Court File and Parties

Court File No.: D51981/10 Date: 2015-06-29

Ontario Court of Justice

Between:

V.D. Applicant

- and -

A.L. Respondent

Counsel:

• Natalia Denchik, for the Applicant
• Irving I. Frisch, for the Respondent
• Cathy Tsagaris, for the assignee, City of Toronto

Heard: June 25, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have both brought motions to change the order of this court dated September 9, 2013 (the existing order). This order provides that: the parties have joint custody of their seven-year-old son (the child); the primary residence of the child is with the applicant (the mother); the respondent (the father) spends alternate weekends, Wednesday overnights and extended holiday time with the child and pays the mother child support of $309 per month, based on an income of $35,000 per annum.

[2] The father was the first party to move to change the existing order. In his motion to change, he sought sole custody of the child and a termination of child support.

[3] The mother filed a Response to Motion to Change. She asked that the father's motion to change be dismissed. She also sought sole custody of the child. In the case management process, the father was put on notice that the mother was also seeking an increase in child support.

[4] The mother is on social assistance. She assigned her interest in support to the City of Toronto, who supported the mother's request to increase the father's support in accordance with his income, retroactive to January 1, 2014.

[5] A clinical investigation and report was conducted by the Office of the Children's Lawyer (OCL) pursuant to section 112 of the Courts of Justice Act. Its report, dated April 28, 2015, was filed with the court. Neither party filed a Notice of Dispute to the report. The parties agreed that the report could be relied upon at this hearing without the need to examine the person who prepared it (the clinical investigator).

[6] The parties agreed, pursuant to subrule 1 (7.2) of the Family Law Rules, to have the motions to change heard based on the affidavits and financial statements of the parties filed, the evidence in the OCL report and through focused oral evidence of the parties.[1]

[7] The issues at trial were:

a) Has there been a material change in circumstances affecting the best interests of the child since the existing order?

b) If so, what parenting order is in the best interests of the child?

c) Has there been a change of circumstances that warrants a change in the child support order?

d) If so, from what date should child support be changed?

e) If the court makes a shared parenting order (as requested by the father), as defined in section 9 of the Child Support Guidelines (the guidelines), what amount of child support should be ordered on an ongoing basis?

Part Two – Background Facts

[8] The mother is 37 years old. The father is 34 years old.

[9] The parties have never cohabited. They had the one child together.

[10] The mother has been divorced twice. She also had a common-law relationship that lasted four years, ending in July of 2014. The mother testified that she has resumed contact with this partner (O.).

[11] The mother has no other children.

[12] The mother is a registered practical nurse, but hasn't worked in that field since January of 2011. She has stayed home with the child and is in receipt of social assistance. She testified that she will go back to work, part-time, starting in September of 2015, at a paralegal office.

[13] The father married in February of 2010. It is his first marriage. The father and his wife have a child who will turn two years old this summer.

[14] The father is employed full-time as an auto mechanic.

[15] The mother applied for custody of the child and child support on September 9, 2010. The parties entered into a consent that was incorporated into a final order on June 13, 2011. The parties agreed to joint custody of the child, equal parenting time and no child support, as both parties were earning the same incomes at that time. A detailed holiday schedule was agreed to.

[16] In July of 2013, the mother brought an amended application for child support and asked to change the June 13, 2011 order. She sought sole custody of the child. The parties entered into mediation and reached a consent that formed the existing order.

[17] In May of 2014, the mother was convicted of impaired driving.[2]

[18] In July of 2014, O. was charged with assaulting the mother. As a term of his criminal release, he was required not to communicate with or have contact with her. The mother and O. continued to have contact with each other.

[19] On September 21, 2014, the mother came with the child and O. to the father's home, uninvited, at 11:30 p.m. She was intoxicated. She began swearing and screaming and broke the glass of the storm door of the father's house and a screen on the window. The police were called and the mother was charged with Mischief. The mother was released on the condition that she not communicate directly with or contact the father.

[20] The child remained in the father's care after this incident. The Children's Aid Society of Toronto was contacted.

[21] The father issued this motion to change on October 22, 2014.

