Court File and Parties

Court File No.: Halton 334/07 Date: 2012-04-12 Ontario Court of Justice

Between:

Jennifer Anne Collins Applicant

— And —

Timothy Lyle Garmoe Respondent

Before: Justice S. O'Connell

Heard on: December 12, 15, 2011

Reasons for Judgment released on: April 12, 2012

Counsel:

• Darrel Hotz, for the Applicant
• Lydia Moritz, for the Respondent

O'CONNELL J.:

INTRODUCTION

[1] This is a trial concerning the amount of child support that Timothy Garmoe, the respondent father should pay to Jennifer Collins, the applicant mother for the time period between April 12, 2007 and September 30, 2010. The parties have two children together, Christopher Alexander Garmoe, born […], 2005, ("Christopher") and Ethan Michael Garmoe, born […], 2007 ("Ethan").

[2] The mother brought an application for custody and support in August of 2007, including a claim for retroactive support to April 12, 2007. The issues of custody, access and ongoing child support were finalized in 2010.

[3] Although the parties have framed the only outstanding issue as retroactive child support, the mother's claim is not actually retroactive support, except for the period from April 2007 to August 2007, before she commenced her proceedings. The mother's claim for support is actually for support arrears owed since the mother commenced her application.

THE PARTIES' POSITIONS

[4] Both parties agree that the arrears of child support owed by the father between April 2007 and September 2010 are $16,419.53. However, the father submits that this amount should be reduced to zero for the following reasons:

a) he incurred travel expenses associated with exercising access to his children in Ontario from April 2007 to November 2008 totalling $20,492.28;

b) he has paid special and extraordinary expenses for the children while they were in his care totalling $4,763.32;

c) he has advanced loans or sums of money to the mother between August 24, 2005 and March 14, 2007 totalling $12,285.26, including $6,147.95 for the purchase of a vehicle.

[5] The mother concedes that the father loaned her approximately $6,000.00 in March 2007 to purchase a vehicle. The mother submits that the vehicle is a necessary and beneficial expense for the children who live with her, and therefore only a portion of the car loan should be used to offset the arrears owing. Further, she submits that the other sums advanced were not loans, but were funds to cover children's expenses while the parties were in a relationship.

[6] The mother further submits that the calculation of the travel costs that the father incurred before the parties started sharing the transportation of the children is grossly excessive and that this amount should not be offset against the arrears owing, nor should she be obligated to contribute to that expense. In her submission, the amount of child support owing should only be reduced by $6,000 at most, and that the father owes her $10,000 in child support arrears.

BACKGROUND

[7] Ms Collins is 34 years old and lives in Milton, Ontario with her mother and the two children of the parties' relationship. She is currently unemployed. Mr. Garmoe is 38 years old and resides in the United States with his wife and their four children. Mr. Garmoe is an officer in U.S. Air Force and at the time of the trial he was stationed in Albuquerque, New Mexico. At trial, his wife and children had not yet joined him in New Mexico.

[8] The parties met online while playing an interactive computer game in 2003. At the time, Mr. Garmoe was stationed in Ohio and Ms Collins was living in Milton. The parties corresponded for several months until May 2004 when Mr. Garmoe purchased an airline ticket for Ms Collins to visit him in Ohio. Thereafter, Ms Collins would drive down to Ohio approximately every second weekend to spend time with Mr. Garmoe. Ms Collins became pregnant with Christopher shortly after they became physically involved. She continued to commute to Ohio throughout her pregnancy. Christopher was born in Canada and Mr. Garmoe was present for the birth. Mr. Garmoe stayed with Ms Collins and her family in Milton during this time. He returned to Ohio and then came back to visit Ms Collins and Christopher again during the Labour Day weekend.

[9] Mr. Garmoe was transferred to California in November 2005. Ms Collins continued to fly back and forth between Ontario and California with the new baby. According to both parties' evidence, Ms Collins and Christopher would spend approximately two months in California and then return to Ontario for a period of time so that she and Christopher would maintain legal residency and health care in Ontario.

