Date: 19970725
Docket: D088339
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
GAIL TRINA OLUSANYA
Petitioner
AND:
OLUKOYA KAYODE OLUSANYA
Respondent
REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE RALPH
Counsel for the Petitioner Mark A. McConchie
Counsel for the Respondent Tristan R. Easton
Place and Dates of Hearing: Vancouver, British Columbia
June 9-13 and June 16-18, 1997
Background
[1] This is a divorce proceeding in which the divorce was
granted by Davies, J. May 9, 1996 and the remainder of relief
sought was adjourned. A number of issues have been settled and
the outstanding issues are custody of the child of the marriage
and maintenance of that child. The petitioner, Mrs. Olusanya,
says that the joint custody which has existed for four years
should end. The respondent, Mr. Olusanya, says it should
continue.
[2] The parties were married September 30, 1989. There is one
child of the marriage, Kayode Delani Olusanya, born July 5, 1991.
The parties separated December 7, 1992, and both are currently 43
years of age.
[3] The Petition for Divorce was filed June 9, 1993. An order
was made by consent by Master Donaldson, June 24, 1993, granting
interim joint custody to the parties with the principal residence
of the child to be with the petitioner, except for a three week
period in August and September, 1993 and a six week period in
December, 1993 and January, 1994 when the principal residence of
the child would be with the respondent. In addition, by consent,
the court ordered the respondent to pay the sum of $500 per month
interim maintenance for the child.
[4] On June 25, 1993 the parties signed a separation agreement
dealing with a number of matters. In particular, they agreed
that they would share joint custody of the child with the primary
residence of the child being that described in Master Donaldson's
order but with the addition that the primary residence of the
child would also be with the respondent for a six week period
commencing July 1994 and every year thereafter and a further six
week period from the first week of December, 1994 and every year
thereafter.
[5] The agreement also provided access for the parent not having
primary residence and further provided that the respondent would
pay maintenance for the child of $500 per month.
[6] Friction arose between the parties, particularly in
connection with Mr. Olusanya's desire to take the child on
extended trips outside of Canada during the time that the child's
primary residence was with him. That friction resulted in orders
by Master Wilson, December 7, 1993, Master Bolton, June 27, 1994
and Baker, J. May 30, 1996 that placed limitations and conditions
on those trips. In addition, Master Bolton dismissed Mrs.
Olusanya's application to vary custody of the child and her
application to increase child maintenance and Baker, J. ordered
an increase in child maintenance from $500 to $800 per month
effective July 1, 1996.
Issues
[7] The remaining issues are:
(1) whether joint custody as provided for in the
interim order of June 24, 1993 and the separation
agreement of June 25, 1993 should continue;
(2) what the terms of access should be; and
(3) what child maintenance should be ordered.
Custody
[8] The evidence is abundantly clear that both Mr. and Mrs.
Olusanya are individually very good parents to their child. This
was recognized not only by all of the witnesses called by the
parties but by the parties themselves.
[9] Mrs. Olusanya is employed full-time by B.C. Rail and has
been so employed since before the marriage. She works a standard
five day week from 8:00 a.m. to 4:30 p.m. and, given her length
of service, is now entitled to six weeks' annual vacation. From
shortly after the child's birth until mid-1995 the parties
employed a nanny to help care for the child. She lived in the
matrimonial home. After the parties separated, she lived at Mrs.
Olusanya's home when that was the primary residence for the child
and at Mr. Olusanya's home when it was the primary residence.
[10] Mr. Olusanya is employed by International Forest Products
Empire Logging Division, and has worked there for many years.
Throughout that period the work has been seasonal because of the
weather and in almost every year he has not worked for two six
week periods in or around the last two weeks of August and the
month of September and the last two weeks of December and the
month of January.
[11] Both parties live in Squamish within a short driving
distance of each other's homes, and within a short driving
distance of the school that the child has been attending for
kindergarten in the past year and will continue attending in
grade one in September of 1997.
