J.M.S. Applicant — v. —, 2011 ONCJ 658

Brantford Registry No. F172/09E DATE: 26·V·2011 CITATION: J.M.S. v. B.J.S., 2011 ONCJ 658 ONTARIO COURT OF JUSTICE BETWEEN: J.M.S. Applicant — AND — B.J.S. Respondent Before Justice Lawrence P. Thibideau Trial heard on March 30, 2011 Reasons for Judgment 26 May 2011 J.M.S.………………………………………………….......…self-represented applicant B.J.S.……………………………………………………………………………. for the respondent JUSTICE L.P. THIBIDEAU: BACKGROUND [ 1 ] The applicant father commenced an application with respect to the three children, M.1, now 10, D., now 5 and M.2, now 4.

Originally, father sought joint custody with access with respect to the younger two children and sole custody with respect to the eldest M.1. In his pleadings, father set out a variety of reasons why the requests were being made, chiefly focussing on an alleged campaign by mother to alienate M.1 from her father along with her poor school attendance.

A variety of other reasons were also given, second-hand smoke, excessive alcohol in the home, mother’s mental health, but father did not consider these sufficient reasons at that time to claim sole custody of the other two children. [ 2 ] In her answer dated the 27 th day of May, 2009 mother sought sole custody of all three children with specific access to father. Her allegations were that she was the sole provider for the children while the marriage existed, because of father’s lack of interest and because he worked outside the home full-time, often a great distances from the home.

In fact it is not disputed that father moved to Saskatchewan in January of 2009 to continue his well paid employment.

He found a new partner in February of 2009 and sought a final separation from mother in March of 2009 with the children continuing to reside with her. [ 3 ] However father, having read the content of the Answer filed by mother and the allegations contained against him in that document sought by his Reply dated July 2009 full custody and primary residence with respect to all three children. [ 4 ] During the course of the litigation, a variety of temporary court Orders were made, particularly with respect to the children as follows:

1. 30 July 2009 – Consent Order was made whereby father would have three times a week telephone access while he resided out of province and no one was to speak to the children regarding court matters. 2. 31 July 2009 – Consent Order was made for summer access for father with respect to all three children for a one week period, except that the youngest, M.2, would not stay overnight. 3. 19 November 2009 – Consent Order was made which assumed the children would continue to live with mother and specifically set out that all three children would have specific Christmas access with father and that the eldest child, M.1, would commence counselling. 4. 2 March 2010 – A consent Order was made while father was in Saskatchewan but intending to return to Ontario which provided that father would have one week of access in March of 2010 and continued Saskatchewan telephone access.

It also implied that father would have a continuation of his week-end access because paternal grandparent access was attached to it. 5. 21 December 2010 – An access Order was made which set up the current access leading up to trial consisting of the children being with father on alternate week-ends from Friday at 3:30 p.m. after school to Monday at 8:00 a.m. before school along with specified 2010 Christmas access. This resulted in regular scheduled access for father of 2 ¾ days over a fourteen day cycle.

SUPPORT ISSUE [ 5 ] Mother seeks guideline child support, s. 7 expenses related to childcare and spousal support. The spousal support issue was never addressed in any temporary Order leading up to the trial except that it was a live issue considered by the case management judge without an Order for spousal support specifically because father was paying a substantial amount of child support on a current basis and an additional amount with respect to fixed arrears on a monthly basis. [ 6 ] The documentation filed, particularly by father, varies greatly when describing income.

Neither party provided global household income, both having live-in partners.

The best information with respect to father’s income for guideline child support purposes is contained in the filed income tax documentation which supports the finding with respect to his income as follows: a) 2008 income - $ 66,861.00 b) 2009 income - $108,269.00 c) 2010 income - $ 67,449.00 d) 2011 income - $ 79,560.00 (projected) [ 7 ] The best information available for mother’s income for the relevant years is as follows: a) 2008 - unknown b) 2009 - $22,400.00 (not taxable) c) 2010 - $15,300.00 (not taxable) d) 2011 - $15,339.00 (not taxable) (projected) [ 8 ] Currently father continues to be employed in his traditional occupation and mother is upgrading her skills with the result that her only income currently relates to Canada Child Tax Benefit and Universal Child Care Benefit.

