Spaans v. Campbell, 2012 ONCJ 784

COURT FILE No.: Brampton 922/09 DATE: 2012·12·18 Citation: Spaans v. Campbell , 2012 ONCJ 784 ONTARIO COURT OF JUSTICE BETWEEN: JASMINE JOLENE SPAANS applicant — AND — JASON KENNETH CAMPBELL respondent Before Justice P.W. Dunn Heard on October 29, 30 and 31, 2012 November 2, 5, 6, 7, 8 and 9, 2012 December 4, 2012 Final orders released 18 December 2012 Mr. Noel A. Nolasco da Silva.................................................................................... for the applicant Mr.

Eric Shapiro .................................................................................................. for the respondent P.W. DUNN, J.: The applicant already has a final order for custody of Kyla Elizabeth Campbell, born 19 June 2007, pursuant to the orders of Madam Justice Kerrigan Brownridge dated 27 August 2009. 1 . The following orders are vacated: (

A) From the orders of Madam Justice Kerrigan Brownridge dated 27 August 2009: 2. The respondent father, Jason Kenneth CAMPBELL, shall have reasonable access to the child, Kyla Elizabeth CAMPBELL, as agreed upon by the said applicant and respondent from time to time. (

B) From the orders of Madam Justice Kerrigan Brownridge dated 29 October 2009: 1. The respondent, Jason Kenneth CAMPBELL, shall pay child support to the applicant, Jasmine Jolene SPAANS, for the child, Kyla Elizabeth CAMPBELL, born on June 1, 2007, in the amount of $186.00 per month retroactive to October 1, 2008, based on the respondent’s gross annual income imputed to the respondent of $21,840.00 (being $10.50 an hour for a 5 day week of 40 hours) and the Child Support Guidelines for one child. 2.

The respondent Jason Kenneth CAMPBELL, shall pay 50% of daycare costs to the applicant, Jasmine Jolene SPAANS, for the period July 2009 to September 2009 (total $270.00) being $135.00. 3. The respondent, Jason Kenneth CAMPBELL, shall pay 50% of ongoing daycare costs (total $650.00 per month) in the amount of $325.00 per month commencing October 1, 2009. 4. Arrears which have accumulated under retroactive order are fixed at $2,232.00 and shall be paid at the rate of $100.00 per month commencing October 1, 2009. 5.

The respondent, Jason Kenneth CAMPBELL, shall contribute a proportionate share for reasonable extraordinary expenses.

Final Orders as follows: 2. The respondent, Jason Kenneth Campbell shall have supervised access to Kyla Elizabeth Campbell, born on June 1, 2007, for a four month period commencing 8 December 2012 upon the following terms: (

a) The access shall be supervised by Cindy Kingshott. (

b) The access shall occur so that Kyla sleeps at the home of Cindy Kingshott, at 27 Goddard Crescent, Otter Lake, Parry Sound, Ontario, or 33 Ellen Street, PH 2, Barrie, Ontario. (

c) Kyla, Cindy Kingshott and the respondent shall have at least one meal together on each day of the respondent’s access period. (

d) Cindy Kingshott shall be informed by the respondent at all times of the planned and actual location or locations where Kyla will be while with him during access, and Cindy Kingshott shall give her prior approval of the said location(s). (

e) The respondent shall keep a working cell phone with him that is turned on during his access to Kyla. (

f) After the expiry of the said four month period, supervision shall cease. 4. The respondent is encouraged to reconcile his relationship with Dale Campbell and Anna Mae Stevenson This clause is inappropriate for orders, so it will not be included in the final orders. Nevertheless, the respondent should settle his differences with his father and his partner for the sake of Kyla. 5. A visit by the applicant to the respondent’s home in Parry Sound Every parent would like to see where a child resides when absent from a primary residence. This is a natural request which likely will prove salutary.

An order will go as amended, from Mr. da Silva’s suggested wording. 3. The applicant, Jasmine Jolene Spaans, shall have one visit to tour the respondent’s home in Parry Sound, where the respondent intends to have Kyla reside temporarily during access. 6. The respondent to do blood tests I find that this is a reasonable request and it should be implemented. Favourable test results would strengthen and confirm the respondent’s position that he is drug free. 4.

The respondent shall attend for monthly blood tests at his own sole expense, commencing 7 January 2013, through his family doctor or an independently accredited testing laboratory, for a period of six months. He will promptly forward a copy of the test results to the applicant. After the first test, the dates of the next five (5) tests shall be at the discretion of the applicant, who shall notify the respondent of each selected date in writing, which may be by e-mail or text message, so long as a record is kept.