[22] Temporary motions to change the terms of the existing order, brought by both parties, were dismissed on November 14, 2014 and the child returned to the mother's primary care, in accordance with the terms of the existing order. A referral was made to the OCL. The OCL accepted the case and appointed the clinical investigator to prepare a report.

[23] In February of 2015, the police were called regarding a domestic incident between the mother and O. The mother had attended at his home knowing that there was a no-contact order in place. The mother was charged with Mischief. The mother was drinking at this time. Her criminal release term required her to have no contact with O. and to reside at her sister's residence.

[24] The mother advised the court that she has recently entered into criminal Peace Bonds with respect to both the father and O. The Peace Bonds will each be in effect for one year. The mother can have no direct communication with the father. She said that she can have contact with O., with his revocable consent. She said that O. has provided this consent.

[25] The mother has recently completed an out-patient alcohol treatment program and an anger management program.

Part Three – Material Change in Circumstances

[26] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[27] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[28] The mother submitted that there has not been a material change in circumstances affecting the best interests of the child because she has had problems with excessive alcohol use since the parties were first before the court in 2010. The mother was charged with Assault arising out of an incident with the father in February of 2009 where alcohol was involved. She entered into a Peace Bond and was prohibited from directly communicating with or contacting the father for one year, except to coordinate visitation between the father and the child. However, there is no merit to the mother's argument. There was no finding of fact that the mother had an alcohol issue when the existing order was made. This issue was not raised in the pleadings in either the first court application brought by the mother or in her first motion to change issued in 2012. Further, if she had a problem with alcohol abuse at the time of the existing order, it materially deteriorated after.

[29] There clearly has been a material change in circumstance affecting the best interests of the child since the existing order was made on September 9, 2013. The mother's life became chaotic. She had significant involvement with the criminal justice system. She was convicted of impaired driving. She has been involved in a volatile relationship with O. that has resulted in criminal charges against both of them. The child was exposed to this conflict. The mother also exposed the child to the disturbing incident on September 21, 2014. The common denominator in all of these incidents was the mother's alcohol abuse.

[30] The Children's Aid Society of Toronto investigated the case. It verified the protection concern to the clinical investigator, noting: "caregiver has a problem causing risk that the child is likely to be harmed".[3] It has kept its file open.

[31] The child's exposure to the mother's excessive alcohol consumption[4], anger, domestic conflict and poor choices placed him at a physical and emotional risk of harm. This was a material change in circumstances affecting the best interests of the child, warranting a review of the parenting arrangement.

[32] The court must next determine what parenting order is in the best interests of the child.

Part Four – Parenting

4.1 Legal Principles

[33] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.) 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.

[34] 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] O.J. No. 1872 (Ont. C.A.).

[35] 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.

[36] In Ladisa v. Ladisa, 2005 O.J. No. 275 (C.A.), the court did not interfere with a joint custody order made by the trial court. Despite the intense conflict between the parents, in emergencies and when the parents had an opportunity to consider the real interests of their children, they behaved appropriately. They coexisted at the doctor, at school functions and activities. Those circumstances supported a joint custody order.

[37] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. See: Geremia v. Harb.

[38] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686; Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

[39] The court should look at how parents parented prior to the court proceeding to determine if co-parenting and co-operation is possible, if it believes that the parents can return to this after the stress of litigation is over. See: Growen v. MacKenzie 2008 ONCJ 170.

[40] The child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[41] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. See: Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

4.2 Positions of the Parties

[42] The father sought a continuation of the parties' existing joint custody order. He sought a "week-about" parenting arrangement, with a continuation of the holiday schedule that has been in place since July of 2011. His position mirrored the recommendation of the clinical investigator.

[43] The father believed that he and the mother have been able to jointly make decisions about the child and could continue to do so. He said that communication with the mother has been better through a third party.

[44] The father is concerned about the mother's struggles with alcohol and how it might affect the child. He testified that the child has reported many angry fights between the mother and O. that frightened him. He feels that it is in the child's best interests to spend more time in his home, which he believes is calmer and more stable.

[45] The father is willing to keep the child in his present school as part of the time-sharing plan. Either he or his spouse would drive the child to school each day and pick him up. The school is a 25 minute drive from his home.

