Court File and Parties

COURT FILE NO.: FS-17-420321 DATE: 20200813 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christian Moreton, Applicant AND: Douangta Inthavixay, Respondent

BEFORE: M. Kraft, J.

COUNSEL: In person, Applicant In Person, Respondent Jean Hyndman, for the OCL

HEARD: August 11, 2020

Endorsement

Nature of the Motion

[1] This was a motion brought by the Applicant (“father”) to vary or set aside paragraph 4 of the Order of Kristjanson, J., dated July 17, 2018 (as amended by the Order of Nishikawa, J, dated May 13, 2020) which ordered him to pay spousal support, now characterized as child support, to the Respondent “mother” in the sum of $1,000 a month. The father brought this motion on May 4, 2020, on an urgent basis because he had been laid off from his full-time employment due to the Covid-19 pandemic.

[2] The mother brought a cross-motion seeking, among other things, the following orders:

a) An order imputing income to the father in the sum of $100,000 a year for child and spousal support purposes; a. An order that commencing July 1st, 2020, and the first day of each following month, the father shall pay to the mother set-off table child support in the sum of $1,125 a month as per the Child Support Guidelines (“CSG”) based on him earning an annual income of $100,000 and the mother’s ODSP income of $20,598 a year; b. In the alternative to b. above, an order that commencing July 1st, 2020 and the first day of each following month, the father shall pay to the mother set-off table child support in an amount to be determined by the Court; c. An order that commencing July 1st, 2020 and on the first day of each following month, the father shall pay to the mother spousal support of $1,241 a month based on him earning an imputed income of $100,000 a year; d. An order that the father shall pay set-off table child support arrears for the parties’ two children for the period January 2019 to and including December 2019 in the amount of $1,291 a month, based on him earning an imputed income of $100,000 a year and based on the father’s 2018 income tax return, for a total of $15,942, either by lump sum, or at the rate of $500 a month until the arrears are paid; e. An order to retroactively re-categorize the spousal support payments paid to the mother, through the Family Responsibility Office (“FRO”) from August 2018 to and including July 2020, as child support; f. An order that the father shall make a lump-sum payment to the mother on account of the child tax benefits he received from the government for the parties’ two children for the period January 1, 2019 to June 30, 2020, in the amount of $6,175; g. In the alternative to (g) above, an order directing the CRA to retroactively readjust the child-tax benefit from January 1, 2019 onward, to account for the parties’ having a shared parenting schedule of the two children; and h. An order for costs on a substantial indemnity basis in an amount of no less that $2,000.

[3] The motions were heard by way of telephone conference call. Both parties were present on the call. Neither party has counsel. Jean Hyndman, as agent for the Office of the Children’s Lawyer (“OCL”), was present.

[4] In support of the motion to reduce his support payments, the father relied on the following materials:

a) His affidavit, sworn on May 4, 2020; b) His affidavit, sworn on May 12, 2020; c) His affidavit, sworn June 2, 2020; d) His affidavit, sworn on June 16, 2020; e) His affidavit, sworn on June 30, 2020; and f) His Factum dated April 1, 2020.

[5] In support of her cross-motion for an order to impute income to the father; an order for child and spousal support; an order that the father pay retroactive child support arrears; and an order that the father repay the child tax benefit to the mother, the mother relied on the following materials:

a) Her amended notice of motion, undated; b) Her affidavit, sworn July 6, 2020; c) Her reply affidavit sworn on August 10, 2020; and d) Her Factum dated July 20, 2020.

Procedural History

[6] This case has a lengthy history of protracted litigation. This Court file has been in existence for almost three years. It is a high conflict case where the OCL has been involved. There are two children of the marriage, ages 11 and 7. The level of mistrust is exceptionally high. Prior to the suspension of regular court operations due to the Covid-19 health crisis, this family had thirteen court appearances. Since April 2, 2020, the parties have had four virtual court appearances. A total of 9 Court Orders have been made in this matter. The parties have been unable to take the necessary steps to agree on a parenting schedule, adjust support due to the loss of employment; adjust travel schedules or agree on the basic exchange of necessary materials without court intervention. It is a tale of mistrust which has caused these parents to be embroiled in litigation for almost three years, which no doubt, negatively impacts the children.

[7] The parties were scheduled to commence a Trial on March 23, 2020. The Trial did not proceed as a result of the suspension of regular court operations due to the Covid-19 health crisis in mid-March 2020. Notwithstanding that this ought to be a time when parents work together to ease children through the uncertainty that comes with the Covid-19 health crisis, issues between these parties continue to arise which only serves to heighten the conflict for the family, most notably the two children.

[8] It is necessary to review the procedural history in this Court file to highlight the extensive litigation between the parties which began in the Fall of 2017, summarized as follows:

a) On October 19, 2017, the father issued an Application and a Form 35.1 Affidavit for Custody and Access. Simultaneously, the father brought an urgent motion seeking an order appointing the OCL to assess and report to the Court on the needs of the children and ability and willingness of the parties to satisfy the needs of the children; an order for sole custody of the children; an order that the children’s primary residence be with him, or in the alternative that the children reside equally with the parents; and for an order requiring the mother to undergo a medical examination to determine her fitness and ability to parent the children; b) On November 3, 2017, the parties had a case conference before Faieta, J., at which a Consent order was entered into as follows: i. The OCL is requested to provide services to the family as it sees fit. Both parties shall complete the OCL intake forms within 14 days; ii. Until the father obtains a residence with a bedroom for the two children, the children shall reside with him as follows:

