COURT FILE NO. D60580/13

DATE: 2014-11-14

Citation: Ciutcu v. Dragan, 2014 ONCJ 602

ONTARIO COURT OF JUSTICE

B E T W E E N:

BIANCA CIUTCU

ACTING IN PERSON

APPLICANT

• and -

SORIN DRAGAN

ACTING IN PERSON

RESPONDENT

HEARD: NOVEMBER 12, 2014

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] The parties have both brought motions seeking temporary sole custody of their children, Daniel, who is nine years old and Michael, who is eight years old (the children). The children both have significant special needs.

[2] The applicant (the mother) also seeks an order that the father have temporary access to the children on three out of every four weekends with an equal sharing of holidays. She asks for temporary child support, including a claim for special expenses pursuant to section 7 of the Child Support Guidelines (the guidelines). She asks that the temporary order be made retroactive to October 1, 2011.

[3] The respondent (the father) has made an alternative claim for temporary joint custody of the children, with an equal time-sharing plan. The father asks that the issue of child support be deferred and that the parties be required to first meet with an accountant to determine how to equalize their net disposable incomes, after determining the optimal use of the tax credits, benefits and subsidies arising out of the children’s disabilities. The father does not want the court to order him to pay temporary child support.

Part Two – Background facts

[4] The mother is 36 years old. The father is 46 years old.

[5] The parties began living together in 1998. They married on October 30, 2004. They separated on August 1, 2011.

[6] The parties have no other children.

[7] The mother is employed full-time in a retail job with a food company.

[8] The father is employed full-time as a computer programmer.

[9] The mother issued her application on March 12, 2013.

[10] This is the first time that temporary motions have been argued in this case. There are no orders presently in place. The parties were previously represented by counsel. Case conferences were conducted. They engaged in mediation. There has been an investigation and report by the Office of the Children’s Lawyer pursuant to section 112 of the Courts of Justice Act. The parties have been unable to resolve any of the issues in this case despite these interventions.

[11] The children presently spend each weekend with the father from Fridays after school until Monday mornings, when they return to school. Otherwise, the children are with the mother. This arrangement has been in place, for the most part, since this case started.

Part Three – The children

[12] Both children have Autism Spectrum Disorder and are severely disabled. They are both non-verbal and have a limited ability to comprehend speech and communicate with other people.

[13] The children attend different schools. Daniel attends a traditional school, while Michael attends a specialized school for children with disabilities. Michael had been showing more aggression to others and the specialized school was a better environment for him.

[14] Both parents described the children as very challenging to manage. The father in discussing the need for each parent to have respite care said in submissions, “it is like suicide to say that they will be with us all of the time”.

[15] The parents agreed that the children do not handle change well. They agreed that the children require structure, predictability and consistency in their schedules.

Part Four – Use of the report from the Office of the Children’s Lawyer

[16] The Office of the Children’s Lawyer filed a report by their clinical investigator (the clinical investigator) dated March 19, 2014.

[17] The court relied on the factual findings of the clinical investigator, based on her personal observations. As the report has not been tested through cross-examination, and the father filed a lengthy dispute[^1] to its contents, the court did not rely on the recommendations made in the report. This is similar to the approach taken in Abrego v. Abrego 2006 ONCJ 500 and takes into consideration the principles set out in paragraphs 23- 24 and 26-27 of Bos v. Bos, 2012 ONSC 3425, which read as follows:

[23] I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte and Kerr. In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

[24] The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[26] In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that “exceptional circumstances” exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case. Without in any way being exhaustive, these factors may include:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b) What other evidence is before the court to support the change requested?

c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[27] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

Part Five – Parenting issues

5.1 Legal principles

[18] Section 24 of the Children’s Law Reform Act (the Act) sets out that the court must make custody and access orders in the best interests of the children. This applies to both temporary and final orders. The court considered the relevant best interests criteria set out in subsection 24 (2) of the Act which reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

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

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

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

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

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

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

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

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

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

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

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

[19] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (OCA) sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[20] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (Ont. C.A.).

