COURT FILE NO.: FS-21-00000014-0000
DATE: 20220921
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.L. v. M.G.
BEFORE: RSJ RICCHETTI
COUNSEL: Meaghan P. Smith, for the Applicant
Evan Chang, for the Respondent
Megan Pallett for the OCL
HEARD: August 31, 2022
ENDORSEMENT
THE MOTIONS
[1] The Applicant/Mother seeks an order determining the income of the Respondent/Father’s income and for interim child and spousal support.
[2] The Father seeks an order that:
• the Father have interim primary residence of the children of the marriage;
• the Father have interim sole decision making for the Children; and
• the Mother’s parenting time be at the Father’s discretion, considering the views of the Children and input from Halton Children’s Aid Society (“CAS”).
THE FAMILY BACKGROUND
[3] The parties began living together in 2005 and separated on August 12, 2019.
[4] There are four children (“the Children”) of the relationship:
• L.G. (d.o.b. […], 2005)
• I.G. (d.o.b. […], 2006)
• J.G. (d.o.b. […], 2007)
• S.G. (d.o.b. […], 2009)
THE PROCEEDING
[5] The Mother commenced this proceeding on February 9, 2021, seeking custody of the Children.
[6] The Father seeks decision-making for and parenting time with the Children.
June 2021
[7] In June 2021, the parties consented to an order that:
• the Children reside with the Mother;
• the Father have supervised parenting time;
• the Father pay child support; and
• requesting the involvement of The Office of the Children’s Lawyer (“OCL”).
September 2021
[8] Due to an issue arising from the Mother’s drug addiction, on September 28, 2021, the parties negotiated a new “temporary without prejudice consent” order that:
• the Children (except L.G.) reside with the Father, “taking into consideration the direction of the CAS with respect to frequency and duration and taking into consideration the children’s views and preferences”;
• L.G. reside with the Mother and the Father have regular parenting time at least once per week considering L.G.’s views and preferences; and
• the Father’s child support obligation be terminated as of September 1, 2021.
[9] This consent became a “temporary without prejudice basis” order on February 17, 2022.
February 2022
[10] The Mother had claimed an interest in the River Road property, being the home in which she and the Father resided. The Father’s brother is the River Road property’s registered owner. In February 2022, the parties entered into “Final Minutes of Settlement Re: Property Claims”, whereby the Mother abandoned her claim and agreed that the Father’s brother beneficially owned the River Road property. The Mother was permitted to remain in the “River Road Residence” until July 30, 2022.
February 2022
[11] Because of the Mother’s drug addiction and impending entry into a rehabilitation program, the parties entered into Temporary Minutes of Settlement on February 17, 2022, which permitted L.G. to reside at the River Drive property “in the absence” of the Mother.
August 23, 2022
[12] A Settlement Conference was held on August 23, 2022.
[13] A Trial Management Conference is scheduled for December 16, 2022.
The Mother’s Drug Addiction
[14] The Mother has struggled with opioid and cocaine drug addiction issues since 2005. The Mother does NOT deny her drug addiction. Throughout her relationship with the Father and to this day, the Mother was and is addicted to drugs. The Mother has been found clearly under the influence of drugs before at home, to the extent of being passed out in the bathroom.
[15] The Mother attended a drug rehab program in 2005 or 2006.
[16] The Father’s materials reference the Mother’s drug-related convictions over the years. The Mother’s materials offer no denial of these convictions. The Court is not privy to details as to when and how many such drug-related convictions exist.
[17] In early 2019, the Mother overdosed on drugs while the Father and Children were home. The Mother required the assistance of emergency services. The CAS became involved with the family.
[18] This incident led to the Mother and Father’s separation in August 2019.
[19] At approximately August or September 2019, the CAS considered the situation unsafe for the Children. As a result, it established a kinship arrangement for the Children with the Father’s brother and wife.
[20] The Mother went to a rehab program in October 2019. The Father’s family paid for this program at a cost of $12,000.
[21] In approximately August 2020, the Mother alleged that the Father had assaulted her. The Father was arrested, and his bail conditions prohibited him from seeing the Children. As a result, the primary residence of the Children remained with the Mother. She also had decision-making authority for the Children.