1. Every Wednesday from after school until 7:00 p.m.;
2. Every Sunday from 9:00 a.m. to 7:00 p.m.; and
3. Such other times as agreed to by the parties; iii. The access schedule shall be revisited when the father obtains a residence; iv. The father shall not leave the children alone with his father (the paternal grandfather); v. The parties shall communicate via Our Family Wizard or a comparable program; and vi. Neither party shall remove the children from Ontario. c) On June 29, 2019, a further case conference was conducted by Kristjanson, J., at which a second consent Order was entered into as follows: i. There will be an urgent motion on July 17, 2018 to deal with the residence of the two children given the eviction of the mother on July 31, 2018; ii. The father’s access to the children for the month of July 2018 shall be:
4. Wednesday July 4th, to Thursday, July 5;
5. Friday, July 6 at 4:00 to Monday, July 9th, 2018;
6. Wednesday, July 11th, 2018 to Thursday July 12th, 2018; and
7. Saturday, July 21, 2018 at 9:00 a.m. to August 4, 2018. iii. Mother shall serve and file her Answer by July 27, 2018, together her Form 35.1 Affidavit in Support of Claim for Custody and Access and her financial statement; iv. Father shall serve and file a Reply by August 24, 2018; v. Mother shall complete her OCL Intake Form by July 6, 2018, failing which she shall be prohibited from filing an Answer in respect of any of the financial issues; and vi. On an interim and without prejudice basis, the father shall pay Table child support for the children in the amount of $1,403 commencing July 1, 2018. The father shall pay the mother directly with no SDO to issue. d) On July 17, 2018, the urgent parenting motion was heard. Kristjanson, J. ordered on an interim and without-prejudice basis: i. The primary residence of the two children shall be with the father; ii. The children shall spend time with the mother as follows:
8. Every Tuesday and Thursday, commencing August 1, 2018, from after school/camp to 7:00 p.m.;
9. Alternate weekends from Friday, after school/camp to Sundays, at 7:00 p.m.;
10. For a holiday from August 27th at 8:00 a.m. to September 2, 2018 at 5:00 p.m.;
11. No child support was ordered payable;
12. Father shall pay spousal support to the mother in the sum of $1,000 a month without prejudice commencing August 1, 2018;
13. A case conference was scheduled for October 5, 2018 before Kristjanson, J; and
14. Mother shall pay costs to the father in the sum of $3,000, payable at the rate of $500 a month for 5 months. Kristjanson, J. released reasons for her decision on July 18, 2018. e) On August 3, 2018, Kristjanson J. varied her order of June 29, 2018, such that the mother was given an extension of time within which to serve her Answer, Form 35.1 for custody and access and financial statement by August 17, 2018. f) On February 21, 2019, the parties had a case conference before Paisley, J., at which a third consent Order was entered into as follows: i. The parties and the Office of the Children’s Lawyer (“OCL”) on custody and access matters only, agree to vary the July 17, 2018 order such that the mother shall have parenting time with the two children starting March 5, 2019 as follows:
15. Every Tuesday, after school to Wednesday morning; and
16. Starting March 8, 2019, alternate weekends, from Friday, after school to Monday morning; and
17. Thursdays from after school to 7:00 p.m.
18. March Break from March 8, 2019, after school to March 18, 2019 when school resumes. The father is to have vacation time with the children from May 25, 2019 to June 1, 2019 and the mother consents to the children going to Florida with the children. ii. The mother consents to the children attending counselling at Families in Transition; iii. The parties shall arrange a joint appointment with the children’s paediatrician, Dr. Garfield, to discuss a number of child-related issues. iv. The father shall serve his Financial Statement by April 15, 2019; v. The father shall serve his Reply by June 30, 2019; and vi. Communication between the parties shall be via 2 houses. g) On April 5, 2019, an ex parte 14B motion was brought by the mother seeking an adjournment. The Endorsement of Diamond, J. indicates that he denied the mother’s request for an adjournment since none of the conditions un Rule 14(12) of the Rules of Civil Procedure have been met and requests for adjournments must be made on notice to all affected parties. h) On April 11, 2019, a motion bought by the father to permit his travel with the children as per the Paisley, J. February 21, 2019 order. The motion was heard by Stevenson, J., and a consent order was entered into. The Endorsement of Stevenson, J. indicates that the mother sought to file responding materials and sought an adjournment to enable her to do so. The father was seeking to travel with the children from May 31, 2019 to June 9, 2019 (one day different than the Paisley, J. order). The adjournment was granted with set timelines for the delivery of materials. The motion for travel was adjourned to April 30, 2019. i) On April 30, 2019, Stevenson J. heard the father’s travel motion. The mother was not opposed to the travel dates being changed but wanted to be sure the child was not travelling by airplane if the specialist doctor deems it unsafe for her to fly, due to an ear issue. The Order of Stevenson, J. dated April 30, 2019 set out as follows: i. The order of Paisley, J. dated February 20, 2019, shall be changed such that the father’s vacation time with the children shall be from May 31, 2019 to June 9, 2019; ii. The parties shall attend with Alexa at her ENT Specialist appointment, with Dr. Masri, on May 22, 2019 as scheduled. If the ENT Specialist deems that it would not be in Alexa’s best interests to fly due to ear problems, the father shall not fly with the children. iii. The mother shall pay costs to the father in the amount of $400 payable within 60 days. j) On May 23, 2019, the father brought a motion to renew the children’s passports for an upcoming trip with them, which was the subject of the motion before Stevenson, J. The Endorsement of Akbarali, J. indicates that the motion was moot by May 23, 2019, because the mother ended up signing the passport application. The mother sought costs of $600 alleging that the father had short-served her as a tactic to exploit her disability which impairs her ability to respond to motions quickly. Akbarali, J. declined to order costs. She stated “The parties have two young children. The level of conflict between the parties concerns me. I encourage the parties to do more to prevent issues like this one from turning into litigation for the sake of their children”. k) On July 19, 2019, a case conference was held before Kristjanson, J. involving the OCL and parties on all issues. The Endorsement of Kristjanson, J. indicates that the parties were to proceed to trial; the Settlement Conference/Trial Management Conference (“SC/TMC”) was to proceed before Kristjanson, J. on September 11, 2019. The parties agreed to a summer schedule which overrides the regular schedule, which was to resume on September 3, 2019. The mother had not fully paid costs that she had been ordered to pay. Since the proceedings began, the mother had been ordered to pay $3,400 in costs, of which only $500 had been paid by her. The mother was advised that if she does not pay the costs awards, that pursuant to Rule 1(8) of the Family Law Rules, a judge will likely make an order that her Answer on Financial Issues will be struck, and she will be unable to participate. A further order was entered into to address 1) the attendance of the parties’ at the mother’s safety deposit box together; 2) to require the parties to sign consents to allow the OCL to contact/obtain documents/health records from any of the children’s treating physicians; 3) to require the parties to sign consents to enable the OCL to speak with Families in Transition; 4) to require the parties to sign Consents for the OCL to speak with the children’s schools; 5) the parties consent to using September 25, 2017 as the date of separation; and 6) to require the parties to exchange financial disclosure. l) The SC/TMC did not proceed on September 11, 2020. On September 11, 2019, the mother made an accessibility request due to medical issues she was experiencing. The Settlement Conference/Trial Management Conference was to be scheduled in Courtroom 903 or a similar courtroom. The mother was offered the opportunity to participate by telephone if she was unable to attend. m) On October 21, 2019, the TMC took place before Kristjanson, J., who ordered as follows: i. Mother shall serve as interim custodian of the health cards but must provide the health card to the father, if request, within 48 hours of the request; ii. Father has leave to bring a motion to set aside paragraph 4 of the Justice Faieta’s order dated November 3, 2017; iii. Mother may not bring a motion until costs are paid; iv. Father may serve mother personally, but not in front of the children; v. Trial records, Exhibit Books, Opening Statements shall be