Court File and Parties

Court File No.: 48/11-01 & 48/11-02 Date: 2012-04-11 Ontario Court of Justice Sault Ste. Marie

Between:

Tracy Anne LaFrance, Self-represented (mother)

— And —

Jeffrey Thomas

Counsel: Eric McCooeye, for Jeffrey Thomas (father)

Heard: March 22, 2012

Before: Justice John Kukurin

Decision

Introduction

[1] This is a decision on several claims. These are all claims for interim or temporary orders pending a final determination in this case.

[2] The applicant mother seeks interim orders:

(a) for interim custody of Chelsya (age 15);

(b) for interim Child Support Guideline table support for Chelsya and Coty (age 18);

(c) for interim Child Support Guideline section 7 expenses child support for both children;

(d) for interim payment by the father of medical expenses for both children, namely contact lenses and dental services.

These are claims duplicated in two motions, one at Tab 14 in the mother's motion to change proceeding, and the other at Tab 11 of her application.

[3] The mother also has a claim for an interim order restraining both the father and his partner, Leanne Dow from molesting, annoying or physically interfering with her, including not calling the mother's place of employment. These claims are also duplicated and found in her motions at Tab 15 (motion to change) and at Tab 18 (application). Her motion also asks permission to add a final restraining order to her claims in both her proceedings.

[4] The father has one motion for interim relief. This is at Tab 15 (application) and seeks to amend his Answer to include a claim for a restraining order against the mother. This motion also seeks an interim order restraining the mother from harassing, molesting or physically interfering with himself, his partner, or the two children while they are in his care.

Restraining Order

[5] Both parties will be permitted to amend their respective claims to include a claim for a final restraining order as requested by each of them.

[6] The claim of the mother for an interim restraining order against the father's partner, Leanne Dow, is dismissed. There is no proof of service of the mother's motion on Leanne Dow. Restraining orders are quite serious and ought not to be made lightly. There could be significant consequences to the person ordered to be restrained, not the least of which is the forwarding of such an order to the local police and their inclusion of the terms of the order into records kept in the criminal law enforcement system. Any proposed restrainee is clearly a person affected by such a motion claim and requires adequate notice by way of service.[1]

[7] The claim of the mother for an interim restraining order against the father is dismissed. Her evidence is that she hasn't spoken with the father in well over a year. Her only evidence relevant to this claim seems to be her allegation that he swears, laughs, tries to provoke her and makes up stories about her improper behaviour. Apart from these allegations being general, they are lacking in any details as to when, where, how, why the father engaged in such conduct. These allegations, even if true, are not remotely sufficient to justify the order sought against him. It appears from an overview of the evidence that the mother's problems are more with the father's partner, Leanne Dow, than they are with the father.

[8] The father's claim for an interim restraining order is dismissed. I do not interpret section 46[2] of the Family Law Act to permit the court to make any order restraining the mother from any conduct directed at the father's partner. Accordingly, his claim in this regard fails as this court cannot grant this relief.

[9] His claim for a restraining order against the mother with respect to the children while they are in his custody is similarly dismissed. While the court is empowered to make such an order, it might do so on evidence that is persuasive. There isn't any. I don't believe for one moment that the safety of these children is at any risk from the mother, regardless of where they may be. More to the point, the father has not demonstrated any grounds, much less reasonable grounds, to support any fear on his part with respect to their safety.

[10] Finally, the father's claim for an interim order restraining the mother from harassing, annoying or physically interfering with him is dismissed for similar reasons. I don't believe he fears for his own safety. At least he has not shown reasonable grounds for the existence of such fear. Both mother and father appear to not have had any direct communication for over a year. Whatever allegations are made with respect to a baseball bat, they are specifically denied by the mother and the evidence is contradictory. It is not enough to allege that the mother has a "history of violence" or that her "past actions exhibit violent, aggressive, unstable, and unpredictable behaviours ..." What is needed are specific details of incidents that are sufficient for the court to make an inference that satisfies the pre-requisites of section 46(1) FLA. Aside from one incident in a parking lot in November 2011, that seems to have involved the mother and the father's partner more than the father, such detail is lacking.[3]

Custody

[11] The parties have a separation agreement that is six years old. It does not mention "joint custody". Rather it refers to "split" custody. This is somewhat of a misnomer as split custody is generally interpreted as one child(ren) with one parent and the other child(ren) with the other parent. The agreement actually describes a shared custody regime that contemplates that the children would spend approximately equal amounts of time with each parent.