[22] The Father’s bail conditions were eventually varied in June 2021 to permit him to see the Children. The charges against the Father were resolved with a peace bond but not until April 2022.
[23] In September 2021, the Mother’s drug addiction became such a danger to the Children that the CAS apprehended the Children and delivered them (with the exception of L.G.) to the Father’s care.
[24] The CAS and the Mother entered into a Voluntary Service Agreement, a contract between the two parties in which the Mother agreed that her family will work with CAS to care for the Children. L.G. continued to live with the Mother.
[25] The primary residence of I.G., J.G. and S.G. was with the Father and documented by the September 2021 consent order described above.
[26] The Mother attended yet another drug rehab program in Quebec in early 2022. That program ended on April 13, 2022. The Father paid for the Mother’s rehabilitation program.
[27] During this rehab, L.G. (then 15) was left to reside alone in the River Road property. The other three children resided primarily with the Father.
[28] Upon the Mother’s completion of the rehab program, the Children again began residing with the Mother.
[29] A case conference was scheduled for August 23, 2022.
[30] On August 22, 2022, the Mother called the Father to advise that she had “fallen off the wagon” again. The Mother hung up the phone when she began having seizures which, according to the Father, is a common effect of her drug use. The Mother denies she had a “drug induced seizure” but does not deny having the seizures and provides no further explanation other than noting that it is under “investigation.”
[31] The Children were at home with the Mother at the time.
[32] At the direction of the CAS, the Father picked up J.G. and S.G. and forbade any further contact between the Mother and these two children. L.G. and I.G. remained with the Mother. The CAS took no further action.
[33] This sad story continues.
[34] Late on August 25, 2022, the Mother was taken away by ambulance due to another drug overdose. L.G. and I.G. were both at their home at the time. The overdose took place at another home. The Mother says she thought she was taking cannabis, but the substance “turned out to be fentanyl”.
[35] The Mother denies that L.G. and I.G. were not in her care – but it appears this denial is solely based on the fact the Mother was not in the same home at the time of this overdose. It is clear to this court that the Mother was not in any condition to provide any care or guidance to L.G. or I.G. that night had it become necessary.
[36] The Mother says she now realizes the need to ensure ongoing sobriety. However, the Mother’s history suggests that while this may be her intention, intentions neither suffice to overcome her drug addiction nor render her consistently able to put the Children ahead of her drug use.
ANALYSIS
i) The Mother’s claim for spousal support
[37] As stated above, the River Road property is owned by the Father’s brother. The Mother has not paid and does not pay rent or the expenses for the River Road property. In February 2022, the Mother agreed to move out by the end of July 2022. The Mother remains in the River Road property to this day alleging that she has no other place to reside.
[38] The Mother states she cannot work due to “struggles with [her] mental health and substance abuse.”
[39] The Mother alleges that, because the Father works for his brother’s successful excavation company, a higher income should be imputed than the Father’s 2021 Line 150. In my view, this is speculation on the Mother’s part. One cannot equate the Father’s brother’s successful business with the Father’s income, nor can one even ascertain the relative success of the brother’s business.
[40] The Mother alleges the Father’s bank statements disclose that “he may be receiving additional cash income” and “his income noted in his tax returns may not reflect his true income” (emphasis added).
[41] The Mother draws attention to the Father’s Line 150 income in 2019 of $136,368 and in 2020 of $119,446. In 2021, the Father’s Line 150 income was $54,600. The Father’s current Financial Statement shows an annual income of $53,550.
[42] There is a substantial drop in the Father’s income.
[43] The Father attributes the drop in income to his health issues (particularly knee problems) which limit his working hours to, in his view, 30 hours a week presently. The Father relies on a letter from his doctor and a counselling service to support his claims.
[44] Even with the Father’s alleged knee injury and the reduction in work hours, I do not accept such a significant drop in income. In my view, the average of the last 3 years’ reported income ($103,000) is reasonable to impute to the Father. This amount is the income that the Mother’s counsel urges on this court as an alternative position.
[45] I reject the Father’s submission that the Mother should be imputed a minimum wage job income. Given the clear ongoing evidence of drug addiction, there is no reasonable basis to believe that the Mother can earn any income at this time.