served on the OCL; vi. Father to provide the disclosure of bank statements; line of credit statements, US bank account statements and bitcoin holdings for the period of September 25, 2017; and vii. The Trial was fixed to commence on February 3, 2020 for 5 days. A final TMC was scheduled for January 22, 2020. n) On January 9, 2020, the father brought a motion seeking an order setting aside paragraph 4 of the Faieta, J. order dated November 3, 2017, to do away with the previously agreed upon restriction that the children not be left alone or unattended with their paternal grandfather. At the outset of the hearing, the mother sought to file her motion materials which both responded to the father’s motion and sought separate relief by way of a cross-motion. Diamond, J. advised the mother that he would only her materials that responded to the father’s motion which Kristjanson, J. had granted the father leave to bring. The mother tried to rely on CAS records that were over three years old. The OCL participated and advised the Court that after conducting interviews with the paternal grandfather, the OCL did not have concerns with the children being left in his care for times when the father may not be available. The OCL did not oppose the relief sought by the father. Diamond, J. ordered a slight variation of the Faieta, J. November 3, 2017, order on an interim basis to permit the children to be left alone with the paternal grandfather for a maximum of no more than two hours per day, and only at the father’s residence, where he resides with the paternal grandfather. Costs of the motion were reserved to the trial judge. o) On January 22, 2020, the parties had a TMC before Horkins, J. The Endorsement of Horkins, J. indicates that the Trial is set for February 3, 2020. The mother asked for an adjournment due to an unidentified medical condition. Horkins, J.’s endorsement indicates that the note from the mother’s doctor, Dr. Rahim dated January 14, 2020, is vague and does not give any particulars about the mother’s condition. The letter indicates that the mother needs to delay the court proceeding. The father vigorously objected to an adjournment. The OCL advised the Court that the children needed closure but reluctantly agreed to a short adjournment. The mother had attended at the Court on January 21, 2020 to speak to the trial coordinator and it was hard to understand why she did not attend the TMC and why the trial needs to be adjourned; that the mother described symptoms that were not mentioned in her doctor’s letter; that Kristjanson, J. had ordered on October 21, 2019 that the trial was set to proceed; that the mother had ample time to get ready and has not complied; and that the mother has previously attended in court without any apparent difficulty according to the various endorsements. Horkins, J.’s Endorsement states as follows: i. “The mother’s symptoms that she describes cause one to question her ability to care for the children.” ii. “The respondent/mother’s unproven and unsupported health problems lead me to grant a short adjournment to March 23, 2020 for 5 days”. iii. “The mother assures this Court that she will be able and ready to attend on March 23, 2020, for the 5-day trial. The trial date was peremptory to the mother. iv. “Should [the mother] continue to have valid ongoing medical issues that interfere with her ability to start and complete the trial, there will be no adjournment request without a proper motion from the mother with a sworn affidavit of a detailed medical report from the treating doctor that clearly explains why the mother is unable to attend court, what the medical problem/diagnosis is and when she will be able to proceed to trial or continue with the trial. v. The following timelines/deadlines shall be extended as follows:
19. Children’s counsel shall file a document book by January 31st, 2020 and has leave to file a supplementary document book by February 29, 2020. This is required to include the CAS documents;
20. Affidavit of clinical assist is to be served and filed by February 2, 2020;
21. Father’s document brief has been served and is accepted today as filed;
22. All parties and OCL shall serve their written opening statements by March 156, 2020 and filed with the Court by March 17, 2020;
23. Mother shall serve and file her document brief by February 28, 2020. p) On Feb 5, 2020, the first day of initially scheduled Trial, Horkins, J. endorsed the record that the Trial was adjourned to March 23, 2020. q) The trial could not proceed on March 23, 2020 as a result of the suspension of regular court operations due to the Covid-19 health crisis. r) On April 1, 2020, the father brought an urgent motion for the immediate return of the two children according to the residential schedule set out in the order of Paisley, J. dated February 20, 2019. The motion was brought because the mother withheld the children from March 26, 2020 claiming she had Covid-19 concerns. On April 1, 2020, Shore, J. as the Triage judge, designated Nishikawa, J. to hear the matter on April 7, 2020. The April 7th, 2020 motion date was adjourned to April 9, 2020. s) On April 9, 2020, a motion was heard by Nishikawa, J. and the following order was made: i. The children shall be returned to their primary residence with the father on April 19, 2020 at 5:00 p.m.; ii. After that date, given that the girls are not attending school and do not have their usual activities, the parties were to follow a “summer schedule”, or an alternating 2-2-3 parenting schedule as follows:
24. In week 1, the children reside with the father on Mondays from 5:00 p.m. to Wednesdays at 5:00 p.m.; the children shall reside with the mother from Wednesdays, at 5:00 p.m. to Friday at 5:00 p.m. and the children shall reside with the father from Friday, at 5:00 p.m. to Monday, at 5:00 p.m.;
25. In week 2, the children shall reside with the mother on Mondays, from 5:00 p.m. to Wednesday at 5;)0 p.m.; the children shall reside with the father from Wednesdays, at 5:00 p.m. to Friday at 5:00 p.m.; and the children shall reside with the mother from Friday, at 5:00 p.m. to Monday at 5:00 p.m.;
26. The mother shall facilitate daily access to the children by the father by telephone of FaceTime and provide the children with privacy to speak with him;
27. The father shall have make-up parenting time after the Covid-19 pandemic ends; and
28. The order shall remain in effect for the duration of the pandemic. t) On May 5, 2020, the applicant father brought this motion before the court seeking to reduce his support obligation because he lost his employment position. Hood, J., as the Trial judge, designated Nishikawa, J. to hear the motion on May 13, 2020. u) On May 13, 2020, Nishikawa, J. held a case conference because neither party’s evidence was sufficient to determine the motion or cross-motion. Nishikawa, J. made the following order: i) The parties shall exchange updated financial statements with all support documents by June 3, 2020. Supporting document includes all of the following: 2019 tax returns and notices of assessment, all bank statements and credit card statements for the past 12 months, documents relating to any other assets, documents relating to the repayment of any loans in the last 12 months; documents relating to current income and benefits from any source, documents relating to all household expenses, documents relating to medical and/or extraordinary expenses for the children.; ii) In the event that a part finds the other party’s financial disclosure incomplete, they shall advise what documents they believe are missing by June 10, 2020; iii) Each party shall serve and file their respective affidavit on their motion (father’s affidavit on his motion and mother’s affidavit on her cross-motion) by June 17, 2020; iv) Each party shall serve and file a responding affidavit on the other party’s motion (mother’s responding affidavit on the father’s motion and father’s affidavit on the mother’s motion) by June 30, 2020; v) Reply affidavit, if any, shall be served and filed by July 6, 2020; vi) No further reply or sur-reply affidavits will be permitted without leave; vii) Each party shall serve and file a factum, which will serve as a factum on both the motion and cross motion by July 20, 2020; viii) Each party may, but is not required to, serve and file a responding factum to address arguments raised in the other party’s factum by August 5, 2020; and ix) No factum shall exceed 12 double spaced pages. x) As of April 9, 2020, the Applicant and Respondent shall have a shared parenting arrangement and equal parenting time with the children, Alexa and Oliva, on the schedule ordered in my order of that date. xi) The Order of Kristjanson, J. dated July 17, 2018, ordering the father to pay monthly spousal support of $1,000 to the mother on an interim and without prejudice basis is varied as follows: The father shall pay the motion monthly child support of $1,000 and no amount in spousal support on an interim and without prejudice basis, effective June 1, 2020. xii) The motion was scheduled to proceed on August 11, 2020.