[12] While the child has his primary residence with one parent,
the other parent has access every other weekend and every
Wednesday evening. The separation agreement provides for the
parties to have alternate Christmas holiday access and such other
access that they might agree to. Agreement has been reached for
the Easter holiday and as this is the first year where there has
been a Spring Break vacation from school, the parties have had
some discussions about appropriate access for this time. Now
that the child is attending school there have also been
discussions about a different arrangement for summer vacation
access and this will be discussed further below.
[13] Following an order made by Master Paterson, October 6,
1994, a custody and access report was prepared by Dr. Allan
Posthuma in January, 1995. Dr. Posthuma is a Clinical and
Forensic Psychologist who conducted independent interviews with
both parents and observed them interacting with their son. He
also assessed a series of psychological questionnaires completed
by each parent. Dr. Posthuma concludes that:
"... Kayode appears to have adjusted relatively well
with what has transpired. Neither parent has any major
disagreement with how the other cares for the child.
Based on the information available in this assessment,
neither seems to differ significantly in their child-
raising practices and the child appears to be equally
comfortable with both parents."
[14] Dr. Posthuma notes, however, that:
"This report is not able to comment on the degree of
animosity that exists between the parents in front of
their son during access exchanges at other times.
This, of course, is an important factor influencing the
security of the child and will jeopardize a joint
custody arrangement, irregardless of the legal
arrangements."
It is this "degree of animosity" that constituted the critical
issue in this trial. Whether there is "animosity" of such a
degree that it is not in the best interests of the child to
continue a joint custody arrangement, or whether there are
friction points that can be reduced by some better planning by
and assistance to the parents, were the questions to which the
evidence in this trial was directed.
The friction points
[15] The evidence that gives rise to the difficulties that exist
between the two parents can conveniently be grouped into four
areas:
(a) The respondent's travel with the child outside of
Canada
[16] The respondent's parents and other members of his family
reside in England and further members of his family reside in
Nigeria. He considers it to be highly important that the child
have a well-established relationship with his grandparents and
other relatives, particularly when the child's parents are of a
mixed racial origin. As the respondent put it, "It is important
that Kayode have a sense of his whole belonging and a
relationship with all of his own family."
[17] Although some members of the respondent's family have
travelled to Canada to visit the child, the respondent has also
travelled to England with the child, as some members of the
family are finding it difficult to travel by reason of their age.
Other attempts to take the child to England have been the subject
of applications to court and orders that will be discussed more
fully below. In addition, during the six week winter lay-off
period, the respondent has taken the child to California and
Mexico and these trips have also been the subject of applications
to court.
[18] During these travel periods, the petitioner has had little
communication with the child and this has been particularly
upsetting to her, given the child's relatively young age.
[19] Orders placing limits on this travel have been made by
Master Wilson, December 7, 1993, Master Bolton, June 27, 1994 and
Baker, J. on May 30, 1996.
[20] Given the restrictions on travel because of the demands of
school that now exist, and given the further restrictions of the
court orders noted above, there is a reasonable prospect that the
difficulties caused by this issue will get smaller with the
passage of time.
(b) Prolonged Litigation
[21] Prolonged litigation is another factor that both the
petitioner and the respondent agree has made their communication
in relation to the child very difficult. The Petition for
Divorce was filed June 9, 1993 and the matter did not reach trial
on the substantive issue of custody until June 9, 1997. In the
interim and in addition to the orders noted above, there were
orders of Master Donaldson, dated June 24, 1993, Master Paterson,
dated October 6, 1994 and Davies, J. dated May 9, 1996. While
this level of court activity might be an indicator of future
failure if joint custody is ordered, it nevertheless appears to
be a substantial strain on the ability of the parties to
communicate. Resolution of the litigation may contribute to the
easing of that strain.
