| Citation: Wheeldon v. Wheeldon Date: 2003-05-23 Docket: 10814/00 URL: http://www.canlii.org/on/cas/onsc/2003/2003onsc12594.html
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COURT FILE NO.: 10814/00 DATE: 2003/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
The Honourable Mr. Justice Robert Riopelle
ISSUES:
[1] Erik is 9 and in grade 5; his brother Alexander is 6 and in grade 1. Their parents agree that joint custody is in the boys' best interests. The main issue at trial was whether the boys' primary residence should be with their Mother or with their Father. The second issue was whether, if the boys' primary residence were determined to be with their Mother, she would be permitted to remove the boys from Timmins and take them with her to Essex, which is near Windsor. Child support and access were collateral issues. Spousal support and equalization were not live issues. For the reasons that follow it is adjudged that the boys' principal residence shall be with their Mother as at October 11, 2003 and that she is entitled to take them with her to Essex.
THE PARENTS: [2] The Mother is 40; the Father is 51. They met while they were both working in North Bay in 1985, started to cohabit in 1986, separated briefly in 1991, married in 1992 and separated in March 2000. Erik was 6 at the time. Alexander was nearly 3. [3] The Father was born in Kirkland Lake. After completing high school he left for Ottawa and then Mississauga where he sold musical instruments. In 1977 he moved to North Bay and married his first wife, who still lives there and is the mother of his other two boys who are now in their early twenties. North Bay is also where he began his 26 year career in the automotive industry. [4] He started as a car salesman in 1977 but within a year was promoted to new car sales manager supervising a staff of 18. By age 27 he had opened his own dealership in North Bay. In 1987 the family moved to Sudbury where he was the general manager of another dealership. In 1988 his mother died and so in 1989 the family moved to Kirkland Lake so that he could be closer to his ailing father. From 1989 to 1995 he was the general manager of the most successful Ford dealership in the region. His resumé lists his many accreditations in specialized management training courses and his numerous awards of distinction for his achievements in the automotive industry, including runner up as Canadian Automotive Marketer of the Year. [5] In 1995 he opened his own dealership in Kirkland Lake. The company was beset by misfortune and placed in receivership within months of the marital breakdown in 2000. The Father was retained by the liquidator but by the fall of 2000 he was on social assistance. [6] In April 2001 he moved to Timmins to be closer to the two boys who were then living in Timmins with their Mother. He accepted a job at Western Auto Sales but he and the owner had "diametrically opposed views" as to how the dealership should be run and so he left on June 28, 2001. For the next three months he worked at Timmins Honda; that was a "bad experience" and he left there on September 27. From October 2001 to February 2002 he would look after the boys when they were not in school and their Mother was at work but they would generally overnight at her residence. In February 2002 he returned to Western Auto Sales because he and the owner have come to an understanding as to his increased participation in management. [7] The Mother was born in Timmins. She is an only child. Her parents separated when she was around 6 years old. Her mother had custody and became involved with another partner who allegedly abused the Mother. After she left home the Mother did not have any contact with her stepfather until 1991 or so. Her mother and stepfather now live in Montreal. [8] The Mother did not have any contact with her biological father from the time her parents separated until she was in her mid-twenties. Since then they have rebuilt a solid relationship. Even while he was still living in Timmins he would drive to Kirkland Lake to help with the boys and she and the boys would often visit with him in Timmins. After the separation she moved to Timmins into a comfortable basement apartment in his home. Sadly, he father was ill with cancer from 2000 to 2002; he died in June 2002. [9] During the marriage the Mother was a full-time homemaker. Before the marriage she studied office administration for one year and worked as a cashier, receptionist and accounting clerk. She and the Father briefly worked at the same dealership in North Bay. After the separation she relocated to Timmins and was on social assistance except for a time when she had an entry-level job at a local retail clinic. THE CHILDREN: [10] 9 year old Erik is an avid hockey player: participation in hockey is important to him. He is also an elite baseball player and enjoys snowboarding, snowmobiling and cycling. The Father describes him as a "thinker" and an "adventurer". His teachers describe a well-adjusted young man who is sometimes quiet but generally gets along well with his peers, enjoys school and excels academically. [11] Erik has occasionally become withdrawn or exhibited signs of anger; he has even hit on his younger brother without provocation. This does not appear to be a chronic