Court File and Parties
Court File No.: D90318/16 Date: 2016-07-21
Ontario Court of Justice
Between:
Anna Karina Palaganas Applicant
- and -
Christopher Junior Marshall Respondent
Counsel:
- Jacob Stall, for the Applicant
- Acting in Person, for the Respondent
Heard: July 19, 2016
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicant (the mother) has brought a motion seeking temporary relief including: custody of the parties' two children (the children); an order that the respondent (the father) have reasonable and liberal access to the children; child support retroactive to October 1, 2014, including a contribution to the children's special expenses starting on March 1, 2016; and the right to travel with the children outside of Canada without the father's written consent.
[2] The father has brought a cross-motion seeking temporary relief including: joint custody of the children; an equal time-sharing arrangement with the children; and child and spousal support. The father opposes the mother's claim for temporary child support and asks that the parties be required to obtain the consent of the other to travel outside of Canada with the children.
[3] The main issues for the court to decide on these motions are:
a) What temporary parenting plan is in the best interests of the children?
b) What temporary child support order should be made?
c) When should temporary child support begin?
d) Is the father entitled to temporary spousal support? If so, how much support should be ordered?
Part Two – Background Facts
[4] The mother is 33 years old. The father is 42 years old.
[5] The parties cohabited from 2007 until the fall of 2014.
[6] The parties are the biological parents of an 8-year-old child.
[7] The mother has another child who is 13 years old. This child's biological father lives in the Philippines and has not had involvement with this child.
[8] The parties agreed that the father has assumed the role of parent of the 13-year-old child.
[9] The children have resided with the mother since the parties separated.
[10] The parties disagreed on the extent of the father's involvement with the children since the separation. The mother deposed that the father spends 3 to 4 days each month with the children, with occasional overnight visits. She advised the court that the father does not spend more than one overnight at a time with the children.
[11] The father did not dispute the mother's evidence about the amount of time he spends with the children in his affidavit, but in submissions claimed he has spent much more time with them than the mother claimed. However, when asked, he had difficulty identifying times when the children had spent overnights with him in the past few months. He said that he had a poor memory. The court found the mother's evidence, which was specific and consistent, to be more reliable on this point.
[12] The parties agreed that the children are doing well.
[13] The mother is a nurse. The father is a manager at a fast food chain restaurant.
[14] Both parties are shift workers.
[15] The parties have had significant difficulties coordinating access, partly due to their shift work. The mother claims that the father does not provide her with his work schedule and then demands parenting time with little notice. The father claims that the mother frustrates his ability to exercise access to the children.
[16] The father has not paid the mother child support. He has paid for some expenses for the children, including school uniforms and camp for the older child.
Part Three – Temporary Parenting Order
3.1 Legal Considerations
[17] 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.
[18] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
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.
The younger the child, the more important communication is.
[19] 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.
[20] 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. 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.
[21] The Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children. See: Andrade v. Kennelly, 2007 ONCA 898.
[22] Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. See my comments in Jama v. Mohamed, [2015] ONCJ 619.
[23] The status quo is a very important consideration on temporary motions for custody and access. See: McEachern v. McEachern.
[24] Children should have maximum contact with both parents if it is consistent with the children's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[25] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.
3.2 Analysis
[26] The evidence does not support making a temporary joint custody order for the following reasons:
a) There is significant conflict and poor communication between the parties.
b) The conflict between the parties has resulted in the involvement, at times, of the police and child protection agencies.
c) The mother set out several instances of domestic conflict and confrontational behaviour by the father (all denied by him).
d) The parties have been unable to effectively arrange parenting schedules and blame the other for this.
[27] The evidence does not support a finding that the mother is frustrating the father's relationship with the children. To the contrary, it shows that she has been trying very hard to facilitate their relationship and the father is often unresponsive to her requests to provide his work schedule or to give her adequate notice about when he wishes to see the children. It is understandable that she wants some predictability so that she can make child care arrangements, particularly since she has changing work shifts.
[28] It is in the best interests of the children that the mother be granted temporary custody of them for the following reasons:
a) The mother is the parent who has made the major decisions for them since the parties separated. She is the parent who takes the children to doctors and dentists and coordinates their schedules and activities. She has been their primary caregiver.
b) The mother has made responsible decisions for the children.
c) The children have been thriving in the primary care of the mother.
d) The father has not been responsive in providing his work schedule despite multiple requests by the mother.
e) The father has not been responsible by failing to pay child support for the children. He has placed his own interests ahead of the children's by doing this.