[46] The mother seeks sole custody of the child, with no change to the present parenting schedule.

[47] The mother does not believe that she can effectively communicate with the father and expressed that she no longer wanted to do this.

[48] The mother felt that she should have sole custody of the child because she has always been the child's primary caregiver and has been the parent responsible for making decisions about the child. She testified that she is the parent who has been primarily responsible for taking the child to the doctor, communicating with the school and arranging his activities. She said that the father has often failed to meet his responsibilities towards the child – specifically by failing to pay adequate child support.

[49] The mother testified that she left work to totally dedicate herself to the child and be a constant presence for him. She felt that the child would not get as much attention in the father's home, as the father works full-time and his wife works part-time and cares for her own child.

4.3 The Child

[50] The court heard evidence that the child is generally doing very well. He is an active, social and loving boy. He is doing well in school. He is meeting all of his developmental milestones. The clinical investigator noted in her report that the child feels safe, comfortable and loved by both parents. He also enjoys his time with his extended maternal and paternal families.

[51] The clinical investigator commented that the child has an excellent relationship with both parents. The child told her that he loves his mother, she makes him happy and she is nice to everyone. He said that his dad is a good person, he loves him and he takes care of him. The clinical investigator commented that the child is happy, smart, friendly, developing well and is well-cared for. She noted that both parents are competent caregivers who have contributed positively to the child's life.

[52] The clinical investigator observed that the father's spouse had a positive and comfortable relationship with the child and that the child played well with his half-sibling.

[53] The child's doctor told the clinical investigator that the child recently has complained of stomach pain. The doctor speculated that the symptoms might be psychosomatic and evidence of stress.

[54] The clinical investigator noted that the child is very aware that his parents don't like one another.

[55] The clinical investigator also wrote that both parents reported that access transitions are difficult for the child.

4.4 Observations of the Parties

[56] The father presented in a calm and child-focused manner at court. He remained so, even when aggressively questioned by the mother's lawyer. His evidence was given consistently and thoughtfully. He was a credible witness.

[57] The father presented as a caring and concerned parent. It appears that he has a stable and loving relationship with his spouse.

[58] The mother presented as a troubled person. She expressed a lot of anger towards the father and was very fixated on historical events that predated the parties' first court involvement in 2010. She remains hurt that the father married while she thought that she and the father could repair their relationship.

[59] The mother would only grudgingly concede anything positive about the father. She had a tendency to make sweeping criticisms of him with no factual foundation. For instance, she claimed that:

a) The father delegates caregiving of the child to other family members.

b) The father, if he obtained custody, planned to give the child to his parents.

c) The father and stepmother ignore the child in favour of their own child.

[60] The mother unjustifiably demonized the father for her own failings. She blamed her problems with alcohol on him. She claimed at one point that she quit work because of him and the stress he put her under. She blamed her alarming behaviour on September 21, 2014 on the stress the father placed on her.

[61] The mother has struggled with honesty during this process. She did not reveal her conviction for impaired driving in May of 2014 in her Form 35.1[5] or to the clinical investigator. This evidence only came out when the court questioned her about other criminal charges. The clinical investigator reported that the mother initially lied about having no prior relationships, when she had had two marriages before meeting the father. The mother's evidence at trial was often overstated and unsupported by the evidence.

[62] Where the mother's evidence conflicted with the father's evidence, the court preferred the evidence of the father.

[63] Despite these flaws, the mother appeared to the court to be a loving and devoted parent. The child is clearly the centre of her world. She loves him and wants to do what is best for him. She is attentive to his schooling and health needs. She has involved him in temple and other activities. She was described as loving and nurturing to him.

[64] The mother has also been very flexible at times in rearranging access with the father to accommodate their respective schedules. Despite her anger at the father, she has never prevented the child from seeing him and in developing a positive relationship with him.

4.5 Best Interest Factors in Subsection 24(2) of the Act

Factor #1: The Love, Affection and Emotional Ties

(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.

[65] The court finds that the parents love the child very much. The court also finds that the child loves his parents.

[66] The child has a positive relationship with the father's spouse and his half-sibling. He also has a positive relationship with the extended families of both parents.