The notable item with respect to father’s expenses was car insurance. The first Financial Statement filed by father had nothing for car insurance and licence for car related expenses. The second one had car insurance and licence at $80.00/month with car loan and lease payments of $390.00/month. The final one had some $30,000.00/year added for car expense related to insurance.

[9] The first full month of separation was March 2009 and support for the children payable by father to mother should commence asof the March 1, 2009 and be based on the now known 2009 income of father of $180,269.00. Support for the year 2010 should be basedon the now known income for that year of $67,449.00. Likewise the support for 2011 and following should be based on the now knownimputed extrapolated income for 2011 of $79,560.00.

The current temporary Order for support was made on March 9, 2010 for three children in the amount of $2,345.00/monthretroactive to June 1, 2009 based on court imputed income for father at that time of $135,000.00/year, never actually earned by father. That Order is terminated and guideline support is ordered retroactively and prospectively as follows:

a) From the March 1, 2009 to the December 1, 2009 inclusive the sum of $1,956.00/month based on income of $108,269.00/year for2009;

b) For the January 1, 2010 to December 1, 2010 inclusive the sum of $1,313.00/month based on income of $67,449.00 for the year2010;

c) For January 1, 2011 and monthly thereafter, the sum of $1,505.00/month based on imputed 2011 income of $79,560.00. The usualS.D.O. will issue. [10] There is no proof of any s.7 expenses for the children. SPOUSAL SUPPORT [11] The information provided by mother with respect to her claim for spousal support was minimal. The only facts known are asfollows:

a) Parties commenced living together on or about the January 1, 2000.

b) Parties were married on the September 3, 2005.

c) Parties separated on February 19, 2009.

d) There are three children of the marriage born in the years 2001, 2005 and 2007 respectively.

e) Father has consistently worked outside the home, often away from home for long periods of time earning significant income overthe years.

f) Mother has been the primary caregiver in the home, with occasional part-time jobs during the course of the relationship.

g) Mother’s current income is solely the result of the fact that she is the primary caregiver for the three children.

h) Mother is upgrading her education in order to find better and significant employment.

i) Both parties have a resident partner in the home.

j) Mother resides with a relative and there is a pooling of resources for two generations and for mother and her three children and herpartner and his two children included.

k) The first Financial Statement filed by mother sworn May 27, 2009 was more of a position paper with respect to expenses rather thatan accurate reflection of her expenses. Her Financial Statement sworn April 11, 2011 at Court request during trial, sets out monthlyexpenses that are approximately half of what they were as stated in the first Financial Statement and are more realistic in nature given theevidence of her circumstances at trial.

In fact government support for the children and guideline support payable by father will morethan cover the stated expenses in the most recent Financial Statement where there is a sharing of accommodation and expenses. [12] This case is similar to Ratajczak vs. Ratajczak 2010 ONSC 4286 , 90 R.F.L. (6th)75 where a Milanetti, J. granted lowend spousal support for a period of one year at which time the support Orders would be reviewed. In that case mother was able todemonstrate compensatory and non-compensatory bases for spousal support.

She was also able to demonstrate a suffering of economicdisadvantage during the marriage by being a stay-at-home mother. The mother’s current situation, like the situation in this case, was aperson looking after children and upgrading her education to be self-sufficient in the future. In this case mother has demonstratedeconomic disadvantage by looking after the children. Other than this, there is no basis on the facts of this case for compensatory andnon-compensatory spousal support arising from the co-habitation and marriage.