[29] These factors also militate against the equal-parenting schedule requested by the father. In addition, the father's plan to care for the children, particularly given his changing work schedule, was vague. No evidence was led that the significant increase in parenting time proposed by the father would benefit the children. The children have a consistent, predictable and stable routine living with the mother. They have thrived in her care and the existing parenting arrangement should not be significantly changed on a temporary basis.
[30] It is in the children's best interests to provide a structured parenting schedule. The existing arrangement has resulted in too much uncertainty as to when the children will spend time with the father and has created too much conflict between the parties.
[31] The father told the court that he is given his work schedule for the following month one week before the start of that month. He should immediately provide the mother with that schedule each month.
[32] The father also advised the court that he receives one weekend off work each month (not including Friday evening). It makes sense that he be able to spend this weekend each month with the children.
[33] The father is off work two weekdays during the other weeks. These days vary each week.
[34] It is in the best interests of the children that they be able to spend one overnight during the week with the father during the school year and two overnights with him during the week in the summer when he is off work. The father confirmed that he could make himself available to pick up and drop off the children. Provided that the father gives the mother his work schedule and selected access dates at least 5 days prior to each month, he shall be entitled to choose which weekdays the children are to stay the night with him for that month.
[35] During submissions, the mother advised the court that she was agreeable to this form of parenting plan.
[36] It is important that the father promptly advise the mother which weekend and which weekday overnights he will exercise in the following month, once he receives his schedule, in order that the mother can coordinate her own schedule. To address the mother's concern that the father has failed to do this in the past, if the father fails to provide the mother with his work schedule and which dates he chooses to exercise overnight access at least 5 days prior to any month, the mother will have the right to select the weekly overnight visits the father will have in that month.
[37] The father will be entitled to the rights of information provided in subsection 20(5) of the Act, which reads as follows:
The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.
[38] The mother asked the father for permission to travel to Cuba with the children for vacation this year. He refused and the vacation did not take place. The father's actions were unreasonable and were not in the children's best interests. The mother will be given the ability to travel with the children outside of Canada for vacation purposes without the father's consent. She will be required to provide the father with 21 days notice of any such vacation and provide the father with an itinerary and contact information for the children. The mother will also be entitled to obtain the necessary government documentation to facilitate traveling with the children.
Part Four – Child Support
4.1 Positions of the Parties
[39] The father's failure to pay any child support to the mother since their separation is alarming. Equally alarming is that the father submitted that this was justifiable and he should continue to not have to pay any child support to the mother.
[40] The father deposed the following in his affidavit:
The Respondent (referring to himself) has been able to save a significant amount over his working years for the future of the children. Some of these moneys will used to create equity or set aside as inheritance. Another set amount is being set aside for assisting the Respondents children in their post education should they choose to attend.
[41] It was apparent that the father did not appreciate that the children need his financial support now.
[42] The mother seeks the table amount of child support pursuant to the Child Support Guidelines (the guidelines) retroactive to October 1, 2014. She asks for an order that the father pay his proportionate share of the children's special expenses starting on March 1, 2016.
4.2 The Parties' Income
[43] The father's income in 2014 was $50,648.
[44] The father's income in 2015 was $51,967.
[45] The father produced a pay stub up to June 5, 2016. It showed a gross income to that date of $27,459. This projects to an annual income of $62,081. The increase in 2016 income reflects the promotion the father received to manager this year.
[46] Where it is available, the court should use the current year's income in assessing a payor's support obligation. See: Vanos v. Vanos, 2010 ONCA 876.
[47] The guidelines table amount at this income is $922 per month.
[48] The mother's income is $72,328 per annum.
4.3 Section 5 of the Guidelines
[49] The father agreed that he has acted as a parent for the older child. He even sought child support from the mother for this child.
[50] Section 5 of the guidelines reads as follows:
Spouse in place of a parent
Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child.
[51] The court finds that it is appropriate to order the father to pay the full table amount for the older child on a temporary basis for the following reasons:
a) He is the only father the child knows.
b) The mother has never received any child support from the child's biological father.
c) There is no evidence that the mother would be able to collect any child support from the child's biological father.
4.4 Interim Retroactive Support
4.4.1 Legal Considerations
[52] This court has jurisdiction to make a temporary retroactive support order. Clause 34(1)(f) of the Family Law Act reads as follows:
- Powers of court. -- (1) In an application under section 33, the court may make an interim or final order,
…..(f) requiring that support be paid in respect of any period before the date of the order;
[53] A temporary order is designed to be a "holding order" to get the parties to trial by considering the strength of the claims in an effort to achieve fairness to the parties by balancing financial needs, means and any hardship to the parties should an interim order be made or not made. See: Orsini v. Orsini, 2016 ONSC 3332, paragraph 60.
