Keldo v. Keldo, 2011 ONCJ 659

Brampton Registry No. 316/05 DATE: 07·VI·2011 CITATION: Keldo v. Keldo , 2011 ONCJ 659 ONTARIO COURT OF JUSTICE BETWEEN: YVONNE KELDO Applicant — AND — TREVOR KELDO Respondent Before Justice Juliet C. Baldock Heard on 25 March 2011 Ruling on Motion released on 7 June 2011 Raymond E. Sharpe ................................................................................................ for the applicant Trevor Keldo ........................................................................................................ on his own behalf [ 1 ] JUSTICE J.C.

BALDOCK:— This is the applicant mother’s motion for an order for temporary custody of the parties’ child Jordan Keldo (“Jordan”), born May 10, 1997 (now 14 years of age), and for child support, both retroactive and ongoing. [ 2 ] The parties married in Jamaica in 1993 and separated in 2002, divorcing in 2010. They also have an older child, Jodi- Kaye Keldo, who is 22 years of age and who is not the subject of these proceedings, save and except for the respondent’s claim for support.

She is reportedly attending college and living with the respondent. [ 3 ] Following separation the children remained with the applicant mother, who states that the respondent father’s access was inconsistent and “spur of the moment” without giving her reasonable notice.

She also alleges that he would: • make arrangements and not show up • send messages via the children • involve the children in adult conflict • speak of her disparagingly to or in front of the children • not co-operate in establishing a regular access schedule. [ 4 ] One of her major concerns is that the respondent now telephones Jordan and demands to speak with him, even though at times it disrupts the child’s tutoring sessions. [ 5 ] Jordan has exhibited behavioural issues for which the applicant has arranged counselling.

She has also been the parent who has met with Jordan’s teachers and provided tutoring to assist him with his education. [ 6 ] The applicant questions the respondent’s motives in seeking shared custody of Jordan, citing frequent trips he has taken without the child and his general lack of interest and involvement prior to the commencement of this court action. [ 7 ] The respondent paid little by way of child support, notwithstanding his income of over $96,000.00 per year as a project manager for the Ministry of Health. [ 8 ] In addition to her claim for custody and support, the applicant seeks ongoing and arrears of child support and a 63% contribution to extra expenses. [ 9 ] The respondent father denies lack of involvement.

In support of his position he filed: • copy of an email sent to several recipients inviting them to a party for Jordan’s 12 th birthday from 7:00 to 10:00 p.m.;

• a March 2009 email to Jordan regarding a science project; • a May 2009 email to the applicant regarding a school test; • various emails from a teacher at Jordan’s school regarding his educational difficulties; • copies of Jordan’s school reports for prior academic years; • an email from the applicant dated March 11, 2011 asking him to care for Jordan while she deals with some health issues; • some of Jordan’s math work sheets; • various family photographs. [ 10 ] In his affidavit sworn April 7, 2011, he states that he has always been very involved in Jordan’s life.

It is his evidence that following the parties’ separation in 2002, he cared for the children for approximately five months until the applicant found suitable accommodation. [ 11 ] He argues that Jordan should spend equal time with each parent and alternate between their residences on a weekly basis. [ 12 ] He says that the applicant denied him access and accuses her of being vengeful. [ 13 ] It is his view that the parties enjoyed a shared custody arrangement until about two years ago when the applicant considered putting Jordan on medication to modify his behaviour.

This was a decision with which the respondent did not agree. After that, communication broke down. [ 14 ] The respondent also claims support for Jodi-Kaye who he states is in school and not working at this time. [ 15 ] He argues that he should not be obligated to pay the full guideline support retroactively as he supported elderly parents in Jamaica, and since the passing of his mother in 2009 he has continued to support his father.

While his attention and commitment to his parents is laudable, it does not constitute grounds for departing from the Child Support Guidelines. [ 16 ] The respondent stresses that he remains committed to the best interests of Jordan, including his education and his relationship with both parents. [ 17 ] The applicant strongly disputes the respondent’s contention that they shared physical time with Jordan.

In her reply affidavit of April 28, 2011, she cites certain statements made by the respondent in his divorce petition affidavit, sworn July 21, 2008, in which he clearly states that the children were residing with the applicant and that while he was seeking joint custody, he was only asking to have Jordan the second week of each month. [ 18 ] The applicant also raises the concern that the respondent is pressing Jordan to live with him and has been unsupportive of her role as a parent. [ 19 ] While I accept that the respondent has been involved in his son’s life, and at times with his care, I conclude that overall that involvement has not been consistent, regular or predictable. [ 20 ] I give considerable weight to the respondent’s own sworn evidence in the divorce proceeding. [ 21 ] I find that the March 11, 2011 email from the applicant which, although recent, is of some significance, as in it she asks the respondent to “take” Jordan.

She did not ask him to “keep” him. [ 22 ] It is apparent that the applicant mother has some level of confidence in the respondent’s ability to care for the child, but that Jordan was in fact residing with her. [ 23 ] I conclude that the status quo has been in existence for some time whereby the child has primarily resided with the applicant mother.

I see no value in changing this arrangement in favour of a “week about” regime at this time. [ 24 ] It may well be that the shared arrangement proposed by the father will prove to be preferable at some point in the future, but at this time the status quo should be maintained to preserve his stability.

[ 25 ] Accordingly, I make the following order: 1. The applicant mother shall have custody of the child Jordan Keldo, born May 10, 1997. 2. The respondent father shall have liberal and generous periods of time with the child to include: (

a) alternate weekends from Friday after school to Monday return to school; (

b) one evening each week from after school to 9:00 p.m.; (

c) four weeks during the summer school holidays, of which no more than two shall be consecutive. 3. The parties shall not discuss the ongoing litigation with the child or pressure him in any way to specify a preference as to place of residence. 4. Both parties are entitled to make enquiries of and receive information directly from the child’s school, teachers, tutors, medical practitioners and others involved in the child’s health, education and welfare. 5. The access arrangements set out herein may be varied by agreement between the parties. 6.

The respondent is responsible for transporting Jordan to and from access visits. 7. The parties shall ensure that Jordan is not exposed to negative comments regarding either parent. 8. The respondent shall have reasonable telephone and email access to Jordan but shall ensure that any calls made do not disrupt Jordan’s tutoring. [ 26 ] With respect to the child support issues, I decline to make any order with respect to retroactivity on a motion. However, the respondent is obligated to support Jordan in accordance with his income, which is approximately $96,000.00 per annum. 9.

The respondent will pay child support for the said child in the sum of $845.00 per month, commencing June 1, 2011. 10. The respondent will contribute 63% of the cost of all extra expenses for Jordan, including tutoring, within 30 days of being presented with the invoice. [ 27 ] As to the respondent’s claim for set off, there is insufficient information filed to establish Jodi-Kaye’s entitlement. 11. The respondent shall serve and file: (

a) proof of Jodi-Kaye’s full time attendance in school since she turned 18 years of age and began living with the respondent; (

b) Jodi-Kaye’s income tax returns for the same period; (

c) a list of jobs Jodi-Kaye has held for the same period and details of same, such as whether full or part time and number of

hours worked per week; (

d) proof of any expenses such as school fees etc. paid by him on Jodi-Kaye’s behalf for which he claims a contribution. [ 28 ] Although the respondent achieved some success in terms of a more generous access order than the applicant proposed, the applicant has overall been more successful and is entitled to her costs. Counsel for the applicant may submit his bill of costs and brief submissions within 30 days. [ 29 ] This matter is adjourned to June 28, 2011 in courtroom 201 at 10:00 a.m. for a settlement conference. 7 June 2011 Justice Juliet C. Baldock