Court File and Parties

Court File No.: Simcoe, F99-15 Date: 2017-02-08 Ontario Court of Justice

Between:

Jennifer Lynn Van Heighten Applicant

— AND —

Mike Lopes Catarino Respondent

Before: Justice Philip J. Clay

Heard on: January 23 and 24, 2017

Reasons for Judgment released on: February 8, 2017

Counsel:

• Mr. Cornelius A. Brennan – counsel for the applicant
• Mr. Walter Drescher – counsel for the respondent

CLAY J.:

TRIAL

[1] The applicant mother brought an application on May 22, 2015 in which she sought an order that she have custody of the party's child Miles Domingos Catarino born November 3, 2009 and an order that the respondent father pay child support and spousal support. The parties had signed a separation agreement on May 13, 2012 and the order sought by the mother was different than the terms of that agreement.

[2] The father filed an answer in which he sought to maintain the joint custody provision of the separation agreement. He also sought to terminate spousal support and to have a child support order made that was in accordance with the shared custody provisions of the Child Support Guidelines ("CSG").

[3] An order was made by the Honourable K.A. Sherwood on June 22, 2016 setting this matter down for trial on the following issues.

(a) Custody - Mother seeking sole custody; Father seeking week about sharing of custody

(b) Access - Mother seeking for father to have alternate weekend access; Father seeking equal time sharing.

(c) Child support.

(d) Spousal support.

(e) Setting aside of separation agreement.

(f) Material change in circumstances.

[4] The matter was ultimately scheduled for a trial to be heard on January 23 and 24.

PRELIMINARY ISSUES

[5] Mr. Drescher brought an oral motion to dismiss the application on the basis that the applicant had not complied with s.35 of the Family Law Act (FLA) in that she had not registered the separation agreement with the court prior to issuing her application. He contended that this failure meant that the court had no jurisdiction to address issues that were settled by agreement.

[6] I dismissed that motion as s. 35 is specifically intended to deal with enforcement of the child support terms of an agreement. If the only relief sought by the applicant was to change the support terms of the agreement she would have been required to file a Motion to Change the separation agreement. In this case, the mother also sought to change custody. She was required to bring an Application to do so. She should have issued a motion to change regarding support changes and an application regarding custody/access changes. However, this issue had not been raised prior to the opening of trial, the matter was set down for trial on June 22, 2016 and in all of the circumstances a procedural defect should not prevent the determination of the matter on the merits.

[7] Mr. Dresher then argued that this court did not have jurisdiction to set aside the separation agreement. He stated that the agreement contained terms with respect to property that were inextricably intertwined with the support provisions of the agreement. Furthermore, steps had been taken with respect to the property agreements that could not be undone. Notwithstanding, the terms of the June 22, 2016 order Mr. Brennan stated that he was not really seeking to set aside the entire agreement. He simply wanted the court to change the custody/access and support provisions and as part of the evidence he wanted to refer to the circumstances of the making of that order.

[8] I held that I did not have jurisdiction to set aside an agreement with property provisions. I further held that I did have jurisdiction to make changes to the custody and access provisions of the agreement.

THE LAW

Custody and access

[9] The legislative provision that address a material change in circumstance in custody and access matters is found in s. 29 of the Children's Law Reform Act (CLRA) which reads as follows:

Order varying an order

29. 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. R.S.O. 1990, c. C.12, s. 29.

[10] This section explicitly deals with changes to an order not changes to the terms of a separation agreement.

[11] The Family Law Act section that addresses changes to the custody and access provisions of a domestic contract is found in s. 56 (1) which reads as follows:

Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1) ; 1997, c. 20, s. 10 (1).

[12] It is clear that there is no requirement in the legislation to find that a material change in circumstances has occurred prior to making a change to the custody and access provisions of a separation agreement. When an application is brought the court can determine whether the terms of the agreement are in the best interests of the child at the time of the hearing of the application.

[13] The best interests focus is derived from s. 24 of the CLRA which reads as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

[14] In this matter both parents have shared equal time with the child since the separation so it is not necessary to set out all of the factors. In making a determination of the child's best interests I will be guided by the s. 24 (2) factors and the principles that have been developed in the case law.

Child support

[15] With respect to the child support issue s. 56(1.1) of the FLA states:

Contracts subject to child support guidelines

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8).

[16] This effectively means that the parties are not required to show that a material change in circumstances has occurred if the provision of the agreement is not in compliance with the CSG. In this matter there are claims for both child and spousal support. Those claims are made under the FLA.

[17] In the case of the child support claim both parties take the position that any child support for a period prior to this decision should be based upon s. 9 of the CSG which 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.

Spousal support

[18] The legislative subsection under which a claim for spousal support is brought is s. 33 (8) of the FLA which reads as follows:

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8) ; 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

[19] There are circumstances that must be taken into consideration and they are found in ss. (9). That section reads, in part, as follows:

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation.

[20] The Spousal Support Advisory Guidelines (SSAG) are based upon the existing case law and provide a range of possible options for the court in determining the quantum and duration of spousal support once entitlement to support is determined. I required counsel to file a range of options based upon different incomes of the parties.

ISSUES

(1) Is it in the best interests of the child to change the custody and access provisions of the separation agreement of May 13, 2012?

(2) What changes, if any, should be made to the custody and access provisions?

(3) What is the appropriate order for child support and when should it begin?

(4) What, if any, is the appropriate amount for spousal support and when should it begin?

EVIDENCE

[21] The Applicant filed a document brief as evidence. She gave evidence and called as a witness the child's Grade 1 school teacher Ms. Lubek. The Respondent gave evidence as did his spouse Shannon Dennie.

THE APPLICANT'S EVIDENCE

[22] The applicant stated that she was 32 years old. She said that she began dating the respondent in 2002 and they began living together in or about June 1, 2005. They were married on May 10, 2009. Miles was born on November 3, 2009. The parties separated on or about March 1, 2012. The Applicant conceded that both the separation agreement and her application had stated that the separation occurred on March 1, 2011 but she explained that while the relationship had been very bad throughout 2011 it was in February 2012 that the parties first discussed separation and agreed to use the date of March 1, 2012. She moved out of the matrimonial home in May 2012. She moved into a residence that she rented from her late grandparents and she has lived there ever since. She bought the home from the estate in 2016.

[23] The applicant said that she had a high school education. After graduation she found a job at the local hospital doing janitorial type work. She worked casual part-time which was 16 hours a week and earned nearly $20,000 annually. She stayed at home during her maternity leave. In 2014 she went to the Simcoe campus of Fanshawe College where she completed a diploma as a personal support worker ("PSW"). She worked part-time at the hospital while obtaining her diploma. She completed her placement hours in August 2014 and then received Ontario Works payments until she started employment with Revera, a home care agency in December 2014. Unfortunately, she was only able to work for 7 months prior to sustaining injuries in a car accident while driving to the home of a client on July 16, 2015. The applicant said that she was hit from behind and she had a "level three whiplash" and soft tissue damage. She had gone to many specialist appointments. The applicant said that she did palliative care and it was very physical work. She was required to lift people in their beds and she can no longer do that. She cannot stand for an hour and she cannot lift her left arm over her head. The applicant insisted that her disabilities did not impact upon her ability to parent.