problem, has resolved itself and is probably symptomatic of the uncertainty surrounding custody and the pain at the loss of his grandfather, with whom Erik was very close. [12] 6 year old Alexander is described by the psychiatrist who interviewed him on March 28, 2003 as "bright and alert". The psychiatrist's diagnosis of post-traumatic stress disorder is guarded. A large part of the history are allegations of exposure to age-inappropriate sexual or violent material, the existence of which the psychiatrist has accepted at face value but with the disclaimer "(if this exposure is confirmed)." Another part of that history is allegations of severe outbursts of temper and physical aggressiveness as to which the psychiatrist cautions: "Notably there are no reported difficulties at school". In any event, the history was provided to him by the Father only, without any input from the Mother who has had no access to it to test its reliability and no opportunity to respond to it. [13] Alexander's 2002 report card paints the picture of a young boy who participates well in class, gets along well with his peers, has initiative and is very well-behaved; in all areas there is a marked improvement from March 2002 to June 2002; similar praise is posted in his March 2003 report card. CURRENT SITUATION: [14] At the time of the separation in March 2000 two year old Alexander moved to Timmins with the Mother. Six year old Erik remained in Kirkland Lake with his Father in order to complete his hockey season and his school year; the Mother called him every evening and would see him every weekend when the Father visited with Alexander. [15] The Mother and the Father had agreed, before her move to Timmins, that Erik would be permitted to move to Timmins in order to be with his brother and his mother as soon as school was out. Because the Father was having difficulty accepting the separation and was still hoping for a reconciliation, the Mother became concerned that Erik would not be permitted to join her and Alexander as planned. She commenced Applications for custody in early June 2000. On August 3, 2000 an Interim-Interim Order was made, on consent, providing, among other things; a) for joint custody on a temporary basis, pending receipt of the report from the Office of the Children's Lawyer, with the boys' primary residence to be with the Mother; b) granting the Father specified access every weekend; and c) prohibiting the relocation of the boys outside the territorial districts of Cochrane, Temiskaming or Sudbury. [16] The Children's Lawyer's Report released in December 2000 recommended joint custody with primary residence to be with the Mother. It also recommended that the Father's access be changed from every weekend to every second weekend. The parties obtained an order, also on consent, dated April 10, 2001, which, among other things: a) changes the Father's access to every second weekend and, because he had moved to Timmins by then, to specified access every Wednesday and every second Monday; and b) provides that all of the other terms of the August 3, 2000 order remain in full force, i.e. joint custody, primary residence with the Mother and the prohibition against relocating. [17] During the last week of October 2002 the Mother moved to Essex with the boys. An order made on October 31, 2002 provides, among other things, that: a) the Mother is to return the boys to Timmins; b) their primary residence is to be with their Father until the Mother has re-established her primary residence in Timmins; and c) the boys' primary residence must be in Timmins. [18] The Mother was still living in Essex at the time of the trial and so the boys had been with their Father in Timmins since November of 2002. [19] Prior to leaving with the boys for Essex in October 2002 the Mother had discussed the move with the Father, offered to pay for his relocation expenses if he were to move to the Windsor area for the purposes of employment, advised the boys' schools in Timmins and consulted with her lawyers. This was not a clandestine operation. It was done under the mistaken belief that the prohibition order would easily be varied because it was only an interim-interim order. [20] When the order was made in October 2002 that the boys be returned to Timmins the Mother was prepared to let the boys live with their Father because she expected the trial to take place two and one half months later in January 2003. She and her fiancé travelled the 630 miles to Timmins to visit with the boys every second weekend till the 2002 Christmas season. In January the trial was fixed to February 10, 2003. On February 10 the trial was adjourned, on consent, to May 20, 2003, but was made peremptory as against both parties on the court's own motion. The reason advanced for the adjournment was that the parties had executed a Memorandum of Understanding concerning their expectations of events which might happen in the ensuing three months. At trial it was disclosed that the Mother had consented to the three month delay on the understanding that she would have the boys during the March break and, more importantly, that the Father would seriously seek out employment opportunities in the Windsor area, which, by his own admission, he did not do. JOINT CUSTODY: [21] Both parents