Langner v. Renaud, 2011 ONCJ 687

Dryden Registry No. FO-06-00009-01 DATE: 2011·VIII·15 CITATION: Langner v. Renaud , 2011 ONCJ 687 ONTARIO COURT OF JUSTICE BETWEEN: KURISSA LANGNER Applicant — AND — JONATHON RENAUD Respondent Before Justice Peter T. Bishop Heard on 26 July 2011 Reasons for Judgment released on 15 August 2011 Mark Van Walleghem ........................................................................................ for the applicant(

s) Shannon Lovell ................................................................................................... for the respondent [ 1 ] JUSTICE P.T.

BISHOP:— This matter comes before me by way of a notice of motion to change the final order of Justice Donald Fraser dated July 14, 2006 requesting unsupervised access, including overnight access to the children and fixing the proper amount of child support in accordance with the Child Support Guidelines . [ 2 ] The respondent (applicant in the motion) is the father of Mackenzye Marie Langner born December 23, 2003 and has treated Robyn Noella Lagner date of birth July 16 2001 as his own child. [ 3 ] The applicant (respondent in the motion) is the mother of Robyn Noella Langner, date of birth July 16, 2001 and Mackenzye Marie Langner, the biological father of Robyn Noella Langner is not a party to these proceedings.

BACKGROUND : [ 4 ] The parties commenced co-habitation in 2004, were married on August 20, 2005, separated on November 12, 2005 and divorced on March 27, 2007.

Upon separation the issues of custody, access and child support were resolved on consent with the order of Fraser J dated July 14, 2006 as follows: 1) The Applicant Kurissa Langner shall have sole custody of the child Mackenzye Langner, born December 24, 2003 with the Respondent to have access as agreed upon between the parties. 2) The Respondent shall pay child support to the Applicant for the said child and for the child Robyn Langner, born July 16, 2001 to whom he stood in loco parentis on the basis of an annual income of $12,500.00 based on the Child Support Guidelines for two children, the sum of $162.00 shall be payable on the first day of each month commencing July 1, 2006. 3) A Support Deduction Order shall issue. 4) Unless the Support Order is withdrawn from the Director’s Office, it shall be enforced by the Director and the amounts owing under the Supervision Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Payments are to be made to: Director, Family Responsibility Office, P.O. Box 2204, Station P, Toronto, ON M5S 3E9. 5) There shall be no Order as to costs. [ 5 ] The father did not have access to the children for approximately three years when the parties agreed to supervised access at the Supervised Access Centre in Dryden. [ 6 ] The father commenced supervised access on April 11, 2009 which continued to January of 2010.

[ 7 ] On June 14, 2010, temporary minutes of settlement were filed with the court which resulted in the order of Bishop J as follows: 1)

a) The Respondent father, Jonathon Renaud, shall have access to the children, Robyn Langner, born July 16, 2011 (8) and Mackenzye Langner-Renaud, born December 24, 2003 (6) on alternating Saturdays from 12:00 noon to 4:00 p.m. commencing July 20, 2010. The pick-up and drop off location for access shall be at the Supervised Access Centre in Dryden.

b) The Respondent father, Jonathon Renaud, shall pay child support for Robyn Langner and Mackenzye Langner-Renaud in the amount of $195.00 per month commencing July 1, 2010. The amount is based on the Child Support Guidelines and the Respondent’s income of $13,360.00.

c) Jonathon Renaud shall allow the children to call their mother at least once during each access visit.

d) Neither party shall speak negatively about the other party to the children. 2) A temporary Support Deduction Order to issue. 3) Unless the temporary Support Order is withdrawn from the Director’s Office, it shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office P.O. Box 2204, Station P Toronto, ON M5S 3E9 4) This judgment bears interest at the rate of 2% per annum effective the date of this Order.

Where there is default in payment, the payment in default shall bear interest only from the date of default. 5) This matter is adjourned to September 3, 2010 at 10:00 a.m. for Settlement Conference. Briefs to be served and filed by August 27, 2010. [ 8 ] A settlement conference was held on February 4, 2011 by Justice Hoshizaki with Minutes of Settlement be filed by March 7, 2011. [ 9 ] The parties could not agree on the terms of the minutes of settlement and the matter proceeded to trial on July 26, 2011. EVIDENCE OF JONATHON RENAUD: [ 10 ] Mr.

Renaud stated that there were big gaps in seeing the children as the mother did not agree with the access order of Fraser J. Eventually supervised access was arranged and he and the children did well together. [ 11 ] He recalls an incident at the Dryden Fall Fair in August, 2009 where he saw the children in the company of the mother and waived at them. He denies calling them individually and collectively a “bitch”. [ 12 ] The supervised access visits progressed in Dryden and his first overnight visit was in November of 2010.

