Black v. Black, 2011 ONCJ 241

Elliot Lake Registry No. 52-09 DATE: 2011·IV·19 CITATION: Black v. Black , 2011 ONCJ 241 ONTARIO COURT OF JUSTICE BETWEEN: KELLY JO BLACK, Applicant, — AND — RONALD DOUGLAS BLACK, Respondent. Before Justice Robert P.

Villeneuve Heard on 25 February 2011; and 22 March 2011 Reasons for Judgment released on 19 April 2011 CUSTODY OF CHILD — Best interests of child — Length of time lived in stable home environment ( Status quo ) — Parents of boy (now nearly 6 years old) entered into “home-made separation agreement” 2 years ago whereby boy was to live with mother (in expectation that she was shortly to move to Parry Sound with boy, 140 kilometres away) but all decisions involving child were to be made by mutual agreement — Mother did make expected move to Parry Sound but, almost immediately, moved to Elliot Lake (350 kilometres away from father) to be near her own parents and to live with her current “spouse”, but without impairing terms of father’s access as set out in agreement — Now almost 2 years later, father was asking for change in custodial regime — Despite allegations that parties hurled at each other, court concluded that alcohol abuse was factor during their marriage and its breakup but that it did not affect their parenting ability to care for child effectively — Court had ample evidence that boy had become accustomed to living with mother in Elliot Lake for past 2 years where he was comfortably attending school on full-time basis, learning French language at mother’s insistence and contrary to father’s wishes, enjoying company of maternal grandparents, mother’s partner and his older half-brother and enjoying outdoor activities of northern Ontario living — Yet, during this time, boy had kept up his contact with father, which mother openly encouraged and fostered, driving boy to and from drop-off point 2½-hour ride from home to facilitate access exchanges — Court could not identify any reason for uprooting child from this status quo — Child’s best interests were best served by remaining in mother’s custody.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended]. Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended]. Applicant mother, Kelly Jo Black ......................................................................... on her own behalf Respondent father, Ronald Douglas Black ............................................................ on his own behalf [ 1 ] JUSTICE R.P.

VILLENEUVE:— The applicant commenced this action by way of a notice of application dated 22 July 2009 and first returnable on 14 September 2009. [ 2 ] The applicant sought custody of the child of the relationship between the parties, namely Alexander Douglas Black, born on 25 July 2005, and support payable by the respondent to the applicant for the said child.

The applicant was prepared to grant reasonable access upon reasonable notice to the child to the respondent. [ 3 ] The respondent filed an answer found at tab 2 of the continuing record wherein he sought similar relief as claimed by the applicant in the application.

[ 4 ] From the outset, the court wishes to commend both parties for the professional manner in which they conducted themselves during the trial and throughout these proceedings. Both parties sought instructions from the court from time to time and adhered to those instructions.

While the evidence led at trial, and upon which I will comment later, could have been more extensive, the parties followed the court’s directive at trial management conference to file their in-chief evidence by affidavit making the affiants available for cross-examination. [ 5 ] The court receives and considers evidence led at trial and it is important to note at this time that the court is limited to that evidence that each of the parties chooses to lead or upon which each chooses to cross-examine during the trial proceeding.

While the parties would normally be required to file trial records, the court did not insist upon that in these circumstances. Instead, the parties filed their affidavit evidence to be relied upon at trial in the continuing record commencing with the applicant’s affidavit at tab 10. Her supporting evidence was filed in affidavits filed at tabs 11 through to and including 13. The affidavit relied upon by the respondent at trial commenced at tab 14 and continued to tab 20.

All parties who filed affidavits were made available for cross-examination at trial. 1: HISTORY OF THE RELATIONSHIP [ 6 ] Up to the date of separation, the parties resided in the matrimonial home at 101 Hurd St. in Bradford, Ontario. They were married on 7 August 2004 and separated on 1 May 2009. One child was born of the marriage, namely Alexander Douglas Black (hereinafter referred to as Alex) on 25 July 2005.

