Court File and Parties

COURT FILE NO.: FC-20-11 (Simcoe) DATE: 2022/04/06 SUPERIOR COURT OF JUSTICE-ONTARIO

RE: BEN MICHAEL VAN PAEMEL, Applicant -and- CAMILLE DAWN VAN PAEMEL, Respondent

BEFORE: Gibson J.

COUNSEL: Ben Michael Van Paemel, self-represented Applicant Camille Dawn Van Paemel, self-represented Respondent

HEARD: April 4 and 5, 2022

Endorsement

Overview

[1] The parties in this high-conflict matter were married in 2005 and separated in 2018. They have three children: Eve Van Paemel, born June 12, 2005, now 16; Zoe Van Paemel, born June 9, 2006, now 15; and Ivy Van Paemel, born August 28, 2009, now 12. The elder two children now reside with their mother at the residence she shares in Delhi, Ontario, with her common-law partner Robert Edge. The youngest child resides with both parents on a week-about basis. Eve contends with mental health challenges, and Zoe with an eating disorder.

[2] There has been Children’s Aid Society and police involvement with the parties and the children.

[3] The current proceedings were initiated by the applicant father Ben Van Paemel (“the applicant”) is his Application dated January 16, 2020, in which he sought a divorce, child support, shared custody of and access to the children, and equalization of net family property. The respondent mother Camille Van Paemel (“the respondent”) provided her Answer dated March 16, 2020, in which she sought a divorce, child support, spousal support, sole custody of the children, access to the two older children by the applicant as per their wishes, and access by the applicant to the youngest child on a week-about basis, and equalization of net family property. The applicant’s Reply was dated April 22, 2020.

[4] The matter came on for trial before me by Zoom on April 4 and 5, 2022. Both parties were self-represented at trial.

[5] For clarity, in the interim between when the pleadings in this case were issued, and the present, changes to the Divorce Act with regard to parenting orders have replaced the terms “custody” and “access” with “decision making responsibility” and “parenting time”.

[6] Three witnesses gave evidence at the trial: the applicant, the respondent, and Greg Fisher, a CAS case worker.

[7] The remaining sale proceeds from the sale of the parties’ matrimonial home located at 232 Norfolk Avenue, Delhi, Ontario, in July 2019 were distributed pursuant to the Temporary Order of Gordon J. dated November 26, 2021. This distribution addressed the issues of arrears of child support and equalization of net family property. The parties advised at trial that these were no longer issues.

[8] Pursuant to the Temporary Order of Skarica J. dated October 27, 2021, the applicant has been paying child support to the respondent in respect of the three children in the amount of $807.00 per month based on an imputed income of $50,000, which was based on his reported 2019 earnings. The Order also provided that the applicant was to pay 70% of extraordinary expenses from November 1, 2021 onwards.

[9] The applicant currently works as a home renovator. His evidence was that he currently bills at $45 per hour for his work. His reported income for the 2020 tax year was $24,084. His reported income for the previous year was $60,000. He indicated at trial that his income fluctuates generally in the $46,000 to $60,000 range. The applicant stated that he is contending with a number of physical health issues (torn meniscus, tendons) that result in his not putting in full time hours at present, and that may limit the amount he can expect to work in the coming years. He did not provide any medical reports to document or substantiate his claimed injuries. The respondent alleges that the applicant also makes cash on the side which he does not report as income. The applicant denies this. The respondent seeks a higher income amount to be imputed to the applicant.

[10] The respondent works as an aesthetician. Her income from this is modest at present.

[11] The wishes of the three children concerning residence and visitation preferences were reflected in a Voice of the Child Report completed by Andrew Harris, a clinician engaged by the Office of the Children’s Lawyer, dated December 15, 2020. The eldest child, Eve, indicated that she likes control of when she sees her father, that she likes the present arrangement, and would make no changes. The middle child, Zoe, is unsure how much time she wants with her father, but wants to be able to go to his home, but not on a fixed schedule. The youngest child, Ivy, indicated that she wished to see her parents evenly, including summer, Christmas and Spring break. In a more recent text to her mother introduced in evidence, Zoe stated that she would wish to choose when she goes to visit her father. She wanted to spend time with both parents, but did not want it to be on a strict schedule, and wanted to be able to decide on her own.

[12] The respondent’s child from a previous relationship, Brayden, passed away in 2017. The disposition of his belongings and of a recording of his heartbeat has been a source of conflict between the parties.

[13] A number of text messages and emails between the parties were introduced in evidence. Those sent by the applicant might best be described as frequently profane and abusive.

Assessment

[14] It is evident that the relationship between the parties has been, and continues to be, volatile and fraught with disagreement and conflict. This is particularly so in relation to their three daughters.

[15] While the parties seem unable to consistently agree with each other, I do not doubt that both parents love their children and have their best interests at heart, as they conceive them to be. Where they disagree is how to reflect this. They each advocate different parenting styles and restrictions on their children.

[16] The applicant is sharply critical of the parenting practices of the respondent. His is dissatisfied with the children’s attendance and performance at school, and how the respondent permits them to dress and spend their time. He describes them as being in a downward spiral. The respondent indicates a willingness to attempt to co-parent the children with the applicant, but submits that the girls should have choice about where to spend their time. The applicant submits that there should be an Order for shared decision-making responsibility and also parenting time for all three children, requiring them to spend time with him.

