Court File and Parties
Court File No.: D31200/19 Date: January 4, 2022
ONTARIO COURT OF JUSTICE
B E T W E E N:
LINA MARIE WHITE, APPLICANT JOSEPH ROGER RICHARD FORGET, for the APPLICANT
- and -
MARK WHITE, RESPONDENT G. CHARLES S. MORRISON, for the RESPONDENT
HEARD: DECEMBER 30, 2021
JUSTICE S.B. SHERR
Endorsement
Part One – Introduction
1The parties are the parents of two daughters (the children). A.-S. is 15 and one-half years old. L.W. will soon turn 9 years old. Pursuant to a court order dated March 17, 2020 (the existing order), the children are to spend equal time with each parent. However, since April 2020, A.-S. has lived with the respondent (the father) and has chosen to have limited contact with the applicant (the mother).
2The father has brought a motion seeking to change the existing order on a temporary basis. He seeks temporary orders that the children primarily reside with him and that there be a specified parenting time schedule as between the mother and L.W. He seeks an order that parenting time between the mother and A.-S., be in accordance with A.-S.’s wishes.
3There is no existing order for child support. The father seeks temporary child support from the mother and asks that it be ordered back to April 1, 2020 with respect to A.-S. He is asking the mother to pay him support accrued to the end of 2021 in the amount of $17,977.50 – being comprised of $12,843 for table support pursuant to the Child Support Guidelines (the guidelines) and $5,134.50, towards A.-S.’s special and extraordinary expenses pursuant to section 7 of the guidelines (section 7 expenses).
4The mother asks the court to dismiss the father’s motion. She has brought a cross-motion to find the father in contempt of the existing order. The father asks that the mother’s motion be dismissed.
5The court read the affidavits of the parties and a Voice of the Child Report (the report) prepared by a clinician (the clinician) from the Office of the Children’s Lawyer.
6The issues for the court to determine on this motion are:
a) Has there been a material change in circumstances that affects or is likely to affect the best interests of one or both of the children?
b) If so, is it in the best interests of one or both of the children to have their temporary primary residence with the father?
c) Is the father in contempt of the existing order?
d) If so, what remedy should be ordered?
e) If only A.-S.’s primary residence is changed to the father, what methodology should be used to calculate the mother’s temporary child support obligations?
f) What should be the start date for temporary child support?
g) What temporary child support should be ordered?
h) How should any arrears of support be paid?
Part Two – Background facts
7The father is 43 years old. The mother is 39 years old.
8The parties married in 2006 and separated in December 2015. They were divorced in February 2019. There were no corollary orders made in the divorce case.
9The parties completed a separation agreement on July 23, 2018. It provided that the parties have joint custody of the children, that the children have their primary residence with the mother and that they have liberal and generous access with the father. The father was required to pay the mother child support of $700 each month, plus 60% of agreed upon section 7 expenses.
10In September 2019, the mother brought an application to this court for sole custody of the children and child support. The father filed an Answer/Claim. He also sought sole custody of the children and child support.
11On March 5, 2020, the parties completed an amending separation agreement (the ASA). It provided for a week-about parenting schedule with the children. Neither party was to pay table child support to the other. The father would pay 60% and the mother 40% of the children’s section 7 expenses, provided that both parties agreed in advance in writing to incur the expense.
12The parties resolved the court case by incorporating the parenting time schedule in the ASA into the existing order on March 17, 2020. The parties did not ask the court to incorporate the support provisions contained in the ASA into the order. The ASA has not been filed with the court pursuant to section 35 of the Family Law Act.
13A.-S. has lived exclusively with the father since April 2020. L.W. continues to reside with each parent in alternate weeks in accordance with the existing order.
14The father issued this application on March 8, 2021. In his application, he seeks an order for child support, retroactive to June 1, 2020, for A.-S. He also asks for an order that A.-S. reside with him. The father made no claims regarding L.W.
15The father has not asked to amend his application.
16The mother filed her Answer/Claim on March 23, 2021. In it, she asked for the father’s application to be dismissed. She also asked to change the existing order to have L.W. live primarily with her. She seeks child support for L.W.