The respondent shall attend to have the blood test administered as soon as reasonably possible, after notification of the demand by the applicant. 7. In the event of a positive drug test Mr. Shapiro submitted that the parties should return to court if there is a positive drug test. I disagree. The applicant’s proposal has a clear sanction that can be readily implemented. Returning to Court is expensive and not conveniently available. I do not intend to stay seized with this case because of my workload.

Also disagreement over the large range of options the parties could consider, might regress any good faith the parties had at the time of going to court. 5. In the event of a test result that is positive for street drugs, the period of four months of supervised access, as set out in paragraph six (6) above, shall be extended or recommence so as to total four months. Access shall be suspended for one weekend following a positive test. 8. Alternating weekend access Order to go as suggested. 6. Subject to all of the above, the existing alternating weekend access shall continue. 9. Alternate supervisor to Ms.

Kingshott Mr. Shapiro submitted that if Ms. Kingshott is not available at times when supervision is required by these orders, there should be a substitute weekend when Ms. Kingshott would be available. The rationale behind the suggestion was that the parties would not be able to agree on a supervisor. It is time to have some confidence in these parties having learned from the trial experience. It is important

that the access scheduled have adherence. 7. The parties would be required to agree on alternative supervisor if Cindy Kingshott is not available to supervise. 10. Notification to a parent about a child’s location Every parent wants information about a child’s general whereabouts when that child is out of the expected orbit. The following order will issue: 8. (

a) Order for the applicant to be advised whether the respondent will exercise access generally at the residence of Ms. Kingshott in Barrie, or at the family cottage at Otter Lake, or at the respondent’s residence in Parry Sound or at a combination of places. (

b) It will be sufficient that the applicant be told that a certain location(

s) will be in use until further notice. It is not necessary that the respondent advise the applicant in the winter time for example, that access will be at Ms. Kingshott’s Barrie residence. However, when the access location changes to (say) Otter Lake, the applicant should be told accordingly. (

c) Order for the respondent to be advised if the applicant takes the child to a location away from the applicant’s residence for a stay of more than two days. 11. Communication to the applicant is requested to be by the respondent personally In an ideal arrangement, child issues would be discussed by parents without intermediaries. However in this situation, there are telephone expense and logistical concerns that can be alleviated by Ms. Kingshott’s intercession on occasion. Where possible, Kyle’s parents should deal directly with one another, but an order to do so would be impractical.

No order for paragraph 11. 12. Respondent to participate in access exchanges The Children’s Lawyer’s report observed that Kyla would enjoy talking to her father, if he was in a car driven by Ms. Kingshott when she is doing access exchanges. Because of the distance between the parties’ and Ms. Kingshott’s residences, and considering the different exchange arrangements in summer and winter, it is impractical and unnecessary for the respondent to be present on all access exchanges. He can converse with his daughter privately when he sees her. If Ms.

Kingshott is in a car alone with Kyla, I am sure grandmother and granddaughter would also appreciate their time together for their own personal conversations. No order pursuant to paragraph 12. 13. Respondent to provide proof of car insurance No order in this regard. The respondent is already legally obliged to carry insurance. 14. The respondent is to spend access time with Kyla There is no need for this order, and it would be unenforceable because evidence would not be forthcoming easily.

I have confidence that the respondent will willingly, eagerly and voluntarily spend all practical and available time with his daughter. 15. A limit on number of makeup visits I agree there should be makeup visits, but without a limitation. Unforeseen circumstances may increase (or decrease) the number of makeup visits. I would not anticipate that the respondent would want to miss any visits. Order to go as varied. 9. If the respondent is unable to exercise his access due to illness or inclement weather, the parties shall agree on a substitute weekend. 16.

The eventuality of the respondent being convicted of a drug or alcohol offence Mr. da Silva’s proposal for a sanction is appropriate and understandable. It would not be a realistic solution for the parties to do a motion to change; that would cause delay, expense and introduce an element of uncertainty. Order to go as amended: 10. If the respondent is convicted of any alcohol or drug related criminal offence, supervised access will be reinstated for a further 4 month period, commencing on the date of conviction or completion of a period of incarceration, whichever is later.

In order for access to become unsupervised, four consecutive monthly street drugs and alcohol free blood tests must be obtained.

