putting Emmanuel on his shoulders.
[10] The Applicant testified to the close relationship between the Respondent and Abraham. Again, the Respondent shared meals with Abraham, took him to and participated with Abraham in his hockey and skating, took him to the park, vacationed with him before and during the marriage to Mexico, Florida and Muskoka. The Respondent and Abraham were baptized at the family church on the same day.
[11] The Applicant testified that the Respondent shared in disciplining the children. She told the Court of one time when the Respondent locked Abraham in his room as punishment when the Applicant was absent from their home.
[12] The Applicant denied that she directed the children to call the Respondent dad or that she insisted that the Respondent adopt that label. The Applicant states it was the Respondent who initiated, encouraged and embraced this title and role.
[13] The Applicant states that she was the one who initiated the discussion with the Respondent about adopting the boys referencing her own adoption by her stepfather. The Applicant’s evidence was that the Respondent expressed interest in adopting and went as far as obtaining information and advice but that the process was never initiated.
[14] The Applicant testified that the children used the Respondent’s surname wherever possible but that she was required to use their birth surname for government documents, health services and other legal purposes such as for bank accounts in the names of the children. The Applicant also pointed out that many of the documents, services and accounts were established before her relationship with the Respondent and never changed. As such, the surname Mulcahy was used on the children’s health cards, on community services records, bank accounts, insurance documents, school documents, and applications for geared-to-income housing. The Applicant testified that the Respondent’s surname was used for the children at such places as their church, YMCA, and with the City of Burlington parks and recreation services.
[15] The Applicant called Nelia Cabral on her behalf. Ms. Cabral was a worker with the Peel C.A.S. and had been for twenty-two years. Ms. Cabral attended at the family home five times to undertake a home study and to otherwise review the September, 2015 application made by the parties to foster a child. Ms. Cabral referenced the portion of the application that provides the Respondent’s personal history noting him as a “new parent to two boys” with the comment “I love both of my boys”. Ms. Cabral believed that this section would have been completed by the Respondent. Ms. Cabral testified that the surname Mulcahy was used for both children.
[16] The Applicant called her friend, Laura Moore on her behalf. Ms. Moore was a member of the same church attended by the parties and the children. She testified to meeting with the parties and the children at the church regularly for about one year. These meetings would involve short conversations. The Respondent stated that he was going to adopt the children during one such conversation. In another, the Respondent confirmed that he had adopted the children when asked by Ms. Moore stating they were “my boys now”. Ms. Moore also testified that the children used the Respondent’s surname at the church once the parties married, including for their name tags.
[17] The Applicant’s mother, Margaret Dopko also testified. Ms. Dopko hosted lunch for the parties and the children most Sundays and spent other time with them as a family. The Respondent’s mother, Gwen and daughter, Gemma sometimes also attended these Sunday lunches. Ms. Dopko testified that the Respondent did at times refer to the children as “his boys” and at other times by their names. She told the Court that the Respondent was called “dad” by the children starting prior to the parties being married and that the Respondent appeared “very proud” to be called dad. She described a night out at the Mandarin restaurant in July, 2015 where the Respondent arrived carrying Emmanuel announcing that he had been given a new name, “daddy”. Ms. Dopko said the Respondent was beaming making this announcement. Ms. Dopko testified that the children used the Respondent’s surname during the relationship.
[18] The Applicant also presented various photographs and written materials in support of her claims.
[19] The numerous photographs filed show the Respondent with the children in a variety of settings, including Emmanuel sleeping on the Respondent’s chest, the Respondent laying in the grass holding Emmanuel, reading a book, nose-to-nose and cheek-to-cheek embraces, playing with a soccer ball in the back yard of their home, playing chess in the family home, playing in the pool at the family home, cooking and eating together in the family home, the Respondent instructing on how to tie shoelaces, the Respondent holding hands with Emmanuel or carrying him while walking, interacting on family vacations to Mexico and Florida, interacting on day trips, costuming together for Halloween, celebrating Christmas, the Respondent with the children in wedding photos, the day of the Respondent and Abraham being baptized together and sharing time with the Respondent’s mother.
