Court File and Parties

Court File No.: D-55758/12

Address: 47 Sheppard Av. E., Toronto, ON. M2N 5X5

Ontario Court of Justice

Between:

Janell Nadine Vernon Applicant

— And —

Lenford F.B. Roban Respondent

Before: Justice C.J. Jones

Heard on: September 18, 2012

Reasons for Decision released on: November 30, 2012

Counsel:

• Ms. Marie-Jose Beauplan-Mann for the applicant(s)
• Ms. Darnette Reid for the respondent(s)

Decision

C.J. JONES, J.:

Introduction

[1] This is a motion made by the applicant mother (referred to as 'the mother") for the following relief:

1. An order that the respondent, Lenford F.B. Roban, be found to be a parent to the child, Joel Alexander Vernon, born February 14, 2005, (referred to as "Joel") for the purposes of her claim for temporary child support.

2. An order that the mother have temporary custody of the three children, Joel, Jenesis Nadine Vernon-Roban, born January 6, 2010 (referred to as "Jenesis") and Jace Francis Vernon-Roban, born April 1, 2011 (referred to as "Jace");

3. A temporary order that the mother may apply alone for Canadian travel documents for the three children, without the consent of the respondent and that the mother may travel with the children, without the consent of the respondent;

4. A temporary order that the respondent's access to the children be at the discretion of the mother as to the frequency, duration and location;

5. A temporary order that the respondent shall not remove the three children from the City of Toronto without the prior written consent of the mother;

6. An order that an annual income of $65,000.00 be imputed to the respondent for the purposes of the mother's claim for temporary child support;

7. An order that the respondent pay temporary child support for the children in accordance with the Child Support Guidelines (referred to as " the CSG" or "the guidelines") based upon an imputed annual income of $65,000.00;

8. A temporary order that the respondent contribute to the CSG section 7 expenses for the children proportionately, based upon an imputed annual income of $65,000.00;

[2] There is also a cross-motion brought by the respondent wherein he is seeking the following relief:

1. An order increasing his temporary access to the children to Sunday from 9:00 a.m. overnight to Monday morning drop off at daycare, as well as weekday access, pick up from daycare on Monday evening and drop off at daycare on Tuesday morning. In his notice of motion, the respondent did not specify the child or children with whom he is seeking access. However, in submission, his counsel clarified that he is seeking temporary access only to the two youngest children;

2. A temporary order that the parties share the children's stroller;

As well, in his affidavit evidence filed on the motion, the respondent included a claim for temporary joint custody of the two youngest children. While this claim was not included formally in his notice of motion, it was clearly identified in his affidavit. The mother had effective notice of the claim, filed materials responding to the issue, and the temporary joint custody claim was addressed by both parties when the motion was argued.

Background Facts

[3] The parties were married on April 19, 2009 in St. Vincent. At the time of the marriage, the mother had a child of a prior relationship, Joel, born February 14, 2005, who was then four years of age.

[4] The parties had initially met two years earlier, in May 2007, when the mother brought her young son, Joel, in for a haircut to the barber shop in Toronto where the respondent was working as a barber. Joel would have been two years old at that time. The mother was a single mother raising her child alone, and the respondent was a national of St. Vincent, who was then in Canada. Joel became a regular customer of the barber shop where the respondent worked.

[5] According to the mother, in March 2008 she brought Joel in to the barber shop for a hair cut by the respondent. While the respondent was cutting Joel's hair, she and the respondent engaged in a conversation, at which time the respondent was complimentary of her and of the way she cared for her son. During this dialogue, the respondent informed the mother that he planned to leave Canada soon to return to St. Vincent for business reasons. He informed the mother he would like to get to know her better.

[6] Following this visit, the parties had one intimate encounter. It was around this time that the mother learned that the respondent was not, in actual fact, returning to St. Vincent for business. Rather, the mother learned that the respondent did not have legal status to remain in Canada, and that he was the subject of a removal order. The respondent left Canada at the end of March 2008. Both parties agree that, following his return to St. Vincent, the parties continued to maintain a relationship, culminating in their marriage one year later.

[7] Following their marriage, the mother returned to Canada, while the respondent remained residing in St. Vincent. Once in Canada, the mother applied to sponsor the respondent to immigrate to Canada legally, to reside with her and Joel as a family. Shortly after she returned to Canada, the mother learned that she was pregnant with the first of the couple's two biological children, Jenesis. Jenesis was born on January 6, 2010, and eight days later, the respondent was granted entry into Canada with legal immigration status. The youngest child, Jace, was born April 1, 2011.

[8] The parties separated on November 14, 2011. The three children have been living with the mother in her care since the date of separation. This action was commenced in January 2012.

[9] On June 13, 2012 an order was granted by Zuker, J. awarding temporary custody of the children to the mother, with temporary access to the respondent on Sunday from 9:00 a.m. until 7:00 p.m., conditional on the mother approving the respondent's premises. On this motion, both parties have treated that order as a without prejudice order, as there was no argument of the motion on the merits on that date.