[9] I heard the parties’ motions on August 11, 2020.

Background Facts:

[10] The parties were married on May 1, 2009. They separated on October 1, 2017, after almost eight years of marriage. There are two children of their marriage, namely Oliva Moreton, born April 13, 2009, age 11, and Alexa Moreton, born January 21, 2013, age 7.

[11] This case is a high-conflict case where the parties are clearly unable to agree on matters without court intervention. There are two young children. The family desperately needs closure.

[12] Each party has filed a multitude of affidavits for this motion and cross-motion. In accordance with the timelines set out in the Order of Nishikawa, J. dated May 13, 2020, the father delivered his disclosure to the mother. His affidavit, sworn June 2, 2020, attaches his income tax returns and notices of assessment; all of his bank statements and credit card statements for the last 12 month; disclosure of all other assets; disclosure of the repayment of his debts made in the last 12 months; disclosure of his income from all sources in the last 12 months; and documents related to his household expenses.

[13] The father is a Commercial Digital Artist. When the court proceedings began in the Fall of 2017, the father was working as a Senior Commercial Artist at a film and television visual effects studio, SpinVFX Inc. At that time, the father was earning $85,000 a year.

[14] When the father was granted primary residence of the children, he left his employment at SpinVFX Inc. in or around August 2018. He was simply unable to meet the demands of his employment position with his parenting responsibilities. He qualified for Employment Insurance (“EI”) at that time due to the change in his parental situation.

[15] Commencing October 2019, the father became employed by Technicolour Inc. as a VFX Supervisor. In this role, the father was earning $120,000 a year. Regrettably, the father was laid off from this position effective April 3, 2020, due to the Covid -19 lockdown. The father has been collecting EI since the commencement of April, at the rate of $2,000 a month.

[16] During the motion the father submitted that he is a Compositor who blends computer generated images with photographic images for film and movie production.

[17] The father asserted that he has considered expanding his career into the field of aviation in and around May 2020. As a result, he enrolled in a pilot training course the Barrie Flying Club and on May 14, 2020, and he purchased an ultralight aircraft for $3,900 as a platform from which he can gain the necessary flight hours and experience.

[18] The father’s 2019 ITR and Notice of Assessment (“NOA”) confirm that his line 150 income was $43,786.66; made up of $23,547.66 from employment income and $20,239.40 from employment insurance.

[19] The father seeks an Order that the court determine his child and spousal support obligations based on his Line 150 income, set out on his 2019 ITR and NOA. The mother disagrees. She claims that the father was voluntarily unemployed for the majority of 2019 and that, therefore, he is intentionally underemployed. The mother seeks an Order that the Court impute income to the father of $100,000 a year and that the calculation of child and spousal support be based on that level of income.

[20] The mother is not employed. She is on ODSP. She suffers from a medical disability that she claims makes it impossible for her to work part-time or full-time. The nature of the mother’s disability has not been fully disclosed. This has been a major source of conflict between the parties. The father believes that the mother has tried to delay every step of these proceedings and that she uses her alleged disability to do so. The mother delayed in the delivery of her materials on more than one occasion. The mother sought an adjournment of the Trial of this matter in February, which turns out to have resulted in further months of delay as a result of the Covid-19 health crisis. The Court has ordered costs against the mother on more than one occasion on account of her delay. The mother consents to timetables and to execute documents, which form part of Court orders and does not comply with:

a) following these timetables, including the delivery of her pleadings; b) completing the OCL Intake form as ordered; and c) signing the Consent forms sent to her by the OCL to enable them to speak with various third parties involved with the children. The Endorsements of many judges that have rendered decisions in this matter make comments about the mother’s requests for adjournments and the high conflict nature of this case.

The Father’s Position on the Motion:

[21] The father is seeking a reduction in his support payments to the mother to address the fact that he was laid off from his employment position effective April 3, 2020 due to the Covid-19 pandemic.

[22] The father submits that he has been in full compliance with the support order made by Kristjanson, J. on July 17, 2018 and that he has paid the support as per the order for the past two years. This is the case even when the father has been unemployed and collected EI. All support payments are made to the mother through the Family Responsibility Office (“FRO”). The father maintains the following:

a) After the parties agreed to separate in September 2017, the father began making support payments to the mother to meet the needs of the children. He continued to pay support directly to the mother via Interac payments monthly without a court order or agreement to do so. Since the payments were not made pursuant to a written agreement or court order, they were voluntary payments and not taxable in the hands of the mother or deductible to the father. In total, the father asserts that he paid the mother $20,788.21 as voluntary support payments prior to a Court Order being made; b) The Order of Kristjanson, dated July 17, 2018, ordered the father to pay the mother spousal support of $1,000 a month. As set out above, when this support order was made the father was earning a salary of $85,000 a year. Since this order was made, FRO has garnished the father’s wages and paid the support to the mother on a monthly basis; c) In August 2018, the father ended his employment with SpinVX to enable him to care for the children, since they had been placed in his primary care as per the July 17th, 2018 order. He deposes that he could not fulfil his duties at SpinVX because of his parental responsibilities. He qualified for employment insurance (“EI”) at that time. The father continued to pay spousal support as per the July 17th, 2018, order and FRO garnished his EI income. He continued to pursue his career and rebrand himself; d) In October 2019, the father was hired by Technicolour Inc., as a VFX Supervisor role, earning $120,000 a year in this position. Throughout his period of employment, and even since he was laid off, the FRO continued to garnish the father’s wages and EI so that support has been paid to the mother.

[23] After being laid off by Technicolour, the father deposes that he applied to a number of advertised positions. He submits that he could not find a job despite positions being posted and advertised as available. His affidavit sworn on May 4, 2020, sets out that the father made three job applications in recent weeks for work in his current and previous artist category and he had received no response because the film industry had been halted due to the Covid-19 pandemic.

[24] The father asks this Court to rely on his 2019 income tax return and Notice of Assessment as his income. As stated above, the NOA confirms that his line 150 income for 2019 was $43,786, comprised of employment income of $23,547.66 and Employment insurance of $20,239. Of this income, $28,381 was taxable.

[25] The father advised the mother immediately when he was laid off from Technicolour Inc. at the beginning of April. On April 17, 2020, the father emailed the mother advising that he needed to vary the spousal support payments. He sent her a copy of the termination letter from Technicolour and attached his 2019 income tax return. He tried to reach an agreement with her before the hearing of a motion on this issue. A copy of the father’s email in this regard was attached as Exhibit “G” to his May 4th, 2020 affidavit.

[26] The father is in receipt of EI benefits in the sum of $500 a week. The FRO garnishes $250 a week from the father. Proof of this was provided by the father in Exhibit “A” to his affidavit sworn on May 12, 2020 (May 12th affidavit).

[27] The father attached as Exhibit “H” to his May 4th, 2020 affidavit, an article from the Globe and Mail dated April 21, 2020 entitled “Canadian film, TV industry set to take $2.5 billion hit if restrictions stay through June, study says” to support his assertion that when the Covid-19 health crisis hit, the entire television and film production industry in Canada was shut down.

[28] This Court accepts that the father was laid off from his job as a result of the Covid-19 pandemic and through no fault of his own. The letter from Technicolour dated April 1, 2020 clearly states, “Christian Moreton was employed with Technicolour Canada Inc. as VFX Supervisor. Christian Moreton joined Technicolour on October 15, 2019. Christian Moreton’s employment ended on April 3, 2020 as a result of the global Covid-19 pandemic and its impact on the Technicolour activities.”

[29] The father’s Record of Employment, attached as Exhibit “B” to his May 12, 2020 affidavit, clearly states in paragraph 16 in the section entitled, “REASON FOR ISSUE THIS ROE”, “shortage of work”, indicating that the reason the father was laid off from his position at Technicolour was clearly outside of his control.

