Court File and Parties

Court File No.: FO-11-000236 Date: 2014-07-24 Ontario Court of Justice

Between:

SCOTT RUSSELL MORENCY Applicant

— AND —

RENEE YAREMCIO (now known as Renee Sauve) Respondent

Before: Justice Barry M. Tobin

Heard on: July 9, 2014

Released on: July 24, 2014

Counsel:

• Scott Russell Morency on his own behalf — the applicant
• Michael D. Frank — counsel for the respondent

TOBIN J.:

REASONS ON SUMMARY JUDGMENT MOTION

1: THE MOTION

[1] The respondent ("mother") moves for the following relief by way of a motion for Summary Judgment:

a) An order granting the respondent custody of the child of the relationship; namely, Seagin Lucas Sauve, born September 1, 2009;

b) An order for the applicant to pay child support to the respondent for the support of the child of the relationship, Seagin Lucas Sauve, born September 1, 2009 in the amount of $621 per month commencing January 1, 2014 in accordance with the Child Support Guidelines based upon annual income of $68,000;

c) An order for the arrears of child support, owing by the applicant to the respondent, for the subject child be fixed in the sum of $27,344 as of December 31, 2013;

d) An order for the applicant to provide the respondent with a copy of his Income Tax Return and Notice of Assessment each year by May 31; and

e) An order for the applicant and respondent to contribute in proportion to their respective incomes to any Section 7 expenses as defined in the Child Support Guidelines including child care costs and non-insured medical expenses.

[2] The applicant ("father"), the responding party on this motion, opposes certain of relief sought by the mother. He asks that the motion be dismissed with respect to custody of the child and retroactive child support and that the matter proceed to trial to determine if (1) joint custody is in the child's best interests and (2) whether retroactive child support should be ordered. He did not oppose an order being granted with respect to ongoing child support.

2: LEGAL CONSIDERATIONS – Summary Judgment Motions

[3] Rule 16 authorizes the bringing of a summary judgment motion in cases where issues include custody and access and child support: Family Law Rules ("F.L.R.") 16(1) and (2)

[4] When bringing a summary judgment motion, the moving party is required to serve and file evidence that sets out specific facts showing there is no genuine issue requiring a trial: F.L.R. 16(4)

[5] The party responding must present evidence that is more than mere allegations or denials. Specific facts showing there is a genuine issue for trial are required: F.L.R. 16(4.1)

[6] The court is entitled to assume the record on the summary judgment motion contains all the evidence the parties would present at trial: Toronto Dominion Bank v. Halton, 2012 ONCA 614, para. 5

[7] If the court finds there is no genuine issue requiring a trial, a final order shall be made accordingly. F.L.R. 16(6) is mandatory.

[8] The test for granting summary judgment is met when the moving party satisfies the court there is no genuine issue requiring a trial.

[9] The onus is on the moving party to meet this test.

[10] On this motion, the court's function is not to resolve issues of fact, assess credibility or weigh the evidence.

[11] It has been held that "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the moving party." Children's Aid Society Niagara Region v. C.(S.)

3: Is there a genuine issue that requires a trial with respect to the issue of custody?

3.1: Facts

[12] I make the following findings of fact based on the record before the court.

[13] The parties are the parents of a child, Seagin Lucas Sauve, born September 1, 2009 ("Seagin" or "the child").

[14] The parties never cohabited in a relationship of some permanence. Seagin has lived with the mother since his birth.

[15] On February 22, 2012, the mother was granted an order for interim residency of Seagin. The father was granted defined access.

[16] The mother has no other children nor has she been a party in any other court cases involving custody or access to any child. She has no criminal record nor is she currently charged with a criminal offence. She has not been a party or a person responsible for the care of a child in child protection proceedings.

[17] The mother cohabits with her husband, Shawn Sauve who she married on January 11, 2013. The home in which the mother, her husband and the child now reside has four bedrooms. Seagin has his own room. The child attends Belle River Public School.

[18] Shawn Sauve has not been involved with the Children's Aid Society nor found guilty of a criminal offence.

[19] The mother proposes to make the decisions including education, medical care, religious upbringing, extracurricular activities and other significant decisions relating to the child.

[20] The mother attends school at St. Clair College on a full-time basis. While she is at school, child care has been arranged.

