Court File and Parties

Ontario Court of Justice

Date: 2018-12-20

Court File No.: Woodstock D102/17

Between:

K.A.L. Applicant

— And —

P.K.O. Respondent

Before: Justice S. E. J. Paull

Trial Heard on: December 7, 2018

Reasons for Judgment released on: December 20, 2018

Counsel:

• Barbara J. Storey, for the applicant(s)
• James Battin, for the respondent(s)

PAULL J.:

Introduction

[1] Before the court are the remaining issues left to be resolved with respect to the access and child support of the parties' three children.

[2] This matter proceeded to trial over 1 day on December 7, 2018 and the parties were the only witnesses.

[3] On April 23, 2018 the parties consented to a final order which provided for sole custody to the children's mother, K.A.L., and regular and structured alternate weekend access to their father, P.K.O. The issues of child support, summer access, midweek access, and transportation for access were adjourned to trial.

[4] At the commencement of trial the parties agreed to an order with respect to summer access which involved the children being with each parent on a week on/week off basis with the parties being flexible to accommodate work and other scheduling issues.

Positions of the Parties

[5] The applicant seeks a specific order that transportation for access be entirely the responsibility of the respondent. The respondent sought assistance with transportation, however in closing arguments his counsel submitted that the order reflect that transportation be pursuant to arrangements made by the parties.

[6] In addition to the agreed-upon access the respondent seeks access on Wednesdays from 4 PM to 7 PM. This is opposed by the applicant.

[7] On the issue of child support the applicant seeks an order for child support on the basis of the respondent's ODSP income. The respondent opposes an order for child support on the basis of his precarious financial circumstances and limited disability income.

Background

[8] The parties are the parents of the three children subject to this application, J.O. (female) born July 25, 2003, M.O. (female) born December 11, 2006, and K.O. (female) born November 23, 2012.

[9] The following are the agreed-upon or uncontested facts:

1. The parties began cohabiting in 1996 and separated on May 19, 2017. The parties have older children who are not the subject of this proceeding.

2. The children have remained in the K.A.L.'s care since separation.

3. P.K.O. has been in receipt of ODSP for physical health reasons since before the parties separated.

4. P.K.O. has lived with his partner and her grandchild since late 2017. They are also listed on his ODSP benefits. Of the total of $1881 he receives from ODSP, the amount of $1151 is attributable to him alone.

5. K.A.L. works approximately 20 hours a week at a McDonald's restaurant between the hours of 10 AM and 4 PM from Monday to Friday. Depending on her employment income for the month she is topped up by Ontario Works.

6. P.K.O. has not paid any child support since separation.

7. Neither party drives nor has a car, and they live approximately 5/6 blocks apart in the town of Woodstock.

8. There is no court order or written agreement between the parties concerning transportation for access.

9. While J.O. (15 years old) is the subject to the current access order she attends visits with her father when she wishes and as arranged with him directly.

Evidence and Analysis

Transportation and Midweek Access

[10] Any application regarding custody or access must be determined by reference to what is in the best interest of the child pursuant to section 24 of the Children's Law Reform Act which reads:

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).

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, including a parent or grandparent, 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) the plan proposed by each person applying for custody of or access to the child 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

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

[12] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[13] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[14] 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. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[15] It is often held by courts that the access parent is responsible for pickup/drop-off at access, and that it is generally not unreasonable to impose this responsibility on the accessing parent. Carss v. Carss, 1994 ONCJ 7187; C.L.M. v. N.B.S., 2009 ONCJ 251.

[16] However, while this may be generally the case, the CLRA provides jurisdiction to order the sharing of transportation as an incident of custody/access. It becomes an issue of what order respecting transportation is in the children's best interests while considering the totality of the circumstances. Dookie v. Surujmohan, 2017 ONSC 6073.

[17] The respondent seeks to share the responsibility for transportation for access. Since neither party drives nor has access to a car the children get to/from access through a combination of walking, bicycles in the good weather, and taking cabs. The respondent also seeks a midweek visit on Wednesdays.

[18] The applicant acknowledges assisting with some of the transportation at times but that the respondent has been primarily responsible. She also opposes a midweek visit.