[24] The applicant filed statements showing that she received all of the child tax benefit for Miles notwithstanding the shared custody arrangement. She said that her parents have helped out with her finances - they top up utility bills, groceries, gas, clothing, etc. She estimated that they give at least $100 to $200 in an average month but in back to school times it could be $350 or more. The applicant's tax-free income replacement benefits are $515.80 bi-weekly. She said that this benefits end on the second anniversary of her accident in July 2017 and if she cannot return to her employment at that time then she will never go back there. The applicant said that she did not know what she might be able to do if she was unable to return. She anticipates receiving a settlement at some point.

[25] The applicant said that the parties agreed on the basic terms of a separation agreement and the respondent said he would find a lawyer to draw up the papers. She said that they had agreed to share custody of Miles. The respondent insisted upon having Miles with him one half of the time and given his age she did not want Miles to be away from her for more than three days at a time. The 3 day cycle was agreed upon.

[26] With respect to support at time of the agreement the respondent earned about $60,000 per year. The applicant made $20 per hour for her 16 hour weeks. She stated that she did not know about the CSG at the time of the agreement. She just knew that she had to have an agreement completed before June 1 so that she could rent the house that was available to her. She had gone along with the respondent's statement that there should be no child support because each of them had Miles for one half of the time. She needed money though to meet her budget and they agreed upon the sum of $550 per month. She did not receive any legal advice although she conceded that she was told that she should obtain advice. She signed the agreement 9 days after receiving a copy from the respondent. She admitted that she had so many things on her mind and was so short of money that she did not seriously consider doing anything other than signing the agreement that was based upon her discussions with the respondent.

[27] With respect to the numbers set out in the agreement the applicant said that she noticed the schedules that estimated her income at $30,000 to $40,000 but she did not object to them even though she actually made just $20,000. She said that no one had asked her to provide any financial information so the agreement did not include any reference to the savings bond that she had accumulated during her work at the hospital. It appears that these bonds were accumulated with deductions being taken from her income. In 2016 she accessed her $25,000 in savings bond in order to purchase the home subject to a mortgage.

[28] The Applicant stated that the 3 day arrangement for Miles worked in the years prior to him beginning school. Miles really missed her after 3 days away. She said that her time with Miles went from 90% to 50% after the separation. At that time Miles was exchanged at 7:00 p.m. Once he began school the exchange was after school on the third day. She said that Miles took the bus on the days he was with his father. The applicant said that once Miles started school he would say that he did not want to go to his father's home. On the day he came back he was very clingy. At the end of the three days he was unwilling to go back. She said that this occurred every time and it was very emotionally difficult to send him. When she raised her concerns with the respondent he "brushed her off" and stated that Miles missed him when he had to go back to his mother's home.

[29] The Applicant said that Miles complained that his father was not around at times when he was at his home because he was at work. Miles said that he was "beaten" at that home. He had no privacy, the home was too loud, and he was always in trouble for things he did not do. The applicant said that Miles "does not feel the love at their place." The applicant also insisted that Miles remembers holes in the wall caused by his father when the parties lived together. He would only be one or two years old at that time. She complained that the respondent did not supervise Miles when he showered so he finished with soap and shampoo still on him. She added her observations that Miles returns from time with his father in the clothes he was sent in and they are not washed. Notwithstanding that, she had a litany of complaints the applicant said that "she looks past the small things."

[30] The Applicant said that there were a lot of kids at the respondent's home. Ms. Dennie had three children of her own who were 13, 11 and 9 years old and she had a home daycare with young children. She said Miles reported that 11 year old Max takes his things and bothers him. Overall the Applicant stated that Miles was over-stimulated at his father's home. The applicant said that Miles told her that he would rather be home with her even though it was boring sometimes.

[31] The applicant said that Miles' school had concerns. When he was in JK she was constantly called to school and told that Miles was not adjusting well and that he was hitting kids, throwing chairs and that he ran from the classroom. He only did one third of the required work in JK. The applicant said that things did not improve in SK. Miles was said to scream and cry. A speech and language assessment was recommended by Dr. Norton and a copy was filed. The applicant said she was in touch with his teacher on a regular basis. In the JK year she picked him up from school every day. In SK she only picked up on her days as the respondent wanted to take him to school on his days.

[32] The applicant stated that Grade 1 was a very hard adjustment for Miles as students were required to sit down to work and Miles could not do this. The applicant said that the classroom overstimulated Miles so was allowed some accommodations. There was parent-teacher interview but the respondent did not see a problem at home or at school. The teacher, Ms. Lubek, permitted the applicant to come to the school for the last four months of the year to directly help Miles with his schoolwork outside of the classroom. The mother said that Miles was recommended for a program called "Rocks" which assisted special needs kids. She said that there was usually a waiting list but Miles was allowed in. He could not attend though as the respondent did not submit his consent in time such that Miles' spot went to another child.

[33] The mother said that her attendance at the school did help. Miles was still unable to complete all of the Grade 1 work but his teacher said he should move on to Grade 2 and the applicant agreed. The applicant was upset that the respondent questioned that decision and expressed the view that Miles should be held back a year. The applicant described the need to work with Miles at home. A parent must read a book with him every night. Miles told her that his father did not help with his reading and he does it with the older kids in the father's home. She said that she signed off every day in Miles agenda but his father never did.

[34] The applicant described using a communication application to connect with Miles' teacher daily In Grade 1 it was called "class dojo." A parent can download the app onto their phone and using this interactive tool the teacher can post things and the parents can respond. The applicant noted that the respondent had not even bothered to install the program. This year she gave him the log in information but he still resists. In addition a communication book comes home in a green folder every night. The applicant said she used both the app and the book for frequent communication with Miles' teachers. The parent is to initial in the book that the work was done. In four years the respondent had never initialed. There were SNAP forms that Dr. Norton made available that were a parent and teacher rating scale of the child's behaviours. She completed the forms, the respondent did not.

[35] Miles saw a pediatrician and he was diagnosed in both parents presence with ADHD. They both accepted the diagnosis. The applicant said that she and the respondent agreed that they did not want their son receiving chemicals so they declined medication. The applicant is an adherent to holistic treatments so she treats Miles' condition with fish oils, acedophylus and other natural products. She stated that she believed they were effective. The respondent is not diligent in keeping to the regimen she has Miles on.

[36] The applicant stated that Miles is falling behind in reading and writing but he was doing better than he had been. She noted thought that his math and writing skills are poor. She said that Miles was just below the grade 1 standard in reading half-way through his Grade 2 year. The applicant said her son still brought home schoolwork that he did not complete in class and he had to finish it at home. The applicant noted that she spent a lot of time on a one on one basis with Miles to help him complete his schoolwork and do his extra reading. She said that she had "no clue as to what goes on at his father's home."

[37] The applicant said that she communicated with the respondent by text message. She informs him of basic stuff and they do talk about Miles and how he was when at other parent's house. She said that the respondent has expressed no concern to her regarding Miles' behaviour at home or at school. The applicant spoke of an incident when Miles was just 4 years old. Miles said he wanted to shoot himself in the face. The applicant was alarmed and contacted the respondent. They went to a counselor at "Reach." The respondent did not appear concerned. The counselor did not even talk to Miles as after talking with the parents he treated it as an isolated incident. The applicant used this example as one where she addressed problems and the respondent was unaware or unconcerned. She claimed that they were polar opposites.