[20] The written materials consisted mostly of cards. The Respondent wrote a letter to the Applicant on July 4, 2014 commenting “…joy to have you and the boys in my life…I look forward to the future as a united blended family…”. The Respondent gave the Applicant a birthday card again dated July 4, 2014 stating, “I look forward to the future with you and the boys and Gemma.” The Respondent’s wedding card to the Applicant in September, 2015 offered “I am so blessed to have you and the boys come into my life.” Similarly, the Respondent’s card to the Applicant dated April 6, 2016 celebrating an anniversary stated, “I am so blessed you and the boys are in my life.”
[21] The Respondent gave each of the children a card at Easter with the identical message “God loves you and so do I. Love, Dad”. One card was to Emmanuel on March 27, 2016 signed “Love, Mommy and Daddy”. Another was a birthday card to Abraham on November 23, 2016 signed “Lots of love Dad + Mom”. There were cards to each of the children from the Respondent’s mother each signed by her “Love Grandma Gwen”.
[22] There was also an email from the Respondent to C.A.S. dated June 7, 2016 where he is asking to transition their two foster children to another home citing concerns of the negative impact of those foster children “on our own child Emmanuel”.
[23] The Applicant told the Court of the decision of the parties to try and have a child together and that the Respondent paid for her fertility treatments. She testified to becoming pregnant in April, 2016 but suffering a miscarriage that year. The Respondent, she says, thereafter withdrew from the idea of having a child with her.
[24] The Applicant testified to the Respondent retreating from his relationship with Abraham and Emmanuel leading up to the date of separation. She described the Respondent as becoming abrupt with the boys. The Applicant says this abruptness was punctuated when the Respondent announced to her and Abraham five minutes in advance that a moving truck was then coming to their home to relocate the Respondent. That was the date of separation.
[25] The Applicant testified to the emotional stress experienced by her and the children flowing from the unexpected separation.
[26] The Applicant testified to having discussions with the Respondent about reconciling. The Respondent last shared time with the children on March 27, 2017 when he returned to the family home for a dinner to celebrate his birthday. The Applicant says she and the Respondent were intimate on that occasion. The Applicant’s evidence was that she expressed her wish for the Respondent to continue to share time with the boys but that the Respondent chose to have no further contact.
[27] The Applicant presented various clinicians to testify during this trial.
[28] Family physician, Dr. Asisa Saleem provided health care for the Applicant and both children since 2010. Dr. Saleem confirmed that Emmanuel has “severe” autism. Dr. Saleem described Emmanuel’s level of development to be that of a young child, including needing constant one-to-one care for such things as dressing, feeding and to ensure his safety. Dr. Saleem testified to having concerns that Abraham suffers from A.D.H.D. but noted that he is not medicated and meeting all developmental thresholds. Dr. Saleem confirmed that Mulcahy was the surname she had on record for the children and that the Respondent was never present for any appointments with her.
[29] Paediatrician, Dr. Angelo Simone provided health care for Emmanuel since 2011 to address his autism, developmental and behaviour issues. Dr. Simone confirmed that Emmanuel has “severe” cognitive delays, including significant speech delays and required assistance in all aspects of self-care. Dr. Simone’s view was that Emmanuel had the mental development of a toddler and required constant one-to-one care at home and school. Dr. Simone noted the importance of respite and mental health support for the Applicant given the “365, 24/7” parenting required for Emmanuel. Dr. Simone confirmed that Mulcahy was the surname he had on record for Emmanuel and that the Respondent was never present for any appointments with him.
[30] Neurologist, Dr. David Callen provided health care for Emmanuel since 2018 to address his autism, developmental issues and epilepsy with related seizures. Dr. Callen confirmed that Emmanuel has “significant” delays, including minimal verbal output, behavioural and safety concerns. Dr. Callen’s view was that Emmanuel had the mental development in the range of a toddler to young child and required constant one-to-one supervision. Dr. Callen confirmed that Mulcahy was the surname he had on record for Emmanuel.