[10] Mr. Garmoe testified that they started having problems even before Ms Collins' pregnancy with Christopher and that the relationship had deteriorated by the time Mr. Garmoe was transferred to California. He testified that the parties were not in a relationship, but that they agreed that Ms Collins and Christopher would move to California and live with him so that they could both be a part of Christopher's life. He testified that the plan that they had agreed to involved Ms Collins staying at home and caring for Christopher for the first two years of his life. He was emphatic that the parties were not in a relationship, even though they continued to live and sleep together.

[11] Ms Collins agreed that the parties' relationship was rocky, however she testified that they were still a couple and in a committed relationship when Mr. Garmoe moved to California. She agreed that the plan was that she would stay at home with Christopher until he was two years old and then he would go into daycare so that she could look for work or go back to school. However, Ms Collins testified that if the parties were not together in a committed relationship, then she had no intention of living in the United States and that she would have returned to Ontario with Christopher.

[12] Ms Collins became pregnant with Ethan in February 2006. Both parties agreed that the pregnancy was not planned. Ms Collins testified that it was during a time when the relationship was very unstable. Ms Collins states that, as with Christopher, she planned to give birth to Ethan in Ontario where she had full healthcare benefits and her mother to support her, who is a retired nurse.

[13] Ms Collins states that when she was seven months pregnant with Ethan, she planned to return to Ontario to prepare for the birth, and when it was still safe for her to fly. She further testified that the relationship had further deteriorated at that time and that Mr. Garmoe had become abusive. She testified that she had also discovered that Mr. Garmoe was involved with another woman. Mr. Garmoe testified that he had obtained adequate health coverage for Ms Collins's prenatal and post-natal care in California. He did not agree or consent to Ms Collins leaving California with Christopher in April 2007. He testified that things were very bad between them at that time and he knew that they were not going to go forward with the original plan.

[14] It is not disputed that Mr. Garmoe retained family counsel in California in April 2007 to commence custody proceedings for Christopher. Mr. Garmoe states that Ms Collins discovered the retainer cheque made out to the lawyer and that the parties had a heated argument. Ms Collins denies this. Nevertheless, on or about April 12, 2007, a few days after Mr. Garmoe had retained counsel in California, Ms Collins admitted that she lied to Mr. Garmoe and told him that she was going out to see a film with Christopher and a friend. She then drove two hours to Los Angeles and took a flight back to Toronto with Christopher, prearranged and paid with the assistance of family in Ontario. Ms Collins maintains that she was forced to do this because she was seven months pregnant with Ethan and Mr. Garmoe was refusing to pay for her flight back to Ontario for Ethan's birth and their relationship had become very abusive. She denied leaving surreptitiously to avoid a custody battle in California.

[15] Once back in Ontario, Ms Collins did not return to California. Although Mr. Garmoe had contacted the police and consulted counsel after he discovered that Ms Collins had unilaterally removed Christopher from California, he chose not to take any further legal steps at that time. He testified that he did not want to jeopardize Ms Collins's pregnancy or health by instituting court proceedings at that time.

[16] Ethan was born on […], 2007. Ms Collins commenced her application for custody of both children in August 2007, eight weeks after Ethan was born and shortly before Mr. Garmoe arrived in Ontario to visit the children.

[17] Mr. Garmoe met his current wife, Ms Melissa Garmoe, in November of 2006 and they married in September of 2007. Ms Garmoe has two children of a previous relationship, ages fifteen and twelve years old, who reside with her and Mr. Garmoe. The parties also have two children together now, who are currently three years and two years of age.

[18] Once the proceedings commenced in Ontario, the parties agreed to the appointment of the Office of the Children's Lawyer to conduct a social work investigation and report of the issues of custody and access. The clinical investigator assigned by the Office of the Children's Lawyer completed her investigation and report in June of 2008. She prepared a detailed parenting plan and recommended that Ms Collins have sole custody of the children and that Mr. Garmoe have regular and frequent access in the United States, with transportation to facilitate access to be shared by the parties.

[19] On January 14, 2008, Mr. Garmoe was ordered to pay child support on a without prejudice basis in the amount of $930.00 per month, commencing February 1, 2008, based on his stated income of $62,000.00. On October 9, 2009, the child support was increased to $1,400.00 per month, commencing November 1, 2009, based on an income of $99,703.00 Canadian, without prejudice to further argument about the proper valuation of Mr. Garmoe's income. On October 1, 2010, Justice Theo Wolder made a final order which provided that Mr. Garmoe pay $1,405.00 per month in child support, commencing October 1, 2010, based on an income of $101,000.00 Canadian. The final order contained an annual disclosure clause. This order is in good standing.