17On August 6, 2021, the report was ordered. The report was delivered to the court on October 7, 2021.
18On October 22, 2021, the court endorsed that temporary motions were required regarding the support and parenting time issues. Timelines were set for the filing of material.
Part Three – Parenting
3.1 – Legal considerations
19The mother made a preliminary objection that the court had no jurisdiction to hear the father’s motion to change the terms of the parenting order because he proceeded by way of application instead of by motion to change.
20There is no merit to this submission. The existing order did not address child support. The father’s claim for child support is an originating claim – rule 15 of the Family Law Rules (the rules) does not apply to it. The father is permitted to make all his claims, including his request to change the parenting terms in the existing order, by application pursuant to subrule 8 (2.1) of the rules. Subrules 8 (2) and 8 (2.1) read as follows:
Change to final order or agreement
(2) Subject to subrule 25 (19) (changing order — fraud, mistake, lack of notice), a party who wants to ask the court to change a final order or an agreement for support filed under section 35 of the Family Law Act may do so only by a motion under rule 15 (if permitted to do so by that rule).
Exception
(2.1) Despite subrule (2), if a party who wants to ask the court to change a final order or agreement to which rule 15 applies also wants to make one or more related claims to which rule 15 does not apply, the party may file an application under subrule (1) to deal with the request for a change together with the related claim or claims and, in that case, subrules 15 (11) to (13) apply with necessary changes to the request.
21Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child
22The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 SCR 27 sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests 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.
23In L.M.L.P. v. L.S., 2011 SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
24On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, 2017 ONCA 58.
25It is a longstanding legal principle that absent evidence of a material change in circumstances requiring an immediate change, the status quo is ordinarily to be maintained until trial. See: Niel v. Niel, 28 R.F.L. (Ont. C.A.); Grant v. Turgeon, 2000 ONSC 22565; Kimpton v. Kimpton, 2002 CarswellOnt 5030 (ONSC). However, a court should be more willing to change a temporary order when a trial date is not imminent and the best interests of the child justify it. See: Closner v. Closner, 2019 ONSC 703.
26In F.K. v. A.K., 2020 ONSC 3726, Justice Alex Pazaratz found that when a party seeks a temporary change to a final order, the court must conduct an even more stringent analysis, writing at paragraph 52:
a) In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b) This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery; Gordon v. Gordon, 2015 ONSC 4468; Oickle v. Beland, 2012 ONCJ 778.
c) And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d) Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order -- in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311; Huliyappa v. Menon, 2012 ONSC 5668; Clements v. Merriam, 2012 ONCJ 700.
e) But the evidentiary basis to grant such a temporary variation must be compelling.
f) The court must start with the aforementioned two-part material change in circumstances analysis.
g) But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h) The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i) The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j) The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k) Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l) And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m) On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
27Subsections 24 (2) to (7) of the Children's Law Reform Act address the best interests of children. The court has considered the best interest factors that are relevant to this case.
28Subsection 24 (2) of the Children's Law Reform Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
29Subsection 24 (3) of the Children's Law Reform Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
30Subsection 24 (6) of the Children's Law Reform Act addresses parenting time and day-to-day decisions. It reads as follows:
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
31The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
3.2 A.-S.
32The court finds that the father has established a material change in circumstances affecting A.-S.’s best interests and compelling circumstances to find that it is in her best interests to have her primary residence with the father on a temporary basis.
33The reality is that A.-S. has been living exclusively with the father since April 2020. She has a strained relationship with the mother and wants limited contact with her. This is not a temporary situation. It is what has been happening for over 18 months.
34The evidence indicates that A.-S. is happy living with the father and is doing well in his primary care.
35A.-S. described herself to the clinician as a conscientious student who enjoys studying business and computer science. She plays competitive soccer and feels that she is on track to attend a university in the United States to play soccer.
36The children made many statements to the clinician regarding their parents that are set out in the report. The court is not relying on these statements for the truth of their contents on these motions. However, the court is considering the statements for the children’s state of mind. The statements are also admissible for purposes other than the truth of their contents – to understand A.-S.’s perception of her relationship with the mother, to demonstrate the troubled nature of A.-S.’s relationship with the mother and to understand why L.W. wants to primarily live with the father.