[21] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (Ont. SCJ).

[22] The status quo is a very important consideration on temporary motions for custody and access. See: McEachern v. McEachern, 1994 CanLII 7379 (Ont. SCJ).

[23] Children should have maximum contact with both parents if it is consistent with the children’s best interests. See: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

5.2 Position of the mother

[24] The mother seeks temporary sole custody of the children. She deposed that the level of communication between her and the father is very poor. She alleged that the father often becomes very aggressive when angered and she feels intimidated by him. She feels that the father is overbearing, controlling and insistent on getting his way. She provided several examples of this behaviour, all of which the father denied. She states that she has historically been the parent who has made most of the major decisions for the children and it is in their best interests that she continue to do so.

[25] In submissions, the mother moderated her initial position about parenting time. She said that she was agreeable that the father have the children overnight on Sundays when it was his weekend with them.[^2] The mother submitted that it was in the best interests of the children to have some weekend time with her as well. The mother deposed that she works most weekends, but can arrange to take one weekend off each month. She said that she gets two days off during the middle of the week, but since the children are in school, she does not have the time to go on outings with them or spend more relaxing days with them.

5.3 Position of the father

[26] The father also asked for sole custody of the children. In submissions, he indicated that he would be content with a joint custody order. In his affidavit and dispute to the Office of the Children’s Lawyer report, he described very poor communication with the mother. He feels that the mother unilaterally makes decisions about the children without consulting him. He feels, if given sole custody, that he would be the parent more likely to involve the other in decision-making for the children.

[27] The father believes that the current parenting arrangement is working well for the children. He proposed in submissions that he was agreeable to the mother having the children one weekend out of four if he could start his weekends on Thursday evenings, after he finished work. He is agreeable to dividing holiday time equally with the mother.

5.4 Analysis

5.4.1 Custody

[28] The evidence indicates that the parents cannot make decisions together effectively. They have had the intervention of the mediator and the Office of the Children’s Lawyer, and if anything, their communication has deteriorated. They completely blame the other for the poor communication.

[29] The parents disagree on medical treatment for the children. The father is a proponent of homeopathic medicine. The mother supports more traditional treatment. The parties disagree on what supports the children need. They disagree on how to use funds provided by the government for children with disabilities. They have fought over dental treatment and educational decisions. They continue to disagree about the parenting schedule.

[30] There is some evidentiary support for the mother’s evidence that the father can be difficult to work with. The father unilaterally changed the access schedule and instructed the children’s school bus drivers to drop the children at his home after school on Fridays without first advising the mother.[^3] The father has progressively reduced the amount of child support he pays to the mother. It is now down to $164 per month.[^4] The children’s dentist refused to deal with him because of his allegedly aggressive behaviour. The clinical investigator also observed a significant power imbalance in the father’s favour.

[31] The father displayed some elements of controlling behaviour in his affidavit material. He indicated that if he had to pay the full guideline table amount of child support, he would be unable to take the children on weekends. He writes: “If the result of this motion is that the children should live more than 60% of the time with the mother, then the result is going to have to be that they should have to spend 100% of the time with her”. If the father is serious about this statement, it raises issues about his judgment and priorities.

[32] The father has also demonstrated controlling behaviour by unilaterally reducing his child support payments to the mother to an unacceptably low amount. The father feels that he should not have to pay child support – he is already doing enough for the mother and the children. In submissions, he said “I am, in a way, providing her with service, she would have to pay $17,000 per month to replace the respite I provide her”. Financial responsibility is an important part of parenting, and the father has not been meeting this responsibility.

[33] In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ – Family Court).

[34] The evidence indicates that the mother is better-suited at this time to make major decisions for the children. She has shown an ability to make responsible decisions for them and work cooperatively with schools and service providers. The clinical investigator observed that the father did not seem to have a positive view of the mother and that “he has shown a pattern of unwillingness to listen to or incorporate the view of the mother, especially when that view was not similar or exactly like his own”. The father has also acted unilaterally (changing the bus routes without notice) and has alienated the children’s dentist.

