COURT FILE NO.: FS-21-09
DATE: 2022-06-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S. S.
and
S. P.
HEARD: May 30, 31, June 1 & 2, 2022
BEFORE: Newton J.
COUNSEL: S. Lundin, for the Applicant
K. Ronning, for the Respondent
Decision on Trial
[1] Although this is a high conflict divorce, the parties[^1] have been able to resolve equalization and retroactive child support[^2].
[2] While they agree that their two daughters are to spend equal time with both parents, they cannot agree on the parenting schedule, final decision making and child support going forward.
[3] It is obvious from the evidence of both parents and their positions advanced at trial that there are significant trust and anger issues that make communication between them difficult and challenging.
The Facts
[4] Both parents testified. The trial management judge wisely limited the number of “character” witnesses the parties could call and only one “character” witness was called. Even then, much of the trial dealt with matters not relevant to the issues I am to decide.
Disclosure
[5] Each also claimed that the other was deficient in disclosure. The father did not deliver his Financial Statement until the last business day before trial and did not file his 2021 income tax return until the third day of trial. The father claimed that the mother had not complied with a trial management order that she disclose confirmation that a corporation she controls has no income.
[6] On the morning of the trial, the father delivered over 50 documents, most of which had not been disclosed to counsel for the mother previously. Because of this late production, I directed that these documents could not be used at trial.
Family History
[7] The parents married in 2014 having cohabited for three years before. The daughters were born in 2015 and 2017. The parents separated in August 2020. They divorced in November 2021. The mother has since remarried. She had a child with her new partner in September 2021. She is pregnant again and anticipated to give birth in December 2022.
[8] According to the mother, the relationship started to deteriorate after their youngest daughter’s birth. She said that her former partner was drinking heavily and using cannabis. His drinking caused him to be placed on probation at work because of attendance issues. He also had anger issues. The father blames the marriage breakdown on the mother’s infidelity.
[9] The father has been seeing a psychiatrist since June 2021. According to reports filed, the father was diagnosed with severe depression which began in July 2020 and worsened in August 2020 in the context of his marital separation. At that time, the father was drinking up to 12 beers per day but had abstained from alcohol since September 2020. Past history included counselling for anger management and conflict in the workplace. His most recent assessment in February 2022 noted that he has significant difficulty trusting others, particularly the mother and a former friend. Significant cannabis use, up to 1 ounce per week, was noted but the father reported that he was using about a gram per day at that time.
[10] At present, the father is on medication and sees a counsellor every two weeks. He uses marijuana daily, although less than before. When he has the children, he takes them to school and then self-medicates with marijuana. He confirms that he has remained alcohol free since September 2020. He tries to exercise regularly as recommended by his therapists to improve his mental health.
[11] Until her recent pregnancy the mother worked full-time in the insurance industry earning approximately $56,000 per year in 2020. Currently, she is in receipt of employment insurance maternity benefits of $19,136 annually.
[12] Although off on long-term disability for his mental health issues at present, the father is a technician at the local hospital earning approximately $88,000 annually. His LTD benefit will be $58,332 for 2022.
[13] Their eldest daughter is 6 ½ years old and is finishing grade 1. The youngest daughter is 5 and finishing her first year of junior kindergarten. Both are doing well in school, involved in activities, and coping with the current shared parenting schedule of 2/2/3 which has been in effect formally since September 2021.
[14] About a month ago the youngest daughter had to be hospitalized because of a lung infection. During that time, the parents followed the advice of the treating physicians and took turns staying with their daughter in the hospital as their parenting schedule provided.
Decision Making
[15] A consent temporary order provided that the parties were to have joint decision making. That consent order was made without prejudice to the mother’s right to seek a different arrangement for decision-making at trial.
[16] The mother testified that she made all appointments for the daughters prior to separation. This would include all appointments for dental care, school, and haircuts etc.
[17] Although it appears that the parties have been able to make major decisions regarding the children jointly in the past, such as decisions about schooling, family doctor, their daughter’s recent hospitalization, and no religious upbringing, both parents agree that they cannot do so going forward. According to the mother, this would not work because the father would simply choose the opposite of what she wants. The mother is prepared to have final decision-making authority divided with the father making final decisions regarding education and the mother making final decisions regarding medical issues. The father would not agree as he feels that he is more qualified to make the medical decisions. The mother wishes to make medical decisions as she will be attending the medical appointments with her daughters. She believes that the daughters would be more comfortable talking about medical issues with her.
[18] Both parents testified about two recent disagreements over decision-making. Notwithstanding the temporary order for joint decision making, the mother arranged a Covid vaccination for the eldest daughter without consulting the father. When the father learned of that vaccination appointment, he cancelled the appointment. He agreed, on cross-examination, that he cancelled the appointment rather than discussing it with the mother. Subsequently, the daughter and father contracted Covid. Since then, the parents agreed to have both daughters vaccinated.