Factor #2: The Child's Views and Preferences

[67] The child loves both parents and wants to spend significant time with both of them. He did not express a preference about where he wanted to live.

Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment

[68] The child spent equal time with both parents between July of 2011 and September of 2013. At that time, he began to live primarily with the mother, but spent considerable time with the father.

[69] The father has provided the child with a stable home environment.

[70] The mother has provided a less stable home environment for the child. She has exposed the child to domestic conflict with O., her excessive alcohol consumption and police involvement since the existing order was made.

Factor #4: The Ability and Willingness of Each Person Applying for Custody to Provide Guidance, Education, Necessaries of Life and Special Needs

[71] The mother has taken the lead in addressing the child's medical and educational needs and has done so in a responsible manner.

[72] The father has been interested in the child's schooling and attends parent-teacher meetings. He has occasionally taken the child to the doctor.

[73] The child presently has no special needs.

[74] The father has paid the child support ordered by the court. However, he did not let the mother know in a timely manner that his income had significantly increased in 2014. He did not increase his child support payments to be in accordance with his income. This was not responsible behaviour on his behalf – particularly since he is aware that the mother is on public assistance and struggling financially.

Factor #5: Any Plans Proposed for the Child's Care and Upbringing

[75] The father's plan is to have the child spend every other week with him. He would keep the child in the same school. He plans to assist the child with his homework and stay in contact with the school. He is prepared to continue to have the child see his current doctor. He hoped to enroll the child in extra-curricular activities.

[76] The father's spouse would play an important role in his plan as the father works full-time. On days that the father works, his spouse would pick up and drop off the child at school.

[77] The mother has given her plan more consideration than the father. She has a doctor in place for the child. She has arranged summer camp for him. She has enrolled the child in soccer and takes him to the temple for religious instruction.

[78] The mother is presently at home full-time, but says that she has a job arranged to start in September of 2015. She says that she will be able to work from 10:00 a.m. until 2 p.m., in order to be available for the child before and after school. On days that the child is in the father's care, she will be able to work full-time.

Factor #6: The Permanence and Stability of the Family Unit

[79] The father's family unit appears to be stable. He and his spouse have a committed and supportive relationship.

[80] The stability of the mother's family unit is less stable. She still has a relationship with O., but the evidence indicates that it has been a volatile one. The mother testified that she wants O. to obtain substance abuse counseling and for them to go for joint counseling before they can live together.

Factor #7: The Ability of Each Person Applying for Custody to Act as a Parent

[81] The parties presented with different strengths and weaknesses.

[82] The father presented as a loving, stable and caring parent. However, the court also finds that he was unreasonably restrictive in permitting the mother contact with the child when the child was living with him from September 21, 2014 until November 14, 2014. He also placed his own interests ahead of the child's when he failed to increase his child support payments starting in 2014.

[83] The mother loves the child and is attentive to his needs. She has responsibly dealt with his education and health. She has facilitated his relationship with his father. She has presented a clear plan to care for him.

[84] However, the mother has many challenges, including:

a) She has a problem with alcohol abuse. This has adversely affected her judgment and her behaviour.

b) She has exposed the child to these unacceptable behaviours.

c) While she has taken alcohol abuse treatment, the mother tended to minimize her alcohol abuse at trial and externalized blame (mostly to the father) for this problem. This gave the court less confidence that she will be able to sustain positive changes.

d) The mother has had difficulties with her relationships. She has already had two failed marriages, the difficult relationship with the father and the troubled relationship with O. There is a real concern that she will continue to expose the child to this cycle of unstable or dysfunctional relationships.

e) The mother presented as a very angry person.

Factor #8: The Relationship by Blood or Through an Adoption Order

[85] This was a neutral factor in making this decision.

4.6 Analysis

[86] The court has concerns about maintaining the joint custody arrangement. Most of those concerns relate to the mother. She is angry at the father and has demonstrated poor judgment on several occasions since the existing order was made.

[87] The mother made comments at trial (referring to the father) such as:

a) "I don't want to communicate with him".

b) "I don't think it is healthy for me to communicate with him".

c) "I can't handle it".