[54] The leading case on retroactive child support is D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (referred to as "D.B.S."). At paragraph 133 of D.B.S., the Supreme Court of Canada held that, in determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility. The court listed the following factors for consideration and provided that there is no priority among them; none are decisive and all should be considered:
(1) Has the applicant provided a reasonable excuse for delay in applying to court?
(2) Conduct of the payor
(3) Circumstances of the child
(4) Hardship for the payor
[55] Where retroactive financial support is sought on the interim motion, the motions court is not making the ultimate decision as to whether the party is entitled to retroactive financial support in the Application. That is for the trial judge to determine on a complete evidentiary record. The issue for the motions judge is to consider the factors in D.B.S., based on the motion materials and then proceed, if necessary, to ascertain whether and the extent it is fair and appropriate to both parties that such relief is granted on an interim basis in the circumstances of the evidentiary record of the motion. See: Orsini, supra, paragraph 61(c).
[56] Where there are substantial issues in dispute regarding the entitlement of a party to retroactive support, the analysis should be left to the trial judge. See: K.B.A.S. v. G.E.S., 2006 S.J. No. 604 (Q.B.); A.L.Y. v. L.M.Y., [2001] A.J. No. 506 (Q.B.); Villeneuve v. Lafferty, [1999] N.W.T.J. No. 128 (S.C.).
4.4.2 Analysis
[57] The court will treat the issue of temporary retroactive child support with caution. The court is very aware that the evidence before the court consists of affidavits and the parties have not been questioned.
[58] Further, the mother provided little evidence about why she delayed from October of 2014 until February of 2016 before bringing her support claim. She also provided no evidence about the circumstances of the children, as required by D.B.S.
[59] The trial judge is in the best position to conduct a holistic retroactive support analysis as required by D.B.S.
[60] However, this does not preclude the court from making any retroactive support order when merited. Here, the court cannot ignore the egregiously blameworthy conduct of the father in failing to pay any child support to the mother. It appears almost certain that the father will be required to pay the mother retroactive support. The issue at trial will be how much retroactive support should be paid. The comments I made in paragraph 91 of Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 apply to this case. This paragraph reads as follows:
91 The respondent argues that a temporary retroactive order should not be made, since, if the trial court decides that the applicant is not entitled to retroactive support, he will then have to collect the overpayments from the applicant. This is not an attractive argument when a recipient has established a strong prima facie case for retroactive support on a temporary motion. Why should the applicant solely bear the risks associated with collection of support after trial? Why should the respondent have exclusive use of these funds pending trial? At this point, the evidence indicates that, if this case proceeds to trial, it is far more likely that it is the respondent who will be required to pay a further (and sizeable) retroactive support payment to the applicant, rather than the respondent having to collect an overpayment of support from the applicant.
[61] The father has been able to accumulate assets by not paying the mother support. The father has equity of close to $178,000. Conversely, the mother has had to draw on a line of credit to pay her expenses.
[62] Balancing these considerations, the court will order that the father pay the mother the guidelines table amount of child support on a temporary basis, starting on July 1, 2015. This order will be without prejudice to a different start date being chosen at trial. The court wishes to emphasize to the father that this is a very conservative retroactive order because it is being made at a temporary stage of the case. The evidence presented to date points to a much earlier start date being awarded if this case goes to trial.
[63] The table amount of child support based on the father's 2015 income of $51,967 is $773 per month.
[64] The mother also requested a temporary order that the father cover the children on his medical, dental and extended health plan. The children are presently not covered on this plan. The mother covers the children on her own benefit plan. The Ontario Court of Justice does not have jurisdiction to make this order except for the provision of necessaries or to prevent the dependant from becoming or continuing to be a public charge. See: Clause 34(1)(j) and subsection 34(2) of the Family Law Act. The mother led no evidence to show that she fell within these exceptions. The court will defer this issue to the trial judge.
4.5 Special Expenses
[65] The mother sought contribution for the younger child's child care expenses. The mother advised the court that these expenses are subsidized and are $336 per month.
[66] The father advised the court that he had agreed to pay 50% of these expenses, but the mother had not provided him with receipts. He said that he has set aside monies to pay for these expenses.
[67] The court finds that the child care expenses are reasonable and necessary. The mother will be required to provide the father with her child care receipts and the amount ordered in this decision can be adjusted, if necessary, once these receipts are provided.
[68] The court will order that the father pay his proportionate share of the net amount of this special expense, after taking into account any tax benefits or credits that the mother is entitled to. See: Subsections 7(2) and (3) of the guidelines. The proportionate shares are based on the father's income of $62,081 and the mother's income of $72,328.
[69] A software analysis shows that the father's monthly share of this net special expense is $97.