[38] The applicant stated that she had no relationship with the respondent's spouse. Miles had told her that he was beaten at his father's home. She had not called the Children's Aid Society (CAS) about any of these statements. She related that the CAS had been involved with Ms. Dennie as the respondent told her of an incident. Miles' school counselor called the CAS to investigate. Ms. Dennie admitted to hitting Miles with a wooden spoon. She said she only did it once and the CAS told her not to do it again and closed the file.

[39] The applicant said that she can provide one on one contact with Miles and a structure and stability that the respondent cannot provide. She said that she can do the homework and ensure that he takes his health supplements regularly.

Ms. Lubek

[40] Ms. Lubek was Miles' Grade 1 teacher. She said that she had been teaching for 15 years. Miles was a student in her class from September 2015 to June 2016. She had 20 kids in that class. Ms. Lubek listed Miles' behaviours while in her class and they were consistent with the behaviours that the applicant described. She confirmed that she completed the Snap-IV teacher and parent index. She noted that Grade 1 is a challenging year as the JK and SK years are play based learning whereas in her class students have to sit down. Ms. Lubek said that at first Miles was exceptionally happy and eager to start the school year. However, once more parameters were placed around the students it was hard for him to maintain any task with paper and pencil. Miles' behaviour was triggered by something academically related or simply his not getting his way in something he wanted.

[41] Ms. Lubek developed a "quiet zone" for Miles- a space near her desk with things for him to do or make. Miles did not work with a partner. He wanted to be on his own. Often he refused to do the work. There was an educational assistant in the class room who assisted in breaking down the work into smaller tasks. By the second term Miles was still at the early stages of grade one. He received extra help first from a retired teacher and then an arrangement was made for his mother to come in near the end of the school day. Ms. Lubek said that this was quite helpful.

[42] The teacher said that Miles was a very energetic child who had no awareness of anything around him. He hurt himself or hurt others he did not like. She recalled one incident where he tried to choke another student and another in which he was punching a child in the playground. She was concerned at the time as to his health and safety.

[43] With respect to the discussion about Miles repeating the year Ms. Lubek said that she had a meeting with both parents, the special education teacher and the principal. She said that the father was concerned that Miles was so behind and that he would struggle more if he was advanced. The mother did not feel Miles needed to stay back. Ms. Lubek said that while she did not personally take a position she noted that schools do not keep children back although the parents had the right to request that of the school board. The issue ended with this one meeting as no such request was made.

[44] Ms. Lubek said that there was communication with the mother on the dojo app. She also noted that there was also frequent communication with the father. Ms. Lubek recalled that there were two signatures on the agenda J.V and S.D. and it depended on who had the child the night before. Ms. Lubek said that she knew that there was a rotation of the child's time with his parents but that she did not connect his behaviours to time at a parent's home. She said that there was a home reading plan with reading expected to done every night. She said she would have flagged it if the work was not done. She noted that both parents attended the interview after the first progress report. The teacher said that she spoke to the father at 3:30 p.m. when it was his day. Miles did not complain to her about either parent. Early on in the year he mentioned that his siblings get a lot of attention in his father's home but he did not complain to her about them afterwards.

THE RESPONDENT'S EVIDENCE

Respondent

[45] The respondent stated that he was 37 years old and he lives with his spouse Shannon Dennie and her 3 children.

[46] The respondent stated that the separation was in the early spring of 2011 when he began to sleep on the sofa on a full-time basis. In February 2012 he said that the applicant and himself talked about the terms of a separation and they made an agreement on line on "lined paper" and he took it to a lawyer. The separation agreement that was prepared contained all of the terms of their informal agreement. With respect to the money, the respondent agreed to pay to the applicant support on a monthly basis. The respondent stated that the applicant insisted that it be referred to as spousal support and not child support. The respondent said that at the time he was completely focused on having a 50% time sharing arrangement so he let her call the support what she wanted. He said that they had initially agreed upon $500 as month but it was increased to $550 a month before the agreement was signed.

[47] The respondent said that he did not know about the CSG until he met the lawyer. He conceded that the SSAG calculations that were attached to the agreement did not really reflect the applicant's income at the time of the agreement but set out an income that he thought that she could earn if she were to add a second job at $20 per hour to the 16 hour a week job that she had at the hospital.

[48] The respondent said that over the years Miles had made many statements to him about his time with each of his parents. He often said that he loved Mom and Dad the same. He also said that "I am lucky to have like two Moms even though Shannon is not my real Mom." He described cuddling with Miles on a regular basis and he said that his son does receive a lot of physical affection at his home.

[49] The respondent said that Miles did receive one on one attention in their household. He described his time with his son. Miles gets to his home at 3:15 p.m. after school. He arrives home from work at about 4:00 p.m. and he has the entire evening with Miles when he works day shift. In the morning he leaves for work at 6:00 a.m. and Miles leaves for school at around 8:15 a.m. When he works night shift it is from 7:00 p.m. to 7:00 a.m. This means that he can drop Miles off at school and be home when Miles arrives home until about 6:00 p.m. when he leaves for work. The respondent stated that he only works night shift about twice a month and it is usually for just one night. He said that he never did more than 5 night shifts in a row. When he works nights Miles gets up at around 7:30 a.m. and he is looked after by Shannon until she takes him to school at 8:15 a.m. When Miles is scheduled to be with him after school he now takes the school bus as a special arrangement has been made even though they live quiet close to the school.

[50] With respect to the many children in his home the respondent stated that Shannon's home daycare would be ending in August 2017 when she will return to work. Until then none of the children are younger than one and she did not have any school aged children. The daycare children only intersected with Miles' time for one hour after school. The upstairs of the home where the-bedrooms are is off limits to the daycare kids. Miles and Max share a bedroom and the respondent stated that they do fight like brothers from time to time. He said there are times when 9 year old Lulu annoys Miles also but he said that it was nothing different than most sibling relationships.

[51] The respondent said that he never beat his son or threatened to do so. The respondent said that he disciplines Miles by time outs or a "slap on the butt" - it depended on the situation. The respondent went on to say that he had never seen Shannon beat anyone. He noted the exception of the wooden spoon incident. He said that as soon as he learned that the CAS was called he contacted the applicant to tell her to expect a call from them.

[52] The respondent admitted that when he learned that Miles was not at the level he needed to be after Grade 1 he did query whether Gr. 1 should be repeated. He said that Miles had a late birthday so he felt he could have waited a year. When the school decided to put him forward he took no further steps. The respondent said that he was actively involved in Miles' education. He said the difference between his son's behaviour in Gr. 1 and 2 is "night and day." At the start of the year he began daily communication with the new teacher but he was told that there was no need for it. Miles does cry when he does not want to go to his mother's house - it all depends on what is going on at the time.