There will be very significant child support paid byfather both retroactively and prospectively. The result is that for 2009 father had a cash flow after deductions and child support ofapproximately $53,000.00 and mother had a cash flow of about $42,000.00. In 2010 father’s net cash flow was approximately$34,000.00 and mother’s approximately $31,000.00. In 2011 (extrapolated) figures will be similar to 2010, but slightly higher for bothmother and father. Mother will have a slightly greater gross income and mother will have a greater guideline child support incomebecause of that greater father’s income.

[ 13 ] In all of the circumstances, including the fact that for 2011 mother’s income from all sources will exceed her stated expenses, which are conservative in nature, the appropriate figure for spousal support is $300.00/month from and including March 1, 2009 for a three year period until February 1, 2012 whereupon the Order for spousal support will cease unless a request for court review is made. A S.D.O. will issue with respect to this support period. All arrears of support under this Order will be paid at the rate of $300.00/month commencing July 1, 2011 until paid.

CUSTODY AND ACCESS ISSUE [ 14 ] Unfortunately, this family has had intervention by the Native Services Branch (Six Nations) of the Children’s Aid Society of Brant. The initial involvement began in October of 2009 and centred around M.1’s emotional issues. There is no disagreement that this child is emotionally fragile requiring comfort and assistance, particularly counselling in the community.

The family service worker for the Society assessed her needs as follows: • assistance to deal with parental separation, • learning coping skills centred around learning to show her feelings appropriately with respect to her parents, • addressing feelings of self harm and the need to run away from her mother’s residence, • having someone to talk to, particularly to cope with her mother’s observed behaviour of withdrawing from the child during emotional crisis, for instance, not speaking to her for two weeks. [ 15 ] M.1 was assessed as a well behaved mature child who internalizes the grief she feels over her parents separation.

Father is more supportive of counselling for M.1 than mother. [ 16 ] In July of 2010 an additional child protection concern arose in mother’s home. It was an allegation of domestic violence between mother and the maternal uncle of the children where a beer bottle was broken and mother injured. Collateral damage was one child being struck by a different object at the time.

This matter was investigated but was not verified as domestic violence raising a child care issue as far as the evidence in court was concerned. [ 17 ] An interview with the worker on 9 th of March, 2011, at school, revealed that while M.1 had much more confidence in speaking to professionals who wish to assist her, many of her issues remain the same. During that interview, M.1 expressed the following concerns: 1. Frequent use of alcohol in the home particularly by mother’s fiancé complete with details about frequency, quantity, nature of and brand of alcohol used. 2. Anger demonstrated by mother’s fiancé. 3.

Smoking of marijuana in the home, particularly in the bathroom by mother’s fiancé complete with details of finding a baggie of marijuana in the bathroom and an additional baggie of marijuana in the bedroom. 4. The child confirmed that mother’s drinking and the smoking of any substance is not a concern. 5. Time to time views of mother and her fiancé with clothes on in sexual positions which the child described as “gross, gross.” 7. Verbal arguments and one physical confrontation between mother and her fiancé with a result that this child told her mother that if they kept fighting the children would leave.

8. Mother’s fiancé and his uncle using porn literature and videos in the house to the extent the child is aware of it. 9. Mother’s fiancé and his uncle consuming alcohol and playing videogames. 10. The child’s assessment of mother’s fiancé as fine when he is not drinking, angry when drinking, and angry more often than not. 11. The child disclosed that the mother’s fiancé has twins of his own and disciplines them appropriately. 12. The child states that from time to time mother has expressed the opinion that she wishes to have the children without the fiancé in the home. 13.

The child feared that questioning by the Society representative, if known to mother, would result in her not feeling safe living with mother. Coupled with this comment was the observation that she was present when her maternal uncle hit her mother with a beer bottle, the unverified allegation. 14. The child is generally unhappy with the current living arrangement, particularly because she fears being cut off from father. [ 18 ] Each of mother and father has called the Children’s Aid Society with respect to bruises observed on one of the children while in the care of the other.