37A.-S. described a very close relationship with the father. She described him as her “rock”.
38A.-S. states that she does not trust the mother and described her as manipulative. She provided a number of reasons why she feels this way to the clinician.
39A.-S. feels that the mother can sometimes be fun but if the mother is not having a good day she will start name-calling. She said that the mother can be scary. She said that the Children’s Aid Society was involved in the past because the mother was inappropriately disciplining her.
40A.-S. stated that she had a major argument with the mother in March 2021. A.-S. called the Children’s Aid Society. A.-S. felt that the mother had betrayed her trust and stopped talking with her for some time after this incident.
41A.-S. also alleged that the mother has a drinking problem.
42A.-S. stated that there is nothing the mother can do at this point to make their relationship better except be more honest and responsible.
43A.-S. was clear that she is happy with the current parenting arrangement. She said that she was open to seeing the mother once every few weeks or month but does not want to attend at her home.
44The mother has alleged parental alienation against the father. However, her evidence fell well short of what would be required to establish this allegation.
45The mother’s main complaint against the father is that he did not make enough effort to comply with the court order – that he improperly acceded to A.-S.’s wishes. There may be some merit in this complaint but that is not parental alienation. It is apparent from the report that A.-S. and the mother have significant interpersonal issues that have little to do with the father.
46Given her age, A.-S.’s views and wishes are very important. A.-S. views the father as the safe parent in her life. She feels that he is dependable and provides her with the security, stability and support that will enable her to reach her goals. At this point, she views her relationship with the mother as turbulent and unsafe. She does not trust the mother.
47It is in A.-S.’s best interests to primarily reside with the father at this time. Given her age and the volatility of her relationship with the mother, the court will not make a specified parenting order. Parenting time will need to be agreed upon, subject to the wishes of A.-S.
3.3 L.W.
48L.W. told the clinician that she wishes to live primarily with the father. Her main reason for this was that she did not like the long drive to school in the weeks that she lives with the mother. This is understandable. She also told the clinician that if the mother lived closer to her school she would be fine with the current parenting arrangement.
49L.W. also made some complaints to the clinician about the mother not accepting her clothing choices, about the mother shouting at her at times, and about a historical incident (back in kindergarten) where the mother had hit her with a belt.
50No evidence was provided that L.W. is having difficulties functioning in the present parenting arrangement. There is no evidence of social, behavioural or academic difficulties. Her needs are being met in both homes.
51Even if L.W.’s present views and wishes constitute a material change in circumstances, these are not sufficiently compelling circumstances to change a final parenting order on a temporary basis. The court finds that it is not in L.W.’s best interests to change the parenting arrangement that she is used to and then possibly have to change it again after a full testing of the evidence at trial.
52Further, the father did not even make a claim for L.W. to primarily live with him in his application. Except in exceptional situations, it is inappropriate to make claims on a temporary motion that have not been pleaded. This is not an exceptional situation. If the father wishes to pursue this claim regarding L.W. further, he will need to obtain an order to serve and file an amended application. This aspect of the father’s motion is dismissed.
Part Four – Contempt motion
53The mother asks the court to find the father in contempt of the existing order and levy a fine against him.
54In Moncur v. Plante, 2021 ONCA 462, the Ontario Court of Appeal overturned a contempt finding because the lower court had failed to first consider alternatives to contempt. The court reviewed the test and principles regarding contempt motions at paragraph 10 as follows:
For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.
55The court in Moncur wrote about the importance of first exploring alternative options to contempt at paragraphs 19 and 20 as follows:
19I do, however, agree with the appellant’s argument that the motion judge did not appear to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options, such as a declaration that the appellant had breached the order or encouraging professional assistance. Without considering any alternative options, he appears to have proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. Although the motion judge had earlier properly held the contempt ruling in abeyance to allow the parties to arbitrate their parenting conflicts, and offered to help the parties resolve their issues, his reasons do not suggest that he considered other enforcement options in lieu of ultimately making his declarations of contempt. The motion judge had to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option than declaring the appellant in contempt of court. In fairness to the motion judge, such other options do not appear to have been raised by the appellant, who was self‑represented, or by the respondent. Even so, I conclude that it was an error of law not to have considered such options: Chong, at para. 12.
