DATE: 2013·XII·17

Brampton Registry No. 85/13

CITATION: Dyson v. Duah, 2013 ONCJ 715

ONTARIO COURT OF JUSTICE

BETWEEN:

ALICIA LORRAINE DYSON,

Applicant

— AND —

PRINCE DUAH

Respondent

Before Justice Lise S. Parent

Heard on 13 December 2013

Reasons for Judgment released on 17 December 2013

Raymond Sharpe ............................................................................... counsel for the applicant

Daniel Furlan .................................................................................. counsel for the respondent

JUSTICE L.S. PARENT:—

BACKGROUND

[1] Ms. Dyson and Mr Duah are the parents of one child, namely Myles Xavier Dyson-Duah, born on 8 October 2007. Xavier is currently six (6) years of age.

[2] Ms. Dyson initiated a motion to change on 15 January 2013 which was subsequently amended on 11 October 2013. Ms. Dyson is seeking to change terms contained in three orders granted by Justice Geraldine F. Waldman on 14 August 2009, 16 November 2009 and 30 June 2011.

[3] Mr. Duah provided his initial response to the motion to change on 12 April 2013. He filed an amended amended response on 19 December 2013. These responses disputed the claims sought by Ms. Dyson and raised claims on his own behalf.

[4] At the opening of the hearing, counsel for the parties provided me with signed minutes of settlement that resolved many of the issues in dispute between the parties. After a review of the file and the minutes of settlement filed, a final order varying the orders of Justice Waldman dated 14 August and 16 November 2009 will issue on consent of the parties in accordance with the minutes of settlement dated 13 December 2013.

ISSUES

[5] The only issues before the court for determination are as follows:

1. Whether access between Xavier and his father should be on alternate Wednesdays after school to 8:00 p.m. as requested by Ms. Dyson or whether the Wednesday access should be weekly and continue until Thursday morning as requested by Mr. Duah;

2. Should additional time, namely an additional weekend during the months of January, April and September, be provided to Mr. Duah only if the Wednesday access is on alternate weeks and not an overnight as requested by Ms. Dyson or granted outright as requested by Mr. Duah;

3. Should Ms. Dyson be responsible for the transportation of Xavier to Mr. Duah’s residence on the Friday of the alternating weekend access the parties have agreed to or should Mr. Duah continue to be responsible for all transportation during his alternating weekend access;

4. Should the exchange of Xavier by his parents on the Sunday evening of the alternating weekend access continue to be at the Tim Horton’s located at 989 Harwood Avenue North in Ajax, ON as requested by Ms. Dyson or be relocated to the McLean Community Centre located at 95 McGill Drive, Ajax ON or in the alternative, the McDonald’s restaurant located at 1951 Ravenscroft Road, Ajax, ON as requested by Mr. Duah;

5. What income level should be allocated to Mr. Duah for child support purposes;

6. Whether Mr. Duah should be required to pay an equal share or a proportionate share towards the net after-tax costs of Xavier’s after school care; and

7. What arrears, if any, are owed by Mr. Duah towards the net-after-tax costs of Xavier’s afterschool care for the months of September to December 2013 inclusive.

[6] Counsel for the parties both agreed that direct testimony and cross-examination of the parties were not required. The hearing therefore proceeded on submissions by counsel based on the parties’ respective pleadings, sworn affidavits with exhibits and financial statements.

ACCESS

[7] Ms. Dyson seeks an order varying the orders of Justice Waldman dated 14 August and 16 November 2009 as follows, namely:

(a) that weeknight access between Xavier and his father be on alternating Wednesdays from after school until 8:00 p.m.; and

(b) if (a) is granted, one additional weekend in the months of January, April and September annually.

[8] Mr Duah is seeking a variation of these orders as follows, namely:

(a) that weeknight access between himself and Xavier be every Wednesday after school until Thursday morning when Xavier will be returned to school; and

(b) one additional weekend in the months of January, April and September annually.