[10] As well, on the same date a temporary, without prejudice child support order was granted, ordering the respondent to pay child support of $508.00 per month commencing July 1, 2012 based upon an annual income of the respondent of $35,000.00 and the CSG table amount for two children. In his endorsement, Zuker, J. indicated that there was an issue as to whether the respondent stood in the place of a parent to the oldest child, Joel, and hence the child support order was stated to be a without prejudice, temporary order.

[11] The respondent's position, on the argument of this motion, is that he is seeking temporary joint custody of his two biological children, with an expanded parenting plan or access schedule as it relates to those two children. The respondent takes the position that he is not a "parent" of the oldest child Joel for the purposes of the child support claim. Accordingly, he takes the position that he should not be obligated to pay child support for Joel.

Issue #1 – Entitlement of the Oldest Child, Joel, to Child Support

Issue #1 - The Law

[12] Section 1 (1) of the Family Law Act (also referred to as the FLA), sets out the definition of a "child" and a "parent" for child support purposes. That section reads as follows:

"child" includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family...

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family...

[13] The obligation of a parent to support his or her child is set out in sections 31 (1) of the FLA, which reads as follows:

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."

[14] In 1999, the Supreme Court of Canada considered the issue of a step-parent's obligation to provide support for a non-biological child, in the case of Chartier v. Chartier, [1999] 1 S.C.R. 242, [1998] S.C.J. 79. While the Chartier case was decided under the Divorce Act, the principles of the case are analogous to the principles applicable under the Family Law Act.

[15] In the federal legislation, the definition of a "child of the marriage" is addressed in section 2 (2) the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). This section states that, for the purposes of the definition of a "child of the marriage", a child of two spouses or former spouses includes "any child of whom one is the parent and for whom the other stands in the place of a parent."

[16] In the Chartier case, the spouses were involved in a relationship for a period of less than three years, and were married for only one year and three months of that time. The wife had a child from a previous relationship and the spouses had a biological child born during their cohabitation. While the spouses lived together, the step-father played an active role in caring for both children and was a father-figure to the older child, the mother's child from her first relationship. The spouses discussed, but did not proceed with, the step-father's adoption of the older child. The older child was as much a part of the family unit as the younger child.

[17] In that case, the Supreme Court of Canada held that the existence of the parental relationship must be determined as of the time the family functioned as a unit. The breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a person is a "parent" for the purposes of his or her support obligations to the child.

[18] In Chartier, the court held that in determining whether a person is a "parent", the court must take into account all factors relevant to that determination, viewed objectively. The court must make a determination of the nature of the relationship. The view of the child regarding his or her relationship with the step-parent is important, but it constitutes only one of the many factors to be considered in determining whether the person is a "parent" of the child. The representations of the step-parent are also a factor.

[19] In the decision, the Supreme Court of Canada acknowledged that the intention of the step-parent is a factor in determining whether he or she stands in the place of a parent. The court held that a step-parent's intention to treat a child as a child of his or her family will not only be expressed formally. The court must also infer intention from actions. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family.

[20] The Supreme Court of Canada expressed that, once a step-parent is found to stand in the place of a parent to a child, the step-parent acquires rights, as well as obligations, including the right to apply for custody or access to the child.

[21] This court finds that there is no substantive difference in the test under the Family Law Act, as to whether a person has demonstrated a settled intention to treat a child as a child of his or her family, and the test under the Divorce Act, as to whether a person stands in the place of a parent to a child. The intention of the step-parent is expressly referenced in the test under the FLA. In relation to the federal legislation, the Supreme Court of Canada has indicated that the intention of the step-parent should be taken into account, in applying the test under the Divorce Act, and in its decision the court has acknowledged that the express statements of the step-parent, as well as his or her actions and behaviour, including his or her interaction with the child, may be evidence of the step-parent's intention. The broad principles of the cases decided under the Divorce Act are instructive, when considering the test under the FLA.

Issue #1 - The Facts

[22] The evidence filed on the motion shows that, during the time immediately following the marriage, the mother and the respondent were engaged in a joint endeavour to obtain legal immigration status for the respondent, so that he would be able to return to Canada. Although the respondent continued to reside in St. Vincent, and the mother and Joel in Canada, the couple remained in touch through frequent telephone, email and online conversations. In his correspondence, the respondent continually pledged his love and commitment to the mother, as well as to Joel and the unborn baby. In their communications, the couple's discussions centred around their mutual wish to reunify the family in Canada.

[23] The evidence discloses that, while in St. Vincent, the respondent carried a picture of Joel taken for his 4th birthday. In an email message to the mother of August 2009, the respondent told her that he had been boasting to his co-workers about how fortunate he was to have a beautiful wife and a young son, Joel. He recounted to the mother that he had shown Joel's picture to his co-workers, and in response to their inquiries, he had informed them that Joel was his child, accepting their compliments for having such a handsome son.