[70] The court will grant the mother's request to start this payment as of March 1, 2016. This is prospective, not retroactive support as the mother issued her application on February 25, 2016. See: MacKinnon v. MacKinnon, 13 R.F.L. (6th) 221.
[71] The mother also requested a contribution towards minor extracurricular activities for the children, such as volleyball and baseball. However, these activities are not extraordinary extracurricular activities as defined in subsection 7(1.1) of the guidelines. The total cost to the mother for these activities was $324. These costs are covered by the guidelines table amount of child support. The father will not be required to make an additional contribution towards these expenses.
[72] The mother requested that the father contribute to her cost of covering the children on her health plan. However, she did not provide evidence of this cost. This can be addressed once she provides this evidence. The court notes that this cost might be offset by the father having paid for the school uniforms of the children and summer camp for the older child.
4.6 Repayment of Support Arrears
[73] This order shall create immediate support arrears as follows:
- 2015 – 6 months @ $773 per month = $4,638
- 2016 – 7 months @ $922 per month = $6,454
- 2016 – s. 7 expenses – 5 months @ $97 per month = $485
Total arrears: $11,577
[74] The father has close to $178,000 in investments and no debts. He has the ability to pay these arrears. The mother should not have to wait long to receive what the father should have been paying to her all along. The father will be required to pay the mother these arrears within 30 days.
Part Five – Spousal Support
[75] The father was not able to establish entitlement to temporary spousal support on a compensatory or non-compensatory basis. He could not establish any disadvantage due to the breakdown of the relationship. See: Bracklow v. Bracklow, [1999] 1 S.C.R. 420.
[76] The father's financial circumstances are actually far better than the mother's. He does not have the need for temporary spousal support.
Part Six – Conclusion
[77] A temporary order shall go on the following terms:
a) The mother shall have temporary custody of the children.
b) The father shall have rights to information about the children as set out in subsection 20(5) of the Act.
c) The father shall provide the mother with his work schedule at least 5 days before the start of each month. He shall identify what weekend and weekdays he will be off work.
d) The father will have parenting time with the children on the one weekend he has off work each month from Saturday at 10:00 a.m. until Sunday at 6 p.m.
e) In August of 2016 the father may have the children with him on two days each week, when he is off work. He will pick up the children at 10:00 a.m. on these days and return the children to the mother or her designate by 8 a.m. the following morning. The father shall advise the mother which days he wishes to have the children with him by July 31, 2016.
f) During the school year, the father may have the children with him one night each week, when he is off work. He will pick up the children from school or daycare and return them to school, daycare, the mother or her designate (as the mother directs) the following morning. The father shall advise the mother which overnights he wishes to have the children with him at least 5 days prior to each month. If he fails to do this prior to any month, the mother shall select the days when the weekly overnight access will take place for that month.
g) The mother will advise the father on a timely basis where to pick up and drop off the children.
h) The mother may travel with the children outside of Canada for vacation purposes for up to 14 days without the father's consent. She shall provide the father with 21 days notice of any proposed vacation, an itinerary of where she will be on the vacation and contact numbers for the children. The father's regular access will be suspended during this vacation time.
i) The father shall not take the children outside of Ontario without the mother's written consent, not to be unreasonably withheld.
j) The mother may obtain government documentation for the children, including passports, without the father's consent.
k) The father shall pay child support to the mother as follows:
From July 1, 2015 – December 31, 2015, the guidelines table amount for two children, based on an income of $51,967 per annum, being $773 per month.
Starting on January 1, 2016, the guidelines table amount for two children, based on an income of $62,081 per annum, being $922 per month.
Starting on March 1, 2016, the amount of $97 per month, being his proportionate share of the net child care expenses, pursuant to section 7 of the guidelines.
l) This order is without prejudice to a different start date for child support to be chosen at trial.
m) The mother shall provide the father with her 2016 child care receipts within 30 days and shall then provide him with copies of child care receipts every 90 days.
n) The father shall be required to repay the mother the arrears created by this order, as of this date, in the sum of $11,577, within 30 days.
o) The father's claims for temporary child and spousal support are dismissed.
p) A support deduction order shall issue.
[78] If either party believes there is a mathematical or inputting error in the software calculations referred to in this decision (they will be attached), they may serve and file written submissions about this with the trial coordinator's office, on the second floor of the courthouse, by August 3, 2016 and the court will review if any adjustment needs to be made.
[79] If either party wishes to seek their costs of this motion, they shall serve and file written costs submissions by August 6, 2016. The other party will have until August 20, 2016, to serve and file their written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator.
[80] The case is adjourned to October 14, 2016 at 10:00 a.m. for a case conference.
Released: July 21, 2016
Justice S.B. Sherr