[31] Paediatrician, Dr. Janet Wei provided health care for Abraham from 2018 to 2019. Dr. Wei diagnosed Abraham as having A.D.H.D. but did not prescribe medication given Abraham’s success in school and general behaviour. Dr. Wei confirmed that “Julien Mulcahy” was the surname she had on record for Abraham.
[32] The Respondent’s evidence in many ways corresponded with that of the Applicant.
[33] He told the Court that he was introduced to the boys after his first date with the Applicant and that the children were thereafter part of the relationship. The Respondent testified that the Applicant made it very clear from the start that there was no separating the children from their relationship. He understood that any relationship would be her, him and the children all together.
[34] The Respondent testified that the children were calling him “dad” commencing with the first three months of his relationship with the Applicant. He told the Court that he did not want to be called “dad” but that his mental health was such that he could not leave and kept being “accommodating”. The Respondent testified that he was so engaged with the idea of being with the Applicant and having a family that he was “not thinking straight”. Further, he testified that he was “caught up in ideals” at the time. The Respondent also explained his conduct as being the response to the Applicant’s threats to divorce him.
[35] The Respondent acknowledged enrolling the children in their extracurricular activities on a “couple of occasions” using his surname at least once when registering for a jump park through the Burlington recreation department. The Respondent testified that he was not comfortable with this but did not push back against what he described as the “Applicant’s narrative”. He said the use of his surname was done without sentiment on his part.
[36] The Respondent testified that he alone paid for the homes where he, the Applicant and the children lived. The Respondent acknowledged that he paid for all of the household expenses without contribution from the Applicant who did not work outside the home during the relationship. He agreed that he took on all financial responsibility for the children and the Applicant except for funds received from the government for the benefit of the children. He denied any recollection of paying anything toward the children but noted that he provided the Applicant with a credit card associated to his and that she may have used that card to purchase things for the children. The Respondent acknowledged that he paid the amounts owing for his primary card and the Applicant’s associated card.
[37] The Respondent’s evidence was that he undertook most of the household duties, including grocery shopping, cooking, cleaning and laundry in addition to his extensive work hours. The Respondent estimated that the Applicant did 10%-20% of these household duties with the balance completed by him.
[38] The Respondent testified that the Applicant undertook 90% of the responsibilities related to the children and he did the rest.
[39] The Respondent acknowledged that he wrote the card to the Applicant dated July 4, 2014 expressing how he was “looking forward to the future as a united, blended family…”. The Respondent dismissed those words as being mere sentiment and hope. The Respondent also acknowledged that he signed a birthday card as “Love Daddy Andre”. The Respondent explained these words as being written at a point where he felt trapped in his head and unable to respond.
[40] The Respondent was taken through the various photos of him with the children filed by the Applicant. He testified that they generally were four people operating together when he was not working. Despite this, the Respondent suggested that the pictures did not evidence closeness with the children and that these photos were nothing more than downtime orchestrated by the Applicant.
[41] The Respondent agreed that he and Abraham were baptized at church the same day.
[42] The Respondent denied that he took on any disciplinary role but acknowledged that the Applicant was correct when she testified that he did so once, in response to the children being late at the YMCA.
[43] The Respondent admitted to bathing the children but only “rarely”.
[44] The Respondent acknowledged that he helped Emmanuel take medications but only “on a few occasions”.
[45] The Respondent acknowledged bathing Emmanuel but only a “couple times”
[46] The Respondent acknowledged taking the children to visit with his mother but says he did so five times or less.
[47] The Respondent acknowledges transporting the children to their extracurricular activities one or two times weekly but says he only did so when asked by the Applicant.
[48] The Respondent agrees that the Applicant approached him about adopting the children and that he did research about that process. However, the Respondent says it was the Applicant’s “one-sided” interest that he went along with because he felt trapped.
[49] The Respondent denies that he ever considered Abraham and Emmanuel as his children. He denies closeness or any relationship beyond providing neutral affect supervision and only when directed to by the Applicant.
[50] The Respondent testified that he was “not on the same page” as the Applicant about having a child together. He denied any knowledge of the fertility treatments. He told the Court that he did not notice the payments he made for the fertility treatments and only learned of them after the fact from the Applicant. However, he acknowledged sending an email to the church saying, “blessed with a child”. The Respondent said he only did so to tell them about the pregnancy but that he was not pleased about it.
