Court File and Parties

Court File No.: D27218/05 A1 Date: April 7, 2015

Ontario Court of Justice

Re: Undre Roberts – Applicant

And: Seon Callender – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Pauline Malcolm – for the Applicant
• Marie-Jose Beauplan-Mann – for the Respondent

Heard On: March 26, 2015

Decision on Temporary Motion

Introduction

1This is a motion to change by the Respondent ("father") to change the Order of Justice Brownstone dated June 29, 2005. The father seeks a finding that he has had the children in his care for 50% of the time from June 2007 to June 2012 and since that time for 70% of the time and as a result, his obligation to pay child support to the Applicant ("mother") should be terminated. In the father's amended amended motion to change he seeks an order that the mother reimburse him for support he has paid and that any arrears be rescinded as of August 31, 2013. Although the father's motion to change requested a change of the joint custody arrangements such that both parents be deemed to be primary parents, counsel advised at the outset of this hearing that the father was abandoning that claim.

2As the mother disputes that the father has had the children in his care for this extent of time, it was agreed that the court would determine the preliminary issue, namely whether or not the father has met the onus on him to prove that the children have been in his care for at least 40% of the time such that his child support obligation should be varied both prospectively and retroactively. Counsel and the parties agreed that this preliminary issue would be argued based on affidavit materials filed.

Background

3The parties are the biological parents of two children, Lyshana Callender, born October 28, 1997 ("Lyshana") and O'Shusnae Callender, born February 4, 2000 ("O'Shusnae").

4The parties never resided together.

5The parties entered into an order on June 29, 2005 that provided that the parties have joint custody of the children and that the mother have primary residence. The order provides that the father has access 11 days per month with four of those days to be on week-ends with all days and times to be arranged by the parties. In addition, the father has 30 days during the summer and all other holidays and school breaks to be shared.

6Based on an income of $20,000 the father's child support obligation for the two children is $285.00 per month. The order also provides for annual exchanges of tax returns and Notices of Assessment. Neither party ever exchanged their tax returns or Notices of Assessment.

7The father has always been actively involved in the children's lives.

8The outstanding order has never been formally varied. However, since the parties entered into this order they have made various arrangements for access in accordance with their schedules and the schedules and needs of the children.

9The mother has always been the parent responsible for arranging and attending all medical appointments with the children.

10The children have always attended school in the mother's catchment area in Scarborough. However, Lyshana attended night school for one credit from September to December 2013 in the district of Peel where the father resides and during this time she also resided with the father two overnights during the week to accommodate her night school schedule.

11The child support order was withdrawn from the Family Responsibility Office in June 2007. It is the father's position that the mother agreed to withdraw the order as they agreed to share the children's expenses. It is the mother's position that she agreed to withdraw the order as the father told her he lost his job and could not afford to pay child support. According to the mother, the father has not paid child support since 2006, except for one payment of $200 in 2007.

12The father deposes that he incurred expenses for the children but provided no details or confirmation. He also deposes that he has been giving the children an allowance but the mother deposes she has no knowledge of this. The mother does agree that the father purchased school uniforms and shoes for the children and has in the past paid for school trips; the last one being in 2013.

13The mother began to receive social assistance in 2013 and the child support order was assigned to the City of Toronto. The father was contacted in July 2013 about paying child support. The father was also contacted on June 3, 2104 by the Family Responsibility Office. Although not clear in the materials filed, it appears that the mother must have registered the order for enforcement by the Family Responsibility Office. From September 1, 2013 to July 1, 2014 the father owed arrears of $2,707.50. No further updated statement of arrears was filed.

14Lyshana is 17 years old and was attending West Humber Collegiate. At the present time she is being home schooled at her mother's home as she suffers from an extreme anxiety problem and is seeing a counsellor. It is not disputed that the father is transporting her to her counselling appointments.

15O'Shusnae is 14 years old and in Grade 9 at West Humber Collegiate.

16Since about January 2014, both children are with the father every week-end from Friday to Monday and O'Shusnae also spends from Wednesday after school to Thursday morning return to school with the father as she receives some tutoring at his home. Mother deposes that this occurs most but not every Friday and the pick-up is at about 5:00 p.m. from her home. Lyshana sometimes spends overnights there on Wednesdays as well.