[19] The issues to be determined include firstly whether the applicant, in the circumstances, should have a court ordered obligation to assist with transportation for access or whether the entirety of the responsibility should rest on the respondent, and secondly whether a midweek visit is in the children's best interest and if so, under what terms.

[20] P.K.O. testified as follows:

1. He has significant physical health issues which preclude him from working and makes getting around difficult, although he can and does walk for the purposes of transportation for access. He has hopes that his doctor will assist him in acquiring an electric scooter, which will help him in this regard.

2. He currently resides with his partner and her grandson who are also on his ODSP benefits, however he felt that they will likely not be residing together for much longer given his financial difficulties.

3. He testified to no knowledge of any child tax credit, child support, or other income or benefits (beyond ODSP) his partner receives for herself or her grandson.

4. Given his dire financial circumstances he felt that any amount of child support would be impossible for him to afford.

5. He would like to see his children midweek and while he would ideally like some help with transportation he acknowledged he could be responsible for all of it if required. He would also assist with the children's homework if required.

6. He felt that he was able to speak to K.A.L. about transportation issues and that they could work it out between them.

[21] K.A.L. testified as follows:

1. J.O. (age 15) is not currently in school as a result of her anxiety and other medical issues. The plan is for her to attend a transitions program to help her get back to school.

2. M.O. (age 11) is in grade 7 and has some learning disabilities which have required an IEP and accommodations at school. M.O. has difficulty completing homework and often does not admit that she has it.

3. K.O. (age 5) is in grade 1 and occasionally has homework to do.

4. K.A.L. assists with any homework but acknowledged she has never sent homework to P.K.O.'s home during access.

5. M.O. and K.O. attend the same school. While K.A.L. is working they are picked up from school by a neighbour and dropped off at home at approximately 3:45 PM where they are looked after by J.O. until K.A.L. returns home. She works at McDonald's during the week generally to 4 PM and takes the bus home. She does not arrive home until approximately 4:45 PM which would make it difficult for her to assist with transportation for access.

6. There has never been midweek visits and she is concerned about the children's homework getting done, settling them down after access, and maintaining a school night routine.

7. If she is required to assist with picking the children up after midweek access she would have to pay for a cab, which is a financial challenge, or walk there and back which would make it a late night, particularly if the children have not eaten or have homework left to be done.

8. During the school week M.O.'s bedtime is 9:30-10 PM and K.O.'s is 8:30 PM.

9. Overall she felt that a midweek access visit would be too much work and a disruption of the children's routine, particularly if she is required to assist with transportation.

[22] The difficulty in this case is that the parties have so few resources upon which to draw for access transportation. Neither party drives and both parties have limited financial resources.

[23] K.A.L. is responsible for ensuring that all the day-to-day needs of the children are being met. She does this through a combination of Ontario Works and minimum wage employment. She is required to take a bus to work which means that although she gets off work at 4 PM during the week she does not arrive home until closer to 5 PM.

[24] P.K.O. has paid no child support since separation and seeks to pay no child support. He acknowledges that he could, if required, be responsible for transportation. Fortunately the parties only live 5/6 blocks apart.

[25] To her credit K.A.L. has provided some assistance at times for transportation including walking with them and paying for a cab, however, in the circumstances of her own very modest means and because she has assumed the bulk of the day-to-day care of the children without financial assistance from P.K.O. to date, it would not be appropriate to impose a legal obligation to require her to assist with transportation.

[26] Further, P.K.O. acknowledged he could be responsible for transportation if required.

[27] Considering the circumstances of each parent and their current responsibilities with respect to the children, P.K.O. will be required to undertake all transportation to/from access. Hopefully K.A.L. will be able to continue to offer the occasional assistance with transportation, however, she will not be under a court ordered obligation to do so.

[28] K.A.L. raised two major concerns with respect to midweek access. The first involved the issue of transportation, which is resolved by the order that transportation is P.K.O.'s responsibility. Second is the issue of the disruption to the children's routine during the school week, including the issues of homework and providing dinner.