[19] When the mother registered the children for school, she did not designate the children as Métis. The question is asked whether the student is of native ancestry and, if yes, boxes can be ticked off for First Nation, Métis, or Inuit. The mother did not check off the Métis box as it has not been in important part of their life. The father is Métis but acknowledges that his heritage has not been a big part of his life until about 20 months ago. The mother has no issue with the father designating the children as Métis if he wishes.
[20] Other instances demonstrate a failure on the part of both parties to communicate. On one occasion the father requested health card numbers for the daughters by email. He did not tell the mother that he was taking the children to a hockey game in Winnipeg the next day and that he was taking them out of school early. This caused issues the next day which could have been avoided easily through communication.
[21] One incident at hockey demonstrated poor judgement on the part of the father. After finishing on ice with his daughters, he followed his daughters, their mother, and her new partner into the dressing room when it was the mother’s parenting time. He confronted the children and asked one daughter to tell him her father’s name. He was angry because he had just learned that his wife had remarried. This caused his daughter to cry. There was a confrontation and another parent intervened and told the father to leave the dressing room. As a result of complaints from other parents who witnessed this incident, the father was banned from the arena and the hockey Association. The father acknowledges that his behaviour was not appropriate.
[22] The father has insisted on being advised when the mother is travelling on the highway with the children. The mother’s new partner has family in Winnipeg and she also has family east of Kenora.
[23] On cross-examination, the mother was asked about her forging the father’s signature on insurance and other documents. Her answer was evasive saying that she did not recall signing his name. She was also cross-examined about lying to her former spouse about lapses in insurance coverage and lying to him about when she was travelling with the children to Winnipeg.
[24] According to the father, he will never trust the mother. He describes her as his “abuser” and says that she is not willing to change.
Position of the Parties
[25] Both argue that neither should have final decision-making over the other.
Analysis and Disposition - Decision Making
[26] The evidence demonstrates that, in the past, the parties were capable of making decisions together for the children. The evidence also demonstrates that they have difficulty communicating at present. This is due to distrust and anger. Consequently, despite the temporary order for shared decision-making, the mother has made unilateral decisions such as the vaccination. I am also satisfied that, on the evidence, the mother has not always been honest with the father. I am also satisfied that, on the evidence, the father still has significant anger issues that impede his ability to communicate calmly and effectively with the mother.
[27] I am very reluctant to give one parent final decision-making in the event of disagreements except in the clearest of cases. These parents will be parenting the children together for at least a decade or more and should endeavour to make joint decisions whenever they can. However, the evidence also demonstrates that they have been unable to communicate effectively, except through their lawyers, and, even then, there are unresolved issues.
[28] I am guided by the best interests of the children as set out in section 16 of the Divorce Act. One enumerated factor is the ability and willingness of each parent to communicate and cooperate on matters affecting the child.
[29] I conclude that it is in the best interest of the children that family discord be minimized. Accordingly, having weighed the ability and willingness of each parent to communicate and cooperate in decision-making, and acknowledging that the mother has demonstrated an unwillingness, at times, to communicate with the father, I nevertheless conclude that the mother shall have final decision-making on issues where the mother and father cannot agree. Day to day decisions affecting the children shall be made by the parent to whom parenting time is allocated. This does not mean that the mother need not consult with the father. The expectation is that there will be full disclosure of issues that require a joint decision communicated through My Family Wizard and that the mother shall seek the input of the father prior to making any final decision. This reflects how decisions were made prior to separation, and as noted previously, the parents have been able to make major decisions regarding the children jointly. Although I do not doubt that the father wishes the best for his children, his judgement is, at times, inappropriately influenced by his anger and trust issues. Therefore, in choosing between the parents, both of whom have demonstrated issues in communication and cooperation, the best interests of the children favour granting final decision-making to the mother.
Parenting Time and Exchanges
[30] Pursuant to the consent temporary order dated September 23, 2021, the parties were to have joint decision making authority and were to share parenting of the children on a 2/2/3 day schedule. That schedule was agreed to without prejudice to the mother seeking a different care schedule at trial. All exchanges were to take place at school when the children are in school or at another public place agreed upon by the parties.
[31] That parenting schedule had been in place since the youngest daughter was 3 and the father was working. The party with the children would stay in the matrimonial home while the other moved elsewhere for those days. That arrangement ended in November 2020 when the father changed the locks on the house. The mother then spent her parenting time with the children at her parents until she was able to purchase a home in August 2021 with her parents as co-owners.
[32] Since then, the father has rarely attended exchanges that take place other than at school as he says that these exchanges are not good for his mental health. There have been confrontations at some of the exchanges with both parties offering different versions of the same events. I am satisfied that, at least on one occasion, when the father attended an exchange other than at school he was angry and viewed as aggressive by the mother. Most non-school exchanges are done by his mother.
[33] The mother also finds the multiple exchanges stressful and anxiety producing.