ANALYSIS

[20] Ordinarily, once ability to pay child support has been established, child support is payable at a minimum from the date on which the application is served based on the actual income of the payor, in accordance with the Child Support Guidelines for Ontario ("the Guidelines"). To do otherwise will only provide parties with an incentive to delay the final hearing. See Mackinnon v. Mackinnon, 75 O.R. (3d) 175, 13 R.F.L. (6th) 221 (Ont. C.A.).

[21] Once the father's income was established for the years 2007, 2008, 2009 and 2010, the father should have paid child support based on his actual income for those years under the Guidelines. In this case, the parties agree and the court accepts, having reviewed all of the evidence regarding Mr. Garmoe's income for the years in question, that the arrears owing for the shortfall of child support between August 1, 2007 and October 1, 2010 is $16,419.53.

[22] With respect to the time period prior to the commencement of the mother's application, between April 12, 2007, when Ms Collins left California, and August 2007, the principles established by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.) et al., 2006 SCC 37 (the "D.B.S." case) to determine retroactive child support apply. No evidence was led by the mother that the circumstances of the child were adversely affected during that four month period. She was living in her mother's home and did not have any shelter costs. Further, Mr. Garmoe had advanced her the sum of $5,725.00 in March 2007 shortly before she left to purchase her car, which is in excess of the child support that he would have owed for that period of time. He also advanced her other sums for the child's expenses, although I do not find these sums to be loans. I find no blameworthy conduct on Mr. Garmoe's part for that four month period of time.

[23] I also agree that the Ministry of Community and Social Services should have been served with notice of the mother's application for her claim for retroactive support. The mother was receiving social assistance from April of 2007 to November of 2007 and the Ministry has an interest in collecting any child support paid to the mother during that time, particularly if the mother had assigned the child support to the Ministry. The mother should have served the Ministry and she is not entitled to arrears that rightfully belong to the Ministry for the four month period in question prior to the commencement of her application.

[24] The question that I must determine is how much, if any, of the arrears owing Mr. Garmoe should pay. The law is clear that the court has the discretion to reduce child support arrears owing, depending on the circumstances of the case. The Court of Appeal indicates that the discretion to reduce arrears must be exercised judicially. In DiFrancesco v. DiFrancesco sets out the following factors to be considered:

a) the nature of the obligation to support, whether contractual, statutory or judicial;

b) the ongoing financial capacity of the payor;

c) the ongoing need of the custodial parent and the dependent child;

d) unreasonable and unexplained delay on part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;

e) unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation; and

f) where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of Mr. Garmoe, to grant a measure of relief where deemed appropriate.

[25] Some courts have now held that the four main factors to consider before making a retroactive support order set out in the D.B.S. case referred to above (the recipient's reason for the delay in enforcement, the conduct of the payor, the circumstances of the children, and any undue hardship caused by a retroactive award) apply equally to claims to reduce or rescind support arrears. See: Galloway v. Cassino (Barrett), 2008 ONCJ 577; H.F. v. P.F., 2007 ONCJ 170.

[26] In Vaughn v. Vaughn, 2007 ONCJ 21, Justice June Maresca added the following considerations:

Was the non-custodial parent required to incur debt or encroach on capital to maintain him or herself?

a) Did the payor receive notice of his or her obligation to pay support?

b) Would declining to forgive arrears redistribute capital or be in the nature of awarding spousal support?

c) Has the payor acted in bad faith as set out in the D.B.S. case?

[27] I will address each one of the factors that the father has raised in evidence and submissions to offset the arrears owing.