[53] The respondent said he was a hands-on father. He does have to time to play with his son. He feels very close to Miles. The respondent said that there was no issue with respect to clothes or hygiene. Miles had lots of clean clothes. As each parent had a wardrobe for him he often went home in the clothes he arrived in but only after they had been washed. The respondent stated that he does read with Miles at night and Miles reads with his siblings nearly every day. The respondent conceded that Ms. Dennie always signed the agenda. He said that he is on top of things at school. Like most families there were certain things that he did with the kids and certain things that Shannon did.

[54] With respect to extra-curricular activities the respondent said that he had registered Miles in both soccer and swimming in the past. He coached the soccer team in the summer of 2015. He did not register him in the summer of 2016 because in 2015 Miles spent a lot of time on the sidelines crying. The respondent said that Miles "goofed around" at swimming. The respondent said he decided not to put Miles in these activities again until he was a little more mature. He anticipates signing him up for soccer in the summer of 2017.

[55] The respondent said that Miles had given him reasons why he liked certain things at each home so he understands that Miles enjoys being at both homes. The respondent said that his son does cry a lot as he is a very sensitive child. He has noticed though that he is now more able to "reset" and stop crying without any intervention.

[56] With respect to the schedule the respondent said that he would be content if it remained at a 3 day cycle. Miles has told him that he wants to go 7 days at a time and then in the next breath he says he likes the 3 day turn-around. The respondent said that Miles is used to the schedule but he felt that there would be more stability if the schedule was for a complete week each. The respondent said that he could also work with a schedule that had Miles with his mother for most of the school nights and with him for most of the weekend time or vice versa. His main focus was continuing to share time approximately equally as the parties had agreed to do even before he sought legal advice.

[57] With respect to his income, the respondent stated that since 2010 he had worked through his union for Kemp construction. He said that his job had not changed over the years and the fluctuations in income related to the economics of the steel industry.

[58] The respondent stated that he had always paid his support. He said he waited for the applicant to ask for the money each month. He said he wanted the amount of support to remain the same. He had always seen it as child support, not spousal support, notwithstanding the terms of the agreement. The respondent had never claimed a deduction for spousal support on his income tax return. By way of this litigation he realized that the applicant had been including the support in her income. He did not file a return for 2015 because he wanted to know whether the support paid was really spousal support such that he was entitled to a deduction.

[59] The respondent said that prior to the separation he looked after Miles when the applicant was working. If they were both working then his aunt provided child care. He said that he was very involved with parenting.

[60] The respondent said that his work schedule was Monday to Friday from 7:00 a.m. to 3:30 p.m. He worked these day shifts 85% of the time. He had the occasional night shift from 7:00 p.m. to 7:00 a.m. He did not work on weekends.

[61] The respondent stated that he started living with Shannon Dennie in August of 2012. At that time Shannon was not working outside the home as her kids were young. She opened a home daycare in 2013. The daycare children were not allowed to access the upstairs where the bedrooms were. The respondent said that the family resides in a townhouse with 4 bedrooms. Max and Miles share the master bedroom.

[62] The respondent stated that Miles took about 2 months to adjust to the daycare in the home because he was used to being alone. He still some difficulty with getting along with other children but the respondent thought that being with siblings had helped him with that. While Miles does have one on one time with both himself and Shannon he thought that his son could benefit from learning to adjust to group settings.

[63] The respondent stated that Miles spent time with his paternal grandparents on weekends a couple of times a month and that could involve them going out for dinner. The respondent noted that Miles also sees his maternal grandparents regularly and he has agreed to switch times to allow that to occur.

[64] With respect to complaints about laundry and clothes the respondent stated that he did not like the distinction made by the applicant about his clothes and her clothes - he said they were Miles clothes and he wore clean and appropriate clothes no matter which house he was in.

[65] The respondent acknowledged that he did not consent to the Rocks program. He was not permitted to speak to a counselor first ad he wanted to know more before he agreed to Miles attending. He did sign a consent near the deadline but it was not received in time.

Shannon Dennie

[66] Ms. Dennie said that she is 33 years old. She moved in with the respondent in 2012. She said that Miles attached to her quite quickly. He is a very loving little boy and she treated him like her own child. At first Miles did have trouble sharing with his siblings but overall Ms. Dennie did not feel that Miles argued more with her children than any other siblings.

[67] Ms. Dennie said that the behavioural problems noted at the school were not so apparent at their home. She stated that Miles cries when told he cannot do something and that had not changed since he started school. Ms. Dennie said she volunteered at Miles' school even though her kids go to a different school (where she also volunteers).

[68] She realizes that she is in a step-parent relationship to Miles and he calls her Shannon, not Mom. She denied every saying mean things about the applicant to Miles as had been alleged by the applicant. She said that both the respondent and herself spent one on one time with Miles and read to him daily. Ms. Dennie said that Miles and her children got along "remarkably well all things considered."

[69] Ms. Dennie noted that the respondent was home around 4:00 p.m. every weekday. One or both of them accompany the children to their sporting activities. Her two eldest play on rep soccer teams all year round. Currently that means twice a week of indoor soccer for each of them. Miles and Lulu are not involved in sports at the present time. Miles will go with his father to his siblings' games. The plan is to sign Miles up for soccer this summer. Miles is waiting for private swimming lessons as he did not do well in his previous group lessons.

[70] Ms. Dennie said that she will go back to work as a PSW at the end of August 2017. This will involve some night shifts.

SUBMISSIONS

Mr. Brennan

Custody and access

[71] Mr. Brennan said that the applicant gave many reasons why she felt it was in the best interests of the child to change the time sharing arrangement. He submitted that the evidence was that the respondent simply denied the complaints. He also said the applicant was the one who had personally addressed the school's behavioural concerns and took action to assist at the school. Mr. Brennan said that the applicant was more sensitive to the child's needs. Mr. Brennan said that the child required one on one time after school and that the applicant could always provide that whereas due to his employment and his very busy home the respondent could not personally attend to that. Mr. Brennan said that the father should be present and available for the child when he is at their home.

[72] Mr. Brennan said that his client sought sole custody but in the alternative she sought continued joint custody with the child's primary residence with her. She had proposed that the respondent have alternate weekend access but she did not strongly oppose a mid-week visit or even the respondent having more weekend time.

[73] With respect to the support issues Mr. Brennan said that there should be an order for CSG table support that begins in August 2015 when the application was issued. It had been noted that the applicant did not make a claim for retroactive child support.

[74] Mr. Brennan also sought an order for spousal support beginning August 2015. As required by the court he filed software calculations of the SSAG amounts at different levels of parental income. He noted that the applicant made $19,000 in both 2012 and 2013 and only $6,271 in 2014. Her 2015 income included the redemption of her savings bonds and did not include her tax-free insurance benefit payments with the result that her Notice of Assessment stated that she earned $14,378.

[75] Mr. Brennan noted that the respondent's income in 2014 was $76,552, in 2015 $66,344 and in 2016 $71,330 (he did not deduct union dues as Mr. Drescher quite appropriately did). Mr. Brennan filed SSAG calculations with child support based upon a shared custody arrangement for 2011 to 2016 inclusive notwithstanding that the applicant had not sought a retroactive increase in child support. His point was that the terms of the agreement were manifestly unfair to the applicant and that the support she had received was far below what she should have received.