Evidence at trial would suggest that the parties discussed separating as early as 2008, but they remained together in the matrimonial home while not necessarily living as husband and wife until the actual date of separation on 1 May 2009. [ 7 ] The parties executed a “home-made separation agreement”, which agreement is filed as

schedule A to the respondent’s answer at tab 2. That agreement is dated 1 May 2009. The agreement briefly provided that the child Alex was to reside with the applicant mother. Parents were to share custody with all decisions involving the child to be made by mutual agreement. The respondent was to pay child support in the amount of $300.00 per month which was below the guideline amount in the Child Support Guidelines , O. Reg. 391/97, as amended. There was to be no spousal support.

The agreement contemplated the applicant mother’s relocating to the town of Parry Sound with the child. [ 8 ] Finally, the respondent’s access to the child was detailed in the agreement. That access contemplated a move by the applicant and the child to Parry Sound from the town of Bradford. [ 9 ] While the applicant’s move to Parry Sound and the reasons therefore were not explored at trial, it appears that that move did occur but that, shortly thereafter and in fact in July of 2009, the applicant relocated to Elliot Lake, Ontario to live with her current spouse, Mark Blanchette.

She relocated to Elliot Lake in July of 2009 and together they purchased a home in July of 2010 at 67 Hirshorn Avenue. They continue to reside in that residence. [ 10 ] The applicant is the mother of a second child named Keegan who at the time of separation was 11 years of age. Keegan did not reside with the applicant and the respondent although the applicant did enjoy access to Keegan and he did get to know his half- sibling, Alex.

Keegan did not relocate with the applicant to Parry Sound or to Elliot Lake until very recently. [ 11 ] Access occurred as contemplated in the agreement. 2: COURT ORDERS [ 12 ] Following the commencement of this application in July of 2009, the litigation proceeded in its usual course.

At a case conference on 2 November 2009, this court made an order on consent of the parties granting the applicant interim custody of Alex with the respondent to have access to Alex every second weekend from Friday to Sunday. [ 13 ] Child support was ordered in the amount of $829.00 per month based on the respondent’s 2008 gross income of $93,000.00. The respondent was given a credit with the consent of the applicant of $400.00 per month to compensate him for the cost of exercising access.

The pick-up and drop-off for the child was Parry Sound, Ontario. [ 14 ] By consent, this court made an order on 14 June 2010 varying the order of 2 November 2009, changing the pick-up and drop-off point to French River, Ontario. Monthly child support was further varied such that the respondent received a $200.00 credit to offset transportation costs bringing the amount actually paid to the respondent to $629.00 per month effective 1 June 2010. 3: CURRENT STATUS [ 15 ] The child Alex continues to reside with the applicant and her common-law spouse, Mark Blanchette, at the aforementioned address.

He is enrolled in senior kindergarten at Esten Public School in the City of Elliot Lake and is enrolled in a French language program. The residence at 67 Hirshorn Avenue appears to be sufficiently equipped to accommodate the applicant, her common-law spouse, the child Alex and the child Keegan, who approximately two months ago, took up residence with the applicant and her spouse. [ 16 ] The respondent continues to reside in the matrimonial home in Bradford. He resides there by himself as of the time of trial. 4: THE APPLICANT’S EVIDENCE AT TRIAL

[ 17 ] The applicant’s evidence filed at trial speaks of a relationship with the respondent that was troubled by the respondent’s consumption of alcohol. The applicant deposed in her affidavit evidence the difficulties that this posed in the relationship and in particular, the effect that the abuse of alcohol by the respondent would have on his moods while in the home. He was described as being argumentative, withdrawn and, to a lesser extent, verbally abusive. [ 18 ] The applicant describes that it was her intention to relocate to the City of Elliot Lake to seek the support of her family.

