Court File and Parties
Date: April 12, 2019
Court File Number: 138/2015
Ontario Court of Justice (Orangeville)
Between:
MICHAEL LENI MENDONCA Applicant
and
SANDRA SUSAN BORG Respondent
Before: Justice B. E. Pugsley
Heard: April 10th, 2019
Released: April 12th, 2019
Appearances
Applicant and Duty Counsel: Ms. J. Foote
Respondent and Duty Counsel: Mr. G. Wright
Endorsement
Background and Procedural History
[1] The parties are the parents of one child, M. (M)(DOB: […], 2012). The child is in the custody of the Respondent (mother). The Applicant (father) has access.
[2] The parties had a brief relationship in 2011 and separated in 2012 soon after M.'s birth. On November 30th, 2015, the Applicant brought an Application for access to his son. At the time the Applicant lived in Ottawa and the Respondent and child in Shelburne, Ontario.
[3] On July 25th, 2016 a final order was made such that the Respondent was granted custody of M. The matter continued on the issues of support for the child and the nature and quality of access by the Applicant.
[4] On June 26th, 2017, a comprehensive temporary order was made by me regarding access. On September 27th, 2017 on consent a final order was made engaging all of the issues between the parties.
[5] Three and a half months later the Applicant brought a motion for an order finding that the Respondent was in contempt of the September 27th, 2017, order. At the case conference held on March 14th, 2018, the motion was withdrawn by the Applicant.
[6] On September 26th, 2018, the Applicant brought on a Motion to Change the final order by changing access and child support.
[7] The Respondent's Response to the Motion to Change sought to dismiss his motion and made a cross-claim for increased child support.
[8] A case conference was held and the matter set for a joint Settlement Conference / Trial Management Conference to be held on March 6th, 2019.
[9] On January 11th, 2019, the Respondent served a motion returnable on March 6th, 2019, asking to have the matter transferred to Orillia, her planned new residence.
[10] On January 21st, 2019, the Applicant moved without notice to the Respondent seeking to have multi-faceted relief. His material was ordered to be served and the matter to be heard on March 6th, 2019. On that date the matter was adjourned by the parties on consent to be argued on April 10th, 2019.
[11] Fresh Notices of Motion by each party were served and filed, supported by affidavits from both sides. The matter was fully argued before me on April 10th, 2019. I reserved my decision on both motions. This endorsement is my decision.
The Applicant's Motion to Amend
[12] The Applicant's motion (at Tab 47 of the Continuing Record) seeks leave to amend his Motion to Change, and he also asks that the court block a transfer to the court in Orillia. The draft amended Motion to Change (Exhibit "E" to his affidavit at Tab 48) seeks custody of M. with access to the Respondent. In his submissions he backs away from this position and seeks week about shared residency of M.
[13] The Respondent's cross-motion (at Tab 49) seeks an order to transfer the case to Orillia, and for increased child support based on the Applicant's disclosed higher income.
[14] The Applicant's material with regard to a change in custody makes vague allegations that M. is not doing well in the Respondent's care and that since the mother moved to Orillia he has faltered at school. In his submission he states that he can provide better structure for M. The Respondent's affidavit (Tab 50) encloses a letter from M.'s principal that states that he is doing well in his new school. M. has some special needs that she is entirely aware of and taking steps on the advice of professionals to attend to those needs.
[15] In short, there is no reality to the Applicant's complaint that M. is suffering in the care of his mother. This has been a repeated concern raised by the Applicant in the past.
[16] Since 2015 I have case managed this matter. The history of this matter is briefly set out above. That summary however is the proverbial tip of the iceberg with regard to the extraordinarily tortuous path this family has taken through the legal system from the time that M. was very young. At no time has M. ever been in the custody of his father. At no time (until April 10th, 2019) has the Applicant stood in court and asked for custody. On multiple occasions he has stalled, blocked, obfuscated, and generally taken the position that the Respondent is ruining his son. There is no evidence of that in this bulky file, albeit there is plentiful evidence that the parties are still, seven years after separation, unable to communicate in a consistently civil fashion.
[17] The Applicant's motion to amend his Motion to Change – currently focused on access – whether to seek sole custody or 50:50 week about residence, is completely groundless and bound to fail. There has been no change in the circumstances of M.'s custody since the final order granting the Respondent custody was made in 2016. While access has been and may remain an open issue (as set out in his current pleading), custody is not, and to add this new twist at this point in the proceeding serves neither the parties nor M. Given the history of this matter I must conclude that the only basis for his new request to amend is to respond to and try to block the Respondent's move to Orillia (already accomplished).