[21] The mother proposes to have Seagin have regular contact with her and the father's extended families.

[22] The child does not have any special medical, educational mental health or developmental needs.

[23] The father has acted as a parent to two other children:

a) Sarah Morency is 17 years of age and resided with him until June 2013; and

b) Shane Morency is 14 years of age and does not live with him.

[24] The father has not been involved in any other cases relating to custody of or access to a child nor has he been a party or a person responsible for the care of a child in child protection proceedings.

[25] In March 2010, the father was convicted of assaulting and uttering threats toward the mother. He was sentenced to 45 days in jail, served intermittently, and placed on probation for a period of one year. One of the terms of probation was he not attend at the mother's residence nor have contact with her. The father was subsequently convicted of breach of probation and dangerous driving, and again received a further sentence of incarceration served intermittently and a two year probation order that included a term he not associate with the mother. These later offences arise from his actions toward the mother.

[26] The probation orders have expired.

[27] The mother and father do not communicate directly. The relationship between them has been going well recently. He attended at a birthday party for his son at the mother's house. The parties talk and text when needed.

[28] Pick up and drop off for access is at Tim Horton's or such other location as is convenient to the mother, including her home or the maternal grandmother's home.

[29] The mother's husband, who is on reasonable terms with the father, attends at the exchange for the mother.

3.2: Legal Consideration – Custody and Joint Custody

[30] The merits of custody applications are determined on the basis of the best interests of the child: Children's Law Reform Act ("C.L.R.A."), s. 24(1).

[31] When determining best interests, the court is to consider circumstances set forth in C.L.R.A. ss. 24(2), (best interests considerations); 24(3), (past conduct); and 24(4), (violence and abuse).

[32] An essential aspect of joint custody is that the parents share decision making responsibility. In a joint custody arrangement, neither parent has the right or responsibility to make unilateral decisions regarding significant matters pertaining to the child absent emergency circumstances.

[33] In Kaplanis v. Kaplanis, the court held that joint custody was not appropriate in conflictual parental relationships where there had been no history of cooperation or communication between the parties.

3.3: Analysis

[34] I find that there is no genuine issue that requires a trial to determine that custody of the child should be granted to the mother for these following reasons:

a) She has provided a stable and secure home for the child since his birth;

b) She has the ability and the desire to continue to provide for the care of the child;

c) The child's needs are being appropriately met by the mother and her plan for the child's care and upbringing is proper;

d) The father is not asking for primary residence of the child.

e) The parties have had a history of conflict between them such that the father was convicted of criminal offences and was incarcerated and placed on probation that included a term he not communicate with her.

f) There is no evidence that the parties have a history or show a present ability to communicate on matters related to the care and upbringing of the child, save for making access arrangements. It is to the credit of the parties and in the best interest of the child that the parties have been able to develop a regime of access. This access continues to involve the mother's partner.

g) The level of cooperation and ability to communicate between a mother and a father is not sufficient to allow a court to make a joint custody order.

[35] An order will go granting the respondent custody of Seagin.

4: Is there a genuine issue that requires a trial with respect to the issue of child support?

4.1: Ongoing Child Support

[36] The application originally brought by the father was issued May 5, 2011. The only relief sought within that application was joint custody.

[37] The mother filed her answer on July 15, 2011. It includes a claim for child support for Seagin.

[38] In submissions, counsel for the mother requested ongoing table amount of child support in the amount of $613 per month effective January 1, 2014, based on the father's 2013 income of $67,017.

[39] There is no dispute as to the father's 2013 income. Consequently, there is no material issue that requires a trial to determine the father's ongoing child support obligation.

[40] An order will issue that the father pay to the mother for the support of the child, commencing January 1, 2014 and on the first day of each month thereafter, $613 based upon:

a) the father's 2013 total income for child support purposes in the amount of $67,017; and

b) the Child Support Guideline clause 3(1)(a).

4.2: Retroactive Child Support

[41] The mother claims support for the child commencing June 1, 2010.

4.2.1: Legal Considerations: Retroactive Child Support

[42] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the factors that a court should take into account in determining retroactive support applications.