Summary of Father's Evidence

17The father submitted that from June 2007 to June 2012 the children were in his care 50% of the time and that from June 2012 the children have been in his care 70% of the time.

18In support of his position the father relies on his affidavits sworn July 14, 2014, March 10, 2015 and his reply affidavit sworn March 23, 2015. Attached to his reply affidavit are copies of calendars setting out the days the children were with him from 2011 to 2014.

19The father also relies on affidavits filed by his mother-in-law, his two sisters, the paternal grandmother, two of his neighbours and a co-worker. Most of these affidavits are vague with respect to actual times, days or even the years that the children were with the father and simply state that they agree with the father's schedule but are not specific with respect to what schedule they are referring to. The affidavits from his family generally confirm that the children spent most holidays with the father. They also state that the children were with the father on the week-ends from Friday to Monday and on weekdays from Wednesday to Thursday but do not indicate how they would know this. There are some obvious contradictions in the affidavits. For example, most of the family member states that the father picked up the children from school, whereas the co-worker deposes that she carpooled with the father and he picked up the children from the mother's home, which corroborates the mother's evidence.

20The father also deposes that there were specific times over the years that the children spent with him as the mother went to Trinidad. The mother agrees with some of these times but not all.

21The father, in reply to the calendar prepared by the mother, produced a calendar that he submitted he has kept setting out the days the children were in his care. Although not precisely clear, it appears that he has calculated his time by simply adding up the days the children were in his care. For example, if he had the children from Friday to Monday he has calculated the time as 3 days or sometimes 3.5 days. He also provided some receipts that show the children were with him when he bought them their yearly school uniforms and a receipt from Wal-Mart from Niagara Falls on Black Friday that he deposes proves the children were with him this Thanksgiving.

Summary of Mother's Evidence

22The mother deposes that the children have always continued to be in her primary care. She deposes that she was home on maternity leave, with another child, from June 2007 to January 2008 and the children resided full-time with her. From January 2008, she returned to work full-time and the children were again in her care and were with their maternal grandmother after school.

23From 2007 to 2012, she deposes that the children were generally with their father on alternate week-ends in compliance with the court order. But that in 2011, the father began to insist that the children spend most week-ends with him and that this continued during 2012.

24In September 2013, the schedule changed as the father suggested that Lyshana attend night school in his area. Accordingly, the father would pick her up on Mondays and Wednesdays at about 5:00 p.m. and return her to school the next day. O'Shusnae would sometimes accompany her sister. Night school ended in December 2013 but as the father had arranged for tutoring at his home for O'Shusnae she continued to spend Wednesday overnights at the father's home. The mother now suspects that the father suggested night school and arranging tutoring for O'Shusnae at his home as a calculated attempt to defeat his child support obligations.

25According to the mother, as of January 2014, both children are with the father every week-end from Friday to Monday and that O'Shusnae spends Wednesday night to Thursday morning with the father as she continues to be tutored at his home. Sometimes Lyshana also goes.

26The mother confirms that in July 2013 the children were with the father for the whole month as she went to Trinidad and the father would not agree that the children accompany her. She also took another trip in 2014 and the children stayed with the father. It is her position that the parents continue to share the holidays.

27The calendar prepared by the mother calculates the time by hours. As she did not keep track of when both children stayed with the father during the week-day, her calculation are based on the assumption they both went. Based on her calculations, she submits that father never spent 40 % of the time with the children.

Applicable Law Regarding Calculating Access Time

28Although there is agreement in the case law that the onus of proving that the 40% threshold has been met is on the parent seeking to invoke section 9 of the Child Support Guidelines, the method of how that calculation is to be done is the subject of much debate.

29In the case of L.L. v. M.C., Justice Czutrin thoroughly reviewed the law in paragraphs 23 to 39 of his decision as follows:

23 The question of whether an access parent has met the 40 per cent threshold necessary to bring the child support assessment under s. 9 is one that has generated considerable litigation. This is largely because while the provision clearly sets out the threshold for a finding of shared custody, it is less clear about how that calculation is to be realized. According to the Ontario Court of Appeal, there is no universally accepted method for how to calculate access and custody time (Froom v. Froom, 2005 CanLII 3362 (ON CA), at para. 2).