[35] The mother will be required to consult with the father on any major decision concerning the children and advise him of the outcome of any consultation with a medical practitioner or other service provider. It is important that the father be advised immediately about any treatment for the children. He will be caring for the children a considerable amount of time.

[36] The father shall not treat the children with homeopathic remedies without the prior consent of the mother. The parents need to give these children consistent medical care and comply with the recommendations of medical practitioners.

5.4.2 Access

[37] The evidence establishes that both parents love their children. They have both shown tremendous commitment and dedication to their children in challenging circumstances.

[38] The evidence also indicates that the children love their parents. The clinical investigator observed the children to be very comfortable with both of them.

[39] The court agrees with the father that the current parenting arrangement, for the most part, is working and that it is important for the children to spend meaningful and dedicated time with both parents.[^5] It is in the children’s best interests that any changes to the current schedule should be minimal.

[40] The court also agrees with the mother that it would benefit the children to spend occasional weekend days with her – days free from the stresses of the school day - where they can go on outings together. The order will provide a mechanism for her to have the option of an extra 4 weekends, or 8 weekend days with the children each year (or some combination of this) on notice to the father. This will give the children the benefits of having some weekend time with their mother, with minor disruption to the schedule they have become accustomed to.

[41] The father’s suggestion to start access on Thursday evenings on his weekends is not in the children’s best interests. The father works late on Thursdays and the children would likely arrive at his home later in the evening. This would be disruptive to their school week. It is preferable that they get a good night sleep,[^6] have a good day in school and go to the father’s home after school on Friday.[^7]

[42] The court considered the possibility of a mid-week evening visit, but the father indicated that he could not really accommodate this with his work schedule.

[43] The order will provide for an equal sharing of holiday times, including the summer, winter and March school breaks, statutory holidays and professional development days.

Part Six – Child support

6.1 Preliminary comments

[44] After their separation, the father paid the mother child support of $950 per month. He reduced this to $500 per month in October of 2011. Starting in 2013, he reduced the payment to $364 per month. In November of 2013 he reduced the payment to $164 per month.

[45] The father’s suggestion to defer the child support issue is unacceptable. It is clear that a court order is required to establish that appropriate child support is paid. In the alternative, the father asks to have his child support obligation reduced because this is a shared custody arrangement as defined in section 9 of the guidelines.

[46] The mother has asked the court to make the temporary support order retroactive to October 1, 2011 (when the father first reduced his monthly support payment). The court declines to make a retroactive support order on a temporary basis. The issue is complicated and better evidence needs to be provided about the parties’ incomes, expenses and the children’s needs for 2011-2013. It is more appropriate that this issue be decided, if necessary, by the trial judge.

[47] However, it is appropriate to address child support from the date that the application was started. This is not retroactive support. See: MacKinnon v. MacKinnon, (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.) The court has the necessary evidence to make a temporary decision effective from April 1, 2013 and will do so.

6.2 Shared custody

[48] The court must first determine if the parents have a shared custody arrangement as defined in section 9 of the guidelines. Section 9 sets out that there is shared custody when a spouse exercises a right of access to, or has physical custody of a child for not less than 40 per cent of the time over the course of a year..

[49] The father submits this is a shared custody arrangement. The mother submits that it is not and asks that the father pay the full guideline table amount of child support together with his proportionate share of section 7 expenses.

[50] There has been considerable discussion in the case law about how to calculate whether children spend 40% or more of their time with a parent. This discussion is thoroughly set out in paragraphs 23-39 of L..L. v. M.C., [2013] O.J. No. 1444 (SCJ) by Justice George Czutrin. Key passages from these paragraphs are as follows:

23 The question of whether an access parent has met the 40 per cent threshold necessary to bring the child support assessment under s. 9 is one that has generated considerable litigation. This is largely because while the provision clearly sets out the threshold for a finding of shared custody, it is less clear about how that calculation is to be realized. According to the Ontario Court of Appeal, there is no universally accepted method for how to calculate access and custody time (Froom v. Froom, 2005 CanLII 3362 (ON CA), [2005] O.J. No. 507 (C.A.), at para. 2).