[88] The court is also concerned that the Peace Bond prevents direct communication between the parties and that this case is still being litigated, almost five years after the first application was brought.

[89] Despite these reservations, the court will continue the joint custody order for the following reasons:

a) Despite their differences, the parties have historically been able to make responsible major decisions for the child, specifically about religion, school and health.

b) The parties have been flexible in rearranging access to accommodate their schedules.

c) The parties both love the child and generally will put his interests ahead of their own.

d) The parties both expressed to the clinical investigator that they have communicated effectively in the past with each other and hoped to continue to be able to do so. It could be that the mother's evidence at trial about her unwillingness to communicate with the father is partly due to the stress of the litigation and her fear of losing her current role in the child's life.

e) The parties agreed that they have been able to reduce their conflict with the use of the third person to communicate between them.

f) The parties agree about the child's religion, the doctor he sees and what school he will attend.

g) Despite the conflict between the parties, the child appears to be thriving.

[90] The court wishes to emphasize to the mother that if it had decided to make a sole custody order, it would have chosen to give the father this authority. It is due to the mother's behaviours that it was necessary to review if joint custody was still appropriate.

[91] The court gave strong consideration to placing the child in the primary care of the father (as opposed to the shared parenting arrangement recommended by the OCL), due to its following concerns about the mother:

a) Her excessive alcohol use.

b) Her impaired judgment when drinking.

c) Her unstable relationships – specifically the current relationship with O.[6]

d) Her unresolved anger.

e) Her exposure of the child to these issues.

[92] The court also considered that a shared parenting order usually requires a higher level of cooperation between parents. Parents need to be able to coordinate medical and health issues concerning the child. They need to be able to coordinate extra-curricular activities that will be important for the child.

[93] However, notwithstanding these concerns, the court felt that the strengths of the mother, outlined above, meant that it did not have to make such a significant shift in the parenting arrangement for the child. The court is also encouraged by the fact that the mother has sought alcohol treatment, completed an anger management program, has attended for personal counseling and that there have been no known incidents of alcohol abuse since February of 2015.

[94] The court finds that the parenting plan suggested by the clinical investigator and supported by the father is in the child's best interests since:

a) It will ensure meaningful involvement in the child's life by both parents.

b) The extra time spent with the father will provide the child with another layer of protection against the protection concerns concerning the mother.

c) The child already spends considerable time with the father. The adjustment in the schedule is not significant enough to disrupt the child's sense of security and continuity.

d) The child will have continuity of school and friends.

e) It will minimize stressful transitions for the child.

f) It will give the mother dedicated time to work on her personal issues with professionals. The more emotionally healthy she is, the better parent she will be for the child.

[95] The court will maintain the holiday schedule that has been in place since the July 13, 2011 court order.

Part Five – Child Support

5.1 Positions of the Parties

[96] The father seeks a change in child support based on the shared parenting arrangement pursuant to section 9 of the guidelines. He asks that his income be fixed at $63,600 per annum and that the mother's income be imputed at $20,000 per annum for the purpose of this calculation. He asks that the court set off the support amounts that are set out in the applicable tables in the guidelines for each of the parents.

[97] The mother and the assignee ask that the father pay increased child support from January 1, 2014, in accordance with his income. The mother made no submissions about the imputation of her income.

5.2 Adjustment of Past Support

[98] The existing order provides that the father pay child support to the mother of $309 per month, based on an income of $35,000 per annum.

[99] The father actually earned $40,324 in 2013.

[100] The existing order also required the father to provide the mother with annual financial disclosure.

[101] The father's income increased to $77,215 in 2014. The father did not notify the mother of this huge increase in income during 2014. He did not provide this information to her until May of 2015.

[102] Applying the four primary factors in the leading retroactive child support case of D.B.S. and S.R.G. v. T.A.R. and L.J.W., (2006) 2006 SCC 37, 2 S.C.R. 231:[7]

a) The mother's delay in seeking increased child support was explained since the father failed to disclose his large increase in income in a timely manner.

b) The father's failure to increase support was blameworthy conduct as he preferred his own interests to those of the child. He knew or ought to have known that he should have increased his support payments.

c) The mother has been on social assistance. The child has been disadvantaged by the failure of the father to pay adequate support.

d) Any hardship to the father arising out of a retroactive support order can be addressed through the terms of a repayment order.