[43] Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

4.2.2: Facts

[44] The father's income for child support purposes has been as follows:

2010 - $62,291

2011 - $62,511

2012 - $78,674

2013 - $67,017

[45] Neither party included in their respective affidavit material the date the relationship ended. However, in the application filed by the father, he pleads that the parties started living together on and off beginning September 2009 until July 2010. The mother, in her answer, pleads that the family history as set out by the father in his application is correct. This constitutes a formal admission which is conclusive as to the matter admitted: Marchand v. Public General Hospital Society of Chatham et al., 51 O.R. (3d) 97 at para. 77

4.2.3: When was child support sought by the mother?

[46] The mother's claim for child support under the Family Law Act was made within her Answer and Claim by Respondent, dated July 15, 2011. The mother's evidence filed on this motion does not disclose that she made a request for child support to the father prior to that date. In her factum, it states that support was requested by her in the summer of 2010. This is not evidence. It would be unfair to the father to rely upon this statement contained in her factum but not in evidence.

[47] In determining whether a retroactive order should order should be made, the circumstances of the parties following the separation must be considered.

4.2.4: Conduct of the father

[48] Following the separation, the father was the subject of a probation order that precluded him from associating with the mother. It was the conduct of the father that resulted in this non-association order and their inability to communicate.

4.2.5: Circumstances of the child

[49] In 2010, the mother's gross income was $15,584. In 2011, her income according to her financial statement sworn September 21, 2011 was $31,713.60. According to this financial statement, her expenses exceeded her income by approximately $11,000 that year. Neither party provided an up-to-date financial statement on this summary judgment motion. Neither party provided evidence as to the circumstances of the child except that he was in the care of the mother as described above.

4.2.6: Hardship

[50] The father has not provided any evidence of hardship should a retroactive order be made.

4.2.7: Should a retroactive order be made?

[51] The evidence before the court on this motion is sufficient to allow a determination whether retroactive child support should be ordered.

[52] The mother seeks the payment of child support that was due under the legislation for a period of time before it was specifically asked for by her. Weighing the factors mandated by the court in D.B.S., a retroactive support order should be ordered. The mother had need having regard to her low income as compared to the father and her monthly deficit. The father's actions against or toward the mother which resulted in criminal sanctions led to their inability to address child support in a timelier manner. Considering the father's stable and greater income than the mother, there is no evidence that hardship to him would be occasioned by a retroactive order.

[53] On the basis of the foregoing, I find there are no material facts that require a trial to determine whether a retroactive support order should be made. It should be.

4.2.8: Determining the retroactive order

[54] The next issue to determine is the effective date of the retroactive support order. The default date for the start of retroactive child support is the date the recipient gave effective notice to the support payor: D.B.S. v. S.R.G., 2006 SCC 37 at para. 121

[55] In this case, the mother seeks retroactive support from June 1, 2010. The mother's evidence, as contained in her affidavit of January 28, 2014, does not state that she gave the father any indication the child support should be paid prior to her delivering her Answer and Plan of Care on July 15, 2011.

[56] Even though the date of effective notice was July 15, 2011, the court held in D.B.S., that where a payor parent engages in blameworthy conduct the appropriate start date may be when support should have been paid. Blameworthy conduct includes where a payor parent intimidates the recipient parent. The presence of blameworthy conduct will move the presumptive date of retroactivity back to a time when circumstances changed materially: D.B.S. v. S.R.G., supra, para. 123

[57] The actions of the father around the time of the separation led to him being convicted of a number of criminal offences including assault, uttering threats, breach of probation and dangerous operation of a motor vehicle. The actions of the father also resulted in him being sentenced to incarceration for a total of 96 days and two separate terms of probation. This is blameworthy conduct that would provide a justifiable reason for the mother not pursuing the support claim earlier than she did. It also supports a finding that the start date for a retroactive award of child support should be August 1, 2010. This is the date both parties agreed, in their pleadings, that the relationship ended. This is also the date the father was obliged to start paying child support under the child support guidelines: Family Law Act s.31 and D.B.S. at para. 48.

[58] Based on this finding, the amount of child support due from the father to the mother based upon the table amount of the Child Support Guidelines is as follows:

2010 - $62,291 – Guideline Amount $577 per month x 5 months = $2,885

2011 - $62,511 – Guideline Amount $579 per month x 12 months = $6,948

2012 - $78,674 – Guideline Amount $712 per month x 12 months = $8,544

2013 - $67,017 – Guideline Amount $613 per month x 12 months = $7,356

TOTAL $25,733

[59] The next step in the analysis is to determine the quantum of the retroactive award. In other words, what credit is due to the father on account of support already paid?

