Court File and Parties

Ontario Court of Justice

Date: May 7, 2018

Court File No.: 17-004

Between:

JEFF KAETZEL Applicant

— AND —

ASHLEY MIRAULT Respondent

Before: Justice M.G. March

Heard on: May 7, 2018

Decision released on: May 7, 2018

Counsel

Jeff Kaetzel ......................................................... acting for himself, the Applicant

Victoria Legris ........................................................................................ for the Respondent

Decision

M.G. March J.:

Relief Sought

[1] By Notice of Motion filed April 13, 2018, the Applicant Mr. Kaetzel seeks:

(1) An Order for joint custody of his son, I. (dob […], 2016).

(2) Week about shared access between the child's mother, the Respondent, Ms. Mirault and him, and

(3) A reduction by half of child support payable by him to Ms. Mirault for I.'s benefit.

[2] By earlier Motion filed June 6, 2017, Mr. Kaetzel sought:

(1) An Order for undue hardship.

(2) An Order to dismiss the Motion costs.

(3) An Order for the cancellation of retroactive support dating back to my Order of May 15, 2017, and

(4) An Order to resolve custody issues prior to fixing child support payable by either party.

Background

[3] By way of background, on May 15, 2017, I made a Temporary Order for child support payable by Mr. Kaetzel to Ms. Mirault in the Child Support Guideline amount of $313.00 per month commencing June 1, 2017. Additionally, I ordered arrears of support in the sum of $2,817.00 to be paid by Mr. Kaetzel to Ms. Mirault in the sum of $100.00 per month commencing June 1, 2017. Costs of $100.00 were also ordered on Ms. Mirault's Motion for support and arrears.

[4] The relationship between Mr. Kaetzel and Ms. Mirault was short-lived. It commenced in September 2015. It ended in March or April 2016, when Ms. Mirault was pregnant with I.

[5] Soon after I.'s birth in 2016, Ms. Mirault tried to come to some form of mediated arrangement with Mr. Kaetzel to have child support and access to their son sorted. She left pamphlets in Mr. Kaetzel's mailbox in the hope that Mr. Kaetzel would negotiate with her. Mr. Kaetzel did not take Ms. Mirault up on her offer. Instead, Mr. Kaetzel blocked Ms. Mirault's attempts at contact with him.

[6] Mr. Kaetzel has had little contact with I. since his birth. He did bring an Application on January 6, 2017 seeking joint custody of I., but by this point, the child was five months old, was still nursing and had spent only brief visits with his father, Mr. Kaetzel. His mother, Ms. Mirault, has been I.'s primary caregiver, of course, since his birth.

[7] I shall deal with the relief sought by Mr. Kaetzel in his Motions before the Court in chronological order.

Undue Hardship

[8] Section 10 of the Child Support Guideline's (Ont.) permits a parent to make a claim of undue hardship. The section provides:

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

a. the spouse has the responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

b. the spouse has unusually high expenses in relation to exercising access to a child;

c. the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

d. the spouse has a legal duty to support a child, other than a child of the marriage, who is:

i. under the age of majority, or

ii. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

e. the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

[9] Unfortunately for Mr. Kaetzel, he does not come within any of the exceptions to the presumptive rule that he must pay child support in the sum set out in the Child Support Guidelines for his level of income. According to Mr. Kaetzel's Notice of Assessment issued by Canada Revenue Agency for the 2015 taxation year, his total income was $37,050.00. For one child, I., Mr. Kaetzel is obligated to pay $313.00 per month. That is the law.

[10] While I appreciate Mr. Kaetzel has two young daughters from a previous relationship to support and who live with him full-time, I see no legal means by which to reduce his support for I.

Costs Ordered Payable for Ms. Mirault's Motion of May 15, 2017

[11] The costs awarded were in the very modest sum of $100.00, bearing in mind Mr. Kaetzel's limited ability to pay. That costs award shall not be disturbed.

Retroactive Support

[12] Section 34(f) of the Family Law Act is one of the statutory provisions empowering a Court to award retroactive child support. Mr. Kaetzel was placed on notice shortly after I.'s birth that Ms. Mirault was seeking support for their son from him. As his dependant, Mr. Kaetzel has a legal obligation to support I. from birth. Consequently, the retroactive award of child support was appropriate and fitting to the circumstances of this case.

