Court File and Parties

Date: 2016-01-12 File No.: Brampton 1058/14 Ontario Court of Justice

Between: Roberto Santos Pileggi Applicant

— And —

Lindsey Anne Parkin Respondent

Before: Justice Philip J. Clay

Heard on: December 9, 2015

Reasons for Judgment released on: January 12, 2016

The Applicant represented himself

Ms. L. Moritz for the Respondent

CLAY J.:

SUMMARY HEARING

PROCEDURAL BACKGROUND

[1] The parties were married on May 29, 2009 and separated on March 1, 2010. They signed a Separation Agreement on May 12, 2010 resolving all of the issues between them. That agreement included that they shared joint custody of their son Hunter Pileggi, born March 14, 2006. The parties were divorced by an order which took effect on October 21, 2012.

[2] The Applicant father ("father") filed an Application on September 3, 2014 seeking custody of the said child and child support pursuant to the table to the Child Support Guidelines ("CSG"). The Respondent mother ("mother") filed her responding documents in which she sought custody and a child support order.

[3] The Office of the Children's Lawyer completed a report pursuant to s. 112 of the Courts of Justice Act which recommended that the parties retain joint custody and that Hunter's primary residence be with the father. The parties entered into Minutes of Settlement that contained those terms and set out a timesharing plan. The Minutes were filed in court on October 5, 2015 and a final order was made. The matter was then adjourned to a summary trial on affidavit evidence only on the outstanding issue of child support. Each party was required to file an affidavit and updated financial statements.

[4] The summary hearing was argued on December 9, 2015 and I reserved my decision.

THE JOINT CUSTODY ORDER

[5] The final order of October 5, 2015 set out a basic timesharing schedule. It stated that Hunter would be with his mother:

a) every Tuesday from 5:30 p.m. overnight to Friday morning drop-off at the father's home at 7 a.m. and

b) every Sunday overnight from 4:30 p.m. to Monday morning drop-off at the father's home at 7 a.m.

[6] This schedule resulted in Hunter being with his father:

a) every weekend from Friday at 7 a.m. to Sunday at 4:30 p.m. and

b) from Monday at 7 a.m. to Tuesday at 5:30 p.m.

[7] As noted below, the parties made some submissions regarding the nature of the time that each had with the child but I find that there was no doubt that this is a time-sharing arrangement that fits within the shared custody provisions of s. 9 of the CSG.

THE LAW

[8] Section 9 of the CSG 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. O. Reg. 391/97, s. 9.

MOTHER'S POSITION

[9] The mother sought an order that the father pay s.9 child support to her in the amount of $500 a month beginning September 1, 2015. She stated that the parties divided the summer time with Hunter equally and the new timesharing schedule set out above came into place at the beginning of the school year.

[10] Ms. Moritz stressed that the law is clear that no one provision of s.9 has any more weight than another and the court must analyze each of the subsections of s.9 before coming to a decision on the appropriate amount of child support.

[11] She began with the s. 9(a) set-off. Ms. Moritz said that the mother's income as set out in her financial statement of November 26, 2015 was $70,769. She noted that the father's income in 2014 was $78,043. However, in her affidavit the mother alleged that the father had always earned extra income as a heavy duty truck mechanic at GDF Haulage in Caledon. She said he had worked there every Saturday for a number of years and that he earned about $200 cash a day which he did not declare on his income tax return. The mother calculated that the father worked 50 days a year for $200 a day and earned $10,000 in untaxed income. Ms. Moritz provided a DivorceMate calculation that showed that when untaxed income was added to the father's employment income he actually had income for child support purposes of $94,222. The set-off amount for the father's income at $94,222 was $189 per month. The set-off amount at the employment income of $78,043 was $64 a month.

[12] Ms. Moritz then turned her focus to s. 9(b). With respect to the increased costs of shared custody, Ms. Moritz pointed to the mother's December 3 affidavit in which she had stated that she had routinely paid for clothing, dental expenses and school activities and she had not sought any reimbursement. She also noted that the mother had the child every night before school except for Monday night (though the father actually dropped the child off to school on Mondays, Tuesdays and Fridays). The mother said that this would mean that she would pay most, if not all, of the school expenses for special activities.