[17] I must make an assessment in these circumstances having regard only to the best interests of the children, guided in part by the statutory list of factors set out at s.16(3) of the Divorce Act, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[18] There is reason for concern. The older two children are teenagers who are contending with various mental health challenges. The evidence of both parties indicate that these girls regularly consume alcohol, cannabis and vape. There have been incidents of physical force involving the girls and both of the parties.

[19] Contrary to the submissions of the applicant, however, it is not evident that the two older children would be better placed to deal with their challenges if they resided with the applicant.

[20] The simple reality is that the older two girls are now of an age where it would be largely futile to attempt to compel them to spend time with either parent if they do not want to. As this reality is often colloquially expressed, to attempt to do so would be akin to pushing on a rope.

[21] The children were afforded an opportunity to express their preferences through a Voice of the Child Report. Due regard should be had to their expressed preferences, consistent with the guidance at s.16(3)(e) of the Divorce Act.

[22] The applicant contends that the Voice of the Child Report did not accurately reflect their wishes, as they had been manipulated. I do not discern any evidence to substantiate this. The OCL clinician affirmed in his report that the three children were able to articulate their wishes freely, and that there was no indication that they were being coached by either parent or by one another. His impression was that they had independent thought, and consistency between the interviews. I accept his assessment.

[23] The two older children should be free to spend time with their father in accordance with their wishes, but it would be neither realistic, useful nor appropriate to require them to do so by way of an Order.

[24] The situation is somewhat different with regard to the youngest child, Ivy, who is now 12. I assess that her best interests are currently best served by a continuation of the current week-about schedule of parenting time. However, Ivy is now almost a teenager, and the text referred to by her mother expresses a desire to have greater autonomy of choice. It would be appropriate given the passage of time to have an updated Voice of the Child Report prepared by the OCL to afford her the opportunity to express her wishes for what should happen going forward.

[25] The parties had sharply conflicting views regarding the actual income of the applicant, and thus on the amount of child support that he should be required to pay. While the respondent voiced strong suspicions, she had no evidence concerning any additional income earned by the applicant. The best evidence afforded in this regard comes from the applicant’s recent tax returns. He indicated that his income varied in recent years in the $46,000-$60,000 range. I assess in this circumstance that the best estimate would be to continue with the $50,000 amount imputed in the Order of Skarica J., along with the same proportion of respective responsibility for special and extraordinary expenses. The amount of child support that the applicant will be required to pay will continue in the same amount as that specified in the Temporary Order of Skarica J. made October 27, 2021.

[26] The parties were both self-represented at trial. There were evident limitations on their ability as litigants to fully and completely identify, express and substantiate what they wanted, and the legal basis for their positions. Within the constraints of what is possible as a trial judge in such circumstances, while respecting the duty to remain impartial with regard to substantive issues, I endeavoured to assist them to clarify their submissions with more precision. However, this could only go so far.

[27] Where this was most evident was with regard to the respondent’s request for spousal support, which was only expressed in the broadest terms, and lacked substantiating evidence to make out the necessary threshold entitlement. In this circumstance, the respondent has not fulfilled the evidentiary onus upon her to substantiate her request, and it is not possible to make an order in this regard at present.

[28] The parties both agree that they should be divorced. An Order will go to the effect that either party may submit a request for divorce with the necessary affidavit by 14B basket motion.

Order

[29] The Court Orders that:

i) The three children of the marriage Eve Van Paemel, born June 12, 2005, Zoe Van Paemel, born June 9, 2006, and Ivy Van Paemel, born August 28, 2009, shall reside primarily with the respondent mother;

ii) The applicant and the respondent shall share Decision Making Responsibility concerning all three children of the marriage for significant decisions, including health, education, religion and significant extracurricular activities;

iii) Eve and Zoe may make their own decisions about the amount, frequency and timing of time that they spend with the applicant father;

iv) The applicant shall have parenting time with Ivy on a week-about basis. The parties shall share holiday time with Ivy on a schedule to be agreed between them;

v) The Office of the Children’s Lawyer will be requested to conduct an updated Voice of the Child Report in respect of the child Ivy Van Paemel, born August 28, 2009. The OCL Intake Form shall be prepared by the respondent mother;

vi) The applicant shall pay periodic child support in respect of the three children Eve Van Paemel, born June 12, 2005, Zoe Van Paemel, born June 9, 2006, and Ivy Van Paemel, born August 28, 2009, fixed at $807.00 per month, commencing April 1, 2022 and on the first day of the month thereafter;

vii) Support deduction order to issue;

viii) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing shall be paid to the Director, who shall pay them to the person to whom they are owed;

ix) The applicant shall pay 70% of special and extraordinary expenses in respect of the three children from April 1, 2022 onward;

x) On consent, either party may submit a request for a Divorce, with the necessary affidavit, by 14B basket motion; and,

xi) The applicant’s approval as to form and content of an Order is dispensed with.

Costs

[30] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and also to Kitchener.SCJJA@ontario.ca. The respondent may have 14 days from the release of this decision to provide her submissions, with a copy to the applicant; the applicant a further 14 days to respond, with a copy to the respondent; and the respondent a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the respondent’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson, J. Date: April 6, 2022