accepted the appropriateness of a joint custody arrangement from the very beginning: the order of joint custody made on consent on August 3, 2000 was still subsisting nearly three years later at the time of the trial. In addition, during those three years, the parents were able to apportion between themselves large blocks of time for the boys to be with the other parent, including during the summers of 2000, 2001 and 2002, the Christmas seasons and the March school breaks. PRIMARY RESIDENCE: [22] The main issue at trial was whether it is in the boys' best interests that their primary residence be with their Mother or with their Father. In determining the best interests of a child courts are directed: a) by the Legislature, first to "consider all the needs and circumstances of the child" and then a list of seven matters: Children's Law Reform Act, R.S.O. 1990, c.12, section 24; and b) by the Court of Appeal, to determine the issue of primary residence independently of and prior to the issue of permitting or not permitting the relocation of the child: Bjornson v. Creighton (2002,) 62 O.R (3rd) 236, 166 O.A.C. 44, 31 R.F.L. (5th) 242, 221 D.L.R. (4th) 489 (O.C.A.) [23] It is therefore assumed, for the purposes of determining the boys' primary residence, that the Mother would return to Timmins if it were determined that it is in the boys' best interests that their primary residence be with their Mother. There was no evidence one way or the other at trial except for her explanation as to the circumstances of her departure and the reasons why she felt that she did not have to immediately return to Timmins to be with the boys after the October court order. [24] Five of the seven matters mandated for consideration by the Legislature are neutral in the circumstances of this case: the parents are equally related by blood to the boys, present in Timmins a permanent and stable family unit, have adequate plans for the proposed care of the boys, are able and willing to provide the boys with guidance, education and the necessities of life and present in Timmins a stable home environment; a sixth matter, the views and the preferences of the boys, is inapplicable as there was no evidence tendered directly on that point. The seventh item is a consideration of the emotional ties between: a) the boys and each other; and b) the boys and the persons involved in their care and upbringing. [25] The Mother was a full-time homemaker during the marriage. The Father may have assisted in the boys' upbringing but the Mother was their primary caregiver. The Father expressed no concerns as to her childrearing abilities during the marriage. After the separation she was able to provide them a stable home environment for over two years and with guidance and the necessities of life. Her attachment to the boys is captured in the statement attributed to her by the Father and made at the time of the separation to the effect that he could keep the house and the business because all she wanted was the boys. His response is equally poignant: the house and the business may be for sale but not the boys. Clearly both parents have strong emotional ties to the boys. However, when approached from the point of view of the children, the best interests of the boys requires that their primary residence be together and with their Mother because she is the parent more closely associated with their care and upbringing throughout most of their young lives. [26] The Father disputes that the Mother has been the boys' primary caregiver since the separation because the boys have spent at least as much time with him as they have with their Mother: 2000 - March to June - Erik was with him in Kirkland Lake - Alexander was in Timmins but the Father had access every weekend - March 28 to April 13 - he had both boys while the Mother was on a trip to Amsterdam - The summer was divided almost equally - September 00 to April 01 - access every weekend - Christmas season was divided almost equally 2001 - To April, every weekend - after the court order and his move to Timmins, every second weekend, every Wednesday and every second Monday including, although not provided for in the order, overnights every second Sunday - October 01 to February 02 - he was unemployed and so able to care for the boys after school and on weekends while the Mother was at work but they did not overnight with him except as permitted by the order and every second Sunday - Christmas was shared almost equally
2002-2003 - As per court order and every second Sunday night - More time in January after the Mother had been involved in a car accident - May-June - more time when the Mother's father was dying - September-October - more time when the Mother was travelling to and from Essex - November to the date of trial - the boys were with him except: i) when the Mother would come up from Essex approximately every second week in the fall; ii) when the boys were with the Mother in Essex during her half of the Christmas season; and iii) when the boys were with her in Essex during the 2003 school break. [27] The determination of primary residence is not solely a mathematical calculation of the time spent with each parent; many other factors impact on so important a decision. That the Father and the boys have enjoyed such