Transportation Costs to Facilitate Access

[28] Having carefully reviewed all of the evidence, including the detailed charts entered as exhibits at trial, I find that the father did incur the sum of $20,492.78 in travel expenses, including airplane tickets, hotels, food, car rentals, gas, car seats, long distance phone bills and supplies between August 2007 and November 2008. However, I do not find that all of those expenses were related to access costs. The father pursued custody of both children in these proceedings, and a significant portion of the expenses incurred related to the advancement of his custody claim. The father purchased plane tickets and incurred hotel, food, car and gas expenses for his entire family when he brought them to Ontario to participate in the custody and access investigation conducted by the clinical investigator appointed by the Office of the Children's Lawyer. According to the evidence filed, this occurred in 2008, and the sum incurred is $6,000. Those expenses should be deducted from the overall costs of his travel expenses.

[29] This leaves the balance paid in transportation costs at approximately $15,000. The father submits that the mother should contribute to the cost of at least half of these expenses, or $7,500.00, as they now currently share transportation costs in accordance with the final custody and access order. There is no question that the father would not have had to incur these costs if the mother had remained in California with the children. Ms Collins's conduct in surreptitiously removing Christopher from California in April of 2007 without Mr. Garmoe's consent is questionable. Having said that, the court is also sympathetic to the mother's difficult predicament. She was in California without legal status or financial means, having been completely financially dependent on Mr. Garmoe. She was seven months pregnant and wanted to return to her home in Ontario to give birth to Ethan, and Mr. Garmoe had retained a family lawyer in California to seek custody of Christopher. If she had left Christopher in California at that time, there is no doubt that the father would have commenced custody proceedings there, making it very difficult for the mother to defend. At the same time, it has also been very difficult and costly for the father to defend custody proceedings in Ontario.

[30] Regardless of which party is at fault in the history of their relationship, the fact remains that the father did have to incur substantial costs to see his children in Ontario, once the mother returned to Ontario on a permanent basis in April of 2007.

[31] Although the court has the authority to order payment of access costs under section 28 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended, it does not have the jurisdiction to set off access costs against child support. In Morrone v. Morrone, 2007 CarswellOnt 7392, Justice Quigley states the following regarding the costs involved when one parent and the child relocates to another jurisdiction at paragraphs 46, 47 and 51 of that decision:

"Counsel for Ms. Morrone argues that once Mr. Morrone's income is determined, and in the absence of undue hardship relief being available to him under section 10 of the Guidelines, this Court cannot indirectly grant him that relief by crediting him for anticipated access costs. He argues that if the Guidelines are clear, there should not be a "backdoor way" of getting around them: see Glomba v. Wray, [2003] O.J. No. 558 (Ont. S.C.J.) per Marshman J. at paragraphs 22-26 and Scherr v. Scherr, [2004] O.J. No. 1761 (Ont. S.C.J.) per Aitken J. at para. 23. In the latter case, the court denied the request of a father that his combined child and spousal support obligations be reduced to take account of significant access costs on the basis that it was "in the nature of a claim under section 10" in circumstances where, like here, the father's standard of living after payment of support was significantly higher than the mothers. It should be noted that while the father's income in that case was approximately the same as Mr. Morrone's income in this case, the mother's total annual income was only $500, a situation very different than that of Ms. Morrone.

Apart from that distinguishing feature, however, in numerous decisions cited to the Court, decided both under the Divorce Act and the CLRA, courts have seen fit to fashion relief in circumstances of mobility cases that recognizes that relocation necessarily disrupts the frequency of access to the access parent in a manner that requires that some kind of economic adjustment be made."

[32] In the case before Justice Quigley, the father was attempting to set off his ongoing access costs from his ongoing and future child support. Justice Quigley refused to make that order, however, the court did order that the travel costs actually incurred by the father to exercise the rights of access should be shared between the parties. Justice Quigley found that the father incurred $6,000 per year in travel and accommodation costs in order to exercise his entitlement to four access visits to Florida per year and that the mother be required to contribute half of the cost of each up to a maximum amount of $3,000 per year.

[33] In the case before me, the father is not seeking to have his access costs set off against his ongoing and future child support payments, which he has paid in full and are in good standing. However, he is seeking to have his past access costs considered or taken into account when determining what if any arrears of child support he owes the mother. I find that Justice Quigley's analysis is applicable in determining whether some sort of "economic adjustment" should be made in the circumstances of this case.