20It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.
56The evidence does not support a contempt finding.
57A.-S. is an older child who has a fractured relationship with the mother. This has little to do with the father. While it may eventually be established that the father could have done more to encourage this relationship, the father’s actions, or inaction, fall well short of the high evidentiary standard required to find him in contempt of the order.
58Further, the mother made no attempt to explore a lesser alternative to contempt. She had not brought an enforcement motion for 18 months. This informs the court that she is probably aware that trying to force A.-S. to live with her half the time would not improve their relationship and would more likely deepen the divide between them. It certainly would not be in A.-S.’s best interests.
59Bringing a contempt motion at this time (and only in response to the father’s motion for changes to the children’s primary residence and for child support) was an ill-advised decision by the mother. It was not child-focused and only strengthened the father’s claim for costs against her.
Part Five – Child Support
5.1 Approach to hybrid support cases
60Cases where one child lives with one parent and another child splits time with both parents are described as hybrid cases. See: Sadkowski v. Harrison-Sadkowski, 2008 ONCJ 115.
61The father asks the court to apply a two-stage analysis to the support calculation. He asks that the mother pay the full guidelines amount for A.-S., pursuant to subsection 3 (1) of the guidelines and that support for L.W. be analyzed pursuant to section 9 of the Act.
62Subsection 3 (1) of the Act reads as follows:
Presumptive rule
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
63Section 9 of the Act reads as follows:
Shared parenting
- Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
64Most courts are now favouring what is called the “economies of scale approach” as opposed to the two-stage approach. See: Sadkowski v. Harrison-Sadkowski, supra; Murphy v. Murphy, 2012 ONSC 1627; Thompson v. Thompson, 2013 ONSC 5500; Smith v. Smith, 2016 ONSC 1157; Harrison v. Falkenham, 2017 NSSC 139. In the economies of scale approach, the court conducts its entire analysis pursuant to section 9 of the guidelines. The court does not conduct a separate analysis for A.-S. pursuant to subsection 3 (1) of the guidelines.
65In the economies of scale approach, the court first determines the set-off amount of child support as set out in subsection 9 (a) of the guidelines by calculating the table amount the mother has to pay the father for two children in his care and that the father has to pay the mother for one child in her care.
66The analysis does not stop there. The court must then consider the increased costs of shared parenting arrangements set out in subsection 9 (b) and the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought pursuant to subsection 9 (c) of the guidelines.
67In Sadkowski v. Harrison-Sadkowski, Justice Roselyn Zisman wrote at paragraphs 26-27 why she preferred the economies of scale approach as follows:
26The problem with the “two stage” analysis, is simply that it does not reflect the reality of the custodial situation as it is a fiction to treat the child(ren) living full time with a parent in total isolation from the other child(ren) who live in a shared custodial situation. For example, there may be savings to the parent who has more than one child in his or her care or the cost to the parent who only cares for one child full time- time but exercises access may be greater. There may be a large disparity in incomes between the parents that would result in some of the children living in a household with a significantly lower standard of living. The “two stage” analysis only allows some flexibility to the child’s living in the shared custody situation. It may be very difficult to isolate the factors under clauses 9(b) and (c) with respect to the child(ren) living in the shared custody regime
27The advantage of the “economies of scale” approach is that it recognizes the economies of having more than one child in a residence and yet retains the flexibility to examine the actual financial circumstances of both parties and all of the children……..
68In Smith v. Smith, the court endorsed Justice Zisman’s approach to applying section 9 of the guidelines to hybrid cases and wrote at paragraph 118:
…. the guiding objective must be to set child support in an amount that ensures that the children do not suffer markedly different experiences flowing from financial disparities between each parent. This objective must be pursued with consideration to all of the factors at play in the circumstances of each case and, of course, be subject to the reality that the available finances now support two households instead of one.