[51] The Respondent called his mother, Gwen Julien as a witness on his behalf. Ms. Julien told the Court that she saw the children at various times, including once every month at the home of the Applicant’s mother. Ms. Julien described observing the Respondent interacting with the children and everyone appearing happy. Ms. Julien said she never visited alone with the Applicant and the children. She described a distant relationship between her and the Applicant.
[52] The Respondent also called his daughter, Gemma as a witness. Gemma was direct in expressing her dislike of and disdain for the Applicant. She commenced her testimony by describing the Applicant as “fake” and “manipulative”. Gemma expressed her “strong pity” towards Abraham and Emmanuel for having the Applicant as their mother.
[53] Gemma told the Court that she lived with the parties and the children for about three months commencing from August, 2016. Gemma testified to spending her time then at high school or at her part-time job. Gemma said that when she was at the home, she would be alone or share time with the Respondent. Gemma said her only interaction with the Applicant and the children was when they would be in the common areas of the home. Gemma’s observations were that the children “never” called the Respondent “dad”. She said that Abraham “always” called the Respondent “Andre” and that Emmanuel was non-verbal. Gemma testified to hearing the Applicant prompt the boys to say “dad” but that she never heard them call the Respondent that on their own. Gemma further observed that the Respondent was doing “all” and the Applicant “little” in the home despite having no job.
[54] Gemma did admit to referring to the Applicant as “mom” in a text but dismissed this as being at time early in the parties’ relationship when Gemma was doing drugs and not in a clear mind. Gemma also acknowledged that she made a false claim of sexual assault against the Respondent but recanted when the allegation was investigated.
Analysis
[55] I am called upon to assess the credibility and reliability of all the witnesses here, particularly the Applicant and the Respondent. Credibility refers to the sincerity of the witness in sharing what she/he believes to be the truth. Reliability is concerned with the factual accuracy of what the witness shares.
[56] My assessment of each witness’s testimony must be made with reference to the totality of the evidence accepted during this trial whether such evidence was tendered by the Applicant or the Respondent. Some things to consider in this analysis are the witness’ attitude and demeanour; whether there is a motive or bias; whether the witness' evidence is internally consistent; whether the witness' evidence is consistent with other evidence; and the inherent probability or reasonableness of the evidence (see: Chorus v. Farley, 2007 CarswellBC 2012).
[57] As I noted above, the Respondent’s testimony was aligned with that of the Applicant on some fundamental points although he tended towards minimization. That being said, I have great difficulty with the Respondent’s credibility and reliability where his testimony was in conflict with the Applicant’s. I prefer the evidence of the Applicant at such points of intersection.
[58] The Respondent’s evidence was regularly contrary to the available objective evidence much of which he created. Compounding this, the Respondent would offer simply absurd explanations where his evidence was externally inconsistent. For example, the Applicant testified that she and the Respondent wanted to have a child together. The Respondent denied this stating that he and the Applicant were not on the same page for this issue. He denied knowing about the Applicant’s fertility treatments despite the fact that he paid for them. The Respondent was then confronted with the email he wrote to their church proclaiming how he felt “blessed with a child”. When confronted with his own words the Respondent, incredibly, testified that he sent that email only to advise the church of the pregnancy but that he was not pleased. This is simply not believable and indicative of his testimony throughout this case, which I address with more examples below.
[59] I was generally satisfied with the credibility and the reliability of the Applicant. Although she did tend towards sermonizing in her responses, her evidence was internally and externally consistent.
[60] I was also satisfied with the credibility and the reliability of all of the other witnesses presented by both sides during this trial with the exception of Gemma Julien. She was neither credible nor reliable. Her blazing animosity towards the Applicant contaminated her evidence rendering it valueless for its truth and accuracy.
[61] The onus is on the Applicant to demonstrate that the Respondent was a parent to Abraham and Emmanuel. In other words, has the Applicant, on the whole of the evidence, established that the Respondent treated Abraham and Emmanuel as his own children.