17. The respondent should not consume prescription medicine that would drowse him before driving with Kyla. The respondent is knowledgeable about the need for and the effects of his medication, and no order is needed nor would one be enforceable. 18. The respondent is to store his medicine in a locked child proof container. An order will issue on consent: 11. The respondent will store his medication in a locked child proof container. 19. The applicant seeks information about the respondent from his medical advisors The following order will issue: 12.

Order for the respondent to inform the applicant of any change in the respondent’s doctors or specialists or counsellors treating the respondent. The applicant’s request to consult with the respondent’s doctors raises serious privacy issues. Yet because the respondent is bi- polar, and has had drug issues in the past, there is some appreciable reason for the applicant’s concern. The following Order will issue: 13. The applicant may ask to consult with the respondent’s family doctor once in each of the years 2013, 2014 and 2015.

If the applicant requests the respondent to do so, the respondent is ordered to sign a consent to the respondent’s family doctor, to advise the applicant about the respondent’s medications, and whether the consumption of those medications would likely interfere with the respondent’s ability to care appropriately for his child. Any fees payable to the family doctor will be paid by the applicant. Nothing in this order requires the respondent’s family doctor to give information to the applicant.

At the choice of the respondent’s family doctor, that doctor would either meet with the applicant or answer written enquiries from the applicant. 20. The respondent is to take prescription medicine for bi-polar disability. Order to go as requested: 14. The respondent will comply with taking his prescription medication for Bi Polar disability. 21. The respondent is not to consume street drugs. Order to go as requested: 15. The respondent will not consume street drugs. 22. The respondent is to refrain from alcohol or drug consumption before and during access Order to go in amended form: 16.

The respondent shall refrain from any alcohol or drug consumption a week prior to his visit and during his access visits to Kyla. 23 . Christmas Access The following order shall issue. The intention is to give each party time with Kyla on Christmas Eve and Christmas day in alternating years. 17. (

a) During Kyla’s Christmas vacation from school in 2012, the parties shall equally divide the time that Kyla is not attending school, but with the respondent having access to the child from no later than 4:00 p.m. on Christmas Eve through 1:00 p.m. on Christmas Day. The applicant shall have access from 1:00 p.m. Christmas day to 1:00 p.m. on Boxing Day. The parties will agree on the exact division of the remaining Christmas vacation time by no later than 21 December 2012. Access for each subsequent year thereafter shall be alternated for Christmas Eve and Christmas Day.

For certainty, in 2013, the applicant shall have access to the child from no later than 4:00 p.m. on Christmas Eve to 1:00 p.m. on Christmas Day, and the respondent will have access from 1:00 p.m. on Christmas Day through to 1:00 p.m. on Boxing Day, and so on for each subsequent year. The remaining Christmas vacation time will be agreed by the parties no later than October 30 th of each subsequent year. (

b) The access in 2012 shall be supervised as set out in paragraph 3 above. If Kyla is not in school during the 2012 Christmas access, the parties will calculate the length of the Christmas school vacation as to what it would be if she were in school. 24. March break access

Order to go as requested: 18. The March Break school holiday period shall be alternated between the parties annually. The 2013 March Break shall be with the respondent, and will be supervised as set out in paragraph three (3) above. It will commence annually on the first weekend on Friday at 5:30 p.m. and end the following Friday at 6:00 p.m. If either party intends to take a holiday out of the country, the dates and times within the holiday period may be changed, by mutual agreement in writing.

If Kyla is not in school during the 2003 March break, the parties will calculate the length of the March school break as to what if would be if she was in school. 25. Summer Access Order to issue as requested, subject to the respondent being able to have two consecutive weeks of access after Kyla’s seventh birthday. Hence, if the respondent chooses access after 19 June 2014, he is entitled to two consecutive access weeks if he wishes. A decision about the choice of access weeks will be by April 25th each year, starting with 25 April 2013. 19.

The respondent shall be entitled to two weeks total access during the summer months of July and August commencing in 2013, with the respondent having first choice in 2013, and first choice of dates alternating annually between the parties thereafter. The party with first choice shall select the dates and notify the other in writing by April 25th of each year, which notice shall include full contact information. The said access shall commence on Friday of the first weekend at 5:30 p.m. and end at 6:00 p.m. on the following Friday, or the next following Friday if the two weeks are taken consecutively.