69In Harrison v. Falkenham, the court wrote why it preferred the economies of scale approach as follows:
36Between the two approaches, I determine that the economies of scale approach is the correct one to use. I do this for four reasons.
37First, by starting with Mr. Falkenham’s child support amount for two children, it respects the Guidelines’ quantification of the economy of scale.
38Second, by offsetting Ms. Harrison’s child support for Libby, it incorporates the analysis of subsection 9(a) into the calculation.
39Third, it brings the remainder of section 9 into the analysis, ensuring the integrity of section 9 as a complete code for the determination of child support in shared custody circumstances is respected.
40Fourth, it better meets the Guidelines’ objective of ensuring consistent treatment of similarly situated spouses and children by reflecting economies of scale.
70This court agrees, for these reasons set out above, that the economies of scale approach is the proper approach to apply in hybrid cases.
5.2 When should temporary support start?
71The father asks that support start on April 1, 2020. This is when he says that A.-S. began to live with him full-time.
72The mother asks that no support be ordered for A.-S, as the father has breached the existing order and did not compel A.-S. to comply with it.
73The father’s application was issued on March 8, 2021. His claim for support before that date is retroactive in nature. See: MacKinnon v. MacKinnon, 2005 ONCA 13191, 13 R.F.L. (6th) 221 (Ont. C.A.).
74This court has jurisdiction to make a temporary retroactive support order. Clause 34 (1) (f) of the Family Law Act reads as follows:
34. Powers of court. -- (1) In an application under section 33, the court may make an interim or final order,
…..(f) requiring that support be paid in respect of any period before the date of the order;
75A temporary order is designed to be a "holding order" to get the parties to trial by considering the strength of the claims in an effort to achieve fairness to the parties by balancing financial needs, means and any hardship to the parties should an interim order be made or not made. See: Orsini v. Orsini, 2016 ONSC 3332, paragraph 60.
76Where there are substantial issues in dispute regarding the entitlement of a party to retroactive support, many courts have stated that the analysis should be left to the trial judge. See: K.B.A.S. v. G.E.S. 2006 S.J. No. 604 (Q.B.); A.L.Y. v. L.M.Y., [2001] A.J. No. 506 (Q.B.); Villeneuve v. Lafferty, [1999] N.W.T.J. No. 128 (S.C.).
77However, it is important to note that these cases were decided before the Supreme Court of Canada decision in Colucci v. Colucci, 2021 SCC 24, where the court wrote at paragraph 6 that it is no longer necessary to first ask whether retroactive relief is generally appropriate before moving to the question of how far back retroactive relief should extend.
78Even prior to Colucci, many courts made retroactive support orders on temporary motions - particularly where a strong retroactive claim was asserted. See: Dickie v. Dickie, 2001 ONSC 28203, 17 R.F.L. (5th) 304 (Ont. S.C.J.); Kowalik v. Kowalik, 2011 ONSC 1551; Lakhani v. Lakhani, 2003 ONSC 2161, (Ont. S.C.); Turk v. Turk, 2008 ONSC 3420, [2008] O.J. No. 397, (Ont. S.C.), Palaganos v. Marshall, 2016 ONCJ 445.
79This court stated the following in paragraph 91 of Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 (OCJ):
91 The respondent argues that a temporary retroactive order should not be made, since, if the trial court decides that the applicant is not entitled to retroactive support, he will then have to collect the overpayments from the applicant. This is not an attractive argument when a recipient has established a strong prima facie case for retroactive support on a temporary motion. Why should the applicant solely bear the risks associated with collection of support after trial? Why should the respondent have exclusive use of these funds pending trial? At this point, the evidence indicates that, if this case proceeds to trial, it is far more likely that it is the respondent who will be required to pay a further (and sizeable) retroactive support payment to the applicant, rather than the respondent having to collect an overpayment of support from the applicant.
80In Colucci, the court set out the framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:
a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
81In her Answer/Claim, the mother states that the father started sending her emails in July 2020, asking her to start paying support for A.-S. The father filed no evidence indicating that he had broached the topic of child support with the mother prior to this.