[12] The mother's claim is for an interim sole custody order for Chelsya only. The reason for the order appears to be two-fold. Firstly, Chelsya has chosen the mother's residence to be her primary and principle residence. In fact, she only occasionally visits or even communicates with the father. There appears to be some estrangement between them at the moment. The father has not, on the evidence, attempted to enforce the shared custody rights he has under the separation agreement. It appears that he would like to have Chelsya return to spend time with him in his home, but he is not forcing his 15 year old daughter to do so.

[13] Secondly, the mother believes that she requires a sole custody order as a prerequisite for obtaining a child support order for Chelsya.

[14] The mother is mistaken. So long as children remain eligible for parental support, both parents must support them.[4] The fact of a separation agreement with equal shared custody provisions, or with child support provisions, or even waivers of child support, does not present an obstacle to the making of an order of child support. The court will consider all of the evidence as to the history, and the present circumstances. The order will necessarily have to be made under the Child Support Guidelines.

[15] So the question arises "Why the pressing need for a sole custody order at this stage of the case?" Is it simply to reflect what has unilaterally become the de facto status quo? If so, it is not enough. The issue of custody of Chelsya remains a contested issue in the case. There appears to be no problem with the status quo continuing with respect to Chelsya. The father is not actively enforcing whatever custodial rights he may have contractually to have Chelsya spend more time with him. The current shared custody provision is one that pre-existed these proceedings by six years, and is one that the parties agreed to at the time of their separation agreement. For a judicially imposed change to take place, the parties seeking the change must demonstrate that it is in Chelsya's best interest to do so. There is a multitude of circumstances that the court is mandated to take into account in making such decisions.[5] The party seeking the order must meet this best interest test with admissible evidence that relates to the statutory mandate and considerations. The mother has not done that sufficiently to satisfy me that the order she wants should be made on an interim basis. Her claim for this relief is dismissed.

Child Support

[16] The main claims in this case involve child support. The separation agreement contained a provision that neither party would pay to the other any child support. This was based on their expectation that the children would spend equal amounts of time with each of them. This is no longer the case. Chelsya spends virtually no time with her father. According to the mother's most recent evidence, Coty now also resides with her full-time. This appears to be a more recent development.[6]

[17] There are a number of complications relating to the mother's support claim.

(a) She is seeking retroactive support.

(b) Each of the children's residential circumstances changed more than once over the retroactive period.

(c) The child Coty has since turned age 18.

(d) The claim involves not only table amount but also section 7 expenses child support.

(e) The circumstances of each of the children are different.

(f) The father maintains that the court should approach any determination of child support with respect to Coty by applying section 3(2)(b) of the Guidelines.

(g) The separation agreement created certain obligations with respect to payment of various expenses related to the children. These expenses and these obligations do not necessarily mirror expenses and parental obligations that are within the parameters established by the Child Support Guidelines.

(h) The evidence is deficient on the issue of child support.

[18] Firstly, I do not propose, on an interim basis, to deal with retroactivity. This can await a final hearing by which time there will be better evidence and an opportunity for that evidence to be tested.

[19] Secondly, the issue of hockey related expenses for Coty on a prospective basis is quite a complex one. It is not presently urgent. Moreover, the evidence is somewhat uncertain with respect to the quantum of these expenses and when they will be incurred. As I read the separation agreement, and assuming the parties agree that Coty's hockey is an "extracurricular" activity, it is the father who is responsible to pay for these expenses – and not necessarily to the mother. Accordingly, this issue can wait.

