G. v. P., 2011 ONCJ 549

North Bay Registry No. FO 03-10 DATE: 2011·XI·07 CITATION: G. v. P. , 2011 ONCJ 549 ONTARIO COURT OF JUSTICE BETWEEN: G.S.M.G., Applicant, — AND — J.L.P., Respondent.

Before Justice Louisette Duchesneau-McLachlan Reasons for Judgment released on 7 November 2011 CUSTODY OF CHILD — Form of order — Joint custody — Grounds — Ensuring right of both parents to participate in matters of child’s health, education and welfare — Separated parents of 2 children hardly spoke to each other or even acknowledged other’s presence in same room — But they did communicate about children via e-mail — Court found that communication by e-mail would suffice — But court was concerned about mother’s resistance to father’s participation in children’s treatment and counselling — Father’s right to inquire and to be given information about children’s health, education and welfare under subsection 20(5) of Children’s Law Reform Act was simply not enough in this case — To guarantee father’s right to participate in such matters, court awarded joint custody order.

SUPPORT ORDERS — Form of order — Periodic support — Time-limited order — Length of cohabitation — Presence of unusual circumstances — About 6 years ago, respondent father began intimate relationship with Chilean woman on visitor’s visa to Canada — Upon expiry of visa, woman returned to Chile where she gave birth to their first child — Parties maintained contact and underwent purported marriage by proxy 4 years ago — About 3 years ago, mother was able to return to Canada, subject to father’s sponsorship agreement with Canadian government to take care of her needs for 3-year period — Sadly, parties separated after only 10½ months of cohabitation — Their second child was born after separation — Despite brevity of cohabitation, court noted that father was still obligated to support mother under terms of sponsorship agreement, which was going to expire in 4 months — But court also took into account that he had financially assisted mother in Chile after birth of first child until mother returned to Canada — He had paid for her English lessons and repaid Ontario welfare agency for money that mother collected for 3 months after separation — He had also paid for education of mother’s daughter by previous union and for that child’s entry to Canada — Because of all that he had done for mother and because of very short period of cohabitation, court required father to pay spousal support for 18 months after expiry of sponsorship agreement.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990 c. C-12 [as amended], subsection 20(5) . C. Edward Rae ............................................................................... counsel for the applicant mother Laurieann Whittaker .................................................................. counsel for the respondent father [ 1 ] JUSTICE L.

DUCHESNEAU-McLACHLAN— The parties met in Callander, Ontario in 2005, at a friend’s place, at a time when the applicant was in Canada on a six-month visitor visa to visit her sister who lived in Montreal. [ 2 ] The applicant was born in Chile but had a sister living in Canada. [ 3 ] The respondent is a North Bay Ontario native.

[ 4 ] The respondent was instrumental in having the applicant’s visa extended to one year.

The applicant agreed to be a nanny to the respondent’s daughter N. and they began a close relationship after a couple of months. [ 5 ] At the end of the year, it proved impossible to extend the applicant’s daughter S.’s visa any longer and mother and child returned to Chile. [ 6 ] The parties’ first child, D.P.M., was born on […]2006 in Chile. [ 7 ] After D.’s birth, the applicant informed the respondent that she would be willing to return to North Bay to try to resume their relationship. [ 8 ] It took some time for a return to happen as S.’s father did not want his daughter to move away. [ 9 ] Indeed, the applicant was not able to return to Canada till February of 2009. [ 10 ] In the meantime, the respondent provided the applicant with shelter and some necessities in Chile and paid for S. to go to a private school. [ 11 ] The respondent paid for a lawyer to deal with S.’s issues since he had to be guardian of S. for her to come to Canada with her mother and D.. [ 12 ] The parties also married by proxy in August of 2007 with applicant in Chile and respondent in Canada to help facilitate applicant’s return to Canada. [ 13 ] The respondent testified that it cost him about $80,000 to arrange for applicant’s return to Canada, including legal fees, support and travel for his access in Chile and their return to Canada. [ 14 ] What with this debt, child support and spousal support to be paid during these proceedings, the respondent declared bankruptcy late in 2010. [ 15 ] The parties stayed together as spouses till the end of 2009. [ 16 ] At this point, it appears that the respondent was given an ultimatum either to give up his daughter N. or to suffer a separation from the applicant. [ 17 ] During the time that the applicant was in Chile, the respondent had her father come to take care of N. for about six months.