The children were always happy to see him and they engaged in skating, playing video games, supper and sliding in the front yard. [ 13 ] He described his discipline which was rarely used and encouraged the children to call their mother if necessary but he did not want the mother terminating the access visit early if they called her. [ 14 ] Over Christmas of 2010, he had a visit on Christmas Eve from 1:00 p.m. to 4:00 p.m. and both children were excited to see him. [ 15 ] There were many family members at his grandmother’s home and the children became overwhelmed and he took them back to the mother. [ 16 ] Since February of 2011, he has had no access.

He calls and gets no response. He tried emailing the mother and put a message on Facebook. She returned his message and yelled at him for approximately three-quarters of an hour and then she yelled at his common-law partner, Stephanie McNabb for another three-quarters of an hour.

The mother was mostly concerned about not receiving her support through the Family Responsibility Office. [ 17 ] The mother stated that she would deny access until her support was reactivated. [ 18 ] In March of 2011, the mother told him at church that “no support, no access”. [ 19 ] May was a very difficult month for him as he holds two jobs, one at the local Safeway and the other at MacDonald’s and it was almost impossible to get a weekend off.

[ 20 ] During June and July he tried to get access through his counsel but the plans never followed through. [ 21 ] If given enough notice, both of his employers will allow him to take time off to have visits with the children. [ 22 ] His home is a two bedroom and he has now secured beds for the children. He lives common-law with Stephanie McNabb. His current income from both jobs is approximately $26,000.00 per annum. [ 23 ] In cross-examination he admitted that he was arrested and entered into a Peace Bond upon separation.

His view was that he was assaulted by her and that she threatened to get him arrested again. [ 24 ] He expressed a concern about calling the mother when the children were visiting as the mother on one occasion told the children “come home because I want you to watch a movie with me”, and that visit was finished at 4:00 p.m. [ 25 ] He does play video games on his days off and also sits down with the children and plays for short periods of time.

He described the other activities that he would engage with the children. [ 26 ] He has successfully completed a parenting course at the Supervised Access Centre. [ 27 ] He recognizes that the girls are attending Brownies and Girl Guides and he would like them to continue and will facilitate that. [ 28 ] For the months of June and July, 2011, he continually requested access once every two weeks. EVIDENCE OF STEPHANIE AMBORSIA McNABB: [ 29 ] Ms. McNabb has been living common-law with the father for approximately three years. She is employed at McDonald’s.

She and the father plan to get married. [ 30 ] She described a typical access visit as going outside, playing games in their room and playing video games once in a while. The father would never play video games alone if the children were there. [ 31 ] She observed loving interactions with the children by the father and kept telling them that he appreciated that they were there. [ 32 ] Sometimes the children were bored and she recalled one occasion where she wanted to continue watching a movie and the father wanted to retire for the evening.

They have never had any physical confrontations or shouting matches. [ 33 ] The father kept leaving messages asking for access in March of 2011 and did not get any reply or access. EVIDENCE OF KURISSA MARIE LANGNER; [ 34 ] Ms. Langner is the mother of the children and has difficulty talking with him.

After Justice’s Fraser’s Order, he would call once every three months to see if he could have access. [ 35 ] She was concerned about a visit in 2006 where the child Mackenzye had a diaper rash, which in her mind was not addressed by the father, although she did not confront him about that. [ 36 ] Supervised access was arranged in 2009 and she agreed to it, but she does not like the father and his whole family visiting the children.

She wants to insure that the children feel safe and that it will take a while for them to get to know him. [ 37 ] At the Dryden Fall Fair in 2009, the father approached and called her a “bitch” and the children “little bitches”. Notwithstanding this the supervised access continued. [ 38 ] In the spring of 2010, supervised access continued twice a month. [ 39 ] She is concerned for the children’s safety and just wants to know where they are. She also has concerns that Ms. McNabb on one occasion looked after the children and not the father.

She relies upon information being received from the children after each visit and has kept a journal. [ 40 ] In November of 2010, there was a change in the

schedule and she agreed that the father could have overnight visits and if the children had a problem they could call her. [ 41 ] Her habit is to always tell the children each night to “have sweet dreams”. [ 42 ] One big concern was that after the overnight visit, the child Mackenzye relayed to her that the father and Ms. McNabb had a big fight. [ 43 ] She related a phone call on April 15, 2011 where the father asked for access and she accidently hung-up. Her view was that the father and his partner called back and yelled at her.