generous access is a testament to the Mother's ability to put the boys' best interests ahead of her custodial rights and the parents' ability to give effect to the joint custody regime. [28] As a consequence of spending so much more time with the boys the Father has become more involved in their lives. Unfortunately, the more intimate he has become with them the more he imagines that their Mother is unable to properly care for his boys and the more he believes that the boys' best interests require that they be with him. His quest for primary residence has involved referrals to numerous professionals and agencies, including: - Boreal Centre (a health unit) - Dr. Denton - Dr. Verbeek - Dr. Tashima (a psychiatrist) - Dr. Mudden - Dr. Hocking - The Victim Crisis and Assistance Referral Centre - The Crisis Centre at the Timmins and District Hospital - Canadian Mental Health Association - Ontario Provincial Police - Timmins Police Services - Telehealth Phone Line - School counsellors - Child and Family Services, both in Kirkland Lake and in Timmins - The Office of the Children's Lawyer none of which ever suggested that the Mother was unable to properly care for the boys: the most damaging comments made were to the effect that the boys should not be exposed to age-inappropriate language or movies if in fact that was happening. [29] Particularly disconcerting is the Father's failure to appreciate the harm inflicted on his boys by unnecessarily subjecting them to incessant prodding by doctors, psychiatrists, child protection workers, police, school and other health care counsellors. [30] Also of concern is the fact the Father does not understand the need to consult with the Mother, or at least to give her notice, before unilaterally initiating or imposing significant events affecting the boys such as: a) taking the boys to counselling; b) taking them to a psychiatrist; c) firing a babysitter whom the Mother had hired and in whose care the boys had been occasionally for nearly a year; d) disclosing details of the reasons for the strained relationship between their Mother and her stepfather - the boys' 2001 trip to Montreal had to be cancelled because the Father had so influenced his 7 and 3 year old boys that they were afraid to be with their Mother's stepfather; e) writing a letter to one of the boys' older playmates prohibiting him from play fighting with his boys - that friend's parents banned the Father from their home; and f) extending the access visits from Sunday evening to Monday morning before school. [31] Also of concern is his willingness to unfairly describe the Mother as a person with such mental problems that her ability to care for the boys on a long term basis is compromised. References to her difficult childhood, her post-partum depressions, her anorexia and the number of medications prescribed for her relate to incidents that predate the separation; none of these were, by his own admission, expressed by him before the separation to her or to any agency or professional as a cause for concern as to her childrearing capacity. He was unable to establish that the Mother's use of the Internet after the separation had any negative impact on the boys. He was also unable to establish that the Mother's new relationships after the separation had any negative impact on the boys. [32] Three files have been opened and closed by Child and Family Services relating to these boys. The first was opened in Kirkland Lake on March 29, 2000, 2 ˝ weeks after the separation. The Father felt that the boys had run wild and stayed up too late during the March break and that they might need help to deal with the trauma of the separation. Issues also arose respecting the Mother leaving the boys unattended or in the care of a 10 or 12 year old while she was next door. Child protection workers interviewed the parties (and the children too) and on May 16, 2000 closed their file when they concluded that the boys were in a "happy, healthy and nurturing" environment. That intervention by C.F.S. created a profound sense of distrust by the Mother: it caught her completely by surprise, at a time when the family was trying out "family days" and together a lot. [33] The second involvement by C.F.S. did not occur until September 20, 2002, nearly 2 ˝ years after the first one and, coincidentally, at a time when the Mother was talking about moving to Essex. The investigation was initiated after the Father reported allegations of potential sexual abuse to the Timmins Police Services. The boys were subjected to separate video-interviews in the presence of two child protection workers and police personnel. The Mother's nerves were shot: she had been told that these were serious allegations and that she could lose custody of her boys. The accusations were unsubstantiated; C.F.S. had no parenting concerns, apologized for putting the Mother and the boys through that ordeal and then closed their file. [34] The third involvement by C.F.S. was initiated in Timmins by the Father on March 17, 2003. The allegations were of exposure by the boys to bad language, racist comments, pornography on the satellite tv and on the computer and age-inappropriate movies while the boys were in Essex during the March break. Once again Erik and Alexander were subjected to probing