[24] The email messages between the parents, filed on the motion, also reveal that in August 2009 the respondent wrote to the mother that he could not wait to take his "rightful place in our home" with the mother "and Joel and our unborn [baby]". He assured the mother that he was trying to "be a good father" and that he wanted to pass on his values, and work for his children. At the time the respondent wrote this statement, Joel was the only child of either parent. At that time, the mother was expecting the child, Jenesis, and the respondent's reference to his children could only be construed as a reference to Joel and the unborn child.

[25] The respondent also wrote to the mother in his email of August 4, 2009, telling her that "Joel is a good kid", but that he just needed "a man around to mentore (sic) him manly, and i can't wait to show him what i know, i love him and i know he loves me and we will be a happy family..."

[26] With the imminent birth of the baby, in November 2009 the mother wrote to Citizenship and Immigration Canada asking that her sponsorship application of the respondent be expedited. Jenesis was born in early January of 2010. Just over one week later, on January 14, 2010, the respondent was granted permanent resident status and returned to Canada to cohabit with the mother and the two children, Joel and Jenesis. As noted above, the parties' second biological child, Jace, was born the following year.

[27] Shortly after each biological child was born, the family dressed up for a family photograph. Each picture includes a beaming Joel. In the family photo taken shortly after Jenesis was born, the respondent's arm is wrapped protectively around Joel. In the family photo taken with baby Jace, Joel sits smiling atop the respondent's lap.

[28] It is the mother's evidence that Joel called the respondent "Dad", although the respondent states that he sometimes also referred to him as "Lenny". The child wrote his name as "Joel Roban" or "Joel Vernon-Roban", adopting the surname of his siblings, in cards and pictures for the respondent.

[29] Certainly, it would appear that Joel loved the respondent. The mother's material includes a child's picture, drawn by Joel for the respondent. The drawing has the appearance of a Valentine, having been drawn on a bright red background with one large heart, along with three smaller hearts appearing above a picture of a boy with short hair and a smaller figure, perhaps a baby. A larger male figure is drawn underneath the large heart. It has all of the charm of a drawing of a young child, with big smiles on the picture of the boy and the larger male figure. Scrawled across the drawing is the name of the child, "J. Roban", in carefully printed capital letters.

[30] In her material, the mother deposed that the respondent cared for Joel and Jenesis during the day time hours from February 1, 2010 when the mother resumed a government sponsored skills development program until April 23, 2010 when she completed her studies and internship. Funds from the training allowance received by the mother had been contributed to the expenses of sponsoring the respondent to return to Canada. The respondent indicates that, at that time, he worked as a barber only on Saturdays, given his child care responsibilities during the week-days.

[31] Shortly after the mother completed her studies, on May 1, 2010 the respondent resumed working at the same barber shop where he previously worked, while in Canada without immigration status. The respondent has been employed as a barber for approximately 16 years, both in Canada and in St. Vincent.

[32] Once he resumed his occupation on a full time basis, both parties agree that the respondent would work six days a week as a barber. The mother indicates that on Sundays the respondent would accompany the mother and the children to Church. The mother states that when the respondent was home, he would usually take on the responsibility of caring for Joel, while she would attend to the care of baby Jenesis, and subsequently following the birth of the second biological child in April 2011, the two babies. The respondent confirms that he took Joel to school each day before leaving for work at 10:00 a.m. He also attests that, in the mornings he would regularly make breakfast for the family. In his 2010 income tax return, the respondent claimed the child tax credit for the two children, Joel and Jenesis.

[33] The respondent agrees that he often worked late hours at the barber shop. The mother states that, upon his return home from work, the two youngest children were often already asleep. The mother maintains that, as a result, the respondent spent more time with Joel than he ever did with Jenesis and Jace.

[34] The parties separated on November 14, 2011. At the time of separation, Jace was only eight months old and Jenesis was under two years of age. At that date, Joel was three months shy of his seventh birthday.

[35] Initially, following the separation the respondent came by the home to see the children, sometimes dropping off groceries, baby supplies or small sums of money. He would see Joel as well, unless the visit was during school hours. In the months following the separation, the respondent also called the home to speak to the children, speaking by phone with Joel, or with Joel and Jenesis. Baby Jace was only one year of age at that time, too young to speak on the telephone.

[36] In his argument on this motion, the respondent takes the position that he is not responsible for the support of the oldest child, Joel. The respondent maintains that he did not have a settled intention to treat Joel as a child of his family. He acknowledges that, during cohabitation, he lived in the same house as the mother and Joel for 22 months, and at that time he "behaved kindly towards Joel and offered assistance financially, physically and emotionally when required". He also admits that whenever he was doing activities with his two biological children, he would also include Joel.