[46] The Mother is in a paradoxical situation. Were the Court to believe she will stop using drugs, it follows that she should earn some income, so the Court ought to impute income. But should the Court expect the Mother’s drug addiction to continue, it follows that she is in no position to care for or make decisions for any of the Children, so the Court ought to be wary of awarding her such rights.
[47] I am not persuaded that the medical evidence provided by the Father is sufficiently detailed or clear in setting out the diagnosis and prognosis which led to the substantial drop in income which the Father claims.
[48] In my view, for the purpose of awarding interim spousal support, I find the Father’s income to be $103,000, the average of the last 3 years.
[49] I am satisfied that the Mother has established a prima facie right to interim spousal support based on her needs and the Father’s means.
[50] Before dealing with the amount of interim spousal support, let me address the matter of the Children.
ii) Primary Residence of the Children
[51] The views of the Children were provided to the Court by counsel for the OCL. They were as follows:
• L.G. – reside at her discretion
• I.G. – reside at her discretion but will be with the Mother
• J.G. and S.G. – with the Father, albeit for the time being
[52] LG and IG are now 17 and 16 years of age. The have not withdrawn from parental control. They are still children.
[53] Residing with the Mother, given her historical and ongoing serious drug addiction, is NOT in the best interests of L.G. or I.G. The drug addiction events described above clearly suggest that she ought not have decision-making authority. Such incidents also demonstrate that none of the Children should primarily reside with the Mother at this time.
[54] I recognize that, given their ages, a court order may do little to persuade L.G. and I.G. to reside with the Father. Nevertheless, and despite their views and preferences, I must do what the court considers to be in the best interests of all the Children and that is to order that the primary residence of the Children be with the Father. So, ordered.
iii) Interim Decision Making for the Children
[55] Given the above circumstances, and for the same reasons, the Father shall have an order granting him complete and full decision-making for all the Children.
iv) Interim Child Support
[56] As the Father is granted primary residence and decision-making for all the Children, the Mother’s claim for interim child support is dismissed.
v) Spousal Support
[57] The SSAG calculations, based on the Father’s imputed income of $103,000 and no income to the Mother, is $965 per month to $1,287 per month.
[58] The Mother currently has no occupancy costs as she continues to live in the River Road property.
[59] I have determined that the Father shall pay interim spousal support in the mid range even though the Mother has historically been and continues to be a financial cost to the family. I do not wish to punish her for her drug addiction.
[60] I have also decided to reduce the Mother’s interim spousal support to $550 per month (being ½ of the SSAG mid range) until the Mother moves out of River Road property.
[61] Once the Mother moves out of the River Road property, the amount of the interim spousal support increases to $1,100, being the SSAG mid range.
Further Order
[62] This matter must get to trial as soon as possible. The presently scheduled TMC on December 16, 2022, is peremptory on both parties. The TMC judge shall obtain from the RSJ the earliest trial date possible.
[63] There shall be no further motions in this matter without leave from me.
CONCLUSION
[64] The Father shall have all decision-making for the Children.
[65] The primary residence of the Children shall be with the Father.
[66] There shall be no interim child support payable to the Mother.
[67] The Mother shall have parenting time with the Children as may be determined by the Father considering the Mother’s abstinence of drug use, the views of the Children and the views of CAS.
[68] The Father shall pay, and the Mother shall receive, interim spousal support in the amount of $550 per month, payable on the first of each month while the Mother resides at the River Road property.
[69] Upon vacating the River Road property, the Father shall pay, and the Mother shall receive, interim spousal support on the first of each month in the amount of $1,000 per month, until further order of this court.
[70] There will be no costs of this motion. The Father was primarily successful. He is unrepresented. A cost award against the Mother would do little in these circumstances.
RSJ RICCHETTI
Released: September 21, 2022
COURT FILE NO.: FS-21-00000014-0000
DATE: 20220921
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.L.
-and-
M.G.
COUNSEL: Meaghan P. Smith, for the Applicant
Evan Chang, for the Respondent
Megan Pallett for the OCL
ENDORSEMENT
RSJ RICCHETTI
Released: September 21, 2022