[76] Mr. Brennan referred to the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63 to emphasize that the s. 9 shared custody provisions of the CSG are not simply a child support table set off. That set off is required by s. 9 (a) but sub-sections (b) and (c) contain discretionary factors that a court is required to consider.

[77] Although Mr. Brennan made the point about the full consideration of s. 9 he failed to provide any submissions on how the other sub-sections applied to the facts of this matter. Instead he directed his submissions to the calculations that he produced that showed the set off table amount and the spousal support range. He asked the court to order the respondent to pay the set off table support plus the mid-range of spousal support.

[78] In 2015 Mr. Brennan said the respondent's income was $66,343 and the applicant's income was $14,378 so the set off table child support was $521 per month. He then pointed to his calculations which showed a mid-range spousal support number of $947 per month. That amount would begin September 1, 2015 as the Application was filed on August 24, 2015. For 2016 Mr. Brennan argued that the court should order table set off support of $510 per month and mid-range spousal support of $985 per month. If the Applicant was successful in obtaining an order for primary residence such that s.3 not s.9 of the CSG applied then in 2017 Mr. Brennan proposed that the respondent should pay full table child based upon his 2016 income of $71,330 which is $650 per month in child support. He did not provide a spousal support number for 2017 and ongoing. Finally, Mr. Brennan stated that the applicant should be given a credit for the payments of $550 per month that he has made since September 1, 2015.

Mr. Drescher

Custody and access

[79] Mr. Drescher submitted that the court had to find a material change in circumstances in order to change the custody and access terms of the agreement. He made this submission by reference to the principles to be applied in a proposed change to a custody and access order. He said that there had been no material change and that any change that had occurred was well within the contemplation of the parties when they made their agreement.

[80] Mr. Drescher said that the party's agreement should be adhered to as a matter of policy to encourage the resolution of disputes over time with children and to discourage further litigation. He emphasized that the parties had agreed on the shared custody and three day turnaround before the respondent sought legal advice. The applicant had a full opportunity to seek her own advice and she chose not to do so. The formal agreement was exactly the same as the terms that the parties had agreed upon.

[81] Mr. Drescher correctly stated that the mere passage of time was not enough to create a material change in circumstances. The child was 7 now and not even three when the agreement was made but it was fully within the parties' contemplation that he would begin school and even that the applicant who was working part –time then might have a different job or hours. The only possible change not specifically contemplated may be the level of behaviour problems that the child exhibited. Mr. Drescher noted the evidence of Ms. Lubek in stressing that there was no apparent correlation between the parenting regime and the child's behaviour.

[82] With respect to the joint custody arrangement Mr. Drescher noted that notwithstanding this difficult litigation the parties do communicate on a regular bases. They have exchanged days in order to ensure that Miles can attend family events. They are both heavily involved in the school and have ultimately always agreed on the school's recommendations. They both accept Miles' ADHD diagnosis and they both feel that their son should not receive medications for same. There was no reason to change the joint custody arrangement.

[83] Mr. Drescher said that the applicant made no compelling case for changing the time sharing. She had a number of complaints almost all of which were based upon alleged statements by her 7 year old son. The respondent said the child's complaints to his mother were not made to him. In fact, the respondent said Miles had talked about things he liked and disliked in both homes and generally seemed to want to see both parents frequently.

Child Support

[84] Mr. Drescher submitted that it was stated in the separation agreement that child support had priority over spousal support yet the final agreement termed the transfer of money from the respondent to the applicant as spousal support at the insistence of the applicant. He argued that at the time the table set off would have been about $450 so effectively the respondent was paying $100 more than the table amount which could be perceived as his real contribution to spousal support.

[85] With respect to child support Mr. Drescher proposed that any change be effective January 1, 2017. He said that it was known that the applicant had an untaxed income of $515.80 bi-weekly which amounted to $13,410.80 annually. His SSAG calculations did not enter that income as untaxed but he arbitrarily applied a 30% tax rate to gross up the income to $17,434. He entered the respondent's ongoing income as his 2016 income net of union dues of $69,200. This lead to his submission that the set off child support of $494 should be paid and spousal support should be set at the low end of the range. Based upon the actual 2016 numbers spousal support at the low end would be $709 per month. Mr. Drescher argued that the jump in total monthly payments from $550 per month to $1,203 was far too much. The respondent was living in a household with three children all the time and one child half of the time and he could not absorb that level of change.

[86] The alternate calculations put forward left the respondent's income the same but proposed an applicant's income at $24,000 (minimum wage) and $30,000 (estimate of PSW income at approximately $20 per hour for a 25 to 30 hour week). At the minimum wage number the child support would be $440 on set off only and spousal support at the low end of the range would be $434 per month. At the $30,000 range the child support would be $387 per month and the spousal support at the low end of the range $180 per month. Mr. Drescher argued that this last calculation was most appropriate as the applicant should either return to work or receive compensation through the motor vehicle litigation which would pay her the income she would have earned in the year of the accident.

[87] Mr. Drescher noted that the last submission was for a total of $567 in monthly support and his position was that this demonstrated that the agreement amount of $550 was not unreasonable. He stated that his client could only afford to pay a $100 more than he was paying so that a total payment of $650 a month was appropriate.

ANALYSIS

CUSTODY AND ACCESS

Is it in the best interests of the child to change the custody and access provisions of the separation agreement of May 13, 2012?

Joint custody

[88] The applicant sought a sole custody order and in the alternative a joint custody order with a designation that her home is the child's primary residence. The respondent sought to maintain joint custody but to change the schedule to a week-about.

[89] The determination of the appropriate custody regime is based not on the best time sharing arrangement but on the respective ability of each parent to make decisions that are in the child's best interests.

[90] I find on the evidence that both parents have acted in the child's best interests. They have both been actively involved in Miles' school, they both provide the support he needs to succeed in school, they both accept his ADHD diagnosis and they agree to a large extent on methods to address that illness. There is some area of disagreement in the medical sphere. The applicant is more committed to a regime of holistic treatments and the respondent does not object to her treatments of their son but does not appear to follow the directions that the applicant gives him as to what to do in his home.

[91] For joint custody to work the parents must be able to communicate in an effective way. Given the level of complaints the applicant had about the respondent and his home I was somewhat surprised by the evidence that these complaints had not led to police or CAS intervention (with some early calls not leading to verifications). The parents talked on the phone and personally. They did not argue in front of their son. They co-operated with each other in giving up days so Miles could share time with grandparents on both sides and attend events that were important to him. They agree generally on his need to be involved in sporting activities and both support swimming and soccer at this age.

[92] It is an important factor also that the parents agreed to share time with their son. They made a verbal agreement which they reduced to a rough written agreement and they signed a formal agreement some weeks later. Notwithstanding that the applicant chose not to receive legal advice the concept of shared custody was easily understandable to both parents. In fact, they were able to make it work from March 2012 until August 2015 when the mother first asked for a sole custody order.

[93] I find that Miles benefits from both of his parent's active involvement in his life. They do have different parenting styles and some different priorities as will be explored below but for the most part they have demonstrated that they are able to removed word share the information relevant to decision making and they are able to make joint decisions.