[30] The father explains that he could have simply decided to continue to receive monthly EI until the end of December 2020, when it is scheduled to run out, however, he wanted to do everything possible to seek employment. Accordingly, the husband applied for and accepted a freelance position for a film production company in Montreal known as Framestone recently. He will be working for Framestone for a two-month contract for the period of August 17 to October 16, 2020, at an annualized salary of $100,000. This means that he will receive a sum equal to two month’s equivalents of an annual salary of $100,000, which I calculate to be $8,333.33 a month for the months of September and October. Although the father is employed by a Montreal-based company, the father will be performing his employment duties remotely.

[31] The father asserts that it is very common in his industry for Artists to take short-term contracts. He explained that the nature of work available in the television and movie industry “ebbs and flows”, a fact and pattern that the parties knew and lived with during the marriage.

[32] When asked by this Court why the father was asserting that his 2019 income ought to be used for child and spousal support purposes as opposed to current income, the father explained that he wishes to have a framework within which he and the mother can calculate child support to address changes in income both upward and downward without the need to involve lawyers or the Court.

[33] In response to questions asked by this Court as to the father’s current income earned by him in 2020, the father’s advised as follows:

i. He was paid his salary from Technicolour Inc. in the months of January, February, and March, based on a salary of $120,000 a year or $10,000 a month. He was terminated effective April 3, 2020; ii. For the months April, May, June, July and August, he received EI at the rate of $500 a week, or $2,000 a month; iii. For the months of September and October (his contract is from August 17th to October 16th, 2020) he will be receiving a salary based on an annualized income of $100,000, which I calculate to be $8,333.33 a month. iv. He has no knowledge of what he will earn in November or December 2020.

[34] The father asserted that he would prefer to use his 2019 income from which to calculate his child and spousal support calculation because it is a known figure. Conversely, his income for 2020 is not known.

[35] This Court calculates the guaranteed income the father will receive in 2020 at $56,666.66, not including income he may earn in November, and December 2020.

[36] On May 13, 2020, Nishikawa, J. changed the characterization of the spousal support payments the father was making to the mother of $1,000 a month under the Order of Kristjanson, J. dated July 17, 2018, to child support payments of $1,000, effective June 1, 2020. This was done because spousal support would be deducted from the mother’s ODSP payments as it is considered “income”, whereas, child support is not deducted from the mother’s ODSP and she is able to rely on the monthly payments without the concern that it will be clawed back from her ODSP benefits. A child support analysis was not entered into at this time. Instead, the parties consented to recharacterize the spousal support as child support so the children could have the full benefit of the support payments in light of the mother’s receipt of ODSP.

[37] The father submits that the cost of living in Toronto is too high. He has been residing with his father (the paternal grandfather) in rental accommodation in Toronto. However, he advised this Court as follows:

i. His father (paternal grandfather) has purchased a home in Lindsay, ON, and the father will be moving into that home on October 1, 2020; ii. The father will be paying rent to his father in the sum of $1,200 a month commencing October 1, 2020. This figure was arrived at as contribution to his father’s mortgage and household costs; and iii. It is the father’s hope that the two girls will move to Lindsay, ON with the father.

[38] This Court advised the father that if it his intention to change the primary residence of the children from Toronto, ON to Lindsay, ON, he will need to amend his pleadings accordingly. A timeline within which the parties are to file and serve amended pleading was set out in my Order of August 11, 2020, the day I heard this support motion.

[39] The father takes issue with the mother’s claims that he is “intentionally unemployed” or that income ought to be imputed to him for the following reasons:

i. The father explains that this court case began in the Fall of 2017. At that time, he was working six days a week trying his best to provide for the family, earning $85,000 a year; ii. When he worked at SpinVFX as a Lead Compositor, he was employed from July 2015 to July 2018. He left this position so that he could be around for the children as Kristjanson, J. made an order that they be in his primary care; iii. Although he was in a managerial role at SpinVFX, he does not believe that there are currently such roles available to him or that he could perform given his parenting roles; iv. The fact that he secured a Supervisor role at Technicolour Inc. was a lucky break. He did not have sufficient work at Technicolour to actually act in supervisory role and, as a result, he asserted that he was really doing the work of a Compositor as an Artist; and v. The recent contract the father secured for the company in Montreal is an Artists’ position. In order for him to take on a managerial role as the mother demands, the father asserts that he would have to move to Montreal to be onsite to perform quality control duties. The father does not want to move to Montreal and lose access with his two daughters who are still very young. He has accepted that he cannot move beyond a Compositor role for now.

[40] Much has been made by the mother that the father purchased a used aircraft in May. She submits that the father’s unemployment is not linked to his wealth or income. She asserts that if the father were having difficulties financially, he could not have purchased an airplane. The father asserts during oral argument that he found a used airplane for sale that he believes is worth $10,000, which he purchased for $3,900. The father is now stripping the parts of this plane and selling them on eBay in the hopes of making a profit.

[41] In an attempt to be sure that he continues to earn an income, the father is pursuing his private pilot’s licence, to have a potential fall-back career position in Aviation.

[42] The father submits that the mother has not provided proper disclosure about her medical disability claim. He acknowledges that she receives ODSP and that he received a copy of the mother’s application to ODSP and her acceptance letter into that program. While the father accepts that the mother has qualified as “disabled” under the ODSP program, he does not seem to understand the nature of the disability or how it impacts the mother’s ability to work on a part-time or full-time basis. He believes that the mother is chronically unemployed and that she is very able to work in some capacity and earn some income. The father asserts that the mother has provided no objective third-party evidence of her disability such as a corroborating letter or report from a medical specialist explaining her diagnosis or prognosis.

[43] Attached to the mother’s affidavit sworn on July 6, 2020 as Exhibit “A” is a copy of an acceptance letter from ODSP, dated May 16, 2019, advising that she qualifies for income support as of November 19, 2018.

The Mother’s Position on the Father’s Motion and Her Cross-Motion

[44] The mother takes the position that the husband’s motion to decrease his support obligation ought to be dismissed for the following reasons:

b) The father has not demonstrated that there has been a material change since Kristjanson, J. made the September 17th, 2018 order. She claims the father was unemployed when that order was made, and he is unemployed now; c) The father can work in an executive position earning $120,000 as he was earning at SpinVFX and he is simply choosing not to. d) The father has not made disclosure about whether he has applied for any managerial or executive positions. e) The father has not demonstrated that he has any financial hardship. f) The father did not file an updated sworn financial statement. g) The father has not proven whether he pays rent in Toronto; and h) The father on the one hand claims he needs a reduction in his spousal support obligations and, on the other hand, purchased a used airplane for $3,900.

[45] The mother asserts that she and the children have need for support. She is on ODSP and not able to work and earn an income.

[46] The mother relies on the father’s historical earnings to support her argument that the father could be earning more income and ought to be imputed with income. She submits that in 2016, the father earned $96,000; in 2017, the father earned $95,000; in 2018, he became unemployed for part of the year and he earned $59,000; and in 2019, he earned $43,786.