Neither of these allegations, one against the other, resulted in verification. Despite a somewhat lengthy involvement, the Society has never started a court case nor has it required the parents to enter into voluntary agreements for the care of the children. Nevertheless the file continues to be open for two reasons. First the mother’s need for domestic violence counselling centred around her brother, the maternal uncle, and M.1’s need for counselling related to domestic violence (not between the parents) and the separation of the parents. THE FATHER’S CASE [ 19 ] The paternal grandmother gave evidence.

She has been an education assistant in the native school system for twenty-two years working with academically stressed children. In April of 2009 she formed the opinion, while assisting M.1 in school, that she required counselling because the stress with respect to the separation of her parents was affecting her concentration and school performance. She understood that mother was against counselling in the beginning and was also against this witness assisting the child in school.

From time to time she observed M.1 going to school or at school emotionally upset and crying, not having been properly prepared for school such as no breakfast, no brushing of teeth or hair from time to time. This witness also gave evidence of fear and stress created by the child’s understanding of specific events related to the separation, general attitude of the parents related to separation. In October of 2010, the child did not wish to return to her mother’s home with the result that this witness and father called the Children’s Aid Society to see what the options were.

Two days later a Society worker came and returned the child to mother. The child stated she was afraid that by returning to her mother she would not see her father again. [ 20 ] By March of 2011 what had been a relatively courteous, if not amicable, relationship between the paternal grandmother and mother fell apart during the return of the child to mother’s home by the paternal grandmother in the early morning. The ostensible reason for upset – grandmother and child were seven minutes late. The result – mother swearing and offensive, the child crying and going into the house.

On the next return date, the 21 st of March 2011, M.1 was stressed and overly concerned about whether or not they would arrive for return to mother’s house on time for fear of mother repeating her conduct on the previous return. [ 21 ] Grandmother assessed M.1 as being mature for her age, very emotional about issues, and constantly worried about what other people’s feelings were and how they affected her. Because of this, grandmother and others tend to focus more on M.1 than the other two children.

[ 22 ] Father does not deny that he has been absent from the family from time to time as a result of work, particularly in early 2009 leading to the separation in February-March of that year. In fact he resided in Saskatchewan for some seventeen months while fully employed during that period of time.

When there his habit was to return home every six weeks to reside with the paternal grandmother and to see the children on a week at a time basis when he was available. [ 23 ] This changed on the 1 st of May, 2010 when he returned to Ontario and commenced full time residence at the Six Nations with the paternal grandmother. The result was an inability of mother and father to work out details of father’s time with the children leading to him commencing the action and the various court Orders that have been made on a temporary basis from time to time until trial.

He has resided with his current spouse, including in Saskatchewan for a time, for a period of two years. [ 24 ] Father wishes to tweak his time with the children returning the children on Sunday evening so as to avoid conflict on Monday morning between paternal grandmother and mother. His hours of work prevent him from taking

part in the return of the children on Monday morning. He did not pursue his claim for all three children to live with him. [ 25 ] Father asserts that any domestic violence between him and mother, which no one indicates is frequent, is more mother’s fault than his. He cites the fact that both of them were charged with domestic assault on the 26 th of April, 2009.

After trial, father’s charge was dismissed and after trial mother was found guilty receiving a six month Probation Order complete with domestic violence counselling. [ 26 ] Father confirms that the issues between mother and father are sufficiently difficult that they directly affect M.1.

On October 23 rd , 2010 M.1 was particularly stressed about return to mother’s home and police enforcement was used to transfer the child from father to mother at the Six Nations Police premises. [ 27 ] Father states that the phone access ordered is not working because often the phone is simply not answered. [ 28 ] His plan of care is to have the ongoing support of the paternal grandmother who has been involved in the past. There would also be some support, although not specified, from his current partner residing with him. There is no plan for out of province work as there has been in the past.

MOTHER’S CASE [ 29 ] Mother resides with her fiancé, his two two year old boys and her three children, the subject of this action. She denies that her fiancé has hit her or any child at any time. She denies that the school personnel ever approached her with respect to counselling for M.1.