[9] Justice Waldman’s orders provide as follows:

(a) Order of 14 August 2009

paragraph 5(b)(ii)

Xavier will be in the care of his father “every Tuesday, with pick-up at the Child’s daycare, and drop-off at 8:00 pm.” Justice Waldman’s order references this term as one being consented to by the parties in an earlier order dated January 29th, 2009; and

(b) Order of 16 November 2009

Paragraph 4

varies (a) above to provide that Xavier will be in the care of his father for “overnight access . . . on the Tuesday following the applicant’s mother access weekend with drop off and pick up at the day care”

Paragraph 5

provides that “On Tuesday following the respondent father’s access weekend, the father will pick up the child at daycare and return the child to the closest McDonald’s to Keele and Wilson..”

[10] A review of the evidence reveals that Xavier did spend weeknight overnight with his father for the period between November 2009 and August 2012. The evidence also reveals that, on some occasions during this period, Xavier was returned to his mother’s care on the Tuesday evenings because of work commitments on the part of Mr. Duah.

[11] The parties further agree that, in September 2012, Mr. Duah discontinued the weeknight visits. Mr. Duah’s evidence is that Ms. Dyson relocated her residence 85 kms away from his residence, enrolled Xavier in a new school and refused to assist in the access transportation. These factors, as claimed by Mr. Duah, made the weeknight travel requirements too onerous for him.

[12] Mr. Duah wishes to re-instate his weeknight access. The parties agree that Wednesday is an agreeable day, that the access would begin at 4:00 p.m. from after school and that Xavier would be picked up by Mr. Duah or his spouse directly at his school. The disagreement between the parties is limited to whether or not these visits should be weekly or every two weeks, and whether or not they are to be overnight.

[13] In support of her position that the access should be every second Wednesday and until 8:00 p.m., Ms. Dyson relies on the fact that Mr. Duah discontinued his weeknight access in September 2012. Counsel on her behalf submits that nothing has changed, namely the travel time and distances between their residences remains the same. Accordingly, weeknight access should be twice monthly and not an overnight so as to ensure consistency and stability for Xavier.

[14] Counsel for Mr. Duah submits that his client now has the assistance of his spouse to assist in the transportation of Xavier. Accordingly the sharing of this responsibility should eliminate any issues to access occurring Wednesday. Counsel for Mr. Duah submits that Xavier is scheduled to return to the soccer team coached by his father and that this activity is scheduled for Wednesday evening. Counsel submits that the travel time between the parties’ residences is 42 minutes, which is not a distance that should be overly taxing on Xavier as he is familiar with it given the existing alternate weekend schedule of access. For these reasons and the fact that Mr. Duah is capable of caring for his son overnight, he wishes the Wednesday visits to be weekly and for an overnight period.

[15] As submitted by counsel for both parties, the test for determining access is what order is in the best instead of Xavier. In making this determination, I have considered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (hereafter referred to as the CLRA). I have also considered other relevant factors including an absence of evidence that Xavier’s suffered adversely from the commute when his father did exercise midweek access, a prior participation by father and child in soccer; a concrete plan proposed by the father that will ensure a consistency in the exercising of this weekday access and a return of Xavier to school punctually, and the parties’ consent to a shared parenting arrangement during the summer months as evidenced by the terms of the minutes of settlement filed today.

[16] I am also mindful of the principle provided by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, [1996] S.C.J. No. 52, 1996 CarswellSask 199, namely that a child should have maximum contact with both parents if it is consistent with his best interest. I am satisfied that the evidence does establish that Xavier does have a loving and positive relationship with his father. Given all of the circumstances, I am of the view that the re-instatement of the weekly overnight visits would be in Xavier’s best interest.

[17] For all of these reasons, an order will go varying Justice Waldman’s orders to provide that Xavier will be in the care of his father every Wednesday from 4:00 p.m. after school to Thursday morning when he will be returned to school.

[18] An order will, however, not issue providing that Xavier be in the care of his father for an additional weekend during the months of January, April and September annually. Relying once again on the principle in Gordon v. Goertz, supra, Xavier must also have time to nourish his loving and positive relationship with his mother. To order this additional time would reduce the time between mother and son. I find that this would not be in Xavier’s best interests.