(c) Starting school
[22] In September, 1996 the child started kindergarten. For the
half day while kindergarten was not in session, he was cared for
at a day-care in Squamish. He will be enrolled full-time in
grade one in September, 1997. A number of difficulties have
arisen surrounding attendance at day-care and at kindergarten
that have to do with obtaining information about the child's
progress and development while attending those institutions. The
respondent has attended the child's kindergarten to assist in the
classroom during that period when the child's primary residence
was with the respondent. While the petitioner's employment makes
it extremely difficult for her to do the same, the parents
individually have an interest and concern for the child's
development in school. Each parent recognizes that it is
important for the other to have information on these matters, but
the manner in which that information is obtained and communicated
has been a source of friction since September, 1996.
(d) Petitioner's relationship with a new partner
[23] The newest and most troublesome difficulty to arise centres
on the relationship that the petitioner has established with a
new partner. She and her new partner have been living together
for approximately one year. At least three incidents have
occurred during that period that constituted confrontations
between the new partner and the respondent. One in February,
1997 led to physical blows that may have been partly observed by
the child. No assault charges were laid. The respondent sees
the new partner as having a detrimental effect on his own
relationship with his son and it is clear that the relationship
that appears to be forming between the new partner and the child
is a source of serious concern to the respondent.
Analysis
[24] Sections 16(1)(8) and (10) of the Divorce Act provide:
s.(1) Order for custody
A court of competent jurisdiction may, on
application by either or both spouses or by any other
person, make an order respecting the custody of or the
access to, or the custody of and access to, any or all
children of the marriage.
s.(8) Factors
In making an order under this section, the court shall
take into consideration only the best interests of the
child of the marriage as determined by reference to the
condition, means, needs and other circumstances of the
child.
s.(10) Maximum contact
In making an order under this section, the court shall
give effect to the principle that a child of the
marriage should have as much contact with each spouse
as is consistent with the best interests of the child
and, for that purpose, shall take into consideration
the willingness of the person for whom custody is
sought to facilitate such contact.
[25] While Stewart v. Stewart (1994), 2 R.F.L. (4th) 53
(B.C.C.A.) indicates that joint custody orders should be made
only where there is a willingness on the part of the parents to
work together to make the arrangement succeed, the Court of
Appeal has also recently said in Robinson v. Filyk (1996), 28
B.C.L.R. (3d) 21 that the existence of such a state is not a
legal and factual prerequisite to an order of joint custody.
[26] As Huddart, J.A. said in Robinson at page 29:
It is now clear that legal and factual presumptions
have no place in an inquiry into the best interests of
the child, however much predictive value they may have.
The Supreme Court of Canada has stated absolutely
clearly that such presumptions detract from the
individual justice to which every child is entitled.
[27] This court has considered it appropriate to order joint
custody in a number of diverse situations where at the end of the
day and in spite of difficulties that the court considered in
respect of the relationship between the parents, joint custody
was considered to be in the best interests of the child. For
example, see Laba v. Laba (1992), 98 D.L.R. (4th) 541 (Allan,
J.), Senft v. Senft (15 February, 1994), Nanaimo Registry No.
5920/008981 (Vickers, J.) and Mbaruk v. Mbaruk (1997), 27 R.F.L.
(4th) 146 (Levine, J.).
[28] Joint custody in this case has been in place since June, of
1993. The evidence indicates that in spite of the difficulties
that have existed between the parents of the child, he is happy
and developing well. He has also had the benefit of the
extensive, willing involvement of both parents in his life.
[29] While there may be no onus on the petitioner to satisfy the
court that the present joint custody arrangement should end, the
court should be satisfied that ending joint custody will be more
in the child's interest than continuing it. The benefits to the
child that might come from an order of sole custody should
outweigh the risks or losses that might flow from a change in the
present position.
Conclusion on custody
[30] The child has been fortunate to have parents who love him
and have spent significant amounts of time caring for him. Both
parents, however, are very sensitive in their own ways with the
petitioner seeing the respondent to be "overly critical" of her
and the respondent seeing the petitioner to be "overly
protective" of the child.
[31] In spite of that, Dr. Posthuma has noted that the parents do
not differ significantly in their child-rearing practices. The
evidence called by both parties also supported the fact that both
parents are capable and devoted parents. The child is happy and
comfortable in the care of each parent.