[60] The father's evidence is that he paid $60 per week for approximately six weeks, which he stopped paying because the mother would not give him a receipt. It is also his evidence that he gave the respondent a money order of $300 and two cheques of $300 and $500 respectively in 2012, before there was a temporary child support order.

[61] The mother acknowledges that the father did provide her with cheques in the amount of $40 on four occasions.

[62] On the record before me, and having regard to the court's inability to weigh or assess contradictory evidence in the context of this Rule 16 Motion, a determination of the credit the father is entitled to cannot be made on this motion. A trial of this issue is required.

[63] The final issue to be determined in connection with the mother's retroactive child support claim is how any retroactive child support award should be paid. The mother proposes that the retroactive child support be paid at the rate of at least $300 per month. In order to determine how this retroactive child support award should be paid, the only evidence before the court is that the father's income in 2013 was $67,017.

[64] The father has not provided any evidence, except for the amount of his income for child support purposes, which would be of assistance in determining how the retroactive child support award should be paid. It is incumbent upon the responding party to a summary judgment motion to put forward evidence showing there is a genuine issue for trial. The applicant has not presented evidence or an argument that a $300 per month payment of the retroactive child support would cause him hardship or is inappropriate.

5: CONCLUSION

[65] Based on the record before the court, Rule 16 of the Family Law Rules and the analysis required under the D.B.S. case, I find there is no genuine issue requiring a trial of the following:

a) The mother's claim for custody;

b) Ongoing child support to be paid by the father to the mother;

c) The mother's entitlement to a retroactive payment;

d) The start date of the retroactive payment being August 1, 2010;

e) The calculation of the retroactive child support payment being $25,733 less an amount to be credited to the applicant for sums paid by him on account of child support since August 1, 2010; and

f) The retroactive child support owing is to be repaid at the rate of $300 per month.

[66] There is a genuine issue that requires a trial to determine the amount of the credit to be given to the father for monies paid by him to the mother on account of child support since August 1, 2010. In accordance with Rule 16(9) of the Family Law Rules, this issue is to be tried.

[67] The other outstanding issue in this case is the access the father is to have to the child. It was not in issue on this summary judgment motion.

[68] An order shall issue as follows:

a) The mother shall have custody of the child, Seagin Lucas Sauve born September 1, 2009.

b) Commencing January 1, 2014, and on the first day of each month thereafter, the father shall pay to the mother for the support of the child, Seagin Lucas Sauve born September 1, 2009, $613 based upon:

i) The father's 2013 income for child support purposes of $67,017; and

ii) Child Support Guidelines, clause 3(1)(a).

c) The father and mother shall contribute in proportion to their respective incomes to any Section 7 expenses as defined in the Child Support Guidelines including child care costs and non-insured medical expenses.

d) Retroactive child support owing by the father to the mother for the support of the child, for the period August 1, 2010 to and including December 31, 2013, shall be fixed at $25,733 less a credit to be determined at trial or by agreement of the parties.

e) The retroactive child support and any other arrears arising from this order are to be paid by the father to the mother at the rate of $300 per month commencing September 1, 2014 and on the first day of each month thereafter until paid in full.

f) Commencing in 2015 the father shall provide the respondent with a copy of his Income Tax Return and Notice of Assessment each year by May 31.

[69] The application is adjourned to the assignment court on August 19, 2014 at 10:00 AM, in courtroom #4 for the purpose of scheduling a trial to address the issues of:

a) The applicant's access to the child, Seagin Lucas Sauve born September 1, 2009; and

b) The credit the father is entitled to on account of payments made towards retroactive child support.

[70] At the return of this case at assignment court, the parties are to advise the court their time estimate for the trial, provide their respective witness lists and document briefs to be relied upon at trial.

[71] If costs of this motion are sought, written submissions of no more than 3 pages together with any offers to settle and a Bill of Costs are to be provided through the Trial Co-Ordinator by the mother within 15 days and by the father within 10 days thereafter.

Released: July 24, 2014

Barry M. Tobin Justice