82The court finds that the date of effective notice is August 1, 2020 – the first day of the first month after the requests for support were made by the father. This is the presumptive date that support should begin.
83The court will leave it to the trial judge to determine if there should be a deviation from the presumptive start date for support. The trial judge will be better able to complete the analysis required in the Colucci framework with a full evidentiary record. The court will order temporary support to be calculated from the presumptive start date.
84In making this determination, the court finds that:
a) There has been a material change in circumstances as A.-S. has lived with the father since April 2020. The threshold test set out in Colucci has been met.
b) The father has established a strong case for support to begin, at the very least, on August 1, 2020.
c) Child support is the right of the child. The mother’s claim that the father breached the existing order and did not facilitate her relationship with A.-S. is unlikely to have much, if any, impact when it comes to the child’s right to receive a fair amount for child support.
d) The mother should have been aware that she had an obligation to pay child support for A.-S. by at least August 1, 2020. She has chosen to pay no support despite A.-S.’s need for support and the mother’s ability to pay it.
e) The father, again, has an issue with his pleading when it comes to his claim for retroactive support. Although he asked for support to start on April 1, 2020 in this motion, his application only claims child support from June 1, 2020.
5.3 Incomes of the parties
85The father’s income in 2020 was $82,708. The father sought to use the same income for 2021 for the support analysis. Courts should use the most current evidence of income when that evidence is available. See: Vanos v. Vanos, 2010 ONCA 876. Here, the father produced his paystub for the period ending on November 6, 2021. This is the best evidence of his 2021 income. The father’s year-to-date income as of November 6, 2021 was $71,022. This is for 44 weeks. It projects to an annual income of $83,935 and will be the income the court will use for the father in 2021.
86The mother’s income in 2020 was $81,103. In her financial statement, she deposed that her income is now $71,380. She produced her pay stub for the pay period ending on November 30, 2021. It projects to a 2021 income of $70,000 from this employer.
87However, the mother was employed part-time at a second job during 2021. She advised the court that this job ended recently, although she told the court that she was not getting many hours before the job ended. The mother provided no evidence of her income from this job in 2021. It was her obligation to do so. For the purpose of the temporary motion, the court will add $5,000 to her income from this employment for a total income of $75,000 in 2021. The trial judge will be able to adjust this figure once full financial disclosure is provided.
88The mother’s income, starting on January 1, 2022, will be assessed at $70,000 for the purpose of assessing temporary child support. The court will not require her to look for a second job. See: Matti v. Odish, 2017 ONCJ 410.
5.4 Calculation of support
89The first step in the economies of scale analysis is to assess the table amounts the mother should pay for two children in the father’s care and the father should pay for one child in the mother’s care. This is the set-off step.
90For the period from August 1, 2020 – December 31, 2020, the support calculation is as follows:
Mother’s support obligation based on income of $81,103: $1,227 x 5 months = $6,135
Father’s support obligation based on income of $82,708: $771 x 5 months = $3,855
Balance: $2,280
91For 2021, the support calculation is as follows:
Mother’s support obligation based on income of $75,000: $1,139 x12 months = $13,668
Father’s support obligation based on income of $83,935: $783 x 12 months = $9,396
Balance: $4,272
92The support calculation starting on January 1, 2022 is as follows:
Mother’s support obligation based on income of $70,000 = $1,067 each month
Father’s support obligation based on income of $83,935 = $783 each month
Balance: $284 each month.
93The second step in the analysis is to consider the increased costs of shared parenting arrangements as set out in subsection 9 (b) of the guidelines. Unfortunately, neither party provided any evidence on this factor and despite being given the opportunity to make submissions regarding it, neither had any. The court is not in a position to consider this factor at this stage. The parties should provide this evidence to the trial judge.
94The third step in the analysis is to consider the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought pursuant to subsection 9 (c) of the guidelines.
95Neither party provided any evidence or made any submissions about the means, needs and other circumstances of each parent, other than filing their financial statements. What the court knows is that the parties have earned similar incomes and that the mother has more capital than the father as she is a homeowner.