Loans Advanced by the Father to the Mother

Regarding the money that the father advanced to the mother between August 24, 2005 and March 14, 2007, the onus is on the father to prove that these payments were in fact loans. Other than the loan of $6,147.95 towards the purchase of the mother's car to avoid being repossessed, the father has not made out a case that the balance of the money paid to the mother could be characterized as loans. The mother did not sign a promissory note for any of the money in question and the amounts appear to be payments for the child's expenses and gifts at the time. These payments are what one would expect in a family unit, particularly when the father conceded that he was financially responsible for all of the child's expenses and the mother's expenses when she was living with him in California, including her airfare to and from the United States.

Special and Extraordinary Expenses Incurred by the Father

[34] Regarding the special and extraordinary expenses, in my view, it is not fair that the mother should be responsible for the daycare cost of $3,431.52 that the father incurred while he was exercising access to the children. He is not the primary residential parent. Section 7 of the Child Support Guidelines is clear that only child care expenses "incurred as a result of the custodial parent's employment, illness, disability or education," etc. are to be included in an order for child support. The payor of child support cannot claim these expenses to exercise access from the recipient of child support.

[35] Regarding the medical and dental expenses incurred by Mr. Garmoe for the children while they are in his care, it is surprising that Mr. Garmoe did not consult with or obtain the consent of Ms Collins, who is the primary residential and joint custodial parent, before incurring those expenses. The total cost the father claims to set off from the arrears is $1,190.83, which he claims is the mother's contribution to these costs. As the primary custodial parent, the mother should be responsible for those expenses while the children are in her care, with contribution from Mr. Garmoe. Mr. Garmoe cannot unilaterally incur these expenses and then expect to set them off against his arrears of child support owing.

CONCLUSION

[36] The father's current income is $101,503.68. He is paying child support to the mother in the amount of $1,405.00 per month, pursuant to Justice Wolder's order dated October 1, 2010. He is not in arrears of this amount and the payments have all been made in a timely manner. He has incurred approximately $15,000.00 in travel expenses to facilitate access since the mother left California and prior to the parties' agreement to share the transportation costs in the final order dated November 30, 2009. According to his evidence at trial, he has also incurred approximately $60,000.00 in legal fees since these proceedings were commenced to facilitate his access with the children once the mother permanently relocated to Ontario with both children. He testified that all of his savings are now depleted.

[37] Further, the father has recently been transferred to New Mexico. It is not disputed that his current wife was unable to obtain employment in New Mexico and therefore has remained in California with the couple's four children so that she can continue working. At the time of the trial, Mr. Garmoe was supporting and incurring expenses for two households. He is also supporting six children in total.

[38] No evidence was led by Ms Collins that she has incurred any debt or encroached on capital to maintain herself and the children during the time that the shortfall of child support accumulated. She and the children have been residing in the mother's home since returning permanently to Ontario in 2007. No evidence was led that the children experienced hardship during that period or later. She does not pay any shelter costs to her mother. She is capable of working and contributing to her children's needs as they both have attended full-time daycare since 2009. This daycare is fully subsidized.

[39] Although the mother's income is significantly smaller than the father's income, the court is not clear why the mother is currently not working even on a part-time basis, as she is clearly a very intelligent and capable young woman. She was steadily employed for six years with the same employer until her children were born. As a parent, she also has an obligation to contribute to the support of her children, pursuant to section 31(1) of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[40] In my view, in looking at the total picture and taking into account the actual needs of the children and the custodial parent, the current financial capacity of the father, the fact that he has advanced the sum of $6,147.95 towards the purchase of the mother's car and incurred approximately $15,000.00 in travel expenses to facilitate access during the relevant time period, the fact that he continued to pay child support throughout that period, the fact that the father is supporting two households and six children, and that a large award will cause undue hardship, I find that it is appropriate and just to exercise my discretion and reduce some of the arrears owing for the period between August 2007 and October 2010.

[41] For all of the above factors, I find that the retroactive child support owing by the father should be fixed at $5,000.00, to be paid in a lump sum no later than 30 days from the date of this order, or alternatively in monthly payments of $250.00 each month, commencing June 1, 2012. A Support Deduction Order shall issue.

Released: April 12, 2012

Signed: "Justice Sheilagh O'Connell"