She does not believe that M.1 needs counselling. [ 30 ] She denies there are any real problems with respect to exchanges on access provided they take place at the maternal grandmother’s to avoid altercations and to accommodate father. [ 31 ] She agrees that there is hardly ever any communication with father and there is minimal communication regarding M.1, her education and her progress. [ 32 ] She wishes sole custody of all children as a result.

She is content with the minor changes to access as suggested by father, provided M.1’s tutoring for her academic deficiencies is not interfered with. [32] Currently mother has now graduated from an information technology course and is available to seek employment. Mother’s position was supported by evidence given by the maternal grandmother. The maternal grandmother explained that she, not the paternal grandmother, was the primary substitute caregiver while the couple resided together and continued to be so after parents stopped living together.

This makes sense since the family residence was on the property of the maternal grandmother up to separation. Since May of 2009 mother and the children, and the rest of the now blended family, reside with the maternal grandmother.

[ 33 ] This witness confirms that these two families have less and less contact with each other and are beginning to become two separate solitudes. This witness attributes much of M.1’s upset to statements made by the paternal grandmother and others in that family about mother or other persons in her family trying to kill father. She states that these kind of accusations, made all the time, make it even more difficult for M.1.

This witness also made statements about the condition of the paternal grandmother’s home which were hard to understand because there was no verification by any other witness and this witness’s knowledge of what was occurring in the other home would be minimal at best. For instance that the paternal grandmother favours another grandchild over M.1 and that there is little food at the paternal grandmother’s home for the occupants.

However she did agree that all the children appear to want to see father on access. [ 34 ] It must be said at this time that the overall impression formed of this witness’s evidence was that she was extremely one-sided and biased in favour of mother and against father. She wished to protect the position of and the reputation of members of her own family.

With respect to the bottle incident between her son and her daughter, the Respondent in this action, she was unable to see how this might affect the children who were present and was at pains to excuse the conduct of her son by informing the Court that he was stressed at the time. [ 35 ] There is another family member residing in the home occupied by mother and the children, the great aunt of the children. This witness was more attentive to the needs of M.1 and was to better able to report to the Court on M.1’s situation. She described this child as very bright and displaying a lot of anger and sadness.

She describes her currently as still angry but more accepting of the new situation. She described mother as attentive to the needs of the children putting them first. However she also indicated that the fiancé is a constant presence in the home living with mother, the children and the other residents. [ 36 ] With respect to M.1’s attitude towards her father this witness formed the opinion that M.1 prefers to see her dad in isolation enjoying her time with him more when it is one on one and other members of father’s family are not present.

ASSESSMENT AND RESOLUTION [ 37 ] There is much that is unfortunate about the lives of these three children, M.1 in particular. There has been a final separation of the parents. There is the introduction of new parental figures in each of the parent’s homes. The families demonstrate a great deal of mistrust and share a great deal of misinformation about each other. Neither family has a particularly appropriate level of goodwill towards the other.

Each family regards the other as the source of concern and upset for M.1 and attributes her currently conflicted attitude with unfortunate results for her mental and emotional well-being to the conduct and attitude of the members of the other family, not having insight whatsoever into how everyone involved contributes to the unhappiness of the children, M.1 in particular. [ 38 ] On the totality of the evidence there are positives and negatives with respect to each of the plans of care of the parents. [ 39 ] Despite allegations to the contrary the mother has been the constant and primary caregiver over the years.

Of necessity, father has had to go far afield in order to obtain gainful employment to support the family. [ 40 ] Except for M.1’s emotional issues, the children are cared for sufficiently, both physically and emotionally, at least to the extent that a reasonably lengthy involvement by the personnel of the Child and Family Services for the Six Nations has not resulted in more intervention than it has. Clearly the focus is on the emotional well-being of M.1 and how that can be protected.