Consecutive weeks shall not commence until after Kyla’s 7th birthday. 26. Variation of access weekends for special occasions This is a problematic area for adjudication. Difficulties typically arise when a custodial parent decides, without the other parent’s consent, to enrol a child in extra curricular activities which interfere with the access to the other parent. Compliance with this clause requires trust, the ability to put a child’s needs first, and cooperation. It also involves an understanding of the importance of an access parent maintaining regular access to a child.

The order will issue as requested, but with the caveat that the parties must commit to making the arrangements work. Order to go as amended. 20. The parties shall remain flexible to switch weekend access dates for very special occasions such as family celebrations, and Kyla’s extra curricular activities where the parties have agreed on the activities. 27. Telephone calls to Kyla Order to go as amended. 21. A party shall be allowed to telephone Kyla while she is in the care of the other party and Kyla may call either parent.

All such calls to be between 4:00 p.m. and 7:00 p.m. unless the parties agree otherwise. 22. The respondent, Jason Kenneth Campbell, shall pay ongoing guideline child support to the applicant, Jasmine Jolene Spaans, in the amount of $100.00 per month, based on an imputed income to him of $15,000.00, commencing on October 1, 2012. The respondent is also to pay $34.00 per month being his proportionate share of day care expense as set out in paragraph 30 below. 23. In addition to paragraph 30 below, the respondent shall contribute 30% toward potential future extraordinary and special expenses pursuant to

section 7 of the Child Support Guidelines, on the basis that both parties consent to same in advance and in writing, with neither party unreasonably withholding their consent. 24. In the event that the respondent is approved for C.P.P. disability benefits, the applicant can then apply for “Children’s Benefits” under the program by completing the Application for Benefits for Under Age 18 Children of Disabled Contributor (ISP 1152). The website link for this program is found at: http://www.servicecanada.gc.ca/eng/isp/cpp/receive.shtml#c.

If and when the respondent is approved for his potential C.P.P. disability benefit, he will confirm same in writing to the applicant. The applicant shall then, within 30 days, make and fully process her application for the said Under 18 Children of Disabled Contributor benefit, and shall provide proof that the application has indeed been submitted to the applicable department of the Canada Pension Plan. 25.

In the event that the applicant is approved for the said Under 18 Children of Disabled Contributor Benefit through the C.P.P., she shall forthwith notify the respondent of same in writing, and shall provide him with documentary confirmation of the full monthly value of the benefit. There shall then be a dollar for dollar reduction in the amount of the monthly child support that the respondent pays to the applicant. In the event that the said benefit exceeds the amount of child support referred to ($134 per month), the applicant shall retain those funds in their entirety.

For the sake of clarity, if the applicant’s Under 18 Children of a Disabled Contributor Benefit totals $150 per month, the amount of child support that the respondent owes the applicant shall be

reduced to zero. The applicant shall then retain the additional $16 per month. 26.

On the condition that the applicant’s Under 18 Children of a Disabled Contributor Benefit exceeds the amount of monthly child support called for in these Minutes of Settlement, namely $134 per month, the parties shall then forthwith sign and provide to the Director of the Family Responsibility Office a formal notice of withdrawal form confirming that the Director is to cease any and all enforcement of the ongoing child support payments effective on the first day of the month after the applicant receives her first benefit payment, for as long as the applicant is in receipt of the benefit.

In the event child support is not paid by the respondent directly or indirectly by the disabled contributor benefit, the applicant may notify the Family Responsibility Office that the collection of child support by the Family Responsibility Office shall resume. The parties shall pay the reinstatement fee to the Family Responsibility Office. 27. Both parties shall exchange their income tax returns and notices of assessment on an annual basis by no later than July 1st of each year, commencing in 2013.

In addition, both parties shall forthwith advise the other of any changes in his or her employment situation, and provide documentary confirmation of same within 30 days of providing the initial notification. 28. The parties acknowledge that the current amount of arrears of child support owing to the applicant is approximately $9,000.00. The respondent shall pay to the applicant the all inclusive sum of $7,000.00 in full satisfaction of the arrears through the Director of the Family Responsibility Office. Payment will be made in two equal instalments of $3,500.00 on December 1, 2012 and January 1, 2013.