96The parties did provide some evidence about the needs of A.-S. pursuant to subsection 9 (c) of the guidelines (no evidence was provided about L.W.’s needs). The father seeks a proportionate contribution by the mother to A.-S.’s annual soccer expenses of $5,000. This would be a section 7 expense claim if the court was applying the presumptive support analysis under subsection 3 (1) of the guidelines.
97Child support in this case is being analyzed pursuant to section 9 of the guidelines. This is an exception to the presumptive rule in subsection 3 (1). However, the principles that courts apply in determining section 7 expense claims are still useful in deciding if the set-off amount in subsection 9 (a) should be adjusted under subsection 9 (c).
98Orders for section 7 expenses are discretionary as to both entitlement and amount. See: Titov v. Titova, 2012 ONCA 864. The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 ONCA 14132, [2005] O.J. No. 1695, (Ont. C.A.).
99At this temporary stage, the court will not adjust the set-off amounts to order the mother to pay additional support arising from A.-S.’s soccer expenses.
100The parties addressed the issue of section 7 expenses in the ASA. They agreed that neither party would have to contribute to these expenses unless both parties agreed in advance in writing to incur the expense.
101The father conceded that he never sought the mother’s consent before incurring the soccer expenses.
102Several courts have stated that section 7 claims should be disallowed if prior consent is not obtained for the expense when it is required. See: Mistry v. Mistry, 2019 ONSC 193; Dover v. Timbers, 2012 ONSC 3230, at para. 98, Pitre v. Lalonde, 2017 ONSC 208.
103Although the court is not bound by the child support terms in the ASA (see: Gray v. Rizzi, 2016 ONCA 152), courts should try to respect the parties’ intentions as reflected in their agreements, unless the terms are unreasonable. See: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R., 550.
104The term in the ASA requiring consent prior to incurring section 7 expenses is reasonable. The father did not attempt to consult with the mother before incurring the soccer expenses. He should have known the consequences of that decision – he had recently agreed to this term in the ASA.
105Further, the father provided no meaningful evidence that the soccer expenses are reasonable or necessary. He just baldly described the child as an elite soccer player who eventually hopes to get a soccer scholarship to the United States. This may be the case, but the father will need to produce more evidence to establish this.
106The court finds that the evidence provided at this stage does not warrant deviating from the set-off amounts calculated in paragraphs 90-92 above.
107Accordingly, the mother owes the father $6,552 for support, calculated up until the end of 2021 and shall pay him $284 each month for support, starting on January 1, 2022.
108The court will permit the mother to pay the arrears at the rate of $500 each month, starting on January 1, 2022.
Part Six – Conclusion
109Temporary orders shall go as follows:
a) The terms of the existing order regarding A.-S. are terminated.
b) A.-S. shall have her primary residence with the father.
c) Parenting time between the mother and A.-S. shall be as agreed upon and be subject to the wishes of A.-S.
d) The terms of the existing order regarding L.W. shall remain in effect.
e) The mother shall pay the father $6,552 for support owing until the end of 2021, as calculated in this decision. She may pay the father these arrears at the rate of $500 each month, starting on January 1, 2022.
f) The mother shall pay the father $284 each month for the support of the children, starting on January 1, 2022.
g) A support deduction order shall issue.
h) The parties are to exchange and file updated sworn financial statements, together with proof of 2021 and 2022 income from all sources at least 14 days before the next court date.
i) All other claims in the parties’ motions are dismissed.
110The case will be returnable on April 1, 2022 at 2 p.m. for a settlement conference – 60 minutes, by videoconference. The parties are to serve and file settlement conference briefs together with offers to settle.
111If either party wishes to seek their costs of these motions, they shall serve and file written costs submissions by January 17, 2022. The other party will have until January 31, 2022, to serve and file their written response (not to make their own costs claim). The submissions should not exceed three pages, not including any offer to settle or bill of costs. Both parties should include bills of costs in their submissions. The submissions should be delivered to the trial coordinator.
Released: January 4, 2022 Justice S.B. Sherr