[94] I find that the joint custody regime should continue.

Time sharing

[95] The applicant had many complaints about the current 3 day cycle as noted above. Her major concerns were related to Miles ability to succeed in school. There is no doubt that there are dramatic differences between the two homes in which Miles is growing up. His mother presents as parent who is very focused on her child's feelings. She appears to accept his statements about his father and his father's home at face value. From an objective point of view it is extremely unlikely that Miles remembers his father making holes in the walls when he was 2 years old. It is also extremely unlikely that Miles is routinely "beaten" at his father's home when there are no marks or injuries. The fact that the applicant did not report all the beatings to the CAS and continued to send Miles to his father's home every three days without discussing the alleged beatings with him causes me to conclude that the applicant did not really believe Miles' stories. The applicant largely rests her argument that a change in time sharing is needed on a sheer number of complaints derived almost entirely from statements made from a 7 year old boy. At one point she said she had over 100 reasons but in reciting them she soon started to repeat similar concerns.

[96] The applicant tended to overstate her concerns and when challenged in cross-examination she became somewhat angry and defensive. The respondent gave his evidence in a very direct and forthright manner. Unlike the applicant he was able to realistically compare the differences in each home and he seemed to understand how Miles benefits from each of their parenting styles. Also unlike the applicant he did not allege that she had major faults in her ability to care for Miles although there was a general theme that the applicant may be over-parenting and perhaps babying Miles. There was an inordinate amount of evidence as to how often Miles was "cuddled" in each home. I find that the father did have a good understanding of Miles' needs.

[97] With respect to the two homes the respondent admitted that his home was very busy and the applicant had more time for one on one attention with Miles. He was clear though that Miles received one on one time from him and Ms. Dennie every day also. I accept the respondent's evidence that he does find time to read with his son and work on his homework. However, I also conclude from the evidence of the respondent and Ms. Dennie that Ms. Dennie often assists as do her children. The homework does need be done with other children after school or in the morning. The respondent and Ms. Dennie are actively involved with their children's after school sports. There are two kids playing rep soccer now and in the very near future there will be 4 kids with after school activities. This will necessarily mean that the younger children will have to accompany one of the adults to another child's activities. This is a fairly common occurrence in larger families and there is nothing wrong with it. However, it does lead me to the conclusion that there will be less opportunity for one on one time with a parent in the father's home than there will be in the mother's.

[98] I have to make decisions by looking at the particular child's needs. Miles struggles in school. He has behavioural problems at school, although much less concerning than they were, which require that if he is to keep up in school a lot of work needs to be done at home. I have no doubt that the applicant will devote herself to ensuring that the work gets done under her direct personal supervision. I also have no doubt that the respondent is committed to the school work being done. His concern for Miles's academic progress was made apparent by his daily communication with the school and his attendances at parent interview night and special meetings regarding Miles' placement. I find though that there cannot possibly be the time available in the respondent's home for home work and review that there is in the applicant's home. On balance I find that a schedule that has Miles in his mother's home on most weeknights is in the child's best interest.

[99] I find that it is difficult to rely on the applicant's recitation of her son's comments. This does not mean that I do not believe that he made such comments. I have evidence from all of the witnesses that Miles reacts negatively to being told what to do. His behaviour ranges from crying, to acting out and even to running away. The three day turnaround schedule meant that anything that Miles perceived as negative in his father's home could easily be remembered and told to his mother. My problem is that the statements lack context or any corroborating evidence. Just because I find that it is unlikely that something occurred does not mean that Miles did not say it occurred. His statements were made when he was 7 or younger-it would be unusual if there was not some exaggeration.

[100] The respondent and Ms. Dennie conceded that it took a couple of months for Miles to feel comfortable in their busy home with three other children. I have no doubt that in this time frame, and quite possibly for some time thereafter, Miles had some real issues with his siblings. He shares a room with an 11 year old step-brother. He is no doubt bothered at times by his nine year old step-sister. After hearing the evidence of the respondent and Ms. Dennie I find that it is likely that Miles is experiencing a relatively normal amount of sibling rivalry. I also find that it is more likely that he would tell his mother about negative experiences with his siblings than positive ones.

[101] The respondent and Ms. Dennie said that Miles has often expressed that he is very happy to be doing things with his siblings and that he enjoys being around them. Miles has told his father that he finds it boring at his mother's home. The applicant has conceded that Miles has talked positively about special events and holidays but she is unable to believe that Miles enjoys the very busy day to day life in the respondent's home. It is interesting that the applicant objects to all of the activities in the father's home which detract from crucial one on one time yet at the same time complains that the other children are involved in things and Miles is left out. If Miles were to be involved in activities too, the home would be even busier and all 4 children would have less one on one time with their mother or father as the case may be.

[102] The evidence of Ms. Lubek was that Miles is a very energetic boy who runs around without concern for his safety or the safety of other children. He is said to be large for his age. I find the respondent's focus on having children keep very active is one that will benefit Miles. The applicant states that the respondent should be registering and taking Miles to sporting activities. She recognizes that he needs that physical outlet but states that she is financially unable to enroll Miles in activities herself.

[103] There was a considerable amount of evidence from all of the witnesses that Miles has struggled in group settings at school, at swimming lessons and at least initially in the father's home. I agree with the father's comment that Miles will never learn to succeed in such settings if he is constantly insulated from them. Overall the applicant seems inclined to want to protect Miles due to his special needs and the respondent seems inclined to expose Miles to experiences in which he has struggled in the past. I conclude that both parents have Miles' best interests at heart although they have different views about how to help Miles succeed. I find that Miles can benefit from both of their parenting styles. As noted above a quiet, calm place to read and study at his mother's house will be helpful given his learning challenges. On the other hand an opportunity to learn how to work and play well with others and an outlet for his physical aggression will be available to him when he is with his father.

[104] I considered the parties' work schedules. I accept that the father is usually home by 4:30 p.m. and does his best to spend time with Miles on weeknights. He should have some weeknight time to stay engaged with Miles homework and school activities. The respondent is off every weekend. Currently the applicant's employment future is unknown pending her final assessment in July when her accident benefits expire. She is trained as a PSW and it may be that she is physically unable to do that job now. Nevertheless, if the applicant is to return to work her present options appear limited to PSW work or minimum wage work at a restaurant or as a store clerk. I note that she had worked as a waitress in the past. The point is that based upon her current level of education and training if the applicant is able to work it is likely that she will not have a Monday to Friday 8:30 to 4:30 job. She will likely work part or all of weekends as a PSW or in the service industry. Of course if she is not able to work then she will be home at all times. Taking into consideration the availability of the respondent on weekends and the fact that the applicant is likely going to be available for her son both before and after school on weeknights I find that the father should have more weekend time.

What changes, if any, should be made to the custody and access provisions?