FRIDAY EVENING TRANSPORTATION

[19] Mr. Duah is seeking a variation of paragraph 5(a) of the order of Justice Waldman dated 14 August 2009. He is seeking an order requiring Ms. Dyson to be responsible for the transportation of Xavier to his care on the Friday attached to his alternating weekend access.

[20] Counsel for Mr. Duah has submitted that Ms. Dyson should be responsible for the transportation given that she relocated her residence to a greater distance without any prior discussion with him. Furthermore, counsel submits that Mr. Duah, should he be ordered access every Wednesday, would be responsible for transportation ten (10) times per month and Ms. Dyson only twice (2) per month. Increasing Ms. Dyson’s responsibility to four (4) times per month by including the alternating Friday evening, he submits, would still result in Mr. Duah’s having the larger share of the transportation responsibility.

[21] Ms. Dyson opposes the request. Her counsel submits that Mr. Duah was provided notice of the relocation and did not raise the issue of transportation at the time. He submits that the pattern has been that Mr. Duah has been responsible for the Friday evening transportation and Ms. Dyson for the transportation on the Sunday evening. He submits that there has been no material change in circumstances justifying a change in the status quo. Furthermore, he submits that placing the responsibility of the transportation on the shoulders of his client would result in significant hardship given her work commitments and distance to travel. Counsel submits and relies on the evidence of Mr. .Duah that he has the assistance of his spouse for transportation and there is no evidence to demonstrate that she cannot assist on Fridays as she proposes doing on Wednesdays.

[22] After a review of the evidence, I am not prepared to grant the request sought by Mr. Duah. Should this relief be granted, the effect would mean that Ms. Dyson would be responsible for all transportation attached to Mr. Duah’s weekend access. The pattern has been that the parties share equally in the transportation of their son during the weekend access. I do not accept the argument that the re-introduction of a weekday visit should result in an increase in transportation responsibility on the part of Ms. Dyson.

SUNDAY EVENING ACCESS EXCHANGE LOCATION

[23] Both counsel, during submissions, referred to this matter as a “high conflict” case. The characterization of this matter is evidenced by the number of court appearances that have occurred in this matter to date. There is also evidence that there has been police involvement during some of the access exchanges. Accordingly, both parties agree that the exchange of Xavier for access visits should occur at a neutral public location. The parties have agreed Xavier will be picked up at his school on alternate Fridays. I also order that the pick-up and return to Xavier on the Wednesday/Thursday weekly overnight visit be at his school.

[24] The issue in dispute between the parties is the location of the alternating Sunday access exchange.

[25] Mr. Duah seeks to change the current Sunday evening exchange location from the Tim Horton’s located at 989 Harwood Avenue North, Ajax ON to the McLean Community Centre located at 95 McGill Drive, Ajax ON or in the alternative, the McDonald’s restaurant located at 1951 Ravenscroft Road, Ajax, ON.

[26] Ms. Dyson opposes the request.

[27] The evidence of the parties is that, on consent, the Sunday access exchanges have been occurring at the Tim Horton’s for the past two months. There is no dispute between the parties that the exchanges should continue to be at a public location, given the continued conflict between them.

[28] Counsel for Mr. Duah submits that the community centre or, in the alternative, the McDonald’s restaurant, is more ideally suited for the exchanges. He submits that these locations offer options for Xavier, such as a library, a swimming pool or a playroom, should circumstances beyond the control of Ms. Dyson result in her being late to have Xavier returned to her care. Counsel for Mr. Duah submits that the options offered in his client’s proposed locations are far better than Xavier’s waiting in the Tim Horton’s eating area or parking lot.

[29] There is no evidence before me that demonstrates that Ms. Dyson has been late in arriving for the Sunday evening pick up of Xavier. Entertaining Xavier in these circumstances has not been necessary. If it were to be necessary, I can see no detriment to Xavier’s waiting for his mother’s arrival at the location consented to by the parties for the past two months. According, the request by Mr. Duah to change the exchange location on Sunday evenings is denied.