[62] The court must decide each case on the basis of the particular facts. The court may apply a structured approach in exercising its discretion but must avoid a formulaic one (see: Hilliard v. Popal (2010) 2010 ONCJ 619, 98 R.F.L (6th) 243 (O.C.J.) at para 30).
[63] The Court reviews the evidence, objectively viewed while the family unit was intact, to assess and determine this relationship. Any revocation post-separation cannot defeat the finding of an antecedent parental relationship (see: Chartier v. Chartier (1999), 1999 707 (SCC), 43 R.F.L. (4th) 1 (S.C.C.)). Although not an exhaustive or mandatory list, a number of factors have been suggested (see: Chartier and Proulx v. Proulx , 2009 19388) for consideration in determining whether a person was a parent to his or her partner’s children from a previous relationship such as:
a) Participation of the children and purported parent in family events;
b) Purported parent’s financial contribution towards the children;
c) Purported parent’s participation in household duties related to the children;
d) Purported parent’s involvement in the discipline of the children;
e) Children’s use of purported parent’s surname;
f) Purported parent’s presentation, explicit and implicit, of himself as parent to the children, to family, and to the community;
g) Purported parent’s consideration and related efforts to adopt the children;
h) Reference to the purported parent as “dad”;
i) Length of the purported parent’s relationship with the children;
j) Age of the children when the relationship commenced; and,
k) Nature of the children’s relationship with their biological father.
[64] I have no difficulty to objectively conclude on the whole of the evidence that the Respondent treated Abraham and Emmanuel as his own children based on the following:
a) The Respondent proposed to and married the Applicant with full knowledge that the marital relationship included Abraham and Emmanuel. The Respondent asked for and received this family unit;
b) The Respondent’s own words in the cards and notes filed overwhelmingly demonstrate his unequivocal and ongoing intention to be a father to Abraham and Emmanuel. He expressed that intention blatantly and repeatedly throughout the relationship. Those expressions were matched by his conduct with the children on full display in the numerous photographs of him interacting in various settings with the children throughout the relationship. The Respondent intended to be a father to the children and acted voluntarily in furtherance of that intention. The evidence demonstrates a clear emotional and psychological bond between the Respondent and both children;
c) The Respondent made his adoption of the father role clear to the children, his family and the larger community. The Respondent agreed that the children called him dad within a few months of his relationship with the Applicant commencing. The Respondent referred to himself as dad in cards to the children. The Applicant’s mother testified to the children referring to the Respondent as dad commencing prior to the date of marriage. The Respondent’s mother sent cards to the children referring to herself as “Grandma Gwen”. The Respondent referred to himself a “new parent to two boys” with the comment “I love both of my boys” in an application made to the Peel C.A.S in September, 2015. He sent a further email to the Peel C.A.S. on June 7, 2016 where he referred to “our own child Emmanuel”. The Respondent attended and was baptized along with Abraham at the church they attended;
d) The Respondent testified that the children were integrated very early on into his relationship with the Applicant. He described it as a situation where the children were essentially always present. Abraham was nine years old and Emmanuel seven when this relationship commenced. There can be no question that the Respondent was aware that the biological dad was not involved early into his relationship with the Applicant. The Respondent was their only father figure;
e) The Respondent admitted to discussions with the Applicant about adopting the children and that he did research about that process;
f) The Respondent admitted to undertaking at least some discipline of the children, to transporting the children to their weekly extracurricular activities and to providing some assistance with bathing and medications.
g) The Respondent admitted to the children using his surname for enrolment in extracurriculars and at the church they attended.
h) The Respondent’s evidence was that he was the sole financial support for the children and the Applicant except for any government benefits received. He paid for the home(s) they lived in; and,
i) The Respondent’s evidence was that he undertook 80-90% of the household duties for the family unit, including grocery shopping, cooking, cleaning and laundry.
[65] I reject the Respondent’s stated position that he had no parental or emotional engagement with the children. That position is simply contrary to the evidence, including the Respondent’s own words in the cards and notes filed, the numerous photographs of him interacting in various settings with the children throughout the relationship emotionally and fatherly, and the testimony of the Respondent’s mother who attended at family lunches observing the Respondent interacting happily with the children.