interviews by social protection workers as were the Mother, her new partner, his ex-wife, his 13 year old daughter and his 11 year old son. C.F.S. concluded that the allegations were unfounded. [35] The timing of the three C.F.S. referrals is suspect: immediately after the separation, 2 ˝ years later at a time when there is talk of a move to Essex and then just before the trial. All allegations were unsubstantiated. C.F.S. praised the Mother's care after its first investigation, apologized after the second and closed its file after the third. Eric, Alexander, the Mother and many others have been interviewed by child protection workers and police. The Father still refuses to accept as correct the findings made on those three separate investigations. THE MOVE FROM TIMMINS TO ESSEX: [36] The Mother has requested that Erik and Alexander be permitted to move to Essex to be with her. Gordon v. Goertz, [1996] S.C.R. 27 sets out the guiding principles applicable to relocation applications: a) the judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them; b) the inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration; c) each case turns on its own unique circumstances - the only issue is the best interest of the child in the particular circumstances of the case; d) the focus is on the best interests of the child, not the interest and rights of the parents; e) the judge should consider: i- the existing custody arrangement and relationship between the child and the custodial parent; ii- the existing access arrangement and relationship between the child and the access parent; iii- the desirability of maximizing contact between the child and both parents; iv- the views of the child; v- the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; vi- the disruption to the child of a change in custody; and vii- the disruption to the child consequent on removal from family, schools and the community he has come to know. [37] In applying the Gordon principles to this case several matters require fresh consideration in the determination of what is in Erik's and Alexander's best interests: a) the Mother's reasons for moving but only if that is relevant to her ability to meet the needs of the boys; b) the disruption to the boys resulting from a move away from family, schools and their community; and c) the desirability of maximizing contact between the boys and both parents.
THE REASONS FOR THE MOVE: [38] In Essex Erik and Alexander would be living with their Mother, her fiancé, his 13 year old daughter and his 11 year old son. The fiancé shares joint custody of his children: they spend half the week with their mother who lives nearby. The fiancé's relationship with his former spouse is exemplary: they check with each other as to discipline, access to computers and their children's social events. The Mother and the former spouse get along well and the Mother enjoys her new role as a stepmother. The fiancé farms his 350 acres parcel and also drives a truck 5 days a week from midnight to midday; he is almost always home by 2 p.m. The house is 104 years old, was previously his dad's house, sits on a 3 ˝ acres parcel and has 5 bedrooms. His father, his mom, his former spouse and several cousins, aunts and uncles live nearby. There are at least three schools within a two-mile radius; his mom, his dad or his former spouse usually drive the children to school. There is a summer hockey school nearby which may interest Erik. [39] Life alone in Timmins, as a single parent with two boys to support, has become intolerable for the Mother. She and the boys are "drowning financially". Her father is no longer available to support her emotionally. The Father is controlling and manipulative, constantly attacking her parenting ability, threatening to take the boys away from her and unnecessarily involving numerous professional, social and child care agencies in her life. [40] Bjornson recognizes that there is a relationship between: a) the quality of the custodial parent's emotional, psychological, social and economic well-being; and b) the quality of the child's primary care environment. Prohibiting the move would be condemning the Mother to a life of dependency on and control by the Father and, more importantly, Erik and Alexander to a primary care environment in which the custodial parent is both unhappy and unfulfilled. Permitting the Mother to move would free her from that control and dependence and giver her a chance at becoming a well-functioning and happy custodial parent which would provide Erik and Alexander with a better primary care environment. THE DISRUPTION TO THE BOYS: [41] The Mother moved to Timmins after the separation to be closer to her ailing father. He had always been active in the boys' lives and was able to provide her and the boys with emotional support as well as a comfortable apartment. Now that their grandfather has died Erik and Alexander's only family left in Timmins is their Father and their Mother's stepmother and their Mother's aunt, three uncles and a few adult cousins. [42] Given their personalities and their young ages there is every reason to believe that Erik and Alexander will experience only minimal disruption: they will quickly be integrated into a new family unit, new schools, new sports teams and new