[37] The respondent maintains that Joel has a relationship with his biological father, although the mother's evidence is that Joel rarely sees his biological father. The mother states that Joel's contact with his biological father is very infrequent, and has been generally limited to Christmas or birthdays. In fact, the mother indicates that while Joel saw his biological father in February 2009, a span of three years elapsed before Joel saw him again in February 2012. The mother further advises that although a child support order has been in place since February 2006 requiring the biological father to pay child support of $163.00 per month for Joel, his biological father has never paid anything towards Joel's support. While the parties were cohabiting, the respondent provided for Joel's support equally with the other children.

[38] The mother states that, in the past, the respondent articulated that he was willing to adopt Joel. This statement was not denied by the respondent in his own affidavit.

[39] The mother indicates that Joel is very attached to the respondent, and that Joel only knows the respondent to be his father. After the separation, it was Joel who was asking when the respondent would be returning home.

[40] On January 6, 2012 the mother commenced the within proceeding, seeking custody and child support for the three children, as well as other relief. Unfortunately, after the commencement of the application, the respondent's interest in exercising access to Joel appeared to diminish. Although the respondent claimed access to Joel, as well as his two biological children, in his claim set out in his Answer filed in the proceeding, by the time the temporary, without prejudice child support order was granted, in June 2012, the respondent was no longer seeking access to Joel. As well, the respondent was taking the position that he should not be financially responsible for Joel. In her affidavit of July 23, 2012 the mother states that she fears that if the respondent now decides to ignore Joel, the child will feel he is being left behind.

Issue #1 - Analysis

Test on a Temporary Motion Where Entitlement is an Issue

[41] In her notice of motion, the applicant mother has framed the entitlement issue as a request for a finding that the respondent is a "parent" of the child, Joel, within the meaning of the Family Law Act, such that he has an obligation to provide support for the child. This is certainly the issue for trial. However, on a temporary motion where entitlement is in issue between the parties, the test is whether the mother has established a prima facie case that Joel is entitled to support from the respondent. This requires a determination as to whether, on its face, the evidence discloses facts that would support the finding, on the balance of probabilities, that the respondent has demonstrated a settled intention to treat Joel as a child of his family.

Evidence on the Entitlement Issue

[42] In the case before the court, there is evidence that the respondent made both express declarations, as well as implicit statements of his intention by way of his actions, confirming the parental role that he had assumed in Joel's life. The respondent took on the role of Joel's parent, from the time the parties married, even prior to the respondent's return to Canada to reside with the mother and the children, Joel and Jenesis, and subsequently Jace.

[43] The evidence before the court discloses that the respondent represented to the child, Joel, to the mother, and to the world, both explicitly and implicitly, that he was responsible as a parent to Joel. While still in St. Vincent, the respondent declared to his co-workers that Joel was his son. Upon his arrival in Canada, the respondent attended church with the mother and the children. The respondent took all three children with him on family outings. He took Joel to school every day. It would appear from the evidence filed on the motion that in the community, the respondent held himself out to be the father of Joel, as well as his own biological children. The respondent took part in the caregiving of Joel and his own biological children in the same manner. He provided for both Joel and his biological children financially and he claimed benefits for Joel, as his child, on his income tax return.

[44] The evidence also shows that Joel responded positively to the respondent's efforts to assume a parental role towards him. Joel viewed the respondent as his father and his parent, and Joel formed an emotional connection towards the respondent. During this time, Joel had very little contact or involvement with his own biological father, with the respondent almost entirely usurping this role.

[45] The respondent argues that he and the mother cohabited in Canada for a total of twenty-two months only, although they were married for nine months prior to the respondent coming to Canada. The period of time from the date of marriage to date the parties separated covered a period from the time Joel was four years of age until he was almost seven years, during which he looked up to the respondent as his father. Previous to that, the mother had been a single parent of Joel since prior to Joel's first birthday. The relationship would not have been of a brief duration from the perspective of Joel. Twenty-two months, to a six year old, is a substantial portion of his life.

[46] Considering the evidence filed on the motion, the mother has established not only a prima facie case, but a strong prima facie case that over the course of the relationship between the spouses, the respondent developed a settled intention to treat Joel as a child of his family. For the purposes of a motion for temporary child support, the mother has demonstrated that Joel meets the threshold of entitlement. Therefore, the temporary child support to be paid by the respondent should include temporary support for Joel, as well as the respondent's two biological children, Jenesis and Jace.

Issue #2 – Form of Temporary Custody Order in the Children's Best Interests

Issue #2 – The Law

[47] Pursuant to section 24 of the Children's Law Reform Act (referred to as "the CLRA"), the merits of an application for custody of or access to a child are to be determined on the basis of the best interests of the child.

[48] Section 24 (2) of the CLRA refers to a number of factors to be weighed by the court in determining a child's best interests. Among them are the love, affection and emotional ties between the child and each person claiming custody of or access to the child, as well as between the child and other members of the child's family who reside with the child. Along with other factors, in making a decision as to the child's best interests, the court is also directed to consider the plan proposed by each party for the child's care and upbringing and the ability of each party to act as a parent.