[66] I reject the Respondent’s testimony that he was dominated by the Applicant and somehow coerced to act like a parent against his will or better, other judgment. There was no meaningful evidence presented during this trial to support his claim that the Applicant forced this relationship on the Respondent or on the children. The Respondent offered nothing more than assertions in this regard without any specifics. For example, the Respondent’s evidence was that the children called him dad only at the urging of the Applicant. This allegation was repeated in the evidence of the Respondent’s daughter, Gemma. Neither the Respondent nor Gemma provided any specific examples or other details to support such claims.
[67] To the contrary, the evidence before me suggested that it was the Respondent who was the more active party in this relationship. By this, I mean that the Respondent was the one pursuing the relationship with the Applicant and the children. It was the Respondent who proposed to the Applicant knowing that the children were and would be a fundamental part of their married life. He proposed knowing that the children had no relationship with their biological father and no other father figure in their life. The Respondent courted that relationship and role with Abraham and Emmanuel. He was the one engaging with them in all the ways that a parent would, confirmed by the writings and photos filed.
[68] There is no doubt on the evidence that the Respondent acted upon his own agency in both his relationship with the Applicant and the children. The Respondent’s parental role was something all the participants wanted and intended.
[69] I accept that the Respondent changed his mind about wanting a relationship with the Applicant and the children. The reasons for this seemingly abrupt change are not clear to me. As noted, such revocation does not cancel the prior settled intention that I have found to exist.
[70] Judgment to go finding the Respondent a parent to Abraham and Emmanuel.
[71] I have found that the Respondent was a parent to Abraham and Emmanuel. The children are, therefore, entitled to be supported by the Respondent.
[72] I am satisfied that the Applicant is entitled to spousal support from the Respondent with consideration to the objectives set forth in the Divorce Act. The Applicant suffered various disadvantages flowing from the marriage and the breakdown of the marriage. In practical terms, she gave up her existing employment and only source of income as an education assistant during the relationship. She has not obtained ongoing replacement employment following separation although presently that appears to arise in large part from her responsibilities for Emmanuel’s care and her own mental health issues. The Applicant also gave up her subsidized housing. She was paying $315 monthly, including utilities for rental accommodations for her and the children. Now she must pay market rent while she awaits another scarce subsidized unit to become available. The Applicant’s mental health has deteriorated arising, at least in part, from the breakdown of the relationship with her having to be solely responsible for the children, especially Emmanuel. The Applicant went from enjoying a very comfortable lifestyle in a home with a pool and extensive landscaping, having vacations and a nice vehicle to one where she is not able to pay her bills without the assistance of family and government benefits.
[73] In a family narrative such as the one in this case, there must be flexibility to craft an appropriate order to reflect the particular circumstances of the parental and partner relationships. I agree with those, including Professor Nicholas Bala, who suggests that the nature of the relationship directs the determination of any obligations along with the quantum and duration of any support obligation that is found (see: Who is a 'Parent'? 'Standing in the Place of a Parent' & Canada's Child Support Guidelines S.5, 2015 Docs 5306). I appreciate that Professor Bala was discussing child support. There is no reason that his underlying philosophy should not also apply to the issue of spousal support.
[74] Once support entitlement is found, the determination of the appropriate quantum and duration of child and/or spousal should be determined with consideration to overall fairness, including consideration of proportionality and the reasonable expectations flowing from the particular case circumstances. It should go without saying that the best interests of the children must also form some part of the overall equation, although it seems trite to note that it will always be in the best interests of the children to be financially supported at the highest quantum and for the longest term that the particular case circumstances dictate.
[75] The relationship here lasted twenty-two months. I appreciate this is a short time. However, the Respondent pursued and married the Applicant knowing the family unit included the two children. He undertook the support for all of them. The Applicant and the children reorganized their lives to be with the Respondent in this new family unit with the reasonable expectation that he would provide for them going forward. The relationship and that expectation ended abruptly leaving the Applicant to again reorganize her life and that of the children. It is fair, within what I would consider to be the reasonable expectations of the parties following the unexpected end of a relationship of twenty-two months and proportionate in all of the circumstances of this case for the Respondent’s support obligation to continue for a fixed period of three years after separation. The parties separated on February 28, 2017. The three-year support term would then run from March 1, 2017 to February 28, 2020.