Her mother and step-father in fact reside in Elliot Lake. [ 19 ] The applicant’s affidavit filed at tab 10 is rather brief. Much of her evidence that was received by the court was done so under cross-examination. She was cross-examined by the respondent about her own drinking history. She denied having a problem with alcohol but did admit to periods of intoxication during the relationship. She adamantly refused to admit that she would have over consumed alcohol while caring for the children.

She admitted to a conviction for assault in March of 2000 for which she received a term of probation including a condition to seek counselling for alcohol and psychological problems. She testified and this was unchallenged by the respondent that, following a meeting with her probation officer, the counselling requirements were not pursued. [ 20 ] She was cross-examined extensively about her relationship with her son Keegan and in particular, reasons why she did not have Keegan in her custody. Keegan’s father was not called at trial nor did he file affidavit evidence.

As indicated earlier, Keegan is now residing with the applicant and her common-law spouse in Elliot Lake. The court learned at trial that Keegan is a child of special needs and suffers from certain psychological disorders that make him, at times, difficult to deal with. Nevertheless, the evidence would suggest that Keegan and Alex have a good relationship and they recognize each other as brothers. [ 21 ] The applicant has enrolled Alex in senior kindergarten at a local school where he is learning French. This is the subject of a disagreement between the applicant and the respondent.

The respondent has concerns that the applicant does not speak French and thus would not be able to assist Alex with daily things such as homework. The applicant replied that both her mother and her common-law spouse are French speaking and are available to assist Alex with homework should the need arise. [ 22 ] The applicant is employed at Hillside Park old age home in the City of Elliot Lake. She generally works two shifts, 3 p.m. to 11 p.m., or 12 midnight to 7 a.m. On occasions, she will work a split shift from 7 a.m. to 1 p.m. and 4 p.m. to 7 p.m.

She is employed 4 to 5 shifts per week, which include weekends although she generally works on week days. Her work schedule, along with that of her common-law spouse, Mr. Blanchette, permits them to put Alex on the bus for school in the morning. If they are both employed during the day at the end of school, the applicant’s mother is available to receive him until the applicant or her spouse return home. [ 23 ] The applicant deposed, as did Mr. Blanchette, that Alex is well adjusted living with them and that he greatly enjoys the Elliot Lake area and in particular, the outdoors. The applicant and Mr.

Blanchette have made a point of exposing Alex to family activities, which often include activities such as fishing, camping, etc . [ 24 ] The applicant and Mr. Blanchette both testified under cross-examination that Alex is happy to see the respondent when his access period begins and that he is sad to leave the respondent when he is picked up in French River. Conversely, they both deposed and testified that Alex is sad to leave them when the respondent’s access begins.

The respondent more or less confirmed the same observations of Alex during the access exchanges. [ 25 ] The balance of the affidavit evidence filed by the applicant spoke to the applicant’s and the respondent’s relationship in their home and in particular, offered supporting evidence of the respondent’s difficulties with alcohol during that period of time that the parties were married. This court — and this applies to the respondent’s evidence as well — puts very little weight in that evidence.

First of all, the affiants of these various affidavits (those filed by the applicant and the respondent) while present with the parties from time to time, were not in a position to observe their relationship with any great regularity. The affidavits filed painted pictures that were contrary to what the applicant and respondent deposed about themselves. Suffice it to say, alcohol played a

part in the lives of the applicant and the respondent during their marriage. It seemed that, whenever a social occasion arose, alcohol was consumed. Although that may not be unusual, it appears that alcohol may have been over consumed from time to time by both parties. There is no evidence, however, to suggest that Alex was ever in any danger as a result of the consumption of alcohol by either party from time to time.

It is evident that both parties have Alex’s best interests at heart. 5: THE RESPONDENT’S EVIDENCE [ 26 ] The respondent is employed by Johnson Controls, which is a company that deals with, among other things, refrigeration and H.V.A.C. systems. By all accounts, the respondent is a good employee who faithfully reports for work and is deemed responsible enough to handle supervisory roles from time to time.