After Mr. M. returned to Chile, the respondent had the applicant’s grandmother come to help with N.’s care. [ 18 ] It appears that Mr. M. had sexually molested N. and that the applicant and her mother found out both from Mr. M. and N., but kept this information from the respondent. [ 19 ] When the respondent found out, he was furious and advised the police who then advised the Children’s Aid Society for the Districts of Nipissing and Parry Sound. [ 20 ] It is clear that Mr. M. could not be charged since he was in Chile, but the respondent advises that, should Mr.

M. ever return to Canada, there is a chance that he will be charged. [ 21 ] The respondent feels that the applicant and her mother wanted to get away from N. as she had demonstrated the sexual abuse to S.. [ 22 ] It seems from the evidence that the parties actually lived together only about ten and one-half months. [ 23 ] We must take into account, however, that the respondent sponsored the applicant and must by agreement with our government take care of her needs for a three-year period that ends in February of 2012. [ 24 ] During these proceedings, the Office of the Children’s Lawyer agreed to intervene by way of an assessment.

The assessor was appointed in February of 2010 and the report is dated 30 June 2010. [ 25 ] After the assessment was complete, the parties’ second child, V.Y.P.M.G., was born on […]2010. [ 26 ] The matter proceeded normally with the usual temporary orders for residence of the child and then children; child support and spousal support orders. [ 27 ] However, at some point in time after the trial management conference was scheduled for 18 March 2011, the applicant lost her lawyer and did not retain anyone else. [ 28 ] The applicant did not appear for the trial management conference and therefore a final order was made in her absence and the trial date of 3 May 2011 was cancelled. [ 29 ] After receiving the final order, the applicant retained another lawyer and asked to have the matter re-opened since she claimed that she had not been made aware of the trial management conference. [ 30 ] The respondent also retained another counsel and the trial was held finally on 27 October last.

CUSTODY [ 31 ] The applicant seeks sole custody and the respondent seeks joint custody. [ 32 ] The applicant’s main point is that the parties do not communicate. [ 33 ] The respondent states that, if he does not have joint custody, he will never be kept abreast of the children’s needs and appointments. He further states that they communicate by e-mail.

As he says, the proof is in the pudding: since he received an order for joint custody in March of 2010, he has been given information on the children and their appointments and he has been able to attend. [ 34 ] The applicant does not feel that e-mailing is acceptable communication. In fact, she states that it amounts to no real communication. She further testified that, although they are both present for appointments, they each go on their own and do not speak to each other during appointments. [ 35 ] These are needy children who will require a lot of help in their lives.

D. may be autistic to a certain degree and needs speech therapy as well as help with motor skills. She needs to be socialized. At three and a half, she was non-verbal according to the assessor. She has a quick temper and has to be the center of attention. S. is a bit older than N. and seems to play along with her stepsister’s needs. It is harder for N..

V. was not part of the assessment but it is felt that he will need special attention as well. [ 36 ] In my view, for the respondent to continue getting feedback on the children and their progress, it is absolutely necessary to have an order for joint custody. [ 37 ] Communication in this case by e-mail will suffice. [ 38 ] I was persuaded by the pleadings and evidence that the respondent father would not be allowed to participate actively in the children’ lives without a joint custody order. [ 39 ] The provision of subsection 20(5) of the Children’s Law Reform Act , R.S.O. 1990 c.

C-12, as amended, would not suffice in this case. There is a big difference between being able to get information and being able to participate in treatment and counselling. PRIMARY RESIDENCE [ 40 ] I agree with the assessor that the mother should have primary residence of the children. This mother is by all counts an excellent mother, even in the eyes of the respondent and she is prepared to stay at home at least until V. goes to school or day care on a full-time basis.