24 Though the method of the calculation is not set out in the legislation, it is clear that 40 per cent is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40 per cent (Maultsaid v. Blair, 2009 BCCA 102,[2009] B.C.J. No. 467 (C.A.)). The court in Maultsaid, states the following at para. 30:

• I recognize this calculation brings the matter close to 40 per cent and appears arbitrary. However, in my view, it is not open to the court, faced with the express wording of s. 9, a court order particularizing "the right to access", and a measure of the time that falls short of the requisite 40 per cent, to ignore the words, the mandatory requirement, chosen by Parliament. In the words of the Alberta Court in L.C. v. R.O.C., 2007 ABCA 158, "there is no place for 'deeming' parenting time to be what it is not".

27 The majority decision of Court of Appeal in Froom states that there is no universal method for calculating access time and they uphold the trial judge's analysis based on "days, not hours" (Froom, at paras. 1-2). The dissent, however, would have allowed the appeal and set aside the trial judge's decision because "the hours calculation produces an accurate figure in this case, and the days calculation produces an erroneous figure" (Froom, at para. 5).

28 In Mehling v. Mehling, 2008 MBCA 66, [2008] M.J. No. 172, at para. 42, the court states the following:

• [T]his court specifically rejected a "minute-by-minute" calculation method. While I would not categorically rule out an assessment on the basis of hours, it seems to me that an assessment of the time that a parent is with, or responsible for the children and their needs, on the basis of days or weeks, or portions thereof, will be a more realistic approach to the analysis than an hourly accounting. That being said, the approach to be used for the assessment of time is within the judge's discretion to determine.

31 While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294)). In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller, 2005 CanLII 14325 (ON SC), [2005] O.J. No. 1736 (S.C.). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No. 1169, although in that case the parties' evidence did not support an hourly calculation so it was not applied.

32 While the notions of flexibility and robust consideration of the parties' circumstances are laudable, I do not see this as mutually exclusive from an hourly accounting of how the parties divide their child's time.

37 The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).

38 In his paper, "A Practitioner's Guide to the Economic Implications of Custody and Access under the Divorce Act and the Federal Child Support Guidelines", Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children ((2002), 32 R.G.D. 1-36, at 8). The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is "responsible for their well-being" (Sirdevan v. Sirdevan, [2009] O.J. No. 3796).

39 In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925,[2011] O.J. No. 3717, at para. 43).

[51] The court finds that this is a shared parenting arrangement, whatever mechanism is chosen to calculate parenting time.

[52] If the court counts the overnights that the children will spend with both parents each year, the parenting time with the father clearly exceeds 40% of the time, calculated as follows:

Regular Schedule

40 weeks @ 3 overnights per week = 120 days

12 weeks equally divided = 42 days

Total days = 162 or 44.38 % of the time

[53] If actual parenting hours are counted (and the mother is given credit for the time that the children are in school), the father has the children for 40.1% of the time calculated as follows:

Regular Schedule

40 weeks @ 168 hours per week = 6,720 hours

Time with father – 2,640 hours (66 hours per week)

Holiday Schedule

12 weeks @168 hours per week = 2,016 hours

Time with father – 50% = 1,008 hours

Adjustments:

Mother to have 4 weekends with the children = 264 hours

Father to have 3 extra statutory holidays = 72 additional hours

Father to have 3 professional development days = 60 additional hours with Thursday pickup.