Despite vague suspicions on the part of members of mother’s family there is nothing in father’s plan of care that is necessarily detrimental to the children, particularly since father’s position at trial was an acceptance of the status quo, in effect, withdrawing his claim for residence of the three children with him. [ 41 ] Part of the problem is the fact that each of these parents, with their allied family members, appear to have been strategically positioning themselves with respect to the evidence before the Court in order to achieve an advantageous outcome.

Hopefully once an Order is made that solidifies the position of these three children within the respective households of both parents this will stop. However this cannot be taken for granted. It is true that both mother and father appear to have great difficulty in communicating with the other and there has been limited success in the use of other family members to buffer the problem. On the other hand, giving sole custody to one parent risks the alienation of the other parent from the children.

Added to this is the admitted fact that mother is not convinced that M.1 requires counselling and other assistance for her emotional state from service providers in the community. Mother narrows the need for help to simply academic issues over reading and writing. This is clearly not the case. The result is this is a case where joint custody is required along with an allocation of responsibilities to each of the parents.

At least in the short - medium term, this is required to make sure one parent does not obtain an advantage over the other to the detriment of the children, and to ensure that M.1 is engaged with community resources that she obviously needs.

[ 42 ] For these reasons, the custody order will be as follows: 1. The applicant father and respondent mother shall have joint custody of the three children. 2. The children will reside with mother unless residing with father. 3. The children will reside with father as follows:

a) Alternate weekends on a modified existing

schedule from Friday after school to Sunday at 8:00 p.m.;

b) Each Wednesday, or other day during the week as agreed between the parents from time to time, from the time school ends to 8:00 p.m. whether the child is in school or not.

c) For the year 2011 and following the children will reside with father from noon Christmas Day to 8:00 p.m. Boxing Day and shall reside with mother from noon Christmas Eve to noon Christmas Day. In addition, the children will reside equally with father and mother on the other days of the Christmas Holiday season and regular residence is suspended for that period of time. In the event, the parents cannot agree on this additional time for the Christmas season, they may apply to the Court for direction or Order.

d) Other times as agreed by parents.

e) The child M.1 shall be able to have one extra weekend per month with her father from Friday after school to Sunday at 8:00 p.m. without the other children, as determined by father by fourteen days notice in advance to mother. 4. The father will notify mother a minimum of 60 days in advance of what four week time period in total, no more than two weeks at a time, that he wishes to have the children for the summer school break. Mother will then choose two weeks in summer when children will be with her, giving notice seven days after father gives his notice. 5.

In even-numbered years for mother and odd-numbered years for father the children may reside with the respective parent for a total of one week during the March Break. Provided they intend to take a trip or vacation with the children during that time, if not, the normal residence

schedule shall continue for March Break. Any notice by one parent to the other in the appropriate year for a vacation or a trip shall be at least sixty days to the other parent. 6. Notwithstanding the regular

schedule the children shall be with mother on her birthday and on Mother’s Day from 9:00 a.m. in the morning until 8:00 p.m. at night. The children shall be with father on his birthday and on Father’s Day from 9:00 a.m. in the morning until 8:00 p.m. at night. 7.

For the year 2011 and odd-numbered years the father shall be entitled to have the children with him from 4:00 p.m. in the afternoon to 8:00 p.m. at night on the birthdays of any of the children and in the year 2012 and even-numbered years the mother shall have the children with her from 4:00 p.m. in the afternoon to 8:00 p.m. at night for any birthday of the children. 8. The parents, as part of the joint custody regime, shall consult with the other. Neither parent will make a major decision with respect to the lives of the children without first obtaining the consent of the other except as follows: 1.

In the event that the parents disagree mother shall have the final say with respect to the education of the children, but only after consultation with father; 2. In the event that the parents disagree mother shall have the final say with respect to the physical health of the children, but only after consultation with father; 3. In the event that the parents disagree father shall have the final say with respect to any decision with respect to the emotional, psychiatric or psychological well-being of the child M.1, but only after consultation with mother.

Dated at Brantford, Ontario This 26th day of May, 2011 “Justice Lawrence P. Thibideau”