[76] Having decided the term, I must now consider the appropriate quantum of child and spousal support.
[77] The Applicant pursued Mr. Mulcahy for child support, and he was ordered at December, 2013 to pay $94.00 monthly on the basis that his only source of monies was from O.D.S.P. benefits. The Applicant testified that Mr. Mulcahy’s circumstances remained unchanged to the best of her knowledge gathered through mutual friends and family. The Respondent obtained an order permitting him to add Mr. Mulcahy as a party but chose not to, which I find to be his agreement with the Applicant’s view that Mr. Mulcahy is contributing child support commensurate with his ability. This $94.00 monthly should be deducted from any child support payable by the Respondent.
[78] The Respondent retained an expert, Robert Smith, to calculate his income for support purposes for the years 2016, 2017 and 2018. The Respondent acknowledged his acceptance of Mr. Smith’s income conclusions.
[79] Mr. Smith was presented as a witness by the Respondent and qualified by the Court as an expert on income analysis for support purposes. Mr. Smith testified to a process whereby he produced three income reports. He described the evolution of the three reports arising from his larger scope of review following receipt of broader documentary and other information from the Respondent.
[80] Mr. Smith’s final report concluded that the Respondent had income of $546,000 in 2016, $267,000 in 2017 and $231,000 in 2018 generating a three-year average of $348,000. All of this income was generated by the Respondent’s self-employment as a contractor in the IT industry. Mr. Smith was not retained to provide analysis for any subsequent year(s). Mr. Smith was in attendance to hear the evidence given by the Respondent and advised that nothing in the Respondent’s testimony would alter the income conclusions presented.
[81] The Respondent testified that there were changes in the industry that diminished his marketability as a contractor and directed him to obtaining employment with Tera Mack Technologies at June, 2019. He was paid a salary there of $150,000 plus potential bonus. The Respondent’s 2019 Line 150 income was $176,888. While I acknowledge that the Respondent historically underreported his contracting income and was often unresponsive to the questions from the Applicant’s counsel about monies flowing in and out of his various bank accounts, I am persuaded by the evidence before me, particularly the Respondent being a salaried employee for much of 2019, that the 2019 Line 150 reported income represents the Respondent’s income for support purposes for that year.
[82] The Respondent testified to being on stress leave from his job with Tera Mack commencing May, 2020. The marriage breakdown was noted as a significant cause of this mental health issues along with work stresses. This diagnosis was confirmed by both the Respondent’s family physician, Dr. Shareen Khalid and his psychiatrist, Dr. Abdul Farooqi who testified on his behalf. He began receiving short term disability benefits at May, 2020 and transitioned to long term disability benefits at September, 2020 in the amount of $6,712 monthly [$80,544 annually]. The Respondent testified that these benefits are his only source of income since May, 2020 and to date.
[83] The evidence from both parties was that the Applicant earned no income during the relationship. Not surprisingly, the Applicant had virtually no income following the breakdown of the marriage given that she had ceased all work during the relationship, the abrupt end to the marriage and her childcare obligations, especially for Emmanuel. There was no meaningful evidence to suggest that the Applicant did earn or was capable of earning more than what her Line 150 revealed for each of 2017, 2018 and 2019.
[84] The Applicant testified that she was without any employment or other income from 2020 on. Dr. Saleem testified that the Applicant was diagnosed as bipolar in 2004 and attended with her in 2019 suffering from mental health concerns. It was Dr. Saleem’s opinion by 2020 that the Applicant was not able to work due to her mental and physical symptoms. The Applicant’s evidence was also that her care responsibilities for Emmanuel impaired her ability to generate income through employment or otherwise.