[105] I considered each party's primary submission and rejected them both. I can understand how a week-about might be in the respondent's best interests as it reduces the exchanges and preserves the equal time sharing. Miles is a sensitive 7 year old boy who has never been away from either parent's home for more than 3 days at a time. A dramatic change to a schedule where he will have 7 days away from a parent is not in his best interests at this time. I also reject the applicant's main submission of alternate weekends with the respondent. Miles has benefited from being in a home with siblings and this would reduce his time with them to 2 days in a 14 day period. More importantly the respondent brings a different approach to Miles care and there is merit in his emphasis on more self-reliance and challenging his son. I am concerned if the time sharing does not remain approximately equal that the mother's arguably over protective parenting style will effectively become the predominant one and that it would be difficult for Miles to adjust to the more chaotic lifestyle in his father's home every second weekend. I am also concerned that the applicant had no difficulty making unfounded negative statements about the father and Ms. Dennie simply to try to win more time with Miles. I find that Miles needs an equal balance of his parent's different parenting styles. I am quite hopeful that with the end of this litigation the parents will be able to resume their relatively successful joint parenting and Miles can benefit from their co-operation notwithstanding their different approaches.

[106] Taking into consideration all of the above-noted factors I find that Miles should be with his mother every Monday, Tuesday and Wednesday night and on one out of every four weekends. He shall be with his father every Thursday night with the time extending to the following Monday on three out of four weeks. This will result in the mother having the majority of the school nights. The father will still be responsible for Miles going to school every Friday and three out of four Mondays. The relative consistency in days that Miles will be with each parent should make it easier to follow the schedule and easier to plan extra-curricular activities as it will be clear who has Miles on which night.

CHILD SUPPORT

Pre-September 2016

[107] The party's separation agreement made no provision for child support. It addressed the issue by stating that the Respondent's income was approximately $60,000 per year and the Applicant earned $20 per hour. Attached to the agreement were SupportMate calculations that set out the applicant's income at $30,000 and $40,000 respectively. There was no evidence that the applicant ever earned that amount. The applicant said she saw the calculations, thought they were absurd and signed the agreement anyway because she had agreed upon an amount and she wanted spousal support. It appears that the annual income relates to an imputation of $20 an hour for a 30 to 40 hour week. This imputation was not based upon any income history. In any event, this resulted in an agreement that said that the likely set off amount would be between $186 and $301 monthly. It is clear that if the applicant's actual income of approximately $20,000 per year had been used the set off in s. 9 (a) of the CSG would result in a payment closer to $450 a month. By accepting a total of $550 a month in spousal support the applicant certainly received far less than she would have received had the matter been litigated on the facts at the time.

[108] The parties should have given priority to child support and spousal support should not have been considered until the correct amount of child support was determined. The respondent said it was the applicant who insisted upon spousal support and the applicant did not deny this. The applicant seemed to feel that with an equal time share there should be no child support but given the large income disparity there should be spousal support. Ironically the applicant paid tax, or more accurately lost tax credits, based upon the inclusion of spousal support into income and the respondent did not claim the deduction. This meant that the agreement was not only not in compliance with law but it resulted in the Canada Revenue Agency getting a windfall.

[109] The fact remains though that the applicant signed the agreement and the respondent paid pursuant to it. The applicant chose not to seek child support until her August 2015 application. This was the first effective notice of an increase. For whatever reason the applicant did not seek retroactive child support in this application. I make no comment as to whether it would have been awarded. I simply note that I cannot make an order for relief that was not pleaded. This means that any change to child support can begin no earlier than September 1, 2015. I will make child support retroactive to that date. I reject the respondent's claim that tax returns having been filed any change should be for January 1, 2017. The fact is that the respondent did not file a return for 2015 because he was not sure how his payment would be treated. The applicant can choose to re-file her 2015 return based upon the change of spousal support to child support for part of that year.

Shared custody provisions

[110] The time sharing arrangement has been changed by this order. However, the revised arrangement still has the respondent having care of the child close to one half of the time. Under the revised arrangement of a four week schedule Miles will sleep at his father's' home 13 nights out 28 or 46% of the time. I find that this is a shared custody situation to which s. 9 of the Guidelines should apply.

[111] Mr. Brennan correctly pointed out that in Contino the Supreme Court of Canada stated that all of the three sub-sections of s.9 must be considered not simply the table set off in s. 9 a). Neither party provided any submissions as to how s. 9 b) and c) should impact the determination of the quantum of support in this case.

[112] In Contino the SCC was clear that a court must look at all 3 factors in s. 9. The court should be flexible as no presumptions apply. This is because the total cost of raising children may be greater in shared custody situations. The court also held that section 9 is broad enough to incorporate section 7 expenses directly into the examination of child-related expenses.

Section 9 a)

[113] I will begin by determining the set-off amount. As noted-above the respondent's income to be used should be his line 150 income less his union dues. This is an adjusted income of $63,800 in 2015 and $69,200 in 2016. I used the 2016 income for the ongoing support. In 2015 the applicant earned $12,558 in employment income prior to her car accident. She then received untaxed accident benefits in the amount of $515.80 bi-weekly. I was not told when the benefits started so I estimated that she received 18 weeks of benefits in 2015 for a gross amount of $4,642.20. I have prepared a Supportmate calculation showing that when the untaxed income is grossed up and added to the employment income the applicant earned $17,200 in 2015. In 2016 the applicant only had accident benefit income of $13,411 which is such a modest income that the applicant would not pay income tax so that the income for child support purposes is the same number. The year 2017 is more problematic. It is known that the applicant's accident benefits will end on or about July 5, 2017. After that she may have the proceeds of an insurance settlement for future income loss, she may apply to Ontario Disability Support Program (O.D.S.P.) or she may be employed. I find the fairest way of determining the income is to impute a minimum wage income for the last six months of 2017 and into the future. That income is more than the applicant made working casual part-time at the hospital for about 16 hours a week and less than she could earn if she was able to return to home care work at $20 an hour for 25-35 hour a week. Child support should be adjusted annually and the first adjustment should be on April 30, 2018 based upon each parties' 2017 income as disclosed by their T statements which will be available on or before February 1, 2018.

[114] I have done three set off calculations and attached them to these reasons. The one that is marked 2015 is for the period September 1 to December 31, 2015 when the set off child support amount was $446. The one for 2016 is for January 1 to December 31 2016 when the set off was $565 per month. The one marked 2017 is the one that begins January 1, 2017 and the set off, based upon the known 2016 income, is $431 per month.

Section 9 b)

[115] The parties have had shared custody in separate home since May 2012. The increased costs of shared custody were mostly borne in the early days when the applicant had to find housing to accommodate her young child given that the respondent remained in the home that they shared. Nevertheless, there was evidence that Miles had everything he needed at each home. While there was some dispute about Miles clothing I find that each parent was required to maintain a wardrobe for the child at their home. The same would apply to any toys, books, games and electronic devices. The evidence was that the respondent had taken the child on some holidays whereas the applicant stated that she could not afford to do so. Given the significant disparity in their income I find that to provide a somewhat similar experience in each home, to the extent that financial resources can do that, that the respondent should pay an additional $100 per month to the applicant to address the increased costs of shared custody.

[116] I find it is best to set out a fixed sum per month, rather than trying to tie the changes to income changes, so that the parties can more easily recalculate child support on a year to year basis. Once they both have T-statement income they should be able to determine their set-off amounts with information publicly available. They can then add $100 per month to the set-off amount.