friendships and neighbours. The move to Essex will inconvenience them only temporarily. [43] Because the boys have been almost exclusively in their Father's care since November of 2002 and because they have only recently started their school term, in order to minimize the effects of the uprooting from Timmins to Essex they shall be given until the Thanksgiving weekend to adjust to the reality of the new residence regime. THE DESIRABILITY OF MAXIMIZING CONTACT: [44] The Father moved to Timmins in April 2001 for the express purpose of being close to Erik and Alexander. The Mother did allow him generous contact with the boys, far in excess of court-ordered access. She has indicated her willingness to continue giving Erik and Alexander the maximum contact possible with their Father if the boys' move to Essex were approved. She has even offered to pay for the Father's relocation expenses if he were to move close to Essex. Unfortunately should the boys remain in Timmins with their Father there is every indication that Erik and Alexander's access to their Mother would be seriously curtailed. For example, despite Child and Family Services' conclusions that the March 2003 allegations are unfounded, and despite the fact that the offensive satellite channels are now subject to "parental block" such that an access code is now required, the Father has limited the Mother's access by unilaterally imposing supervision conditions and denying her overnight access, even during the course of the trial. [45] Timmins was never this family's destination of choice as a final destination. The parents have lived in North Bay, Sudbury, Kirkland Lake and now Timmins. Erik and Alexander have lived only in Kirkland Lake and Timmins. Throughout this three year separation there have been many serious discussions between the parents about leaving Timmins and setting up, in separate residences, in places like Oshawa, Montreal, Toronto, Barrie, Ottawa, London and Windsor. [46] At trial the Father declared that relocating to be close to his boys is a matter of safety for them and so it is not an issue for him: his skills in the automotive industry are such that he can probably find a suitable job nearby whenever Erik and Alexander may be living. Erik's and Alexander's loss of ready and easy access to their Father is therefore likely only temporary. Even if it is not there is every reason to expect that the Mother will permit the maximum contact possible in the circumstances. CHILD SUPPORT AND ACCESS COSTS: [47] Based on the Father's declared annual income of $31,000 his child support obligations according to the Child Support Guidelines should be $456.00 monthly. That amount should be reduced to take into account the expenses to be incurred by him in exercising what is expected to be frequent access. In Bjornson the Court of Appeal imposed a child support obligation of $1.00 per year for both child support and the payor's share of extraordinary expenses on a parent earning $53,000 annually in Waterloo in order to "maintain a minimum support link" to a child living in Calgary with the other parent whose anticipated annual income was also close to $53,000. [48] In this case the Mother has no income and no reasonable expectation of income: she, and her boys, will be financially dependant on the continuance of the relationship with her fiancé. [49] The Father shall pay to the Mother $250.00 for child support on the first day of every month, commencing November 1, 2003. Child support has been reduced in recognition of the high travel, accommodation and other costs associated with what is expected to be frequent access visits to and from Essex and Timmins. In addition to any other circumstances which may warrant an adjustment to child support the following circumstances will warrant a review: a) if the Father relocates South of the French River; b) if access is not exercised as often as contemplated; and c) if the Mother's relationship with her fiancé is terminated. SPOUSAL SUPPORT AND EQUALIZATION: [50] Spousal support and equalization were not live issues at trial. There are no assets to equalize. Both parents were on social assistance at some point during the separation. The Father filed for personal bankruptcy in January 2003. [51] This is an appropriate case for an award of spousal support. The Mother was, by agreement, a homemaker during most of their 14 years together; she has no special employment skills; she has a demonstrated need for assistance. Unfortunately the Father does not even have the ability at present to pay the presumptive amount of child support suggested by the Guidelines because of the costs of exercising access or to make any significant contribution to the Mother's support in circumstances where she is being supported by her fiancé who is under no legal obligation to do so yet. [52] To maintain a minimum support link between them the Father shall pay to the Mother $1.00 annually for spousal support on the first day of November every year, commencing on November 1, 2003. In addition to any other circumstances which may warrant an adjustment to spousal support the discontinuance of financial support by her fiancé at a time when he is under no legal obligation to pay her spousal support shall warrant a review of both child and spousal