Custody Issues Resolution Prior to a Determination of Support Obligations

[13] For common sense reasons, I cannot give effect to this request from Mr. Kaetzel. I.'s needs are ongoing and have been from birth. Mr. Kaetzel's decision to end his relationship with Ms. Mirault did not in turn end his obligation to provide for I. To the extent that he is capable, and as dictated by the Child Support Guidelines, Mr. Kaetzel shall continue to pay child support for I.

Joint Custody

[14] At the present time, joint custody shared by Mr. Kaetzel and Ms. Mirault would not be in I.'s best interests. Mr. Kaetzel is only now beginning to forge a bond with I. His access to I., which commenced November 5, 2017, was initially limited to one hour supervised every second Sunday. At that time, of course, I. was very young, just over a year, and had had little contact with his father beforehand.

[15] I increased that access to I. to four hours every Sunday as of March 12, 2018. In his Affidavit sworn April 13, 2018, Mr. Kaetzel attests to the fact that I. is adjusting and enjoying his time with his father and sisters, however, I would have preferred to see him exercise his access every Sunday, not every second Sunday, as he has chosen.

[16] Let me be clear. I have no doubt Mr. Kaetzel loves I. immeasurably. Mr. Kaetzel is a good father. He has done a fine job raising his two daughters thus far. I have every expectation that he will be an excellent dad to I. in the years to come when the boy looks to him for care and guidance. This Court, I am certain, will not in the slightest be close-minded to the notion of Mr. Kaetzel becoming a 'week about' parent to I. in the 'not too distant' future. But we are not there yet.

[17] At present, I. is but 21 months old. He has not had the chance to emotionally bond with his father. Mr. Kaetzel's access should increase progressively, assuming he truly wants it to occur.

[18] In a few more months, I predict the Court will be able to see its way through to granting Mr. Kaetzel access to I. every second weekend. Ultimately, by the time this issue is truly ready for trial, I expect Mr. Kaetzel will be able to make a strong argument for 'week about', joint custody, but not now.

[19] All the while, I expect Ms. Mirault will be looking at ways to improve her financial situation. The support, as I am sure she is aware and has, no doubt, had the concept explained to her by her able counsel, is for I.'s benefit, not hers.

[20] For the time being however, it is with Ms. Mirault that I. must remain until Mr. Kaetzel's relationship with his son has a fuller opportunity to grow.

The Reduction of Child Support

[21] For the reasons earlier stated, there shall be no reduction in the amount of child support payable, no adjustment to the child support arrears awarded, and no variation of costs ordered to be paid on the earlier Motion heard May 15, 2017.

[22] The reality of the situation in which Mr. Kaetzel finds himself does not escape me. Mr. Kaetzel does not enjoy paying child support. Money is tight. He would far prefer to care for I. himself half the time to avoid payment of any monetary sum to Ms. Mirault for their son's benefit. That day may come, but certainly not now. Mr. Kaetzel may also wish to explore the possibility of seeking support from his ex-partner Ms. Gagnon for the upbringing of their two daughters.

[23] Ultimately, Mr. Kaetzel must come to accept that he fathered I., and caring for a child is costly. It matters not that Mr. Kaetzel's relationship with Ms. Mirault was a short one. I.'s needs are long term.

[24] Mr. Kaetzel must understand that at I.'s very young age, his best interests are served by being in the primary care of his mother. As the boy grows older, the high demands for constant care and attention that a young toddler places on a parent will lighten, but we are some way off from that moment in time.

[25] Mr. Kaetzel must as well learn to communicate with Ms. Mirault in I.'s best interest. His resentment for her, because she obtained what she is legally entitled to – support for their son – must be put to bed. Mr. Kaetzel would be wise to begin trying to work with Ms. Mirault, if he truly desires an opportunity at co-parenting I.

[26] Mr. Kaetzel must stop looking at ways to avoid his obligations through continuous re-litigation of decided issues, lest he be faced with more punitive costs awards in the future.

Disposition

[27] Accordingly, I shall dismiss the Motions filed by Mr. Kaetzel on June 6, 2017 and April 13, 2018. He shall pay costs to Ms. Mirault in the sum of $500.00 forthwith.

Released: May 7, 2018

Signed: Justice M.G. March