CHILD SUPPORT — BASE AMOUNT

[30] Both parties are seeking a variation of the order of Justice Waldman dated 30 June 2011. This order, which was granted in accordance with the consent filed by the parties, provides that Mr. Duah pay to Ms. Dyson, child support for Xavier in the amount of $817 per month commencing on 1 July 2011 based on an income of $92,438.85.

[31] There is no dispute between the parties that Mr. Duah is an elementary school principal or that Mr. Duah acknowledges his obligation to provide child support for his son. The evidence is that Mr. Duah has been in compliance with the order of Justice Waldman.

[32] Mr. Duah submits however that his obligation regarding child support should be ordered in accordance with the Child Support Guidelines, O. Reg. 391/97 (hereafter referred to as the Guidelines) at his current income. Counsel for Mr. Duah submits that this amount is $88,796 per year resulting in a monthly child support payment of $791.

[33] Ms. Dyson submits that Mr Duah’s income should be imputed to an amount higher than the amount supported by Mr. Duah’s 2012 notice of assessment. Counsel for Ms. Dyson submits that Mr. Duah’s income should be imputed to $120,000 per year or in the alternative, $109,000 per year.

[34] There is no dispute between the parties that Mr. Duah’s income is currently being reduced by 12.5% annually. Mr. Duah has submitted a letter dated 28 November 2013 from the Toronto District School Board as schedule “F” to his amended amended response. This letter confirms that Mr. Duah’s income as an elementary principal is being deducted by 12.5% effective 1 September 2011 until 31 August 2018.

[35] The undisputed facts leading to the reduction are as follows:

(i) On 10 June 2010, Mr Duah was accused of pushing a fellow teacher as they proceeded down the school hallway;

(ii) Mr. Duah denied the allegations throughout the investigation;

(iii) Mr. Duah received his salary for the period of time the complaint was under investigation;

(iv) The Toronto District School Board required Mr. Duah to return to work, namely the same school at which the complainant continued to work, during the investigation;

(v) Mr. Duah was provided legal advice from his counsel retained during this investigation not to return to the school to work in the same environment as the complainant;

(vi) Mr. Duah followed the advice of counsel and returned to work only in September 2011 when he was offered a new school placement;

(vii) The new placement was conditional on Mr. Duah’s accepting to repay the money paid to him during his leave from work for the period between June 2010 and August 2011;

(viii) The allegations against Mr. Duah were found to be unsubstantiated.

[36] Counsel for Mr. Duah submits that the 12.5% was agreed to by his client in order to safeguard his career and ensure employment. The only option, other than to accept the Toronto District School Board’s terms, was to initiate legal proceedings against the Board. Counsel submits that this option would have been costly, lengthy in duration and without a guarantee of success. In summary, Mr. Duah’s acceptance of the 12.5% reduction in salary was given under these circumstances. Imputing income to Mr. Duah therefore is not reasonable. Child support should therefore be fixed in accordance with section 16 of the Guidelines.

[37] Counsel for Ms. Dyson submits that the 12.5% reduction should not factor into the court’s determination of Mr Duah’s income. Counsel submits that subsection 19(1) of the Child Support Guidelines permits the court to impute income to a parent in appropriate circumstances such as when a parent is intentionally under-employed. It is within this framework that he raises the 12.5% reduction.

[38] Counsel submits that Mr. Duah could and should have returned to his employment as soon as the Board requested him to do so while the investigation of the complaint was underway. Counsel for Ms. Dyson submits that there is no medical evidence submitted by Mr. Duah to support any reasons why he could not have returned to his employment. In summary, counsel submits that Mr. Duah chose not to return to work and chose to accept a 12.5% reduction in his salary. This context, counsel submits, satisfies Ms. Dyson’s onus of satisfying the court that it is appropriate to impute income to Mr. Duah.

[39] Counsel for Ms. Dyson submits that Mr. Duah has not complied with disclosure orders granted in these proceedings. Specifically, counsel submits that Mr. Duah has not provided evidence what his current income would be without the 12.5% reduction to which he agreed. Accordingly, counsel, on behalf of Ms. Dyson, has advanced the position that Mr. Duah’s income should be imputed to $120,000 per year or, in the alternative, $109,000 per year.