Issue #2 – The Facts

[49] The respondent claims temporary joint custody of the two youngest children. He maintains that he has a very close relationship with his two biological children, and that during cohabitation, he shared with the mother the parenting duties for those children. He states that there is a close bond between himself and the children. The mother maintains that the two youngest children spent limited time with their respondent, as they were of a very young age and he was working outside the home six days a week for long hours. She maintains that she did the bulk of the parenting of the two youngest children prior to the separation. As noted above, the mother states that the respondent assumed a more significant role in the parenting of Joel than he did towards the two younger children.

[50] Both parents acknowledge that the children should have regular, ongoing contact with the respondent and that it is in the children's interests that they maintain a good relationship with him. Both parents agree that the children should have the benefit of the love of both parents. The difference between their respective positions is that the mother is of the view that this should extend to all three children, while the respondent includes only the two youngest children.

[51] The respondent asserts that, during cohabitation, the parties were able to make joint decisions pertaining to the children. The mother maintains that, since the separation, both the communication and the level of respect between herself and the respondent has broken down.

[52] In terms of matters ancillary to custody, both parents have extended family members outside of the country, and both expressed concerns that the other would remove the children from Canada and not return. Neither parent provided evidence of any planned upcoming travel with the children, either within Canada or beyond Canadian borders. The mother indicates that she would like to obtain passports for the children, presumably for any future travel.

Issue #2 – Analysis

[53] The three children have been in the mother's care since separation. On this motion, the respondent does not seek to change the children's primary residence. He wishes to have temporary joint custody of the two youngest children only, and to have expanded access with them.

[54] Based on the evidence filed on this motion, the court is of the view that it would not be appropriate to make a temporary joint custody order in relation to the two youngest children. There is little or no evidence of positive communication between the parents at present, nor of a cooperative relationship between them currently.

[55] Further, there are three children in this family. Many major decisions relating to a child may have an impact upon the other children in the family or may affect all of the children in the family. One of the factors parents may consider in selecting a school, daycare program or summer camp for a child may be the fact that the child's siblings also attend at the same location or program. It is common for siblings to have the same family doctor and paediatrician and for their appointments to be arranged together. If one child is enrolled in an extra-curricular activity, an activity for his or her siblings may also be sought, appropriate to their age, stage of development and interests, so that there is some parity maintained between the children.

[56] From the children's perspective, they are siblings of one another and have been raised together as a family. There is a bond between each of the children as brothers and sister. The mother's plan for the children takes into account the emotional ties between the three children.

[57] At this stage, the mother is the only parent who has demonstrated an ability to consider the interests of all three children in an equitable manner. The respondent clearly prefers the interests of his own biological children over those of Joel. It is not in the interests of either Joel or the two younger children for there to be preferential or favoured treatment of two of the children over the remaining third child. The mother is sensitive to the needs of all three children, although at this time, the respondent is focused only upon the younger two. At this stage, the mother should continue to be entrusted with decision-making pertaining to the children. The current order, granting temporary custody of the children to the mother, remains in the children's best interests.

[58] The parents should share important information with one another pertaining to the children, and the mother should seek the input of the respondent prior to making any major decisions for the children. The sharing of information and the input regarding major decisions may be exchanged between the parents by way of a communication notebook, to travel back and forth with the children on access.

[59] The parents should cooperate to obtain passports for the children. If the parents are unable to cooperate in this regard, then the mother, as the custodial parent, should be permitted to apply for their passports and to hold the passports for the children. As there is no evidence of any planned or pending travel with the children, this issue need not be addressed by way of a temporary order at this time. It is suggested that the parents engage in settlement discussions, possibly with the assistance of a mediator, to resolve this issue on an amicable basis. If the issue is not settled, and travel with the children outside the country is contemplated, the matter may be brought back before the court.

Issue #3 – Temporary Access Schedule in the Best Interests of the Children

Issue #3 - The Law

[60] In relation to the respondent's claim for temporary access to the children, the test that the court must apply is the test set out in section 24 of the CLRA, referred to above. This involves a consideration of the best interests of the child or children.

Issue #3 – Facts

[61] In the context of his claim for access, the respondent deposes that he does not work on Sunday, and that Mondays and Tuesdays are slow days. He requests access to his two biological children for these days, beginning on Sunday, overnight through to Tuesday morning. The respondent proposes that the Sunday pick up time would alternate, on a week to week basis, with the respondent to pick up the children at 9:00 a.m. on the first week, and after church on Sunday, on the second week, and alternating thereafter, so that the mother can take the children to church at least once every alternate week.