This was the time when there was difficulty with the Family Responsibility Office and she was not receiving her child support. [ 44 ] The access arranged on June 25, 2011 was arranged by counsel. The mother thought that the exchange would take place

at the father’s home and the father thought that the exchange would take place at the supervised access location. [ 45 ] The mother waited for a time as did the father and when the father returned home there was a message from the mother saying “you weren’t there”. [ 46 ] Her concerns with respect to overnight access are that both children are very close to her and that the father does not pay much attention to them. [ 47 ] It is her view that one month in the summer is far too much access and that the father should get two consecutive days in the summer plus every other weekend. [ 48 ] She is of the view that she and the father can work out access. [ 49 ] In cross-examination, she admitted that she did not speak to the father about the diaper rash and that the reason why she didn’t call him from time to time was because she didn’t have his phone number. [ 50 ] She requests supervised access as she has difficulty communicating with the father and stated “we don’t get along well” and that is one of the reasons why it is difficult to arrange access. [ 51 ] She feels that the father has a temper problem which is not in control although no examples were given.

DECISION [ 52 ] At the outset of the trial, the counsel agreed that the father’s income is $26,000.00 per year and that he, on consent, agrees to pay $389.00 per month commencing August 1, 2011 and on the first day of each month thereafter. The Guideline amount for two children is $389.00 per month. [ 53 ] It is obvious that the major problem here is the lack of communication between the mother and the father. The mother is hearing impaired and gave and received evidence through an American Sign Language translator.

The mother is very protective of the children and bases her opposition to access from incidences that occurred in the distant past when the father entered into a Peace Bond on separation, notwithstanding that it was the father’s evidence that she assaulted him, which was not denied. [ 54 ] Similarly, the incident with the diaper rash happened in 2006, just before the Order of Fraser J, but the mother did not address that issue specifically with the father.

Another incident was the Dryden Fall Fair “name calling” which was denied by the father. [ 55 ] The mother is over-protective and has unreasonable expectations with respect to access. [ 56 ] The father is in a stable relationship with Stephanie McNabb who is a positive influence on him and she interacts well with the children. She presented as a reasonable and balanced person and will insure that access runs smoothly. These children are now ten and eight years of age and are old enough to articulate any concerns that they have to the mother and the father.

I am confident that the father will allow the mother to have telephone access to the children so long as it does not interfere unreasonably with the children’s access visits. [ 57 ] There has been a material change in the circumstances since the granting of Fraser J’s Order of July 14, 2006 as follows: 1) Access has been increased over the years from consent access to supervised access to unsupervised access to overnight access. 2) The father is now in a stable relationship with a partner, engaged to be married, who will act as a stabilizing influence for any access visit. 3) The father’s income has increased substantially since 2006 and now is earning $26,000.00 per annum. [ 58 ] In all the circumstances the order of Fraser J of July 14, 2006 and the order of Bishop J of June 14, 2010 are vacated and the following order shall issue. 1)The Applicant mother Kurissa Langner shall have custody of the children, Robyn Noella Langner, date of birth July 16, 2001 and Mackenzye Marie Langner, date of birth September 24, 2003. 2)The Respondent father shall have access as follows:

a) Alternating weekends from Friday at 6:00 PM until Sunday at 4:00 PM commencing August 26 2011 and thereafter.

b) Three continuous weeks in the summer of 2012 with the father to advise the mother which three weeks he plans to take, no later than March 30, 2012.

c) Christmas access at the beginning of the school break until December 25 th , 2011 at 1:00 p.m. at which time the children will return to the mother and alternating thereafter with the mother to have the beginning of the school break until Christmas, December 25 th at 1:00 p.m. in 2012 and the father with the remainder of the Christmas break and alternating thereafter.

d) Alternating Easter commencing in 2012.

e) Alternating May Long Weekend commencing in May, 2012.

f) Alternating Canada Day commencing in July, 2012.

g) Birthdays shall be shared with the father, providing it does not interfere with school.

h) Such other times as the parties agree to.

i) Neither party shall speak negatively about the other party to the children.

j) The mother will deliver the children to the Respondent’s residence and the Respondent will deliver the children back to the Applicant at the end of each access visit.

k) The father, Jonathon Renaud, will pay support for the children, Robyn Langner, born July 16, 2001and Mackenzye Langner, born December 24, 2003, in the amount of $389.00 per month commencing August 1, 2011 and payable on the first day of each month thereafter. The table amount for two children is $389.00 and the Respondent’s income is $26,000.00 per annum.

l) A Support Deduction Order shall issue.

m) Unless the Support Order is withdrawn from the Director’s Office, it shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office, P.O. Box 2204, Station P, Toronto, Ontario, M5S 3E9.

n) As long as the child support is to be paid, the payor and the recipient, if applicable, must provide updated financial disclosure to the other party each year within thirty (30) days of the anniversary of this Order in accordance with

Section 24.1 of the Child Support Guidelines.

o) This judgment bears interest at the rate of 2% per annum effective from the date of this Order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

p) The children shall have telephone access to the mother at such times as they wish and during access. The mother shall not use these calls to encourage the children to return home prematurely [ 59 ] The mother shall pay the father nominal costs fixed at $100.00 forthwith. Released: 15 August, 2011 Signed: “Justice Peter T. Bishop”