[40] Ms. Dyson has provided the court with the 2013 Public Service Salary Disclosure list. Counsel points to the list as evidence that an elementary school principal earns an annual salary of $120,000. A review of the list, however, demonstrates a fluctuation in the salary levels for elementary school principals. This range of salaries goes from slightly over $105,000 to slightly over $123,000 per year. There is an absence of evidence before me to determine where in this range Mr. Duah’s salary lies. For these reasons, I am not satisfied that Ms. Dyson has satisfied her onus in order to impute income of $120,000 to Mr. Duah.

[41] In the alternative, counsel for Ms. Dyson submits that imputing an income of $109,000 is reasonable.

[42] Counsel refers to Mr. Duah’s notices of assessments for the years 2010, 2011 and 2012 that he has filed within these proceedings. This evidence establishes an annual income of $100,265 for 2010, an annual income of $109,461 for 2011 and an annual income of $81,228 for 2012.

[43] Counsel also refers to a statement of earnings and deductions from the Toronto District School Board dated 5 December 2013 and attached as exhibit “B” to Mr. Duah’s amended amended response. This document clearly establishes Mr. Duah’s annual salary at $88,796.00 per year. The document further establishes that the 12.5% reduction, identified as the “O/P Advance Recovery”, totals $13,697.53 per year.

[44] It is clear that caution should be used when exercising judicial discretion to impute income. Counsel for Mr. Duah submitted case law to support this proposition. However, I am satisfied from the evidence heard that an income level higher than the respondent’s declared 2013 net income of $88,796 must be imputed to him for child support purposes. In making this determination, I have taken the following factors into consideration:

(i) There was an element of choice associated with Mr. Duah’s refusal to return to work under the circumstances presented by the Toronto District School Board during their investigation. I accept that returning to work would have been, at a minimum, awkward for Mr. Duah; however there is an absence of evidence to suggest that a return to work was not possible;

(ii) There was also an element of choice associated with Mr. Duah’s acceptance of the Toronto District School Board’s offer requiring a payback of the funds paid to him upon his refusal to return to work. The evidence is clear that legal advice was provided to Mr. Duah that he should refuse the terms and dispute that his re-instatement as a principal be contingent on a recovery arrangement being implemented. I accept that this refusal would have perhaps resulted in litigation occurring within this context but this factor does not eliminate that a choice was made by Mr. Duah;

(iii) There is an absence of clear evidence provided by Mr. Duah to establish what his current salary level, less the 12.5% reduction;

(iv) The financial disclosure provided by Mr. Duah clearly establishes that his income levels in 2010 and 2011, being the years prior to the 12.5% reduction being agreed to, were $100,265 and $109,461 respectively;

(v) There was no evidence provided on behalf of Mr. Duah to support that his income level decreased in 2012 and onward other than for the 12.5% reduction; and

(vi) There is evidence to show that Mr. Duah received an increase in salary from 2010 to 2011, being the years prior to the 12.5% reduction.

[45] For all of these reasons, I am satisfied that Ms. Dyson has met her burden and find that an income of $109,000 is an appropriate level of income to be imputed to Mr. Duah for the purposes of child support.

[46] Ms. Dyson raised the issue of a variation of Justice Waldman’s order dated 30 June 2011 in her amended motion to change filed on 11 October 2013. Accordingly, Mr. Duah will pay child support in the amount of $950 per month commencing on 1 October 2013. There is no evidence before the court, nor has the request been made, that child support should be varied to a date prior to the filing of the amended motion to change.

CHILD SUPPORT — SECTION 7 CONTRIBUTION

[47] Paragraph 10 of the order of Justice Waldman dated 14 August 2009 and paragraph 1b) of the order of Justice Waldman dated 30 June 2011 provided that Mr. Duah contribute to the day-care costs for Xavier. This obligation was terminated effective 17 May 2013 by the final order of Justice Manjusha B. Pawagi dated 17 May 2013 and granted on consent of the parties.

[48] Ms. Dyson is seeking a contribution by Mr. Duah towards Xavier’s after-care school costs. Mr. Duah has consented to contributing to these costs. Counsel for the parties, at the beginning of this hearing, confirmed that the contribution by Mr. Duah would be to the net after-tax costs.