support: the Father's obligations to the boys' basic needs for food, shelter and clothing should take precedence over any reduction in child support made to compensate him for the costs of exercising access. DISPOSITION: [53] Judgment to issue: a) joint custody: granting the parents joint custody of the boys with the boys' primary residence to be with their mother; b) relocation to Essex: permitting the Mother to take the boys to reside with her in Essex and, for that purpose, requiring the Father to surrender the boys to their Mother at the Father's residence at 10:00 a.m. on Saturday, October 11, 2003; c) prohibition: prohibiting the Mother from relocating the boys' primary residence to a location outside of Ontario; d) information: permitting the Father to make inquiries of and be given information by any person involved in the boys' care, including school, religious and health care providers and, for that purpose, requiring the Mother to sign any Direction or Consent required by any such person and to keep the Father's information as to these providers updated from time to time; e) passports: permitting the Mother to apply for passports in the boys' names - the Father shall sign the applications - the Mother shall have custody of the passports and release them to the Father when he needs them for travel but the Father shall return them with the boys; f) emergencies: requiring a parent to promptly notify the other if ever one of the boys needs emergency medical care while with that parent; g) name change: prohibiting the Mother from changing the name of the boys, legally or informally by common usage, without the Father's prior written consent or court order; h) health coverages: requiring the Father, as long as he is obligated to pay child support, to: 1- maintain, whenever available through his place of employment, extended health, dental, optical and such coverages for his sons as soon as and for as long as such coverages are available for their benefit; 2- provide the insurance carrier with a Direction authorizing the administrator to deal directly with the Mother with respect to: i- any claims to be submitted on behalf of any of the boys and; ii- forwarding directly to the Mother, and made payable to her, all reimbursement cheques for any such valid claims;
3- designate the Mother as beneficiary under all life insurance coverages available to him through his place of employment as soon as and for as long as such coverages are available to him but the Mother's interest is limited to the amount, if any, to which she is or may become entitled on account of current and future child support - the excess proceeds, if any, may be disposed of as the Father directs, failing which they shall be paid to his estate; and 4- advise the Mother in writing of the effective dates of the commencement or termination of any of the coverages provided for in 1 and 3; i) spousal support: requiring the Father to pay the Mother $1.00 annually for spousal support on the first day of November in each year, commencing on November 1, 2003; j) child support: requiring the Father to pay to the Mother $250.00 for the support of their two boys on the first day of each month, commencing on November 1, 2003, an amount which is less than the presumptive amount of $456.00 suggested by the Guidelines when a payor has income of $31,000 and is paying support for two children; k) financial and other disclosures: requiring that, as long as child support and spousal support are payable, each of the parents, in addition to any disclosure to which the other may be entitled under the Guidelines: 1- immediately advise the other parent and the Family Responsibility Office in writing of: i- any change of address or telephone number; and ii- any change in his or her employment status, including the commencement or termination of any part-time or full-time employment; 2- on or before February 28 in each year provide to the other: i- copies of the latest pay stubs or T-4 slips issued by every one of his or her employers relating to employment in the previous calendar year or, where a pay stub does not indicate the total earnings paid by an employer for that year and a T-4 is not available by February 28, a letter or note from that employer setting out total earnings paid to that employee during that year and the employee's current hourly rate if still employed by that employer; and ii- a concise statement as to that parent's current conditions, means and needs, which will include a statement as to whether or not another resident of the same household is assisting in the housing, vehicle or child expenses of the household; and 3- on or before June 30th in each year: i- a copy of his or her personal tax return filed for the previous calendar year; ii- a copy of each of the attachments referred to in that return, including copies of all T-4's; and iii- a copy of any notice of assessment or reassessment relating to that return received by the time he or she provides copies of (i) and (ii) to the other spouse. l) secondary residence: providing that: 1- whenever the Father is exercising secondary residence entitlement he shall: i- pick up from and deliver the boys to their Mother's home in person; ii- provide the Mother with an itinerary and telephone number for the