The balance of arrears, in the approximate amount of $2,000.00 shall be fully forgiven and eliminated and the Director of the Family Responsibility Office shall take no further steps to enforce any arrears of child support pursuant to paragraphs 1 through 5 of the Final Order of the Honourable Justice Kerrigan Brownridge, dated October 29, 2009, subject to paragraph 26 above. 29. In the event that the two payments of $3,500.00 are not received by the Director of the Family Responsibility Office in accordance with the

schedule referred to in paragraph 28 above, then the full amount of arrears owing as of October 1, 2012 shall be reinstated. Assuming that the

schedule referred to in paragraph 28 above is complied with by the respondent, the amount of time that it takes for the Director of the Family Responsibility Office to forward payment on to the applicant will be irrelevant in relation to whether or not the full amount of arrears are reinstated. 30. Subject to the applicant providing to the respondent in 60 days documentary confirmation that the current daycare expense is $151.00 per month, the respondent shall contribute $34.00 per month on a net of tax basis toward this extraordinary expense pursuant to S.7 of the Child Support Guidelines. 31.

The applicant, Jasmine Jolene Spaans, will have the right to obtain a passport for Kyla and the respondent, Jason Kenneth Campbell, hereby consents to the issuance of same. 32. There shall be no costs and each party shall be solely responsible to pay their own costs of this section. 33. For so long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary date of this order, in accordance with

Section 24.1 of the Child Support Guidelines. 34. Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed. 35.

If the parties agree to opt out of the Family Responsibility Office at any time, they are both required to file with the Office of the Director of the Family Responsibility Office, a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order. 36. All payments are to be made payable to the Family Responsibility Office, Ministry of Community and Social Services, P.O. Box 2204 Station “P”, Toronto, Ontario M5S 3E9. The parties also seek final orders based on certain recommendations in the Report of the Children’s Lawyer dated 8 May 2012.

Following the recommendations seriatim , the following final orders shall issue: 1. Custody

No order because the applicant already has a final order for custody. 2 . Access by the respondent No order because prior orders already have been given. 3 . Ms. Kingshott to assess the respondent’s care of Kyla This request is not necessary. Ms. Kingshott is totally dedicated to Kyla’s welfare. 4 . Kyla to avoid adult conflict The order will issue as varied: 37. The parties shall ensure that adults in contact with Kyla will not criticize either parent in the child’s presence, nor will they discuss adult issues between the parties in the child’s presence. 5 .

The respondent is to refrain from drug or alcohol consumption during access The request has been decided in these orders. 6 . Is access for the respondent only, or is it for Ms. Kingshott if the respondent is not available? The evidence was clear that Ms. Kingshott and her granddaughter have a close relationship. If the respondent is not available for access it would be sensible, and in accordance with the child’s best wishes, that access occur with Ms. Kingshott. Order to go as modified. 38. If Mr. Campbell is not able to attend his regular scheduled access visit, Ms. Kingshot shall have access in Mr.

Campbell’s place. 7 . Notification of changes in access weekends The Children’s Lawyer’s suggestion is sensible. Order to go as varied. 39. Should a weekend access visit need to be re-scheduled, a written letter, 14 days prior to the date of the scheduled access visit, shall be provided to the other party. It is recommended that the letter include the weekend prior and the weekend after as possible dates for the other party to choose from to allow the re-scheduled visit. 8 . Summer Access Orders are in place in this regard. 9 . The respondent is to maintain contact with medical professionals No order to issue.

I am confident that between the respondent and his physicians, monitoring of the respondent’s health will receive the attention it deserves. 10 . Counselling for the parties No order to issue. This is a private concern for the parties, and they will be guided by any professional advice they receive on a voluntary basis. 11 . Medical attention for Kyla regarding PICA (eating inedible substances) No order is granted. As responsible parents, the parties can be trusted to act upon medical advice they receive regarding their daughter. 12 .

The respondent is to receive information about Kyla from professionals assisting the child 40. Order for the applicant forthwith to sign such consents, directions or authorizations for the respondent to receive from Kyla’s doctors, dentists, specialists, counsellors, care givers, the same information about Kyla that the applicant is entitled to receive. 13 . Assessment of Kyla’s speech The Court grants no order. The applicant advised that she is taking such measures as were recommended to her.

This, and paragraphs 9, 10 and 11 herein are not appropriate orders for a custody case, especially where the applicant has established that she gives

proper and wholesome care to the parties’ child. 14 . The respondent’s medicines are to be secure from availability to Kyla 15 . The respondent is to attend on access exchanges 16 . The respondent is to advise the applicant on employment The recommendations in paragraphs 14,15 and 16 have been addressed by these orders. I am grateful to Mr. da Silva and Mr Shapiro for their careful presentations. Released: 18 December 2012 ___________________________ Justice P.W. Dunn