Court File and Parties

Court File No.: WOODSTOCK D225/04 Date: 2013-01-22 Ontario Court of Justice

Between:

MARY JANE JANETTE TUTTLE Applicant

— AND —

JONATHON RICHARD TUTTLE Respondent

Before: Justice P. R. W. Isaacs

Heard on: December 14, 2012

Reasons for Judgment released on: January 22, 2013

Counsel:

• James Battin for the applicant
• Jonathon Richard Tuttle on his own behalf
• Trent Zimmerman for the Office of the Children's Lawyer, legal representative for the children

Reasons for Judgment

ISAACS J.:

Background

[1] The parties were married on August 4, 1990 and separated on August 1, 2002.

[2] As a result of their relationship two children were born, Jarrett Richard James Tuttle born October 19, 1994 and Tanner Jonathon Ross Tuttle born April 1, 1997.

[3] An Order was granted pursuant to Minutes of Settlement filed requiring the Respondent father to pay to the Applicant mother child support of $270.00 per month based on an annual income of $21,000.00. This Order was granted on 3rd of May 2007 with the children in the care and control of the Applicant mother and the Respondent to have the right of reasonable access.

The Motion to Change

[4] The father has brought the motion to change before this Court requesting joint custody of the children with the primary residence to be with the father with respect to Jarrett and Tanner to be in the primary residence of the mother. It wasn't until the matter appeared for trial that he declared he was seeking primary custody of both children and a representative of the Children's Lawyer's Office was appointed to represent the children and to provide input in respect to these matters.

[5] By the time this matter again reached trial, the child Jarrett had reached a degree of independence such that he is no longer deemed to be entitled to the issue of child support and the proceeding continues only in respect to the issue of Tanner. The father continues to claim custody of him.

[6] The mother agrees and consents to an Order that the child support for Jarrett should cease as of the first of July 2012.

Trial Proceedings

[7] After this trial had started the father during the latter part of his in-chief testimony, requested an adjournment of the trial. He indicated that his witness was not attending. The mother's counsel objected pointing out the father has delayed this proceeding in the past on a number of occasions, he also delayed the matter by not providing relevant disclosure although directed to do so and he didn't take any reasonable steps to produce the attendance of the witness by serving a subpoena. The father then requested that his witness testify by telephone and this was not permitted due to the immediate problems of ensuring the identity of the witness, giving testimony under oath and problems related to allowing fair opportunity for cross examination.

[8] At the opening of trial the representative from the Children's Lawyer's Office made representations on behalf of the child Tanner indicating that Tanner indicated he wished to remain in the care and control of his mother and that he was satisfied with the arrangement that existed for access to his father namely that it would be unrestricted and that he would be free to contact and attend at his father's as he desired. This was not opposed by either party.

Custody and Access Findings

[9] The father alleged during trial that both children resided with him for extended periods of time indicating full time residence with him for a period of approximately two years.

[10] This allegation was denied by the mother and in response to that she called Ms. Semple, a neighbour who gave testimony as to her observation of the children and their residency with the mother. While this evidence was not agreed upon by the father there was no demonstrable evidence to contradict this position nor was the evidence of Ms Semple successfully attacked other than the father alleging that the witness was lying this was also alleged by him about the evidence given by the mother.

[11] It is quite apparent from the evidence that the children have had access to the father in a liberal fashion going whenever they felt the inclination to do so including even staying over from time to time. However on the evidence that has been presented to this Court the finding is made that the permanent residency of the children has never been changed although there is some admission that the children have stayed over with the father on various occasions including a period of about three weeks.

[12] There has been nothing that has been presented that would justify finding that a material change in circumstances has occurred with respect to the issue of custody/access. In that regard that claim of the father is dismissed.

Child Support Findings

[13] With respect to the question of child support the father was shown during his cross examination copies of his annual income tax returns for the years starting at 2007 to date. He has agreed that his income for those years was as demonstrated in the schedule B that has been filed as Exhibit #8 to this proceeding that shows the income for the father from 2007 to April of 2012. As a result of that there has been demonstrated a marked underpayment by the father as the support payable was not adjusted in accordance with his actual annual income.

[14] In keeping with Exhibit #8 a finding is made that the father has underpaid his child support obligations to the mother each year up to December 31 2011. In accordance with the admissions as to the annual income of the father as set forth in Exhibit #8, I find that for the year 2007 the respondent paid $1933.64 and on his declared income he should have paid $2730.00 showing a balance not paid in the amount of $796.36.

[15] For the year 2008 on the declared income of $25,751.91 the father should have paid an additional $1031.40.

[16] For the year 2009 on an annual income declared in the amount of $14,377.00 the father underpaid his support obligations by the amount of $1267.13.

[17] For the year 2010 the father underpaid his support obligation by $177.89.

[18] For the year 2011 the father underpaid his support obligation by the amount of $3243.00.

[19] In respect to those amounts, the arrears of support will be adjusted. The total of those 5 years is $6515.78 which represents the total underpayment by the father in respect to his child support obligations for 2 children. The mother has acknowledged that the children did stay with the father from time to time and the mother offers and the Court is prepared to reduce the arrears noted by the sum of $360.00. Accordingly the arrears of support commencing January 1 2012 will be rescinded and replaced with arrears of support in the amount of $6155.78.

[20] With respect to ongoing child support for the year 2012 the father's obligation is set at the monthly amount of $304.00 payable up until the date of the end of June when Jarrett is no longer deemed to be entitled to child support. Thereafter commencing the 1st of July 2012 the father's child support obligation to the mother for Tanner shall be fixed in the amount of $158.00 monthly.

Costs

[21] Accordingly there will be an order for the variation of child support as indicated above and as a result of the findings related to custody and support the father shall pay to the mother her costs fixed in the amount of $3000.00 inclusive.

Released: January 22, 2013

Signed: "Justice P.R. W. Isaacs"