[62] Initially, in her affidavit of July 23, 2012, the mother was requesting that the respondent's access be for no longer than four hours at a time, and that the pick up of the children occur after church on Sunday. Subsequently, in her affidavit sworn August 26, 2012 the mother suggested that the respondent's access increase to every other Sunday, from Sunday morning overnight to Monday morning at 9:00 a.m. However, in the following paragraphs, the mother indicated that she was seeking supervised access between the respondent and the children, due to her concerns that the children were being negatively influenced by the respondent. She further indicated that when she visited the respondent's new home, she noted that he did not have proper accommodation for the children to stay overnight.

[63] In relation to the temporary access schedule proposed by the respondent, the mother expressed concern about the impact on Joel of seeing the two younger children having regular access visits with the respondent, while being excluded from these visits. She argued for shorter visits, to lessen any disappointment that might be experienced by Joel. The mother states that Joel misses the respondent and wants to have visits with him. The mother argued that, in considering the access issue, it is not only the interests of the two younger children that are relevant, but also the interests of Joel.

Issue #3 – Analysis

[64] The court is of the view that the two younger children should have an opportunity to spend time with the respondent and to develop a relationship with him. Unfortunately, if the respondent chooses to exercise access only to the two younger children, there may be a negative impact upon Joel, as a result. The court must balance the best interests of all three children, and attempt to craft an order that is sensitive to the needs and interests of all three.

[65] In terms of access, the court is mindful of the fact that any expansion of the respondent's access to the two younger children may deepen Joel's feelings of rejection. It may be difficult for Joel to comprehend the reasons why the respondent is wishing to visit with the two younger children only and to understand why the respondent does not wish to visit with him as well. He is likely to feel overlooked and left out. Similarly, the younger children will not be able to grasp the respondent's rationale for this decision. Joel is only seven years of age and the younger children are pre-schoolers. This is an issue that affects the best interests of all three children.

[66] The two younger children have not yet had an overnight visit with the respondent. Given the young ages of Jenesis and Jace, any access expansions should occur gradually, and should begin with one overnight visit. Beginning the expansion of access gradually will also soften any negative effects upon Joel, arising from being excluded from the visits. The respondent should make arrangements to provide appropriate sleeping accommodations for the children.

[67] The respondent's day off is on Sunday, and Mondays and Tuesdays are his slow days at work. The access schedule may be fashioned to correspond with the respondent's work schedule. The access schedule should also allow for the possibility of including Joel in the access, should the respondent have a change of heart in this regard.

Issue #4 – Appropriate Level of Temporary Child Support

Issue #4 - The Law

[68] The obligation of a parent to support his or her child is set out in section 31 (1) of the FLA, which reads as follows:

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."

[69] Section 33 (11) of the FLA addresses the applicability of the Child Support Guidelines (referred to as "the CSG" or "the guidelines") to child support, as follows:

s. 33 (11). "A court making an order for the support of a child shall do so in accordance with the child support guidelines."

[70] Pursuant to section 5 of the CSG, the court has some element of discretion in relation to the application of the guidelines to a step-child. This section reads as follows:

s. 5. "Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent's legal duty to support the child."

Issue #4 - The Facts

[71] In order to address the issue of temporary child support, the first inquiry is to determine the respondent's level of income. There is a difference of view between the parties as to the respondent's earnings. The mother maintains that the respondent is in a very good financial position. She states that the respondent earns considerable cash income in his work as a barber, as well as earning tips. She calculates that during the marriage, the respondent paid an average of $1,600.00 per month towards the family expenses. The respondent does agree that, following the birth of Jace and prior to separation, he was the only parent with a job, and therefore he had to maintain the family on his income.

[72] The mother deposes that, following the separation, the respondent was able to fully furnish his own residence with new and expensive furniture and electronics. She further states that the respondent is in the process of building a house in St. Vincent, and that, since separation, he has taken a vacation back to St. Vincent and the Grenadines for the carnival. In his affidavit material, the respondent does not deny these statements.

[73] In this proceeding the respondent filed a financial statement, sworn February 9, 2012. The respondent did not file an up-date to his financial statement, prior to the argument of the temporary child support motion. The respondent's financial statement shows a net income of $2,800.00 per month, and does not show the receipt of any tips or gratuities at all. His budget is approximately $2,630.00 per month, very nearly matching his net income. His budget does not include his chair rental at the barber shop. This is consistent with the inference that the figure of $2,800.00 per month, shown on the respondent's financial statement, is his stated net income.

[74] The respondent's financial statement shows various contributions that he claims to have been making at the time the financial statement was sworn. Among his expenses is an item of $600.00 per month, paid towards "support for children living with the Applicant Mother – groceries and rent". His financial statement also includes an expense of $100.00 per month for "Clothing for children" and $50.00 per month for "Children's activities". In his affidavit evidence, the respondent states that from the date of separation until June 2012, when the without prejudice temporary order was granted, he paid $650.00 per month to the mother on account of child support, although he maintains that he was unable to afford this level of support.