[47] The mother submits that the father has experienced a dramatic decline in his income in an effort to reduce his support obligations. She asserts that the father has not experienced a corresponding decline in his lifestyle. She supports her argument in this regard because she asserts that the husband took two family vacations and took up an expensive hobby like flying.

[48] The mother submits that the father is intentionally unemployed for the following reasons:

i. The father was earning $120,000 as a visual effects’ supervisor with a chain or artists and there is no reason that he cannot continue with this type of role in a different company; ii. The film industry was recalled in Phase 1 of the Covid-19 pandemic and reopened in Ontario. As such, the father could be applying and working freelance since he has all of the equipment, he needs to do this, and he is technically skilled; iii. The father has not demonstrated that he is actively seeking employment or work; iv. The father is choosing to work as an artist in a Compositor role, thereby bypassing opportunities to work as a supervisor or an Executive because he does not wish to be on-site at an office to perform quality control duties and would prefer to work less hours; and v. The father is able bodied, in good health, highly skilled and capable of making $100,000 to $120,000 a year. He has the technical skills and experience to meet his industry needs to manage artists remotely and is simply choosing not to.

[49] The mother deposes in his August 10th, 2020 affidavit that her research indicates that many full time VFX Supervisor jobs are advertised. She deposes that on August 7th, 2020, a google search showed 30 full-time VFX Supervisor position available in Toronto.

[50] The mother does not believe that the father’s 2019 income tax return or 2019 notice of Assessment ought to be used as the income from which the Court ought to calculate the father’s child or spousal support obligation because she believes that the father was voluntarily unemployed for the majority of 2019. Accordingly, the mother seeks an order that the Court impute an income of $100,000 to the father.

[51] The mother submits that she is in receipt of ODSP in the sum of $1,716 per month, as well as a housing supplement of $1,126 a month. She deposes that her ODSP income is $22,260.92 a year. The housing benefit she receives is not “income” to be reported on an income tax return.

[52] The mother deposes in her reply affidavit August 10, 2020 that the father advised her of the new contract position he obtained. She maintains her position that the father is intentionally unemployed because she deposes that the contract position taken by the father is “three pay grades lower than his earning potential as a VFX supervisor”.

[53] In terms of her own work history when asked by this Court, the mother made the following submissions:

i. She worked in the film and TV industry as well and was a Director at MTV, and an editor of commercials; ii. She left the workforce when the parties had children and she was their primary caregiver during the marriage. She supported the husband in his career and was a caregiver to her father and grandmother as well; iii. She has been out of the workforce since 2010; and iv. She intends to go back to school at Ryerson in 2021. She is in the midst of finding out what is involved in her returning to school as a full-time disabled student. She asserts that she needs to upgrade her skills before she can re-enter the workforce.

[54] In response to the husband’s assertions that she has not fully explained to him or the Court the details of the nature of her disability, the mother submitted that she has functional limitations as a result of her disability that would preclude her from being able to work. She described that her disability impacts her vision and is influenced by environmental factors. The mother asserts that her disability impairs her ability to work full time as a result of her experiencing anaphylactic reactions to environmental conditions. In oral argument, the mother submitted that she may have a rare disease that is currently being worked up by neurologists, internists, immunologist, etc.

[55] The mother asserts that the father is withholding government benefits from her, in that he received child-tax benefits for the children which should be shared equally by her and the father given that the children are now residing with the parents on a shred-schedule. The mother further submits that the father consented to sharing the Canada child benefits equally with the mother, as confirmed in the Endorsement of Nishikawa, dated May 13, 2020.

[56] Finally, the mother submits that the father has not provided adequate financial disclosure to enable this Court to decide the issues of child and spousal support. In her review of the father’s bank statements he has produced, the mother asserts that there is no evidence that he has made monthly withdrawals for rent. In oral argument the mother submitted that she does not believe that the father is paying rent in Toronto in the house that he is sharing with his father.

[57] When this Court asked the father to confirm whether or not he is paying rent while living with his father, he confirmed that he has not been paying rent but that when he and his father move to Lindsay, ON, he will be paying rent to his father of $1,200 a month commencing October 1, 2020. The mother made a further submission that the father has not been forthright in his Court materials when he indicated that he was paying rent and that a negative inference ought to be made against him as a result.

[58] Jean Hyndman, as agent of the OCL, submitted that the children are residing with both parties on a 2-2-3 rotating schedule as per the April 9, 2020 order of Nishikawa, J.’s order. Ms. Hyndman submits that this 2-2-3 rotating schedule was intended to be in place only during the pandemic. The Endorsement of Nishikawa, clearly states “during their submissions, both parties states that under the current circumstances, where the girls are not attending school and not have their usual activities, they would be agreeable to the “summer” schedule, or a 2-2-3 schedule to minimize exchanges, rather than the schedule contained in the Order” Further, in the last paragraph of the Endorsement, it states “This order shall remain in effect for the duration of the current pandemic”. Based on these statements, this Court believes that the intention was that the current 2-2-3 rotating schedule is a “summer schedule” and that when school resumes, the original parenting schedule ought to resume. The mother disagrees with the position of the OCL. She adamantly made oral submissions that the Order of Nishikawa, J. dated May 13, 2020 varies the regular schedule. Whether or when the schedule reverts back to the regular parenting schedule needs to be addressed by the parties and the OCL and may require further court intervention. I urge the parents to try and listen to their children and the advice of the OCL and come to an agreement as to the schedule as opposed to causing further conflict when the children are meant to resume school in September.

[59] Ms. Hyndman advised this Court that on August 31st, 2020, there is a teleconference scheduled with the Court to set this matter down for a priority trial. The OCL takes the position that this case needs to be resolved as soon as possible. I am hopeful that this family will be given an expedited Trial date.

Analysis

[60] Unless otherwise provided under the Federal Child Support Guidelines [1] (“CSG”) s.3(1) of the CSG sets out that unless otherwise provided under these Guidelines, the amount of a child support, for children under the age of majority is the amount set out in the applicable table, and the amount, if any, determined under s.7 of the CSG.

[61] In this case, the children are living with the parents pursuant to a shared parenting regime. Accordingly, s.9 of the CSG is applicable. Section 9 of the CSG sets out how to calculate child support for children in a shared parenting arrangement. This section provides that where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:

a. the amounts set out in the applicable tables for each of the spouses; b. the increased costs of shared custody arrangements; and c. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[62] The leading case on the application of s.9 is the Supreme Court of Canada case of Contino v. Leonelli-Contino, 2005 SCC 63 (“Contino”). The framework of s.9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support. The specific language of s.9 warrants emphasis on “flexibility and fairness”. The discretion bestowed on Courts to determine the child support amount in shared custody arrangements calls for acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.

Section 9(a): Amounts Set Out in the Applicable Tables for Each of the Spouses

[63] The first factor requires that the Court determine the parties’ incomes and calculate the simple set-off amount. The simple set-off is the “starting point” of the s.9 analysis, but the set-off amounts are not presumptively applicable and the assumptions they hold must be verified against the facts. The Court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another. [3]

Section 9(b): Increased Costs of Shared Custody Arrangements

[64] Section 9(b) requires that the Court consider the increased costs of the shared custody arrangements. The Court should examine the budgets and actual expenditures of both parents in addressing the needs of the children and determine whether shared custody has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children. The Court should also consider the ratio of incomes between the parties as the child care expenses will be apportioned between the parents in accordance with their respective incomes [4].