He earns, by his own estimation, approximately $90,000.00 per year at this job. [ 27 ] The respondent’s evidence primarily attacks the character of the applicant and relies in part on her 2000 conviction for assault, evidence of mutual friends as to the consumption of alcohol patterns of the applicant and, in part, her infidelity. [ 28 ] The respondent describes a loving relationship with his son recounting numerous opportunities and occasions where he and Alex spent time as father and son in activities such as fishing and boating and shopping.

The applicant challenged the respondent on the frequency of those outings but, given the scope of the cross-examination, it was difficult for this court to conclude that the respondent’s evidence was not sincere and accurate. [ 29 ] The respondent described a loving relationship with his son and described the difficulties associated with leaving Alex at the end of the access periods that have been occurring. [ 30 ] The respondent was challenged regarding certain damages to walls and doors in the matrimonial home.

He denied the suggestion by the applicant that he had inflicted that damage during various fits of anger.

[ 31 ] He described the applicant’s approach to discipline as being inconsistent and lacking firmness. [ 32 ] He described that he had family support and spoke, under cross-examination, of his relationship with his father. He described his father as being stubborn and having a strained relationship with the respondent’s sister but that, nevertheless, he had the support of his father.

He denied the association with his father and his drinking problem. [ 33 ] The respondent described his job in general terms and testified that he was available should he be the custodial parent of Alex to, at the very least, get him to his neighbours with whom he now has a relationship, to be picked up and received on the bus after school.

The respondent would generally be home by 4 p.m. from work to look after Alex for the rest of the evening. [ 34 ] He was cross-examined on his consumption of alcohol in the presence of Alex and he admitted to consuming alcohol on a social basis from time to time but denied abusing it. During his cross-examination, he challenged the applicant on her consumption patterns suggesting that she would often during their relationship, consume to excess. [ 35 ] His relationship with the applicant’s son, Keegan, was discussed in evidence and the respondent denied not having a good relationship with Keegan.

He admitted that Keegan, having been diagnosed with attention-deficit hyperactivity disorder, was a difficult child with whom to deal but that he loved Keegan and that he would continue to maintain a relationship between Keegan and Alex, should he be granted custody of Alex. [ 36 ] He was asked by the court to explain a 2009 separation agreement. In particular, he was asked why he executed that agreement if his intention was to seek custody of Alex from the outset. He explained to the court that he felt he had no option but to sign the agreement, otherwise he would not get access to Alex.

He fully intended to commence custody proceedings once he secured the services of a lawyer. It should be noted, however, that no custody proceedings were instituted until the applicant did so in July of 2009 upon having relocated to Elliot Lake, Ontario.

He confirmed that the applicant has co-operated with access and has willingly participated in the exchange of the child as agreed prior to the institution of court proceedings and in accordance with the current court orders. [ 37 ] The court has some difficulty with accepting the respondent’s explanation for the execution of the separation agreement in May of 2009. In particular, the separation agreement filed as

schedule 2 to the respondent’s application dealt in great detail with the access to be exercised by the respondent. Furthermore, the child support negotiated was far below what should have been paid in accordance with the Child Support Guidelines based on the respondent’s 2008 income of $93,000.00. Furthermore, the applicant was to receive no spousal support. This would suggest to the court that the terms of that separation agreement were negotiated between the parties. In other words, this was not a one-sided agreement that the respondent was otherwise compelled to sign.

The details of the agreement would suggest otherwise. [ 38 ] The respondent filed supporting affidavits as indicated earlier, in particular, one affidavit was of particular interest to the court. The affidavit of Anna DiDomenico filed at tab 14 of the continuing record, was in particular, a rather scathing affidavit when it came to Ms. DiDomenico’s description of the applicant. It described the applicant as being unworthy of being granted custody of Alex. Ms. DiDomenico described various incidents that she observed during the marriage between the applicant and respondent.