[29] I am of the view that the children's best interests would be served in the circumstances by an order that there be a midweek visit on Wednesdays from 4 PM to 7 PM for the following reasons.

[30] K.A.L. did not allege that P.K.O. was not a loving father or that he has not at all times provided appropriate care for the children. The parties previously consented to a regular alternate weekend and a shared summer/holiday schedule. Without midweek access the children will go nearly 2 weeks at a time during the school year without seeing their father. This is too long. Children with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them.

[31] I have no independent evidence of the views and preferences of the children, however, the parties agreed in the order of April 23, 2018 to a liberal access schedule. They also agreed at paragraph 3 of that order that they shall respect the wishes of the two older children concerning the duration of access. It is appropriate that this apply to any additional access. Both parties also acknowledged with respect to J.O. that she now attends visits with her father pursuant to her wishes and makes arrangements directly with him in spite of the order.

[32] K.A.L.'s concerns regarding routine and homework can be addressed by a requirement that P.K.O. assist with homework when needed, provide the children with dinner, and ensure that the children are returned home by 7 PM. These are in addition to P.K.O. being responsible for transportation.

[33] P.K.O. stated that he would assist with the children's homework. K.A.L. acknowledged she had never sent homework over before.

[34] The test for determining access is what order is in the best interests of the child. The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the children. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the children support an order that access include a midweek access visit on Wednesday from 4 PM to 7 PM with P.K.O. being responsible for transportation, providing dinner, assisting with homework, and ensuring the children are returned home no later than 7 PM.

Child Support

[35] The parties agree that P.K.O.'s income from ODSP is $1151 per month or $13,812 per year. This is the respondent's personal entitlement of the total amount of $1881 in ODSP benefits currently received for the household for himself, his partner, and her grandson.

[36] Counsel for P.K.O. argues that because of his precarious financial circumstances and very limited resources that he should not be required to pay any child support even though the Guidelines direct child support for three children of $136 per month on an income of $13,812.

[37] The respondent pays $1025 in rent per month plus utilities. He testified that he has difficulty making ends meet and is in significant arrears on his utility bills. He received assistance recently from the United Way to pay off the arrears he owed to Union Gas, and utilized his MP to assist getting his water turned back on after it was turned off for nonpayment. He currently owes approximately $1000 to Union gas, between $800-1000 for electricity, and $998 for water. He also testified that he has struggled to pay various consumer debts.

[38] However, his most recent financial statement of September 17, 2018 outlined expenses for pets and alcohol/tobacco of $60 a month. His earlier financial statement of September 5, 2017 outlined expenses including $100 a month for alcohol/tobacco and $40 a month for pets. None of his financial statements included the money he received from the GST/HST tax credit or through the Ontario Trillium Benefit program which together would total $1270 per year (4 payments per year of $108.25 in GST/HST credit, and $837 per year or $69.75 per month from the OTB).

[39] The respondent relies on the case of Stefanec v. Stefanec, [2012] O.J. 4436 (SCJ) to support the proposition that there should be no child support payable on the basis of his limited ODSP income.

[40] In that case the payor was on ODSP and the recipient was seeking to impute minimum wage income on the payor for support purposes. The court refused to impute income and noted that to do so would have left the payor, after his rent was paid, with less per month of his ODSP benefit than would have been payable on the imputed income under the Guidelines.

[41] The case of Stefanec is distinguishable as this proceeding is not a case where the recipient is seeking to impute income. The issue here is whether the respondent should be excused from paying any child support, in spite of the Child Support Guidelines, based on his very modest income and precarious financial circumstances.

[42] On this issue the case of Kelly v. Kelly, [2013] ONSC 6733, is on point. In that case the payor was also on ODSP and the court found that his annual income was $12,480.

[43] The court in Kelly addressed the issue of the payor's limited income and difficult financial circumstances. In ordering child support on the basis of the ODSP income, Justice H.M. Pierce stated the following:

[8] Section 4 of Schedule III to section 16 of the Guidelines provides that the father's income will be reduced by any amount of social assistance that is not attributable to the spouse. There is no evidence that the father has income attributable to others in his household.