[32] The friction points, while significant, have some prospect
of being reduced with the passage of time and the help of
assisted communication between the parents. Of equal importance,
those friction points would not appear to be ones that would be
substantially overcome by ending joint custody and awarding sole
custody to the petitioner.
[33] While the awarding of sole custody to the petitioner should
not, as noted by the petitioner's counsel, be seen as a "prize",
it is clear that to end joint custody would have a psychological
impact on the respondent that may impair his attitude and his
sense of relationship with his son.
[34] Having considered all of the evidence in this case, I find
that it is in the best interests of the child that there be an
order of joint custody.
Terms of Access
[35] This order will be subject to a number of terms and
conditions, some of which the parties have agreed to or the court
has ordered in earlier proceedings in this case.
[36] The primary residence of the child will be with the
petitioner except for a six-week period of four weeks in January
and the first two weeks of February in each year when the primary
residence will be with the respondent.
[37] The parent not having primary residence of the child will
have access on Wednesday evenings, and on alternate weekends. If
the weekend is a long weekend with a Monday holiday, access time
will include the Monday holiday. In addition, the respondent
will have access for the month of August each year and the
respondent's access to the child in July will be discontinued if
the petitioner is travelling with the child.
[38] The parents will have access for one-half of each Christmas
vacation except for Christmas Day, which will alternate between
the parents each year.
[39] Access during Easter weekend, school spring break and
Halloween will be alternated. If there is a clash between a
regular access weekend and one of these designated holidays or
vacations and the parents cannot resolve the matter, then the
normal access weekend will give way to the designated holiday or
vacation.
[40] The orders of Master Bolton and Baker, J. with respect to
removal of the child from British Columbia will continue.
[41] The parties are urged to arrange for the assistance of a
mediator or counselor who can assist them to resolve
disagreements that are bound to arise from their role as parents.
The mediation or counselling assistance should include measures
for eliminating the confrontations that have been arising between
the petitioner's new partner and the respondent.
[42] The parties are at liberty to apply in respect of any access
detail not agreed upon.
Child support
[43] The petitioner has applied for an order requiring the
respondent to pay support for the child of the marriage. The new
Federal Child Support Guidelines (the "Guidelines") apply. The
amount of support is principally to be determined from the annual
income of the respondent but may be modified under s. 7 of the
Guidelines where there are special or extraordinary expenses or
under s. 10 where undue hardship on one of the spouses or the
child would result from the application of the general
provisions.
[44] In determining the amount of a spouse's annual income, s. 2
of the Guidelines requires that the most current information be
used. Section 17, however, provides that where the pattern of
income "would not provide the fairest determination of the annual
income" from a particular source, some specified modification may
be made.
[45] In the petitioner's application for child support, s. 7
needs to be considered in relation to child care expenses
incurred by the petitioner and s. 10 needs to be considered
because the respondent suggests that he is faced with undue
hardship if the basic rules are applied. In addition, s. 17
needs to be considered because of the fluctuation in amounts from
certain income sources of the respondent from year to year.
(a) Annual Income
[46] The respondent's "Total Income" in the T-1 General Income
Tax Return for 1996 is $73,729.86. That amount comes from four
sources: $52,901.00 from his employment, $5,586.00 from
employment insurance, $326.00 from taxable capital gains and
$14,919.00 from Registered Retirement Savings Plan income. For
different reasons both the petitioner and respondent have said
that because of fluctuations in individual sources of income s.
17 should be applied.
[47] The respondent's employment income has decreased in each of
the three most recent taxation years. In 1994 the employment
income was $72,468.00; in 1995 it was $67,060.00 and in 1996 it
was $52,901.00. Where this pattern exists, s. 17(1)(a) appears
to permit the court to determine the amount of this source by
selecting only the amount of income in "the spouse's most recent
taxation year". Unlike s. 17(1)(b) which permits the court to
take an average "or such other amount, if any, that the court
considers appropriate" and s. 17(1)(c) which contains similar
language, s. 17(1)(a) does not contain such language. I conclude
that the amount of the source of income from employment for
purposes of determining annual income is $52,901.00.