The father’s suggestion of weekabout would not work in this case, even if he does have a nanny, since there has to be one person who is regular and consistent in these children’s lives. The father is a very industrious man who works to fulfil his obligations but who simply cannot devote all of his time to the children while still taking care of their financial needs. His suggestion is not feasible in the circumstances described to me in the parties’ evidence. The order will therefore go for primary residence with the mother. ACCESS [ 41 ] The parties seem to be getting along a lot better in regards to access.

There were problems at first with D. since the applicant and her mother did not want her to be with N. overnight. Then there were problems with V. as the mother was breastfeeding. [ 42 ] The father shall continue access every second weekend in accordance with the status quo . He shall have the children from 6:30 p.m. Fridays to 6:30 p.m. Sundays, such weekends to include statutory holidays should the father not be working on those days. He is to e-mail the mother so that she knows what day to expect the children. [ 43 ] The parents shall each enjoy one full uninterrupted week in the summer with the children.

Should the mother be able to take the children with her to Chile for longer than a week in the summer, then the father will have equal time with the children on his own. [ 44 ] The children will always be with the mother for Christmas Eve and with the father for Christmas day from 10 a.m. The balance of the Christmas holidays, based on the school holiday time, will be shared equally between the parties. For March school breaks, the parties will alternate, with the mother having even-numbered years and the father odd-numbered years.

Any other long weekend will fall as per the alternate weekend access schedule. [ 45 ] The mother shall have the children on Mother’s Day from 10 a.m. to 6:30 p.m. and the father shall have the children on Father’s Day from 10 a.m. to 6:30 p.m. no matter whose weekend it happens to be. [ 46 ] Each parent will be entitled to ONE telephone call to the children each day that the children are with the other parent. [ 47 ] The father will take care of access transportation and exchanges shall be at the mother’s residence. [ 48 ] Neither parent shall speak of adult issues in front of the children.

They shall not argue in front of the children at any time and especially during exchanges. CHILD SUPPORT

[ 49 ] On the basis of a gross annual income of $63,158, the father shall pay child support in the amount of $947.00 for the two children starting on 1 January 2012. In the meantime, he shall continue with the present child support order. [ 50 ] The father shall also pay all extraordinary expenses for the children, provided that the mother gives him the bills in a timely way. I do not expect her to give him six months’ worth of bills all at once. He needs to budget.

SPOUSAL SUPPORT [ 51 ] No matter what a spouse may expect after such a short period of cohabitation, it remains that the respondent must support her till 1 March 2012. He shall continue the present spousal support order to include the payment of 1 February 2012. He has the agreement with our government to honour. [ 52 ] It is noted that the respondent assisted the applicant in Chile from shortly after the birth of D. until her return to Canada in February of 2009, for a period both preceeding and subsequent to their marriage. It should also be noted that he paid for her to learn English.

It should also be noted that he repaid Ontario Works for money that the applicant had received for three months after the separation. We must not forget that he paid for the applicant’s daughter’s school and her coming to Canada. In addition to this, the respondent now pays for a nanny to care for his own daughter.

The respondent also testified that, although he had received and remitted the child tax credit to the applicant, he was penalized by our government to the extent that it then gave her the money again and he had to repay the government as requested by it. [ 53 ] In view of all that he has done for her and the very short period of cohabitation, I hereby order that the respondent simply pay spousal support for an additional period of time from and including 1 March 2012 to and including 1 August 2014. [ 54 ] The spousal support shall be $572 per month as per the low amount on the Divorcemate calculation presented to me.

By that time, V. ought to be enrolled in day care and the applicant find some employment. OTHER RELIEF [ 55 ] There will be a support deduction order as well as the usual clauses inserted in orders in this jurisdiction, including a provision for the respondent to disclose his tax information and notice of assessment by 1 June of each year, beginning with 1 June 2013. [ 56 ] In view of the parties’ circumstances and the history of their relationship, each party is to bear his or her own costs.