Section 9 c)

[117] The parties have shared joint custody for 4.5 years and they have been living separate financial lives subject to the payment of support. I have considered the condition, means, needs and other circumstances of the parties but they do not impact upon the quantum of child support to be paid in this matter.

SPOUSAL SUPPORT

Entitlement

[118] The first issue is to determine whether there remains an ongoing entitlement to spousal support. Entitlement is a threshold issue such that there is no consideration of the SSAG unless it is proven. At the time of separation entitlement was clear. The respondent earned approximately $60,000 per year and the applicant about $20,000. The parties were married and had a young child. The parties' separation agreement did not really address the reason for entitlement. The reference to the income disparity shows that there was clearly entitlement based upon financial need. That entitlement continues to the time of trial. This matter is complicated by the applicant's car accident but the S.C.C. decided in Bracklow v. Bracklow that "in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less." (at para. 48)

[119] I find that this is not a case for entitlement based upon compensatory grounds. At the time that the parties began living together the applicant was working in cleaning services at the hospital for minimum wage. She took maternity leave after Miles was born and then went to college and obtained a diploma as a PSW. This led to the employment that she had when she was in the car accident in the summer of 2015. But for the accident, the applicant would be working on a full-time basis in her chosen field. I find that the entitlement is based on financial need only.

Purpose of spousal support in this matter

[120] The next step is to examine the purpose for a spousal support order on the facts of this matter. I did so by reference to s. 33 (8) of the FLA. S. 38 (8) (b) provides that spousal support can be used to share the economic burden of child support equitably. I did not make a child support under s 9(c) of the CSG because this was an appropriate case for spousal support. Even after child support there is still a significant difference in the income available to each party to provide for the child. Some of the difference can be addressed by a spousal support order.

[121] I find that the purpose in s. 38 (8) (d) of relieving financial hardship is applicable to this matter in which the applicant has significantly less income available to her and no means of earning more income given her education and training and the fact that she still has some child care responsibilities notwithstanding that the child is in full-time school.

Amount and duration

[122] As noted above I required that counsel file SSAG calculations to assist me in determining amount and duration if I found that entitlement to spousal support is ongoing. As is also noted above the SSAG were designed to build upon the existing statutory and case law. The FLA sets out factors to be taken into consideration and those factors, as interpreted by the courts, formed the basis of the SSAG ranges in different situations. I reviewed the s. 33 (9) factors and I find that the following factors are quite relevant on the facts in this matter:

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation.

[123] I then looked at the SSAG ranges proposed for the income that I have found that each party had during the relevant period and used the above-noted factors to determine where within the range an appropriate order should be made.

[124] As noted, I find that the applicant has a limited capacity to provide for her own support. If she recovers sufficiently to be able to return to her homecare worker position she could earn $20 an hour for a 25 to 35 hour week. If she worked 35 hours, which she has never done before, with the possible exception of 7 months in 2015 she would make $36,400 annually. Since the separation the respondent's income has ranged from a low of $66,343 in 2015 to a high of $76, 657. The respondent has the capacity to provide support.

[125] I have found that there is no compensatory element to the spousal support in this matter. This militates against ordering support at the higher end of the range. I considered the middle end of the range but noted that as the respondent has paid an agreed $550 a month for 4.5 years he has arranged his new family budget accordingly. There will be a major increase in the combination of child and spousal support in this matter to bring it into line with the CSG and the spousal support law. I have discretion to provide for a lower amount of spousal support and a longer duration of that support than might otherwise be the case based upon the income disparity and length of cohabitation. I find it is appropriate to do that. Given the applicant's limited earning capacity it makes sense to have spousal support paid for a longer time. In the absence of a compensatory element though I will not make the total time that the respondent shall pay spousal support any longer than the total length of the relationship which was 7 years (2008 to 2012). I find that the 7 years should begin on September 1, 2015. The "spousal support" set out in the separation agreement was woefully inadequate if it was supposed to be for CSG s. 9 support and spousal support. The support regime is being changed as at September 1, 2015 so the length of time that spousal support should be paid should begin at that time and end on August 31, 2022 unless there is a material change in circumstances relevant to spousal support that occurs prior to that time.

[126] The income of the parties did change in the period 2015 to 2017 and it may well change significantly in the future. The CSG set off amount, plus the additional $100 per month, will change with all changes to income. Given that spousal support is tax deductible to the payor the parties would need annual access to SSAG software to adjust spousal support. I find that a fixed amount of spousal support should be set and that it should only be changed within the next 7 years if a material change in circumstances can be established. I find that the fixed amount should be $500 per month. This is substantially lower than the low end of the range for 2015 and 2016 but a somewhat higher than the low end of the range for the applicant's imputed 2017 income of $24,000.

COSTS

[127] Based upon the arguments advanced at trial my order results in the parties having mixed success. The respondent did retain joint custody and a roughly equal sharing of time but the applicant was successful in her argument that the child should primarily attend school from her home so that she could directly assist him with his homework. The applicant sought table support under s. 3 and a s. 9 order was made. The respondent wanted no ongoing spousal support and an order was made for such support.

[128] I find that this is not an appropriate case for costs.

ORDER

(1) The applicant and the respondent shall share joint custody of the child Miles Domingos Catarino, born November 3, 2009.

(2) The said child shall be with the respondent as follows:

(a) Week one from Thursday after school to Monday before school;

(b) Week two from Thursday after school to Monday before school;

(c) Week three from Thursday after school to Friday before school; and

(d) Week four from Thursday after school to Monday before school.

(3) The respondent shall pay child support to the applicant based upon the shared custody provisions of s. 9 of the CSG being the table set off amount under s. 9 (a) plus $100 per month under the provisions of s. 9 (b). This results in the following orders based upon the parties incomes at the relevant times:

(a) Beginning September 1, 2015 and continuing until December 31, 2015 the sum of $546 per month. This amount is based upon the respondent's 2015 income of $63,800 and the applicant's 2015 income of $17,200.

(b) Beginning January 1, 2016 and continuing until December 31, 2016 the sum of $665 per month. This amount is based upon the respondent's 2016 income of $69,200 and the applicant's 2016 income of $13,411.

(c) Beginning January 1, 2017 and payable on the first day of each and every month thereafter the sum of $540 per month. This amount is based upon the respondent's 2016 income of $69,200 and the applicant's imputed income of $24,000.

(4) a) The respondent shall pay spousal support to the applicant in the amount of $500 per month beginning September 1, 2015 and continuing on the first day of each and every month thereafter.

b) Unless the said spousal support has been terminated due to a material change in circumstances prior to August 31, 2020 it shall be terminated on August 31, 2020 irrespective of the parties financial circumstances at that time.

(5) The respondent shall be credited with having paid the sum of $550 per month from September 1, 2015 to January 31, 2017 being a total sum of $9,350.

(6) The respondent shall pay the arrears created by this order at the rate of $100 per month until fully paid. This order is without prejudice to the FRO imposing a federal garnishment upon the respondent so that monies from the federal government can be applied to arrears in addition to the said $100 monthly payment.

(7) Support deduction order to issue.

(8) There shall be no order as to costs.

Released: February 8, 2017

Justice Philip J. Clay