Her evidence filed in-chief put the blame for the breakdown of the relationship and the marital difficulties squarely on the shoulders of the applicant. The applicant challenged Ms. DiDomenico in cross-examination and did a rather effective job of doing so, in my view. In particular, the applicant referred to her affidavit filed at tab 19 in reply, to which she attached an e-mail from Anna Burke whom Ms. DiDomenico admitted was her. This e-mail was dated 7 March 2009, shortly before the break-up between the parties. A review of that affidavit would indicate that Ms.

DiDomenico had very strong views about the respondent. The language in that e-mail would suggest that Ms. DiDomenico did not think highly of the respondent at that time and urged the applicant to stick up for herself and to stop being a “push- over”. She referred in that e-mail to the respondent’s moods while intoxicated and his being verbally abusive towards Ms. DiDomenico and the applicant. [ 39 ] This e-mail was a marked contrast to the affidavit of Ms. DiDomenico filed by the respondent at tab 14. The explanations offered in cross-examination confirmed that Ms.

DiDomenico was being put on the spot, having now switched her allegiance, so to speak, to the respondent. I find that the e-mail and the answers given in cross-examination by Ms. DiDomenico seriously call into question her affidavit evidence at tab 14. [ 40 ] The remaining evidence filed by the respondent spoke to his good character as an employee and as a person but did little to address his ability to care for the son Alex. 6: RULING [ 41 ] As I indicated earlier, much time was spent by the parties making allegations of abuse of alcohol about one another.

I find that alcohol was a factor during this couple’s relationship and marriage but that it did not affect their ability to parent Alex effectively. [ 42 ] These are basically two good parents who have the best interests of this child at heart. They simply cannot agree upon where Alex should reside on a full-time basis and thus the reason for this trial. Both parties have co-operated with one another on the subject of access and the court fully expects that this will continue in the future. [ 43 ] Alex has been in the care of the applicant since May of 2009.

While it is true that this litigation process has taken some time, the fact remains that the parties executed a separation agreement in May of 2009 that provided that Alex would reside with the applicant. His move with his mother was contemplated to Parry Sound. This would result in limited access on weekends and extended access during holidays in favour of the respondent. This is exactly the same situation that exists today. I have already expressed my views on the respondent’s contention that he merely signed the separation agreement to preserve his access rights.

It is evident to this court that there was more negotiation that went on behind the drafting of that agreement when one considers the reduced child support

and the lack of spousal support. [ 44 ] This court is bound by the provisions of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, to consider the best interests of Alex in determining the issue of custody and access. [ 45 ] He has now been living with the applicant for almost two years since separation. He is living in a family unit with the applicant, her common-law spouse, his half-sibling, with access to his grandmother and step-grandfather, all in the City of Elliot Lake. He is enrolled in school.

He is learning the French language at the insistence of the applicant and contrary to the wishes of the respondent. [ 46 ] He appears, by the little evidence that was led, to be a well-adjusted child who clearly misses his father as evidenced during access exchanges but also misses his mother and her partner when leaving them for access.

This behaviour is not unusual in children and the court fully expects that it will continue for some time until the child is old enough to realize that access is going to be a way of life for him for the next several years. [ 47 ] He has a relationship with his half-sibling who now resides with the applicant.

Although there have been no custody proceedings pertaining to that child to change the previous status quo , for the time being the court must consider the evidence that it has and that is that the child has moved in with the applicant on a semi-permanent basis. [ 48 ] Although the respondent would appear to be able to offer a stable environment to the child, I do not find that it would be in this child’s best interests to uproot him from the applicant’s home where he has now been living for almost two years, to take up residence on a full-time basis with the respondent.

I do not make this finding based on any conclusions that the applicant is a better parent than the respondent. As I indicated from the outset, I place very little weight on the evidence tendered as to their individual drinking patterns. Both have managed to tarnish the reputation of the other in that regard. The court is left to consider what little evidence it had available to it at trial, both in-chief and in cross-examination.