[75] The respondent's income tax return summary for 2010, attached to his financial statement, is unhelpful in determining his income. For 2010, the respondent's only income shown on his tax return was the universal child care benefit for the two children, Joel and Jenesis. The respondent did not show any income from his occupation as a barber on his tax return, notwithstanding his evidence that he worked part-time on Saturdays as a barber, from the time he arrived in Canada in January 2010 until the end of April 2010, and thereafter, he worked six days a week as a self-employed barber, from May 1, 2010 onwards, for the balance of the year. The respondent did not file any other tax documentation or financial disclosure on the motion.

Issue #4 - Analysis

[76] In relation to the determination of the respondent's income, the court notes the mother's evidence that the respondent earns cash income in his occupation as a barber. This statement is corroborated by the respondent's 2010 Income Tax Summary. The court finds the net self-employment income of the respondent to be no less than $2,800.00 per month, namely the amount shown on the respondent's financial statement of February 9, 2012.

[77] In addition, the court accepts the submissions of the mother that the respondent works in an occupation wherein it is customary to receive tips and gratuities. In submissions, the respondent conceded this to be the case. The evidence as to the amount of gratuity income earned by the respondent was very scant. For the purposes of the temporary child support order, the court makes the finding that the minimum amount that would be earned by the respondent on account of tips and gratuities would be an average of $12.00 per day for 25 days worked per month, based on the respondent's six day work week. This amounts to a minimum amount of $300.00 per month in income from tips and gratuities. When added to regular earnings, this would result in net earnings to the respondent of $3,100.00 per month or $37,200.00 per year.

[78] Support for three children at an income level of $37,200.00 would be $722.00 per month, compared with support for two children of $535.00 per month. The differential between these two amounts is $187.00 per month.

[79] Taking into account the provisions of s. 5 of the CSG, the court determines that the respondent should pay temporary child support for the three children, in the sum of $675.25 per month, retroactive to June 1, 2012, the month in which the temporary child support motion was filed. This amount applies a modest discount of 25% to the additional amount of child support payable for the third child (the differential referred to above), resulting in the subtraction of the sum of $46.75 from the guideline amount.

[80] This sum is an amount which the court considers fair and appropriate in the circumstances, taking into account the evidence of the respondent's unequivocal acceptance of a parenting role towards Joel during cohabitation, the respondent's financial circumstances, the child support guidelines, and the obligation of Joel's biological parent to contribute to his support notwithstanding that no support is actually being paid by him.

[81] The respondent will be credited with any amounts he has actually paid on account of child support pursuant to the temporary, without prejudice child support order granted on June 13, 2012.

Issue #5 – Temporary Order for Payment of Children's Special or Extraordinary Expenses

[82] In relation to the claim for the children's s. 7 CSG special and extraordinary expenses, the mother indicates that she needs to return to work and that she anticipates future daycare expenses for the children when this occurs. The position of the respondent on the motion is that he will pay his proportionate share of the children's daycare expenses, if the mother provides documentary proof that the children are enrolled at daycare and evidence of the childcare cost. The respondent's proportionate share should relate to the after-tax costs of the daycare expense, in accordance with section 7 of the guidelines. The mother's anticipated income would be relevant to this equation. This information was not included in the evidence on this motion. In submissions, the mother indicated, through counsel, that she would not be seeking employment until she completed a further retraining course.

[83] On a motion for temporary relief, it would not be appropriate to make an order for future section 7 special and extraordinary expenses for the children, when the amount and timing of these expenses is uncertain, and when there is insufficient evidence before the court pertaining to the after-tax amount of the expenses and the mother's income, factors which are necessary determinants to any decision.

[84] Once the mother completes her retraining course, the parents are encouraged to have direct discussions to attempt to resolve the issue of the children's anticipated daycare expenses. At that time, the parties should exchange the necessary documentation that is required, in order to calculate the after-tax costs and the proportionate shares of each parent. If the parties are unable to agree, the matter may be brought back before the court with the necessary evidence.

Issue #6 – Respondent's Claim for Shared Use of Children's Stroller

[85] The respondent has included a claim for an order that the children's stroller be shared between the parties, and that the stroller accompany the children on access visits with the respondent. The mother opposes this claim, indicating that she does not trust the respondent. The evidence discloses that the stroller was purchased prior to separation, with the respondent indicating that he purchased the item, while the mother indicates that the children's stroller was purchased by the parties together.

[86] Ideally, separated parents will be cooperative with one another over issues pertaining to the children, and will allow children's belongings and items required by the children during access to move freely between the parents on the exchanges. This requires a certain level of cooperation and respect between the parents, and a commitment from both of them to treat borrowed or shared belongings carefully, and to return the items in good and serviceable condition. Parents who have a civil, courteous relationship will willingly cooperate over such matters without the necessity of a court order. Parents who do not have such a relationship are not good candidates for the borrowing or sharing of chattels between them. It would be very difficult for the court to mandate thoughtfulness and courtesy to the other parent, respect for shared or borrowed property and consideration of the interests of the other party to ensure that property is cared for and well-maintained while on loan.