[85] Both the Applicant and the Respondent testified to being unable to work from 2020 forward due to mental stresses, including those flowing from the marriage breakdown. Each called their respective doctors to confirm the evidence on this point. There was no meaningful evidence presented to challenge any of this medical opinion apart from speculation about faked symptoms. In any event, this evidence did not impact my analysis with reference to the term I have found for the Respondent’s support obligations.
[86] I used the 2019 Line 150 figures for each of the parties as the best evidence of their respective incomes to calculate the support amounts for January and February, 2020 when the Respondent’s obligations terminated.
[87] There was no cogent evidence to support imputing income to either party.
[88] I find the incomes for the parties for each of the following years as follows:
a) 2017 – The Applicant’s Line 150 income was $0.00, and the Respondent’s $267,000 as found by Mr. Smith. The related Child Support Guidelines (“CSG”) obligation for the Respondent is $3,481 per month. The Spousal Support Advisory Guidelines “With Child Support” Formula (“SSAG”) suggests a range from a low of $4,593 to a midpoint of $5,347 and a high of $6,037 monthly;
b) 2018 – The Applicant’s Line 150 income was $0.00, and the Respondent’s $231,000 as found by Mr. Smith. The related CSG obligation for the Respondent is $3,049 per month. The SSAG suggests a range from a low of $3,535 to midpoint of $4,349 and a high of $5,094 monthly;
c) 2019 – The Applicant’s Line 150 income was $8,412 and the Respondent’s Line 150 income was $176,888. The related CSG obligation for the Respondent is $2,400 per month. The SSAG suggests a range from a low of $1,896 to midpoint of $2,500 and a high of $3,071 monthly.
[89] In determining the quantum issue, I reference the same considerations noted in the paragraph 72. and 75. above. I have also considered that the term for this support is fixed at three years. I have also factored that there will be no order for contribution to CSG section 7. expenses given the unclear evidence of any not covered by available benefits. In all of these circumstances, there is no reason to depart from the CSG table amount of support for the children and the low end of the SSAG calculations.
[90] Given the above, the Respondent shall pay the following amounts to the Applicant:
a) Commencing March 1, 2017 and each first of the month up to and including December 1, 2017, child support of $3,481 monthly less the $94.00 payable each month by Mr. Mulcahy plus spousal support of $4,593 monthly;
b) Commencing January 1, 2018 and each first of the month up to and including December 1, 2018, child support of $3,049 monthly less the $94.00 payable each month by Mr. Mulcahy plus spousal support of $3,535 monthly;
c) Commencing January 1, 2019 and each first of the month up to and including December 1, 2019, child support of $2,400 less the $94.00 payable each month by Mr. Mulcahy monthly plus spousal support of $1,896 monthly;
d) On January 1and on February 1, 2020, child support of $2,400 less the $94.00 payable each month by Mr. Mulcahy monthly plus spousal support of $1,896 monthly.
[91] Judgment to go obligating the Respondent to pay the above noted amounts.
[92] The Respondent paid uncharacterized support of $5,770 monthly to the Applicant from July, 2018 to September, 2019 further to an agreement made through counsel. The Respondent paid child support only in the amount of $2,077 from September, 2019 forward pursuant to the Order of Justice Gibson dated September 10, 2019. The Respondent unilaterally ceased making any support payments at September, 2020. The Respondent will receive the appropriate credit for all of these payments against what I have ordered owing by him above.
[93] I would direct counsel and the parties to discuss and resolve the issue of costs in this case. Failing that, the Applicant, within 25 days of this judgment, shall file her submissions not exceeding four pages double-spaced with standard margins and type size plus any relevant Offer(s) and a Bill of Costs. Within 40 days of this judgment, the Respondent shall file his submissions not exceeding four pages double spaced with standard margins and type size plus any relevant Offer(s) and a Bill of Costs. Any reply from the Applicant shall not exceed two double-spaced pages with standard margins and type size and shall be filed within 50 days of this judgment.
Released: December 23, 2021
COURT FILE NO.: FS-17-2144 DATE: 2021-12-23
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tina Louise Julien Applicant
-and-
Andre Christian Julien Respondent
REASONS FOR JUDGMENT
D. Fitzpatrick J.
Released: December 23, 2021