Perhaps, this evidence might have been received differently by the court had counsel been involved but neither party chose to enlist the services of counsel, choosing instead to represent themselves. [ 49 ] In conclusion, I find that the best interests for the child Alex are served by remaining in the residence in which he has become accustomed to living in for the last two years. He is enrolled full time in school and, by all accounts, is comfortable in that setting. He enjoys the company of maternal grandparents, the applicant’s common-law spouse and his half brother, Keegan.

The evidence of the applicant would suggest that he is enjoying a typical little boy’s life in northern Ontario, enjoying the outdoor activities that are consistent with this part of the country. His continued contact with the respondent is vitally important and I am satisfied that the applicant will continue to nurture that contact and to encourage it.

Her willingness to commute on a bi-weekly basis to the French River, some 2½ hours from home, to facilitate access exchanges is consistent with that observation. [ 50 ] With respect to the issue of support, the respondent submitted at trial that his income is approximately $90,000.00 per year. That would result in monthly child support of $798.00. In the past, the respondent has received a credit to offset transportation costs to and from the French River from Bradford. The applicant resists that claim. I agree with the applicant in these circumstances.

Although the respondent is incurring costs associated in exercising his access, so is the applicant in transporting the child to and from the French River. The distances travelled by both parties is very close to the same and, as such, there should be no credit deducted from the monthly child support figure to allow for those access expenses.

Accordingly, support will be in accordance with the Child Support Guidelines set out for income of $90,000.00, commencing on 1 April 2011. [ 51 ] Lastly, the respondent’s answer sought joint custody of the child in the event that he was unsuccessful in obtaining custody of Alex. It is evident from the material evidence filed and from hearing the parties in cross-examination that an order of joint custody would not work in these circumstances. The applicant wishes to have Alex baptized, in accordance with her Catholic faith.

Although the respondent was not opposed to his being raised Catholic, he was opposed to Alex being baptized until such time as he could make that decision on his own. Furthermore, the respondent was opposed to Alex’s being educated in the French language on the basis that the applicant could not assist him with his homework. This child is 5 years of age and already these parties have had some material differences between them as to how he should be raised. I see no prospect for their relationship as it pertains to the child Alex, to get any better as the child gets older.

I do however conclude that the respondent should be kept apprised of major decisions and consulted in the event of things such as major medical decisions involving the child. There will be no order, however, as to joint custody. Accordingly, the court shall order as follows:

(1) The applicant shall be granted custody of the child Alexander Douglas Black.

(2) The respondent shall have access to the child every second weekend, from Friday evening to Sunday, except on long weekends, at which time the access will continue until Monday. The parties shall exchange the child at the French River at 7 p.m. on Friday evening and 7 p.m. on Sunday evening, commencing with the next access visit. The respondent shall furthermore have extended access to the child for two weeks in the month of July and one week in the month of August, to be negotiated by the parties.

There shall be an equal sharing of all holidays including Christmas, Easter, March Break and any other extended holiday periods. Access shall be exercised such that the child will be with one party on Christmas Day and with the other party the following Christmas Day, and so on and so forth. These same provisions shall apply for Easter. March Break may be alternated on a weekly basis or split as agreed between the parties.

(3) The respondent shall pay support to the applicant for the support of the child Alexander Douglas Black, born on 25 July 2005, the sum of $798.00 per month commencing on 1 April 2011 based on annual income of $90,000.00 and in accordance with the Child Support Guidelines . There shall be no credit given to the respondent for the cost of transportation for access purposes.

(4) The respondent shall provide the applicant with a copy of his notice of assessment by no later than 30 June of each year commencing on 30 June 2011 and continuing for such time as the respondent has a legal obligation to provide support to the applicant for the child aforementioned.

(5) There shall be no costs.