[103] The guidelines table amount for one child for 2014, based on the father's actual income, should have been $702 per month.

[104] The court will order this adjustment to child support for only 10 months in 2014, as the child lived with the father for two months between September and November.

[105] The support adjustment for 2014 shall be $3,312, calculated as follows:

New support order: $702 per month x 10 months	$7,020
Support under existing order: $309 per month x 12 months	$3,708
Balance	$3,312

[106] The father's support obligation also needs to be adjusted for the first six months of 2015.

[107] A review of the father's pay stubs reveals that his projected annual income for 2015 is higher than he claims. His May 7, 2015 pay stub shows that through 18 weeks in 2015, the father has earned gross income of $22,929. This amount projects to annual income of $66,239 for 2015. This is the income that will be used for the support calculation.

[108] The table amount for one child for 2015, at the father's income of $66,239 is $605 per month.

[109] The support adjustment for 2015 is $1,776, calculated as follows:

New support order: $605 per month x 6 months	$3,630
Support under the existing order: $309 per month x 6 months	$1,854
Balance	$1,776

[110] The total support adjustment up until the end of June of 2015 is $5,088 ($3,312 plus $1,776).

5.3 Section 9 of the Guidelines – Legal Considerations

[111] Section 9 of the guidelines reads as follows:

Shared custody

9. Where a parent or 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, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[112] In Contino v. Leonelli-Contino 2005 SCC 63, [2005] 19 R.F.L. (6th) 272 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.

[113] 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".

[114] 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.

[115] 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.

5.4 The Set-Off Amount

[116] 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). The father's table obligation, as set out above, is $605 per month. What is more difficult to determine is the mother's table obligation.

[117] The father asked the court to impute the mother's income at $20,000 per annum for support purposes, effective immediately. He submitted that this is an amount the mother could and should be earning.

[118] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

[119] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her or the child's reasonable educational needs?

3. If not, what income is appropriately imputed?

[120] The mother was steadily employed as a registered practical nurse until she chose to leave this job in 2011. She readily admits that she has chosen to remain unemployed since that time to care for the child. She is intentionally unemployed.

[121] The second question in Drygala deals with the reasonableness of the party's decision to be unemployed. The mother has chosen to be unemployed to care for the child. The mother has acknowledged that once the child returns to school full-time in September, it is appropriate for her to go back to work. She proposes to work at times that she is not required to care for the child. This is a reasonable plan. No income will be imputed to the mother, until September 1, 2015.

[122] The third question in Drygala v. Pauli is: "what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[123] The mother testified that she cannot return to work as a registered practical nurse because of her criminal record. She has arranged a job to work in a paralegal office. The mother testified that the employer will be flexible and provide her with hours that will accommodate her child care obligations.

[124] The mother testified that she will be paid the minimum wage of $12 per hour at this job.

[125] With the new parenting schedule, the mother should be able to work 40 hours per week in alternate weeks and 20 hours per week (10 a.m. to 2 p.m. each day) in the weeks that the child is in her care. This averages out to 30 hours per week. At $12 per hour this comes to $360 per week, or $18,720 per annum (fairly close to the amount sought to be imputed by the father). It will be up to the mother if she chooses to work this amount of hours. However, for support purposes, the court finds that these are a reasonable amount of hours that the mother can work to support the child.

[126] The mother's guidelines table obligation at this income level is $148 per month.

[127] The set-off amount (starting in September of 2015) will be $457 per month.

5.5 Increased Costs of Shared Custody

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

[129] The father provided no evidence that he had increased costs due to the shared custody arrangement. The court, however, can infer that the father will have some additional food, clothing, laundry, transportation and household supply costs for the child.

[130] The mother also presented no evidence regarding this step in the section 9 child support analysis.

5.6 The Condition, Means, Needs and Other Circumstances of the Parents

[131] The third step in a section 9 child support analysis is to review the condition, means, needs and other circumstances of the parents.