[9] Unfortunately, the Child Support Guidelines afford the court very little discretion to award less than the table amount for payor's with income below the poverty line unless there is a claim for hardship or other factors are present that are not relevant in this case. Here, the father has not appeared; nor has he pleaded hardship in his Answer. Although significantly impoverished while on ODSP, the Child Support Guidelines dictate that the father is still liable to pay child support, in that his income exceeds the table amount. Liability for child support starts with an annual income of $10,900. Whether demonstrably impoverished individuals should be liable for child support which deepens their poverty is a question of policy for Parliament.

[44] The reasoning of the court in Kelly applies to this case. While I accept that the respondent has very limited income and has demonstrated difficult personal circumstances, Section 4 of Schedule III of the Guidelines includes as income the ODSP he receives that is attributable to him.

[45] He has not pled or sought to avail himself of the provisions and mechanism in section 10 of the Guidelines to seek a finding of undue hardship. Further, the evidence he did provide concerning his financial difficulties did not convince me that he was doing everything he could to carefully manage what few resources he had. His rent and utilities seem excessive given his means and he still spends money on pets, alcohol and tobacco. He also claimed to have no information on his spouse's financial resources (beyond ODSP) which is not reasonable given their relationship and the household's dire financial situation he testified to.

[46] Child support is the right of the child and takes priority over pets, alcohol, tobacco, and consumer debts. Further, P.K.O. is not the only party in difficult financial circumstances. K.A.L. has been supporting the parties' three children on her own. She takes the bus to work for minimum wage at McDonald's, and is supplemented by Ontario Works to make up the shortfall in her income. P.K.O. has paid no support since the parties separated in May 2017.

[47] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[48] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Implementing the Guidelines is the method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

[49] In all the circumstances the respondent is liable for child support.

[50] The applicant sought child support in her application issued on May 29, 2017 and the respondent acknowledged that no child support has been paid. It is appropriate that child support commence on June 1, 2017 based on the respondent's annual income of $13,812.

[51] From June 1, 2017 to November 22, 2017 the Guidelines in force at the time direct child support of $170 per month for three children on income of $13,812. Therefore arrears up to November 30, 2017 total $1020 (6 times $170).

[52] From December 1, 2017 forward the Guidelines impose a child support obligation of $136 per month which would total an additional $1632 in arrears up to November 30, 2018.

[53] Therefore the arrears owing up to November 30, 2018 total $2652, and shall be paid at a rate of $65 per month until paid in full. This repayment rate balances the precarious financial circumstances of both parties, while recognizing the obligation of a parent to support their children and the recipient's need to receive that support.

[54] Ongoing child support commencing December 1, 2018 shall be payable for the three children at a rate of $136 per month.

Final Order

[55] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. In addition to the custody and access terms outlined in the final order of April 23, 2018 there shall be the following additional terms:

a. The respondent shall be responsible for transportation to/from access.

b. The respondent shall have midweek access on Wednesday from 4 PM to 7 PM, and will ensure that the children have been fed dinner and that he has assisted with any homework before their return by no later than 7 PM.

c. During the children's summer holiday the access schedule will be on a week on/week off basis with the parties being flexible to accommodate work and other scheduling issues of the parties and children.

d. The additional periods of access as outlined herein remains subject to the wishes of the two older children as outlined in paragraph 3 of the final order of April 23, 2018.

2. Child support arrears owing up to November 30, 2018 shall be fixed in the amount of $2652 and payable at a rate of $65 per month.

3. Commencing December 1, 2018 and monthly thereafter the respondent shall pay to the applicant child support in the amount of $136 per month for the parties three children based on his annual ODSP income of $13,812.

Costs

The parties are encouraged to agree upon costs, if any, as success in this trial appears to be divided and the parties were able to consent on a majority of the original issues raised in this litigation. In the event that the parties do not agree, any party seeking costs will contact the trial coordinator by no later than January 4, 2019, to arrange a return date for submissions on that issue. If no court date is sought prior to this deadline, the parties will be deemed to have resolved the matter of costs.

Released: December 20, 2018

Signed: "Justice S. E. J. Paull"