[49] The issue in dispute is: should Mr. Duah’s contribution be in proportion to the parties’ respective incomes or on an equal basis.

[50] Counsel for Mr. Duah submits that his client’s contribution should be in proportion to the parties’ respective incomes. Counsel submits this position in conjunction with the position that Mr. Duah’s income for child support purposes not be imputed.

[51] Counsel for Ms. Dyson seeks the status quo, namely that this expense be shared equally by the parties. She is not seeking a higher contribution by Mr. Duah should she be successful in having income imputed to Mr. Duah.

[52] There is no dispute between the parties that the after-school care for Xavier is an expense captured under section 7 of the Guidelines.

[53] The order of Justice Waldman dated 14 August 2009 clearly states at paragraph 10 that the day-care costs for Xavier were to be shared on an equal basis between the parties. Counsels for both parties submit that this in fact has been the pattern since separation. The evidence establishes that the request to share this expense proportionately has only been claimed in conjunction with Mr. Duah’s position that his income is $88,796.00 per year.

[54] Subsection 7(2) of the Guidelines states:

(2) Sharing of expense.— The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[55] In E.K.R. v. G.A.W. (1997), 122 Man. R. (2d) 120, [1998] 3 W.W.R. 534, 32 R.F.L. (4th) 202, [1997] M.J. No. 501, 1997 CarswellMan 543, the Manitoba Queen’s Bench held that the court may depart from the general rule that section 7 expenses are to be shared by the parents in proportionate to their respective incomes. The court noted that such an occurrence can occur in an unusual case and for good reasons.

[56] In its decision in Hennessy v. Hennessy, 3 R.F.L. (5th) 396, [1999] O.J. No. 4421, 1999 CarswellOnt 3841 (Ont. S.C.), the court exercised its discretion and reduced the support payor’s contribution to section 7 expenses to an amount lower than proportionate to the parties’ respective incomes.

[57] The evidence provided by both parties confirms that the pattern since separation has been that section 7 expenses incurred for the benefit of their son have been shared on an equal basis between the parties. This pattern has existed even during the years that clearly demonstrate that Mr. Duah earned a higher income than Ms. Dyson. Given these circumstances, I am satisfied that the sharing of Xavier’s net after-tax after-school costs should be shared equally by the parties. I make this determination notwithstanding the fact that I have imputed a higher income to Mr. Duah.

[58] Mr. Duah’s contribution to the net after-tax after-school care costs should commence as of 1 September 2013 and continue monthly save and except the months of July and August annually when Xavier is not in after-school care.

ORDER

[59] For the reasons expressed above, I make the following final order:

1. Paragraph 5(b)(ii) of the order of Justice Waldman dated 14 August 2009 and paragraphs 4 and 5 of the order of Justice Waldman dated 16 November 2009 are varied to provide that Xavier shall be in the care of the respondent-father every Wednesday commencing on 8 January 2014 from 4:00 p.m. to Thursday morning. The pick-up and return of Xavier by the respondent or his spouse will be at Xavier’s school;

2. Paragraph 1a) of the order of Justice Waldman dated 30 June 2011 is varied to provide that the respondent shall pay to the applicant the sum of $950.00 per month commencing on 1 October 2013 and on the first day of each month thereafter as child support for the one child of the relationship, namely Myles Xavier Dyson-Duah, born on 8 October 2007. This amount is based on an imputed annual income of $109,000 to the respondent;

3. The respondent shall contribute equally, commencing on 1 September 2013 and on the first day of each month thereafter until further order of the court or agreement by the parties, to the net after-tax after-school care costs for Xavier. This payment obligation will be suspended for the months of July and August annually when Xavier is not enrolled in this program.

4. A support deduction order will issue.

[60] Given the parties consent as evidenced by the filing of the minutes of settlement at the commencement of this hearing and the divided success by the parties regarding the issues left to the court to determine, I order that each party is to bear their own costs in this matter.

Released: 17 December 2013

Justice Lise S. Parent