location where the boys will be while in his care; iii- immediately upon arriving at his residence or any other specified destination, call the Mother to confirm the boys' safe arrival; iv- permit the Mother to speak directly with the boys whenever she calls to inquire on their well-being; and v- permit the boys to call their Mother on the telephone as often as they want to; and 2- the Father shall have the following periods of secondary residence entitlement: i- telephone access: reasonable telephone access to speak directly to the boys whether such calls are initiated by him or by the boys; ii- January: from 6:00 p.m. on the third Friday of January to 4:00 p.m. the next Sunday, to be exercised near the boys' principal residence; iii- January 27th: the Mother may pick up the boys at 4:00 p.m. on any January 27th during which the boys may be with the Father so that the Mother can celebrate her birthday with the boys and then return them to their Father by 7:00 p.m. that same day; iv- February: from 6:00 p.m. on the third day of February in each year to 4:00 p.m. on the next Sunday, to be exercised near the boys' principal residence; v- March: from 5:00 p.m. on the Friday before the boys' March school break to 4:00 p.m. on the Saturday before the resumption of school; vi- March-April: in even numbered years from 5:00 p.m. on the Thursday before Easter to 4:00 p.m. Easter Monday; vii- April: in odd-numbered years from 6:00 p.m. on the last Friday of April to 4:00 p.m. the next Sunday, to be exercised near the boys' principal residence; viii- May: if Mother's Day is a day during which the Father would normally have the boys then they are to be returned home by 10:00 a.m. on Mother's Day; ix- May 6th: whatever parent has Alexander with him or her on May 6th shall permit the other to have Alexander from 4:00 p.m. to 6:00 p.m. to celebrate Alexander's birthday; x- May: in even numbered years from 5:00 p.m. on Friday before the Victoria Day weekend to 6:00 p.m. on the following Monday, to be exercised near the boys' principal residence; xi- May: in odd-numbered years from 6:00 p.m. on the last Friday of May to 4:00 p.m. the next Sunday to be exercised near the boys' principal residence; xii- June 1: the Father may pick up the boys at 4:00 p.m. on any June 1st during which the boys may be with the Mother so that the Father can celebrate his birthday with the boys and then return them to their Mother by 7:00 p.m. that same day; xiii- June: if Father's Day falls on a day during which the Father would not normally have the boys from 10:00 a.m. to 6:00 p.m.; xiv- June: from 6:00 p.m. on the last day of school to 4:00 p.m. the next Sunday; xv- Summers: for two consecutive weeks in each of July and August but the boys must be returned to their Mother at least one week before the resumption of classes; xvi- September: from 6:00 p.m. on the third Friday of September in each year to 4:00 p.m. on the next Sunday; xvii- October: commencing in 2004, from 5:00 p.m. on the Friday before Thanksgiving Weekend to 6:00 p.m. on the following Monday; xviii- November: commencing in 2004, from 6:00 p.m. on the second Friday of November to 4:00 p.m. the next Sunday; xix- November 4th: commencing in 2004, whatever parent has Erik with him or her on November 4th shall permit the other to have Erik from 4:00 p.m. to 6:00 p.m. to celebrate Erik's birthday; xx- December: in even numbered years from 6:00 p.m. on the boys' last day of school each December to 6:00 p.m. on December 26th; and xxi- December: in odd-numbered years from 6:00 p.m. on December 26th to 6:00 p.m. two days before the boys are scheduled to return to school; and m) apprehension: providing that, if at any time after 10:00 a.m. on Saturday, October 11, 2003 either of the boys is being unlawfully withheld from the parent who is then entitled to him, then all police forces in Ontario having jurisdiction in any area where that boy may be found are hereby: 1- directed to do all things reasonably able to be done to locate, apprehend and deliver the boy to the other parent; 2- granted, for the purpose of locating and apprehending the boy, the right to enter and search, at any time of the day or night, and with such assistance and such force as are reasonable in the circumstances, any place where there are reasonable and probable grounds for believing that the boy may be; 3- directed that these apprehension duties and search powers be executed as often as needed between now and March 23, 2004, at which time those duties and powers shall expire; and 4- authorized and directed to disregard these apprehension duties and suspend their search powers on any occasion when there are reasonable and probable grounds for the police to believe that the parent who is then entitled to the boy presents a risk of harm or danger to the boy for any reason, including being under the influence of alcohol or non-prescribed drugs. COSTS: [54] Each party shall pay his or her own costs unless a party has, on or before October 24, 2003, requisitioned the trial coordinator to fix a date for submissions as to costs; in that case both parties shall file their respective Bills of Costs and attachments at least 4 days before the hearing. ___________________________ Released: September 26, 2003 Justice Robert Riopelle |