[13] Finally, with respect to s. 9(c) Ms. Moritz said that the father's conditions means and circumstances were substantially better than the mother's. The mother lived with Hunter and her nearly 3 year old son Daylen in an apartment. She was the only adult in the household. She did receive some financial help from her father from time to time. By way of contrast Ms. Moritz said that there were three adults in the father's home: his spouse and her 20 year old son Adam and two children, his spouse's 11 year old daughter and Hunter. She said the father owned his home which was the party's former matrimonial home and it was worth much more than the $375,000 he set out in his financial statement. With other adults in the home the father had much more freedom and would not have to incur childcare costs like the mother would have to do from time to time.

[14] Ms. Moritz then noted that when the parties signed their Separation Agreement, that they intended to share time equally with Hunter. On that basis, the father agreed to pay the mother the sum of $300 a month. The father actually only paid that child support for two months. Over time the father acquired more time with the child which ultimately resulted in him bringing this Application to have the court declare him to be the child's custodial parent. While the reasons for the father obtaining more time were very contentious, there was no doubt that Hunter was primarily with him for a significant period of time. That changed with the OCL recommendations and the new timesharing arrangement. Ms. Moritz's point was that the father had shown a willingness and ability to pay $300 a month before when he did not have the child with him most of the time so the court might look at that and decide that the parties had contemplated a true shared parenting situation and now it existed the parties original bargain could be restored and enhanced. Ms. Moritz did not lead any evidence as to the financial position of the parties when the father agreed to pay $300 per month in March 2010. I noted from a review of the financial statements filed that in 2011 (the earliest year filed) the mother earned $53,521 and the father earned $67,292 so the income gap appeared to be much wider then. As noted below, I did not find any reference to the support paid, or not paid, from the time of separation to the time of this hearing to be relevant.

FATHER'S POSITION

[15] The father said that the mother should pay him child support in the amount of $300 per month. He said that the order recognized that Hunter was now primarily residing with him and that he had Hunter every weekend. He said that it was not true that the mother would spend more on the child's school activities just because she had more mid-week time with him. He noted that he would drop Hunter off to school every Monday, Tuesday and Friday morning. He also would have Hunter every weekend and said that there were a lot of little expenses on weekends which he would inevitably pay.

[16] With respect to his income, the father said that he had not worked as a heavy duty truck mechanic at GDF Haulage in Caledon for years. He said that as he had his son with him every Saturday, he would not leave him and drive to Caledon to work. He said no income should be imputed to him.

[17] The self-represented father did not really appear to understand that the current timeshare was a shared custody situation which invoked s.9 of the CSG. He seemed focused on the fact that he had retained primary residency and that Hunter spent more waking hours with him. He thought that the mother should pay him $300 a month because of this primary residence.

[18] The father wanted to address the last two years in which Hunter has lived with him and had less time with his mother than he does currently. I ruled that the motion before me was limited to ongoing child support after the new timeshare was set. There were many issues with how the father came to have Hunter with him more than the mother did. Neither party had had independent legal advice from the time they signed their Separation Agreement on May 12, 2010, through their divorce in 2012 and until this present Application. I did not take into consideration any of the evidence of the parties with respect to non-compliance with these "agreements".

ANALYSIS

CHILD SUPPORT

Father's income

[19] I find that the mother has not discharged the onus upon her to prove that the father has additional untaxed income. I cannot rely upon the statements in the mother's affidavit that the child had told the mother from time to time that the father had to go to work when he was there. The father denied working in Caledon on Saturdays. It may well be that the father used to do some weekend work but that was some time ago. I do not have evidence to impute income.

S.9 calculation

[20] This is clearly a case for the application of s.9 of the CSG. The father must be discouraged from counting the hours that Hunter is with him. The parties share custody.

[21] Ms. Moritz correctly stated the law when she reminded the court that all three sub-sections of s.9 must be considered in this matter and that no single sub-section has primacy over any other. I will examine each sub-section in turn.