Net adjustments = 132 less hours for father

Final Calculation

Total hours in a year = 8,736 hours

Regular schedule = 2,640 hours

Holiday schedule = 1,008 hours

Adjustments = (132 hours)

Total hours with father = 3,516

Percentage of total time with father = 40.13%

6.3 – Legal considerations in calculating support in section 9 cases

[54] In Contino v. Leonelli-Contino 2005 SCC 63, [2005] 19 R.F.L. (6th) 272 (SCC), the Supreme Court of Canada set out the following principles when dealing with cases under section 9 of the guidelines that are applicable to this case:

a) Once the payor surpasses the 40% threshold, section 9 creates a different method of determining child support in shared custody cases. There is no onus on the payor to convince the court to order a different amount than the table amount.

b) There is no presumption of a reduction in the table amount for child support in section 9 cases. A court may still order the full table amount after conducting the section 9 analysis.

c) There should be no mathematical formula or multipliers applied to section 9 cases. In particular, the simple set-off only serves as a starting point under subsection 9 (a) of the guidelines, but it has no presumptive value.

d) The court should consider all three factors in section 9. None should necessarily prevail over the others.

e) Section 9 of the guidelines is broad enough to incorporate section 7 guideline expenses directly in the examination of child-related expenses, and expenses can be considered that might not fit within section 7.

[55] In Flick v. Flick, 2011 BCSC 264, the court, citing Contino, identified these additional factors for consideration in a section 9 analysis:

a) The language of section 9 warrants an emphasis on flexibility, fairness and consideration of the overall situation of the parents and the needs of the child.

b) The weight of each factor under section 9 will vary with the particulars of the case.

c) The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as they move from one household to the other.

d) The analysis should be contextual and remain focused on the particular facts of each case.

e) The court has full discretion under subsection 9 (c) to consider “other circumstances”.

[56] Once the 40% time threshold is met under section 9, courts aren’t required to quantify the time, or award support in accordance with the percentage of time. It might cost the parent with the lower percentage of time just as much to raise the children. See: Stewart v. Stewart, 2007 MBCA 66.

[57] In his article, The TLC of Shared Parenting: Time, Language and Cash,[^8] Professor Rollie Thompson summarizes how the Supreme Court in Contino has directed courts to conduct a section 9 analysis as follows:

a) Determine the simple set-off amount – The starting point under subsection 9 (a) is the straight set-off of each parent’s table amount for the number of children involved in the shared custody arrangement.

b) Review the child expense budgets- A court must look at the parents’ actual spending patterns, based upon child expense budgets, and not just make assumptions about spending. Under subsection 9 (b), a court has two concerns: the over-all increased total costs of child-rearing for both parents, especially duplicated costs; and any disproportionate assumption of spending by one parent or the other. The child-related expenses should be apportioned between the parents based upon their incomes, to verify the set-off and to determine the need for significant adjustments to the set-off amount.

c) Consider the ability of each parent to bear the increased costs of shared custody and the standard of living for the children in each household- In assessing each parent’s ability to bear the increased costs of shared custody, a court should look at the incomes of the parents, the disparity in incomes, and their assets and liabilities. Children should not experience a significant variation in the standard of living as they move from one household to another.

6.4 Incomes of the parties

[58] The father’s income has remained steady at about $63,600 per annum.

[59] The mother’s income from employment is about $41,000 per annum.

[60] The mother also included in her income the sum of $800 per month that she receives from a provincial government supplement called Assistance for Children with Severe Disabilities. This is not income. Financial subsidies received from the government to cover costs of a disabled child are not treated as income for determining child support. See: Dupuis v. Desrosiers 2013 ONCJ 720, [2013] O.J. No. 6014 (OCJ). However, these subsidies may be taken into account in determining a claim for special or extraordinary expenses. See: Dunham v. Dunham, [1998] O.J. No. 4758 (General Division).

[61] The mother also receives a government supplement for the children called Special Services at Home. This supplement is for the specific purpose of providing respite care to the mother. It also is not income for the purpose of the child support calculation. The mother must provide receipts for the respite care (such as camps) and she receives indemnification up to the limit for which she has been approved by the program.[^9]

6.5 Set-off amounts

[62] The first step in a section 9 child support analysis is to determine the amounts set out in the applicable tables for each of the parents (the set-off amount).

[63] The applicable table amount for the father is $945 per month. The applicable table amount for the mother is $597 per month. The set-off amount is $348 per month.