[20] Thirdly, the special expenses child support claim with respect to Chelsya also has some problems. These expenses appear to be in three categories: hockey, prescription eye, and dental services. I am not entirely sure that Chelsya's hockey even falls within section 7(1)(f). The eyewear expense is for contacts, allegedly needed to play hockey. Accordingly, these may not be health related so much as they are related to recreational activity equipment. As for dental services, these would normally fall within section 7(1) of the Child Support Guidelines. However, the mother has not quantified dental expenses at all. She has no receipts, nor any professional report confirming future dental work is required. None of these section 7 related claims for Chelsya is critical at the moment. I decline to deal with such claims on an interim basis, especially with the dearth of evidence relating to these. Finally, I note that the father has contractual responsibilities for extracurricular activities for both children and the mother and father each have certain responsibilities for medical and dental needs of the children (see paragraph 9(1) of the separation agreement).

[21] The Child Support Guidelines require that any determination made of an amount under the Guidelines must be done on the basis of the most current information. The most current information is that Chelsya and Coty reside "100 percent of the time" with their mother. Unfortunately, the mother neglects to say when Coty began to do so. A review of the evidence satisfies me that Coty, at least for the time being, stopped residing with his father around the end of February 2012, and has been primarily resident in his mother's home thereafter.

[22] From a prospective point of view, the Child Support Guideline tables provide a monthly quantum of child support for two children. This table requires the annual income of the support payor. This is unknown for 2012. However, his income for the years 2008 ($41,050), 2009 ($42,610) and 2010 ($45,138) are known. I am content, in the absence of 2011 financial data, to determine the father's annual income for 2012 interim child support to be $45,000. Any discrepancy of this figure from the actual figure (once known) can be readjusted in a final order.

[23] Accordingly, from March 1, 2012, the father should pay the mother as interim child support for the children Chelsya and Coty, based on his annual income determined at present to be $45,000, the Child Support Guideline table amount of $664 per month.[7]

[24] This is an interim order only. It recognizes that the children are living with their mother and they are no longer splitting their time equally between their parents. Should this circumstance change, an adjustment may be needed to an interim child support quantum.

[25] For an interim child support determination, I decline to apply the kind of approach described in section 3(2)(b) of the Child Support Guidelines.[8] To do so, I must first be satisfied that the approach in section 3(2)(a) is not appropriate. The onus of satisfying the court that the section 3(2)(a) approach is inappropriate falls on the party advocating the section 3(2)(b) approach. The father, in this case, has failed to do so. I might add that the court would require considerably more information to apply the section 3(2)(b) approach than it presently has.

[26] This interim order that I will be making under the Child Support Guideline tables is not intended to vary or change in any way paragraphs 8(2) to (7) or paragraph 9(1) of their separation agreement.

Procedural Matters

[27] There are two proceedings in this case: a motion to change and an application. Some claims are common to both. However, not all evidence filed by the parties is duplicated in both. For the evidentiary record, these Reasons and the decisions made herein have been made on the basis of the cumulative evidence in both proceedings. This should prejudice neither party as each has been served with all of the evidence in both proceedings.

[28] For the sake of avoiding any confusion, the interim child support order will be endorsed only in the proceeding started by motion to change, and it should be prepared accordingly.

[29] I suggest that the parties might be well served at this point by scheduling a case conference continuation to clarify how these proceedings will continue, what precisely will be the claims and the issues, and what evidence will be required to proceed to the ultimate hearing.

Released: April 11, 2012

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] R. 7(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support.

[2] S. 46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[3] The parties agreed contractually not to molest, harass or annoy each other. See paragraph 5(1) of their separation agreement. Of passing interest is the timing of the claims for a restraining order. The mother's case started in March 2011. There was no mention of a restraining order at that time. This only surfaced in December 2011. The father's Response and Answer never included such a claim.

[4] S. 31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[5] S. 24(2) Best interests of child.— The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[6] The mother's affidavit (at Tab 22) was served March 30, 2012 and the motion was argued March 22, 2012, insufficient time to respond to the 44 paragraphs contained therein. However, the father's affidavit at Tab 21 was served on the mother by mail on March 20, 2012. Pursuant to Rule 6(9), this service was effective only on March 25, 2012, three days after the motion was argued.

See R. 6(9) Service of a document by mail is effective on the fifth day after it was mailed.

[7] Based on the revised Child Support Guideline tables in force as of January 1, 2012.

[8] S. 3(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.