Position of the Parties
[34] The father has discussed schedule changes with the children and says that the children would prefer a 4/3/3/4 schedule. The father is opposed to a 7/7 split because he believes that the children should not be separated from one parent for seven days.
[35] The mother believes that a 7/7 split will be in the children’s best interests as it provides more structure to their lives and will result in fewer exchanges which will benefit all. She proposes a midweek dinner with the other parent from after school until 7 PM so that the children do not go seven days without seeing the other parent.
Analysis and Disposition – Parenting Time
[36] I conclude that it is in the best interests of the children that their schedule be regular with less exchanges. The sisters have and will continue to be together. There is nothing before me in the evidence to suggest that they will not be able to adapt to a 7/7 split on parenting time with, as the mother suggests, a midweek extended visit with the other parent. This schedule is supported by the literature cited by the father which states that, before the age of seven, most children still enjoy reunions during the week with each parent rather than extended periods without contact. I conclude that this arrangement is in the best interests of the children particularly as it fosters stability and ensures that each parent will have some time with the children each week.
Child Support
[37] The issue of retroactive child support has been resolved.
[38] As noted, the father was off work in 2020 because of mental health issues until January 18, 2021. He returned to work until April 27, 2021 and has been off since. He became eligible for long-term disability benefits in November 2021 and receives $4861 monthly or 58,332 annually. It is not known when he will return to work.
[39] The mother’s husband runs a landscaping and snow removal business in Winnipeg. She is not involved in the business but recently incorporated an Ontario Corporation. That company is dormant and has no source of income. Although she testified it was set up in case her husband decides to do work in Ontario, she acknowledged that her husband’s business was already licensed to conduct business in Ontario. It was suggested to her in cross-examination that this corporation was to be used to hide assets from her former spouse, but she denied that. She testified that her new partner’s income is estimated at $150,000 annually.
[40] The mother has been on employment insurance parental leave benefits since June 2021 and elected to continue those benefits for 18 months. This benefit equals $19,136 annually.
Positions of the Parties
[41] The mother seeks set off child support in the amount of $591 reflecting each party’s current actual income from LTD and employment insurance.
[42] Relying on such cases as Lachapelle v. Vezina,[^3] Podgorni v. Podgorni[^4] and Scott v. Szluinska[^5], the father argues that the “birth of a subsequent child does not automatically give a parent the right to terminate their ongoing financial obligations to their existing, by choosing to stay home with that child and not work.”[^6] The father notes that the mother’s new partner makes at least $150,000 annually which is more than the combined income of the father and the mother when they were together.
Analysis and Disposition – Child Support
[43] Section 9 of the Federal Child Support Guidelines includes the conditions, means, needs and other circumstances of each as factors to be considered in determining child support.
[44] Each parent has a responsibility to provide child support to the extent that they are able. When both parents were working before separation there was a family income that exceeded $100,000 annually. The father’s income has been reduced because of his inability to work due to illness to about $58,000 annually. Instead of making about $56,000 a year the mother chose not to work but to have a child and then another child with her new partner. The new partner’s actual income is not known but, for the purposes of this trial, it was conceded to be at least $150,000 per year. I am not satisfied that the mother has other sources of income such as from a corporation.
[45] If the mother was working at present, the offset amount payable by the father to the mother who would be $30 per month. By not working, the mother is drawing $561 per month out of the father’s household, money that could be used to support his household and the children while her household is bringing in over $150,000. I have considered the means, needs, and circumstances and conclude that it is appropriate that the child support payable by the father to the mother be reduced by one half to balance the resources available for the support of the children in each household. I recognize that that, at times, the other household will have four children.
[46] Therefore, the child support payable by the father to the mother, effective June 1, 2022, shall be $295.50 monthly. Section 7 expenses are to be shared equally. Child support is to be reviewed annually, each June, and upon either parent returning to full-time employment.
Conclusion
[47] The order and parenting plan attached as Schedule A shall issue.
[48] If counsel need to address any issues or ambiguity in the order or parenting plan, counsel may contact the trial coordinator.
[49] If the parties cannot agree to costs, then any party seeking costs shall deliver cost submissions, limited to three pages plus costs outline, within 20 days and responding party shall deliver their submissions, limited to three pages plus costs outline, within 10 days thereafter. If no submissions with respect to costs are received then costs will be deemed settled.
The Honourable Justice D. Newton
Released: June 13, 2022
COURT FILE NO.: FS-21-09
DATE: 2022-06-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S. S.
Applicant
and
S. P.
Respondent
DECISION ON TRIAL
Newton J.
DATE: June 13, 2022
/slf
[^1]: Non-specific identifiers will be used to protect the privacy of the parties and their children.
[^2]: On consent, the mother’s surname is changed to reflect her new married name.
[^3]: 2000 2246 (ON SC).
[^4]: 2010 ONSC 1070.
[^5]: 2019 ONSC 5804.
[^6]: 2019 ONSC 5804 at para. 19.