6.6 Increased costs of shared custody

[64] The second step in a section 9 child support analysis is to determine the increased costs of the shared custody arrangements.

[65] There are increased costs of this shared parenting arrangement. Many of these increased costs are due to the special needs of the children. These children have needs that make it more expensive for both parents to care for them. The parents agreed that they have higher expenses for food, clothing, laundry and activities than most children would require. The children can be destructive and clothes, toys and household items often need to be replaced. Separate storage areas need to be set up so more valuable items aren’t destroyed. The children need to be kept engaged in activities; otherwise they become easily bored and act out. The children also have more medical costs than typical children. When they see the dentist, the parents have to pay to have them put to sleep for their procedures.

[66] The father has slightly larger (and more expensive) accommodation than he might have otherwise obtained to ensure the children do not feel too contained or constrained when they come to his home. He also pays more for food, clothing, laundry, household supplies and transportation due to the shared custody arrangement.

6.7 The condition, means, needs and other circumstances of the parents

[67] The third step in a section 9 child support analysis is to examine the condition, means, needs and other circumstances of each parent and of any child for whom support is sought.

[68] The unfortunate reality for this family is that they have limited financial resources to support the children and themselves. Both parents lead a very modest lifestyle.

[69] The father’s net worth is about $15,000. The mother has no assets and debts of close to $30,000. The father appears to be living a slightly better lifestyle than the mother. The court notes that he is able to afford $340 per month for alcohol and tobacco, but he says that he cannot afford to pay any child support.

[70] The children spend more time with the mother and her expenses for them are higher than the father’s. She has to spend more for food, school lunches, clothing, household supplies and laundry.

[71] The father pays $86 per month to maintain the children on medical, dental and extended health coverage through his employer. The mother has been paying the children’s additional dental costs of about $800 per year.

[72] The father has no child-care costs because he does not work when he has the children.

[73] The mother does not work on two weekdays, but works on the other three weekdays. She requires parenting assistance on those days. Her mother has been providing this assistance. The mother deposed that she used to pay her mother $600 per month for this help, but has not been able to do this since the father reduced his support payments to her. She would also like to hire a support worker to come in two days per week, but cannot afford this.

[74] The children attend camp for two weeks in the summer. This cost was paid through the Special Services at Home government supplement.

[75] The mother receives government benefits that are not available to the father. She receives the Child Tax Benefit Credits, Child Disability Benefits, Special Services at Home supplement and the Assistance for Children with Severe Disabilities supplement. These additional funds for the mother offset most, if not all of, what would be considered section 7 expenses in a conventional support analysis.[^10]

6.8 Support calculation and arrears

[76] Balancing all of the considerations set out above, the court finds that the father should pay the mother temporary child support of $500 per month.

[77] The child support payments shall be effective from April 1, 2013 (when the case began). This will immediately create support arrears for the father as follows:

Total support obligation:

April 1, 2013 – November, 2013 – 20 months @ $500 per month = $10,000

Less the amounts paid by the father:

April 1, 2013 – October of 2013 – 7 months @ $364 per month = $2,548

November 1, 2013 – September of 2014 – 11 months @ $164 per month = $1,804

Total credit to father = $4,352

Balance owing – $5,648

[78] The order will provide that the father may repay the arrears of $5,648 at the rate of $200 per month, starting on January 1, 2015. However, if he is more than 30 days late in making any ongoing or arrears support payments, the entire amount of arrears shall immediately become due and payable.