[132] The court considered that the father is required to support another child. His spouse only works part-time as a Human Resources Manager. The father and his spouse jointly own their home. The father indicated in his financial statement that it has equity of over $50,000. The father and his spouse have no tangible savings.

[133] The mother owns a condominium. It has equity, she deposed, of under $10,000. She has no savings and $5,500 of credit card debt. She has been supported by her sister and owes her money.

5.7 Support Calculation

[134] Balancing all of the considerations set out above, the court finds that the father should pay the full table amount of support for July and August of 2015 and the set-off amount of support ($457 per month) starting on September 1, 2015.

[135] The parties will be required to provide each other annually with their complete income tax returns and notices of assessment. They shall immediately notify one another if there is a significant change in their incomes or if they change employment.

5.8 Arrears Payment

[136] The father owed $2,400 in support arrears prior to the support readjustment in this decision. These arrears were accrued prior to the existing order. The existing order provided (on consent) for a modest monthly repayment of the arrears. This repayment is no longer appropriate given the significant increase in the father's income. With the adjustment in this decision, the support arrears are now close to $7,500.

[137] The father shall be permitted to repay his support arrears at the rate of $250 per month. However, if he is more than 30 days late in making any ongoing or arrears payment, the entire amount shall become immediately due and payable. The arrears payment will start on September 1, 2015, when the father's ongoing support obligation will be reduced.

Part Six – Conclusion

[138] A final order shall go on the following terms:

a) The existing order is terminated.

b) The parties shall have joint custody of the child.

c) As long as the existing Peace Bond is in effect, the parties shall communicate through a third party.

d) Both parties are to have direct communication and access to information about the child from any third party, including doctors, schools, children's programs and any service providers.

e) The child shall continue to attend at his present school unless agreed to otherwise by the parties, in writing.

f) The child shall rotate spending one week with each parent. While the child is in school, the week will begin by the parent picking up the child at the end of the school day on Friday. If there is no school on Friday, the parents shall arrange a different exchange location on the Friday at 6 p.m. The child shall spend the first week of the school year in September at the mother's home.

g) The holiday schedule set out in the July 13, 2011 order shall continue and take priority to the regular access schedule.

h) The father shall be required to pay the mother an additional sum of $5,088 (in addition to his present arrears) for his support obligations up until June 30, 2015.

i) The father shall pay the mother the guidelines table amount of child support of $605 per month, on July 1, 2015 and on August 1, 2015.

j) Starting on September 1, 2015, the father shall pay the mother child support of $457 per month, being the amount calculated in this decision pursuant to section 9 of the guidelines.

k) Starting on September 1, 2015, the father shall be permitted to repay the support arrears at the rate of $250 per month. However, if he is more than 30 days late in making any ongoing or arrears payment, the entire amount shall become immediately due and payable.

l) The Director of the Family Responsibility Office is requested to adjust its records in accordance with the terms of this order.

m) This order will not preclude the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or from any lottery or prize winnings of the father.

n) The parties shall, by June 30th each year, starting in 2016, provide each other with a complete copy of his or her income tax return and notice of assessment.

o) The parties shall immediately notify the other if they have a significant change in income or a change in employment.

[139] If either party chooses to seek costs, they are to serve and file written submissions by July 10, 2015. The other party will then have until July 20, 2015 to make written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

Justice S.B. Sherr

Released: June 29, 2015

Footnotes

[1] The parties agreed that they would each have up to two hours to cross-examine the other party and up to thirty minutes for reexamination. Neither party required the full amount of time to complete their examinations.

[2] The father did not learn about this until the trial.

[3] This information was provided in the OCL report.

[4] The mother described herself as a binge drinker.

[5] There is a section in the Form 35.1 that requires the party to list all criminal convictions. The mother did not disclose this conviction.

[6] The mother told the clinical investigator that she hoped to resume a committed relationship with O.

[7] These factors are: 1. Reason for the delay in bringing the claim; 2. Conduct of the payor parent; 3. Circumstances of the child; and 4. Hardship that may be caused by a retroactive award against the payor parent.

[8] This paper was presented at the National Family Judges Conference in British Columbia, February 13-15, 2013.