Section 9(c): Conditions, Means, Needs and Other Circumstances

[65] Section 9(c) vests in the Court a broad discretion to conduct an analysis of the resources and needs of both parents and the children. It is important to keep in mind the objectives of the CSG, requiring a fair standard of support for the children and fair contribution from both parents. The analysis should be contextual and remain focused on the particular facts of each case. There are three factors to be considered under this subsection:

a. Actual spending patterns of the parents; b. Ability of each parent to bear the increased costs of shared custody (which entails consideration of assets, liabilities, income levels and income disparities); and c. Standard of living for the children in each household [5].

[66] The Court has discretion to assess the ability of each parent to assume any increased cost of shared custody by considering income levels, disparity in incomes and the assets and liabilities and net worth of each party.

[67] The Court has full discretion under s.9(c) to consider “other circumstances” and order the payment of any amount, above or below the Table Amounts. This discretion, if properly exercised, should not result in hardship.

How to Correctly Calculate Income Available for Support Purposes

(A) Support, if any, should be Based on the Father’s Current/Projected Income

[68] Section 2(3) of the CSG provides that where, for the purposes of the CSG, any amount is determined on the basis of specified information, the most current information must be used.

[69] In Lee v Lee, 1998 NLCA 18000 [6], the Newfoundland Court of Appeal held that the husband should pay child support based on his current/projected income, rather than on his historical earnings. The Court noted that, “it would be illogical, having determined that there was a change in the financial circumstances of a spouse which reflects on the expected levels of income out of which future child support is to be paid, not to take account of those changes and, instead, continue to base the calculation of support on outdated historical information.”

[70] The Court in Dickie v Dickie, 2001 ONSC 28203, [2001] O.J. No. 2885 at 13-14 confirmed the decision in Lee and found that section 2(3) of the CSG is relevant as it provides that the most current income information must be used when determining support.

[71] In Kajorinne v Kajorinne, 2008 ONSC 2789 at 12, 14 and 16, the Court found that where there has been a significant drop in the payor’s income, it is not reasonable to use an average of the payor’s past income to arrive at a figure representative of his or her current income. Instead, the Court ought to base support on the current income being earned. Again, the Court commented on Lee, stating:

“…while s.17 provides a fair prediction of current income, where on a balance of probabilities, a payor’s income will be substantially different from historical levels, the calculation for support should not be based on outdated historical information”. [Emphasis Added]

(B) Income Should Not be Imputed on an Interim Basis

[72] Section 19(1) of the CSG permits the Court to impute such amount of income to a spouse as it considers appropriate in the circumstances. The Court of Appeal in Drygala v Pauli, 2002 ONCA 41868, 2002 CarswellOnt 3228 (ON CA) at 44, noted that s.19 of the CSG is “not an invitation to the Court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the Court’s discretion must be grounded in evidence”.

[73] The person requesting an imputation of income must establish an evidentiary basis for such a finding. [7]

[74] Courts should take a cautious approach to imputing income on an interim motion. As noted by Justice Vogelsang in Jesse v Jesse, 2010 ONSC 861 at 64, “temporary Motions for child support are notoriously difficult where adequate income information is not available and Judges are always told to adopt a cautious approach to income in these circumstances….Laskin J.A. emphasized the better position of a Trial Judge who can benefit from a full review of the merits and correct past support.” [8]

[75] The mother’s position is that no change should be made to the current child support order which provides that the father pay her $1,000 a month. She argued that when the initial support order was made (albeit it was a spousal support order and not a child support order), the father was unemployed and that he remains unemployed today. That assertion on the mother’s part is incorrect. The father was earning $85,000 at the time the spousal support order was made.

[76] There has been a change in circumstances that justifies a reduction in the support payments. Namely, the father was laid off from his latest employment position.

[77] When the court recharacterized the monthly spousal support as child support to enable the mother to retain the child support and not have it clawed back by ODSP, a new child support calculation was not undertaken. This recharacterization was effective June 1, 2020.

[78] Section 14(b) of the CSG sets out that in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order. In this case, the order for $1,000 a month was not a determination that was made in accordance with the CSG tables. It was an interim spousal support order that was later recharacterized as child support. The fact that the father was laid off from his employment clearly constitutes a change of circumstances that gives the Court jurisdiction to vary the existing order.

[79] Neither party has made an application under s.10 of the CSG claiming undue hardship.

[80] The mother deposes that the father’s historical income earning is indicative of his ability to earn a higher level of income currently. The Court disagrees with this position. The fact that the father historically earned higher levels of income does not change his current income earning ability.

[81] Many areas of the economy have suffered as a result of the Covid-19 pandemic. The father was laid off from his employment due to Covid-19. Through no fault of his own, he found himself unemployed as of April 2020. The father’s evidence demonstrates that he took steps to find alternate ways to earn income. The decision to purchase a used aircraft and to strip it of its parts was a creative way for the father to try and earn additional income. If he is successful, then any income earned from his endeavor will be reported on his 2020 income tax return.

[82] Similarly, if the husband obtains his private flying licence and is able to earn an income as private pilot then any income he earns from that endeavor will be reported on his 2020 income tax return.

[83] Pursuant to s.25 of the CSG, every spouse against whom a child support order has been made must, on the written request of the other spouse, provide the other with current income information, in writing. There is no risk, therefore, if the Court orders the father to pay child support based on a certain income figure for 2020 that the child support cannot be adjusted.

[84] In any event, the father, by his own evidence, took a job as an Artist on a two-month contract, for the months of September and October 2020 even though he has held higher paying positions in the past, because he recognizes his obligation to pay child support. This fact should not be seen in a negative light. To the contrary, the fact that the father took steps to find employment when he continues to be entitled to collect EI demonstrates that he takes his obligation to pay child support seriously. The two-month contract is well-paid in the circumstances, in that the annualized salary is $100,000, the exact level of income with which the mother seeks the Court to impute him.

[85] I decline to impute income to the father under s.19 of the CSG. This is not a case where the father is intentionally underemployed. I find that the father lost his job through no fault of his own. He has not ignored any job opportunities and he diligently attempted to find employment and seek out other opportunities. I find that given his particularized experience in his industry and the length of time he was unemployed that he acted reasonably in accepting the only job available to him. The evidence is clear that the father has taken all steps possible to fulfill both his parenting roles and his obligation to support the children.

2019 Income or 2020 Income?

[86] In this case, it is not appropriate, in my view, to use the father’s 2019 income, as reported on line 150 of his 2019 income tax return or contained in his Notice of Assessment to calculate his child and/or spousal support obligation.

[87] Given that the father has knowledge of his 2020 earnings, at least until the end of October 2020, and given that we are about to enter the 9th month of the year, the Court has the ability to determine the father’s “current” income for child support purposes as required by the CSG and the case law.

[88] Based on my calculations set out in paragraph [35] above, the father’s income for 2020 will likely be in the range of $60,000 to $65,000. While it is unknown whether the father will have an income in November or December 2020, or whether he has income from other sources, I have adjusted upward by $5,000 to $6,000 to account for such circumstances.