Part Seven – Conclusion

[79] A temporary order shall go on the following terms:

a) The mother shall have sole custody of the children.

b) The mother shall consult with the father on any major decision regarding the children.

c) The father shall not give the children homeopathic remedies without the mother’s prior written consent.

d) Except for emergency purposes, the father shall not take the children to any medical practitioner without the mother’s written consent.

e) The mother shall keep the father advised about any medical directions, treatment or prescriptions required for the children.

f) The father shall follow any medical direction or treatments for the children as informed by the mother when the children are with him. He shall also give them any drug prescriptions as informed by the mother.

g) The parents shall share time with the children as follows:

i) The children shall be with the father every Friday from after school until Monday morning when they return to school. This is subject to subparagraph iii below.

ii) The children shall spend all other time with the mother.

iii) On 14 days notice to the father, the mother may select 8 weekend days each year that the children will spend with her. These can be single days, or up to two consecutive overnights (for instance 4 weekends). The mother shall not choose weekends on holiday times, or more than 2 weekend days in any one month. These weekend days are in addition to any holiday weekend time, as set out below.

iv) School holiday breaks shall be spent equally with the parents. Each parent will have one week with the children during the winter school break. If the parties cannot agree on who will have which week, the mother will have the children with her during the first week of the winter school break in 2014 and the father will have the children with him during the second week.

v) The children shall rotate spending one week with each parent during the summer. The children may be enrolled in summer camp for two weeks by the mother and both parents shall ensure that the children attend camp each day, unless they are ill.

vi) Professional development days shall be rotated between the parties. If it is the father’s day, he shall pick the children up from work on the Thursday evening before the professional development day.

vii) The father will have the children with him on the next professional development day.

viii) Statutory holidays shall be rotated between the parties. If it is the father’s day with the children, and the statutory holiday is a Monday, he shall return them to school on the Tuesday morning following the statutory holiday. If the Monday statutory holiday is during the summer, he shall return the children to the mother on Monday evening by 6 p.m. If it is the mother’s turn for a Monday statutory holiday, the father shall return the children to her by 9 a.m. on the Monday morning.

ix)The mother shall have the children with her on the next statutory holiday.

x) The children shall spend every Mother’s Day with the mother and every Father’s Day with the father.

xi) The regular access schedule will be suspended during holiday access.

h) The father shall pay child support to the mother in the sum of $500 per month, starting on April 1, 2013.

i) The father shall be credited for $4,352 paid for child support from April 1, 2013 to date, leaving an arrears balance of $5,648.

j) The father may repay the arrears at the rate of $200.00 per month, starting on January 1, 2015. However, if he is more than 30 days late with any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.

k) The father shall continue to maintain the children on any medical, dental or extended health plan that he has available to him through his place of employment.

l) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.

m) A support deduction order shall issue.

[80] The parties are encouraged to return to mediation after this schedule is in place for two months. This decision should provide a road-map for settlement. The parties have many challenges in their lives and shouldn’t be spending their emotional resources combatting each other in court.

[81] If either party wishes to seek costs, they shall serve and file written submissions by December 1, 2014. The other party will then have until December 15, 2014 to serve and file a written response to these submissions. The written submissions are not to exceed 3 pages, not including any offer to settle or bill of costs from counsel they retained to assist them on these motions. The submissions should be filed at the trial coordinator’s office on the second floor of the courthouse.

Justice S.B. Sherr

Released: November 14, 2014

[^1]: The court considered this dispute as part of the father’s evidence. [^2]: The mother was initially concerned because in the 2013/2014 school year the father often brought the children late to school on Mondays. The lateness issue has significantly improved this fall term. [^3]: Prior to this event, the father would pick the children up on Friday evenings after work. [^4]: Further, the father has not paid any child support to the mother for the past two months. [^5]: The mother also deposed in paragraph 8 of her October 22, 2014 affidavit that it is in the best interests of the children to keep the school schedule the same as the children need consistency and little disruption in their daily routine. She deposed that any changes will have an adverse impact on the children and that they do not do well with transition or changes in scheduling [^6]: The court was advised by the father that it is often a struggle to get the children up in the morning. [^7]: The father advised the court that he is able to rearrange his work schedule and leave early on Fridays. [^8]: This paper was presented at the National Family Judges Conference in British Columbia, February 13-15, 2013. [^9]: The mother is approved to spend up to $2,400 per year for Daniel and up to $900 per year for Michael, from Special Services at Home. [^10]: Such expenses would include childcare, medical and extraordinary extra-curricular activity expenses.