[87] In argument, counsel did not address the issue of the jurisdiction of the court to make an order for the sharing of the stroller, and in the view of this court, it is doubtful that such jurisdiction exists. Even if it does, it is the view of this court that the court should not wade into the area of making orders for shared or borrowed belongings, particularly when the level of courtesy and consideration that is necessary for such terms to be a success, does not appear to exist in the particular case.

Temporary Order

[88] Based on the foregoing, there will be a temporary order as follows:

1) The mother will continue to have temporary custody of the three children, Joel, Jenesis and Jace;

2) The respondent will have temporary access to the children as follows:

a) For a period of three months, every Sunday from 1:00 p.m. until Monday morning at 9:00 a.m.;

b) Thereafter, every Sunday commencing at 9:00 a.m. until Monday morning at 9:00 a.m. on week 1, and every Sunday commencing at 1:00 p.m. and continuing until Monday morning at 9:00 a.m. on week 2, and alternating thereafter.

c) Every Tuesday, from 4:00 pm until 7:00 pm;

d) Such additional access as the parties may agree;

e) By agreement, the parties may alter the access times and dates set out above.

f) The respondent shall make arrangements to provide appropriate sleeping accommodations for the children, for any overnight access.

3) The foregoing access shall involve the respondent and the two youngest children, Jenesis and Jace. If the respondent wishes to include Joel for any individual access visit, on 24 hours advance notice to the mother, he may request that Joel be included and such access shall be subject to Joel's wishes. If the respondent wishes to include Joel for regular, ongoing access, he will notify the mother in writing, at least two weeks in advance, and such access shall be subject to Joel's wishes.

4) The children shall not be removed from the Province of Ontario without the written consent of both parents or a court order.

5) Both parents shall share important information with the other, pertaining to the children. For this purpose, the parties shall ensure that a communication notebook travels back and forth between the parents during the respondent's access to the children.

6) Either parent may obtain information about the children from any third-party professionals involved with the children, including the children's teachers, other school personnel, doctors, dentists, etc.

7) The mother will keep the respondent informed of any major decisions relating to the health, education, religious instruction, extra-curricular activities or social environment of the children. Prior to making a non-emergency major decision regarding any child, the mother will furnish the respondent with a reasonable opportunity to provide his input regarding the decision to be made. The mother will give consideration to his views, prior to making the decision in accordance with the best interests of the child or children involved.

8) The mother may apply for passports for the two youngest children, and shall present the passport applications to the respondent, along with her request for his signature. The respondent shall sign the passport applications within 14 days of the mother's request for his signature, and in the event that he fails to do so, the mother may apply for passports for the children without the respondent's consent. The respondent's consent shall not be required for any passport applications or renewals for the child, Joel. The mother is to hold the passports for the children.

9) Commencing retroactively to June 1, 2012, the respondent will pay temporary child support to the mother for the three children, in the sum of $675.25 per month, based upon an imputed income to the respondent of $37,200.00 per year and taking into account s. 5 of the CSG.

10) The respondent will be credited with any payments of temporary child support paid to the mother pursuant to the without prejudice, temporary order of Zuker, J. dated June 13, 2012.

11) The claim by the respondent for the sharing of the stroller is dismissed.

Costs

[89] There is a claim for costs in the Notice of Motion. The parties may have direct discussions to address the claim for costs. If the parties are unable to agree upon the issue of costs, the applicant mother may serve and file her written submissions as to costs, limited to 3 pages in length plus any bill of costs, within 14 days of the date hereof. The respondent may file his responding submissions, limited to 3 pages in length plus any bill of costs, within 10 days of receipt of respondent's costs submissions, and the respondent may file her reply, if any, (limited to a reply to any new matters raised by the respondent), within 4 days thereof. The costs submissions of each party, along with proof of service, are to be filed with the Trial Coordinator of this court, or may be forwarded to the Trial Coordinator's attention by facsimile, within the timelines set out above.

Released: November 30, 2012

Signed: "Justice C.J. Jones"

Footnotes

1. Chartier v. Chartier, [1999] 1 S.C.R. 242, [1998] S.C.J. 79 at paragraph 36.

2. Ibid, at paragraph 37.

3. Ibid, at paragraph 39.

4. Ibid, at paragraph 38.

5. Ibid, at paragraph 39.

6. Ibid.

7. Ball v. Broger, [2010] O.J. No. 5824, 2010 ONCJ 557, 96 R.F.L. (6th) 229, 2010 CarswellOnt 10352 (OCJ); McCann v. McCann, [1996] O.J. No. 2212, 63 A.C.W.S. (3d) 1343, [1997] W.D.F.L. 631, 7 O.T.C. 148, 1996 CarswellOnt. 2534 (Ont. Gen. Div.-Family Ct.).