The set-off amount

[22] The father's income is $78,045 and the mother's is $70,769. The correct set-off amount that the father must pay is $64 per month as is evident from the DivorceMate calculation filed by the mother.

The increased costs of shared custody

[23] There was no specific evidence filed that addressed this issue. Neither parent was required to incur any costs for changes to their residence as a result of the new timesharing arrangement. The father had purchased the mother's interest in the former matrimonial home and the child had primarily resided with him there for most of the post-separation period. He now resides in that home with his spouse, her 20 year old son, 11 year old daughter and Hunter. The mother resides in a rented apartment with Hunter and her nearly three year old son Daylen. Hunter has been able to divide his time between his parents without either parent being required to make significant changes to their living arrangements.

[24] I received no evidence as to any additional expenses that the mother would be required to make now that her time with Hunter had increased. Ms. Moritz stated that the mother would be purchasing most of Hunter's clothing. She based this submission on the mother's statements that in the past the father had told Hunter to get his mother to buy certain articles of clothing. Even if this was true, and the father stated that it was not, I note that those requests would have been made at a time when the child was primarily living with the father and the mother was not paying any child support. In those circumstances it was reasonable for the father to expect the mother to assist with some clothing purchases.

[25] I am not prepared to assume that a mother, as opposed to a father, would necessarily purchase all of a child's clothing. I note that as there has been no specific agreement on purchases of clothing, footwear or sports and recreational items. In this shared custody arrangement, both parties should share proportionally to their respective incomes in such purchases.

The condition, needs, means or circumstances of the parties

[26] Ms. Moritz made the argument that the father had two adults and two children in his household and the mother only had two dependent children. She said the father owned his home and that its value was significantly understated on his financial statement. The mother rented an apartment and had no assets (other than her entitlement to an employment pension). The mother said that if she required child care she needed to pay for it, whereas the father could rely upon his spouse or the adult child. She said that the father was in a much better position to adjust to financial ups-and-downs.

[27] The father's affidavit stated that the 20 year old lived at home while attending university and that his spouse only worked part-time. A review of the financial statements of the parties showed that both had significant debt. The parties have been separated for over 5 years. In that time they have made decisions as to how to spend their respective employment incomes. The mother has a young child and that may well make her time less flexible than the father's but the parties negotiated a sharing of time based upon their respective abilities to be available for Hunter. I find that the respective means and circumstances of the parties were not relevant to the amount of child support that should be ordered.

SUMMARY

[28] I have concluded that the timesharing arrangement clearly fits within the provisions of a shared custody arrangement notwithstanding the designation of the father as the primary parent.

[29] I have reviewed the three sub-sections of s.9 of the CSG and find that the father should pay to the mother the set-off amount of $64 per month and that this support shall begin when the parties adopted the new timesharing arrangement in September 2015.

[30] Given that my decision was significantly different than the position taken by either party, there will be no order as to costs.

ORDER

1. The Applicant father shall pay to the Respondent mother for the support of the child, Hunter Bowman Pileggi, born March 14, 2006, the sum of $64.00 per month beginning September 1, 2015 and payable on the first day of each and every month thereafter. The said support is based upon the parties' shared custody of the child and is pursuant to s. 9 of the CSG.

2. a) The parties shall share the said child's special and extraordinary expenses as defined by s.7 of the CSG and the said child's clothing, footwear, sports and recreational equipment and other significant child related expenses in proportion to the respective incomes of the parties.

b) Based upon the Applicant father having a 2014 income of $78,045 and the Respondent mother having a 2014 income of $70,769, the Applicant shall pay 52% of the said expenses and the Respondent 48%.

c) A party will only be obligated to contribute to the child's s.7 expenses if the party consents to the expense in advance in writing. Neither party will unreasonably withhold consent.

3. Each party shall maintain the said child on his or her medical/dental benefit coverage through their employment for so long as such coverage is available and the child is eligible for coverage.

4. S.D.O. to issue.

5. There shall be no order as to costs.

6. Ms. Moritz shall take out this order and the final order of October 5, 2015 without the requirement of the approval of a draft order by the Applicant father.

Released: January 12, 2016

Justice Philip J. Clay