[48] The respondent's employment insurance income in 1996 was
$5,586.00. While it was $2,506.00 in 1995, it was $5,325.00 in
1994 and closer to the 1994 and 1996 amounts in 1992 and 1993.
In my view, the 1996 amount from employment insurance of
$5,586.00 therefore appears to be a fair determination for that
source and section 17 should not be applied.
[49] The capital gains income dropped to $326.00 in 1996 from
$3,659.00 in 1995 and $4,482.00 in 1994. For the reasons stated
with respect to the employment income and the application of s.
17(1)(a), I find this source of income to amount to $326.00.
[50] The $14,919.00 from Registered Retirement Savings Plan
income in 1996 appears to have been derived from a cashing in of
a portion of R.R.S.P. funds. No income from this source was
received in 1995 or 1994. Section 17(1)(c) allows for discretion
on whether treating the whole of this amount as annual income
would be a fair determination. Its withdrawal is not necessarily
a unique event and it may be noted that its withdrawal occurred
in a year when the respondent's employment income was down from
the previous two years. Under the circumstances, a fair
determination of the treatment of this amount would be to average
it over a three-year period. I determine its value for annual
income purposes to be $4,973.00.
[51] In summary, I calculate the annual income for child support
purposes to be:
Employment income $52,901.00
Employment insurance $5,586.00
Capital gains $326.00
Registered Retirement Savings Plan $4,973.00
Total $63,786.00
[52] This income would establish a child support amount of
$527.00 per month and there will be an order that this amount be
paid.
(b) Special or extraordinary expenses
[53] The petitioner has requested an amount to cover her expenses
associated with child care. The petitioner works full-time and,
apart from the seasonal nature of his employment, so does the
respondent. Both prior to and after separation, the parents
employed a nanny to assist with child care. Since her departure
the petitioner has used a day-care centre on a regular basis.
With the child commencing grade 1 in September, there will be a
need for continuing day-care after school and perhaps on
professional days when the child will not be attending school but
the parents will be working.
[54] Section 7 of the Guidelines provides for such additional
child support. Section 7(2) establishes a basis for sharing such
expense and section 7(3) sets out factors that must be considered
in determining, in essence, a net expense that must be shared.
[55] Given the changing pattern of day-care attendance of the
child and the resulting impact of the cost of day-care, a precise
amount of support for day-care expense cannot be determined at
this time. Section 13(e) of the Guidelines recognizes this
possibility and provides that where the amount cannot be
determined the order must set out "the proportion to be paid in
relation to the expense."
[56] There will therefore be an order that the Respondent pay
one-half of the day care expense of the child after taking into
account the factors set out in s. 7(3) of the Guidelines. If
this amount cannot be settled, the parties may speak to it.
(c) Undue hardship
[57] The respondent has applied under section 10(1) of the
Guidelines for an order reducing the amount of child support
otherwise payable. He bases his application on the undue
hardship caused by having to pay maintenance during periods of
lay-off from his employment, by the additional expense he incurs
during the period when the primary residence of the child is with
him, and by substantial expenses incurred in providing for
accommodation, activities and recreation for the child.
[58] Section 10(2) sets out some of the circumstances that may
cause undue hardship.
[59] I have little doubt that the expenses faced by the
respondent cause financial hardship in carrying out his parental
responsibilities. He has been generous in providing
opportunities and experiences for his son and the expenses must
seem particularly onerous during a time of seasonal unemployment
that is part of his working life.
[60] The main consideration here, however, is whether the
hardship faced by the respondent can be said to be "undue"
recognizing that such a finding would also reduce the amount of
support paid to the petitioner for the child's support. In all
the circumstances I am unable to find that the hardship is
"undue" as contemplated in s. 10. The respondent's application
for relief under this section is denied.
Costs
[61] Subject to any submissions counsel may wish to make
concerning costs, my order will be that the parties bear their
own costs. Success on the issues is divided and it cannot
therefore be said that any one party has had substantial success.
"Ralph, J."
Vancouver, British Columbia
July 25, 1997