24 Though the method of the calculation is not set out in the legislation, it is clear that 40 per cent is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40 per cent (Maultsaid v. Blair, 2009 BCCA 102). The court in Maultsaid states the following at para. 30:

I recognize this calculation brings the matter close to 40 per cent and appears arbitrary. However, in my view, it is not open to the court, faced with the express wording of s. 9, a court order particularizing "the right to access", and a measure of the time that falls short of the requisite 40 per cent, to ignore the words, the mandatory requirement, chosen by Parliament. In the words of the Alberta Court in L.C. v. R.O.C., 2007 ABCA 158, "there is no place for 'deeming' parenting time to be what it is not".

25 An example of the strictness of the 40 per cent mark is seen in Gauthier v. Hart, 2011 ONSC 815, where Mackinnon J. calculated access and custody in hours, based on conflicting evidence from the parties, and concluded that the father had the children 39.6 per cent of the year. As was pointed out in Epstein's "This Week in Family Law", the father in Gauthier v. Hart came up short by only 1 1/2 days over the course of the entire year. Nonetheless, s. 9 did not apply because his access was less than 40 per cent of the time.

26 With the changes in support that can stem from proceeding under s. 9 and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access (Froom, at para. 1). For this reason, applying the appropriate method of calculation is crucial.

27 The majority decision of Court of Appeal in Froom states that there is no universal method for calculating access time and they uphold the trial judge's analysis, based on "days, not hours" (Froom, at paras. 1-2). The dissent, however, would have allowed the appeal and set aside the trial judge's decision, because "the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure" (Froom, at para. 5).

28 In Mehling v. Mehling, 2008 MBCA 66, at para. 42, the court states the following:

[T]his court specifically rejected a "minute-by-minute" calculation method. While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting. That being said, the approach to be used for the assessment of time is within the judge's discretion to determine.

29 In Mehling, at paras. 42-44, Griffiths J.A. urges courts to take a flexible approach to calculating access and custody time, highlighting that while the time calculation will necessarily include a mathematical component, it should not be a strictly mathematical calculation. The court finds an evaluation of the days or weeks (or portions thereof) that a parent is responsible for the child to be a more realistic calculation than an hourly accounting. According to the court, this flexible approach allows the trial judge to take account of the varied circumstances of different families.

30 In Mehling, at para. 45, the court asserts that the flexible approach is in line with the view expressed by Terry W. Hainsworth in his text, Child Support Guidelines Service, loose-leaf (Aurora: Canada Law Book, 2007) (at para. 3:10.03), which is as follows:

Section 9 of the Guidelines requires the courts to consider more than a simple mathematical comparison of the number of hours in a year and the number of hours of physical access exercised by the parent asserting shared custody. If a given situation establishes an unusually extensive pattern of access by the support payor which is consistent with the concept of shared parenting or shared custody, the reality of the situation should be carefully reviewed. In determining the issue, the court may consider several factors, including:

(a) how the shared parenting situation evolved;

(b) any specific contractual agreements relating to joint custody; and

(c) the quality of the time the children spend with each parent (i.e., whether the children are in daycare, whether there are associated costs such as meals and activities, whether there are clothing costs, etc.)……

If it is determined that a given situation is, in spirit and reality, one of shared custody, there is no governing method of calculation so long as the method used is reasonable. ...

31 While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294). In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller, 2005 CanLII 14325 (ON SC). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, although in that case the parties' evidence did not support an hourly calculation so it was not applied.

32 While the notions of flexibility and robust consideration of the parties' circumstances are laudable, I do not see this as mutually exclusive from an hourly accounting of how the parties divide their child's time.

33 The comments in Mehling make a great deal of sense and we should certainly urge consideration of the parties' circumstances beyond a simple minute-by-minute accounting. However, the court can be attuned to these important surrounding circumstances while still looking at an hourly breakdown of how the child's time is divided. Further, in Mehling, the court urges that the calculation should be in "days or weeks or portions thereof". This is acknowledgment, even in a decision that pushes for the utmost flexibility, that time will often need to be broken down into units smaller than days.

34 As demonstrated in Gauthier v. Hart and Maultsaid, the courts do not have discretion to round up or down to reach (or avoid) a finding that a parent has access 40 per cent of the time. Forty per cent is fixed as a firm threshold. It is acknowledged that when parents are exercising that level of access, child support determinations need to be approached in a different manner given the reality of the costs incurred by parents in these types of access and custody arrangements.