[89] The CSG tables for the province of Ontario dictate that the father would be obliged to pay child support in the sum of $991 a month for two children using an annual income figure for him of $65,000.

[90] Currently, the children are residing with both parents pursuant to an equal parenting schedule, on a 2-2-3 rotating schedule. This shared parenting regime began on June 1, 2020. It is unknown whether that schedule will remain in place at the beginning of the school year or whether it will change as a result of the father’s upcoming move to Lindsay, Ontario.

[91] If the children remain living with the parties pursuant to a shared parenting regime, s.9 of the CSG sets out that the Court first calculate child support by setting off what each parent would owe the other based no his/her annual incomes. As stated above, using an annual income figure of $65,000 for the father, he would owe the mother Table child support of $911 a month. The mother’s annual income from ODSP is $22,260.92. Based on that level of income, for two children, the mother would owe the father Table child support of $354 a month. The set-off Table child support would, therefore, be $647 a month payable by the father to the mother.

[92] However, as stated above, the set-off calculation is just the starting point. I retain the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another. The mother has housing accommodations paid for by a housing subsidy which is not considered income. The father is residing with the children’s paternal grandfather which likely allows him to have accommodation that he otherwise would not be able to afford without sharing his residential costs. In that manner, the parties are in a similar situation where their housing costs are defrayed.

[93] Much was made by the mother that the father had misrepresented the fact that he was paying rent while living with his father. While the father did refer to the cost of the rental home in a letter to the mother dated August 6, 2020, his sworn financial statement dated August 23, 2019 lists that he has nil ($0) rental costs in his budget. Accordingly, I decline to make any negative inferences against the father in this regard.

[94] There is no evidence on the record before me, in any of the affidavits filed or Facta about either party’s budgets and actual expenditures of both parents in addressing the needs of the children. As a result, it is impossible for the Court to determine whether the shared custody schedule has, in effect, resulted in increased costs globally because of the duplication of costs in providing two homes for the children or whether one party’s costs have remained fixed.

[95] Under s.9(c) of the CSG, I am to consider “other circumstances” and order the payment of any amount, above or below the Table Amounts. This discretion, if properly exercised, should not result in hardship. Based on the mother’s submissions, she will suffer hardship if the father’s child support obligation of $1,000 a month is lowered. The mother asserted that she and the children rely on food banks and shelter resources to meet their needs, along with her ODSP. However, the mother did not provide evidence or quantify this hardship. Nor did the mother make an application under s.10 of the CSG.

[96] The issue of the child-tax benefits is best left to the Trial judge who will be able to hear viva voce evidence and determine, after a thorough review of the evidence, when the father’s period of primary residence ended, thereby entitling the parents to share this tax deduction. The Endorsement of Nishikawa, J. dated May 13, 2020, confirms the father’s consent to share this tax deduction from when the children began to reside with the parents pursuant to a shared parenting schedule.

[97] Similarly, the issue of retroactive child support is best left to the Trial judge. Both parties need to calculate the father’s and mother’s child support obligations in 2017, 2018 and in 2019 based on the parties’ respective income tax returns. In 2018, Kristjanson, J. ordered the father to pay spousal support of $1,000 not child support. The recharacterization of the spousal support to child support effective June 1, 2020, has income tax consequences that need to be calculated and considered. Once those figures are calculated, the father has to be given full credit for the amounts of support paid by him to determine whether in fact there are any child support arrears owing by him. The father was paying spousal support pursuant to the Kristjanson, J. order, and then child support of $1,000 a month during periods when he was earning a higher income, and during periods when he was collecting EI. When the annual calculations are completed and the father is given credit for all voluntary payments as well as support payments made pursuant to a court order, it may well be that he does not owe any retroactive child support.

Conclusion

[98] Accordingly, this court orders as follows:

a. Commencing August 1, 2020, and on the first day of each following month until further agreement of the parties or court order, the father will pay child support to the mother for the two children of the marriage namely, Oliva Moreton, born April 13, 2009 and Alexa Moreton, born January 21, 2013, in the sum of $637.00 a month, as follows: (1) Based on an annual income of $65,000, the father shall pay Table child support to the mother in the sum of $991 a month for the two children of the marriage; (2) Based on an annual income of $22,260.92, the mother shall pay Table child support to the father in the sum of $354 a month for the two children of the marriage. b. Both parties shall provide the other with his/her current income information when he/she knows what his/her 2020 income was from all sources. This information shall be provided to each party in writing with supporting documentation. If the father has underpaid child support for 2020, then he shall pay any amount owing by him to mother over a six-month period. If the father has overpaid child support for 2020, then he shall deduct the overpayment from his monthly child support payments over a six-month period from the date that the over/under payment has been agreed to by the parties or ordered by the Court. c. If an urgent issue arises between the date of this order and the Trial date, the parties shall follow the rules set out in the latest Notice to Profession from the Ontario Superior Court of Justice in terms of how to apply/file/serve materials for an emergency motion or to seek a case conference date, if necessary. d. If the Trial is not scheduled by the Court prior to the father’s scheduled move to Lindsay, Ontario, he shall seek leave of the Court to bring his motion to move the children’s primary residence from Toronto, Ontario to Lindsay, Ontario, prior to Trial. If he is permitted to have this mobility issue heard and such an order is granted, the child support will have to be recalculated to consider this potential change in circumstances. Similarly, if the father moves to Lindsay, Ontario and the children remain in Toronto with the mother, then the child support will have to be recalculated to consider that the parties may no longer be following a shared parenting arrangement. e. Notwithstanding rule 25 of the Family Law Rules, the terms of this paragraph constitute an order of this Court and this order is effective from the date it was made and is enforceable as an order of the court without the need for a formal version of the order to be prepared, approved of by the parties and then issued by the court office. f. Given the findings I have made on the motion and cross-motion, on the face it, without knowing if any offers to settle were made by either party, the father has been successful on the motion and is entitled to costs. The parties shall attempt to resolve the issue of costs. If they are unable to agree on the costs, the father shall serve and file submissions that are no longer three pages by August 25, 2020 at 5:00 p.m. (plus a copy of any offer to settle he may have made to resolve the motion). The mother’s response to the father’s request for costs shall be no more than three pages in length (plus a copy of any offer to settle she may have made to resolve the motion) and shall be served and filed by August 28, 2020 at 5:00 p.m. Reply submissions, if any, shall be no more than one page in length and served and filed by September 2, 2020 at 5:00 p.m. g. SDO to issue.

M. Kraft, J. Date Released: August 13, 2020

[1] Federal Child Support Guidelines, SOR/97-175 [“CSG”], Section 9. [2] Contino v. Leonelli-Contino, 2005 SCC 63 (“Contino”). [3] Contino, supra, at 40 and 49-51 [4] Contino, supra, at 52-53 [5] Contino, supra, at 71-72 [6] Lee v Lee, 1998 NLCA 18000, [1998] N.J. No. 247 (C.A.) at 5-6 [7] Homsi v Zaya, 2009 ONSC 322 at 28 [8] See also, Neilipovitz v Neilipovitz, 2014 ONSC 3889 at 13