35 It is therefore desirable to be as precise as possible when determining the reality of the parents' access and custody situation. As the Alberta Court of Appeal stated in C.(L.) v. C.(R.O.), 2007 ABCA 158, "there is no place for 'deeming' parenting time to be what it is not". Arguably it is equally unfavourable to deem non-parenting time. If we are rounding up or down to larger portions of a day rather than using the most precise information available, "deeming parenting time" is inevitable.

36 While it is important for the courts to not get lost in the numbers entirely, there will necessarily be an accounting of time and a question of whether the party exercising access does so in a manner that exceeds or falls short of 40 per cent.

37 The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.)). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).

38 In his paper, "A Practitioner's Guide to the Economic Implications of Custody and Access under the Divorce Act and the Federal Child Support Guidelines", Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children (Sirdevan v. Sirdevan, [2009] O.J. No. 3796). The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is "responsible for their well-being".

39 In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, at para. 43).

Application of These Principles to the Parties' Circumstances

30In this case, the initial parenting arrangement was flexible but the mother was designated as the primary parent and the schedule only provided that the children would be in the care of the father for 11 days each month and that the holidays be shared. Over the years, the schedule changed many times to accommodate the parents' schedules and the needs of the children.

31Both parents produced calendars purporting to prove the time the father spent with the children. Based on their recollections and the method of calculations, those times vary considerably. The mother's calculations are based on the number of hours the children were in the actual care of the father and the father's calculations are based on the number of days, which although not abundantly clear, appears to be based on the number of overnights.

32The positions as to the amount of time the children were with the father is as follows:

Year	Mother's Position	Father's Position
2007	18% (1590 hrs/8760)	Not provided
2008	14% (1269 hrs/8784)	Not provided
2009	15% (1300 hrs/8760)	Not provided
2010	13% (1130 hrs/8760)	Not provided
2011	24% (2072 hrs/8760)	50% (180 days/365)
2012	22% (1937 hrs/8784)	45% (163/366)
2013	24% (2121 hrs/8760)	64.3% (235/365)
2014	36% (3189 hrs/8760)	60.5% (184/304 year to date)

33Both parents raise issues regarding the accuracy of their respective memories regarding the time the children spent with each parent. It is clear that there may be some inaccuracies. For example, the father deposes that he recalls clearly that the children were with him on his wedding day and when his son was born which were days that the mother allocated to the children being with her. The father also submitted that the children were with him when he bought them their school uniforms. However, what is not clear in the father's materials are the exact times the children were with him on these occasions; that is for a few hours or overnight.

34The problem with the father's motion is the lack of details and the attempt to reconstruct parenting arrangements that occurred several years ago when the exact time spent was not particularly relevant as the father was not paying child support.

35The motion to change is seriously flawed and despite being amended two times it is still not clear exactly what relief is being requested. The father's calculations with respect to when the children were in his care are not specific regarding the times and his method of calculating his time is also not clear.

36With respect to the roles played by each parent, the father did not dispute that the mother was the parent responsible for the children's medical needs and that the children continued to attend school in her area.

37The only ground for this motion to change is the father's assertion that he had the children in his care for 40% of the time and as a result he should not be required to pay child support. It appears that he is limiting this relief as of August 1, 2013, but even this is not abundantly clear.

38The onus is on the father, as the moving party, to prove that he has had the children in his care for at least 40% of the time. I find that he has not met that onus and his motion to change is dismissed.

39I would add that even if I had found that the father had proven that the children had been or currently are in his care at least 40% of the time, he provided no details that would have allowed a court to determine if his child support obligations should be reduced in accordance with the criteria in section 9 of the Child Support Guidelines.

40Counsel for the mother submitted that if the father's motion to change was dismissed that the court should set a return date for consideration of the mother's cross-claim for increased child support. I agree that this would be preferable to the mother being required to commence a fresh motion to change.

Order

41Order as follows:

1. The Respondent's motion to change is dismissed.

2. Counsel for the parties shall contact the trial coordinator to arrange a new date before myself for a case conference with respect to the Applicant's claim for financial disclosure and increased child support from the Respondent.

3. If the Applicant's counsel is seeking costs, she shall serve and file brief cost submissions, with any offer to settle and her bill of costs attached, within 30 days. The Respondent's counsel shall serve and file her brief responding submissions, with any offer to settle and her own bill of costs, if desired, 30 days thereafter.