Child Support
[18] The parties' submissions on the Respondent's request to change the child support payable under the guidelines for M. demonstrated a broad temporary agreement. The consent final order of September 27th, 2017 fixed the Applicant's income at $49,620 per year and ordered child support based on that income to be $446.83 per month commencing on October 1st, 2017, plus $100.00 on account of arrears of support which were fixed at $2004.00. The arrears are nearly paid off but will continue to be paid under that order until reduced to zero. He was to make regular income disclosure.
[19] The parties agree that for the purposes of the Respondent's cross-motion the Applicant's most recent disclosed annual income (2017) is $58,430.00 per year, the last annual income for which the Respondent has received even partial disclosure. For one child under the Child Support Guidelines (Ontario) the monthly child support payable for one child is therefore $540.13 per month. The Applicant has known about his increased income since at least the start of 2018 but did not disclose this to the Respondent until forced to do so by the filing of her Response to his Motion to Change. The Respondent seeks to back date the temporary child support order to the filing of her Response in November of 2018. This is a generous position given the failure to disclose.
[20] Therefore, effective November 1st, 2018, the Applicant will pay to the Respondent for the basic support of the child the monthly sum of $540.13. This replaces the base guideline support ordered on September 27th, 2017.
Venue Transfer
[21] The remaining issue was the request to transfer this matter to Orillia. The Respondent states that Orillia has now become the proper forum for this matter based upon the convenience of both parties. She and the child live with her spouse in Orillia. She does not have a drivers' licence such that on each court date she has had to rely upon her spouse or others to drive her to court. When she lived 25 km from court this was not a large burden, but now she lives in Orillia and is 1 hour and 20 minutes from the Orangeville courthouse. She could take a ten minute cab ride to court there.
[22] When the matter was first started by the Applicant he lived in Ottawa. He then moved to Toronto and later to Richmond Hill, Ontario. He has now arranged to move with his partner to Barrie effective in May, 2019. His drive to court in Orillia would be faster than that to Orangeville and thus more convenient for him, but the Applicant opposes the change of venue. He submitted that this court knows the history of this file and that the OCJ in Orangeville ought to continue to have carriage of the matter.
[23] Neither party has counsel.
[24] Under Subrule 5(8) of the Family Law Rules the Respondent submits that the clearly more convenient forum here is Orillia. She lives there and the Applicant will shortly live close by. I agree. The Applicant's submission that this court knows the history of the file does not assist my decision because the matter will soon be completing the case management process and will then be placed in the hands of a trial judge for an anticipated focused trial in any event. The system of a continuing record lends itself to judges becoming quickly aware of the history of a court file – it's all there in the file.
[25] Parties should communicate with the Family Court at Orillia to become aware of the date to be fixed by that court for their attendance there in order that the Family Court may provide directions as to the next step for the parties to take in this Motion to Change/Response to Motion to Change in accordance with the practice of that court.
Costs
[26] The parties are self-represented and did not address costs nor reference any offers to settle. The support issue was dealt with on consent. There shall be no order for costs here.
[27] At the end of argument I adjourned this matter to a date in Orangeville in case I decided not to transfer the file. As I have now done so that date will be vacated.
Order
[28] I therefore make the following temporary order:
The Applicant's motion for leave to amend his Motion to Change is dismissed.
The Respondent's motion to transfer this matter to Orillia is allowed and the matter is adjourned to a date and time to be fixed by the administrator of the Superior Court of Justice Family Court at 700 Memorial Avenue, Cottage C, Orillia, Ontario L3V 6J3, to set the next event here.
Commencing on November 1st, 2018, and on the first day of each month thereafter, the Applicant (father) shall pay to the Respondent (mother) for the support of the child of the parties M. (M)(DOB: […], 2012), the monthly sum of $540.13 as basic child support. This replaces the base child support ordered on September 27th, 2017. The payment of $100.00 per month ordered on September 27th, 2017, on account of the arrears fixed under that order shall continue to be paid over and above the base child support ordered herein until those said arrears are fully paid.
The order made in paragraph 3, above, is based upon the Applicant's disclosed 2017 annual income of $58,430.00, for one child under the CSG(Ont).
A Support Deduction Order shall be issued.
The return date of May 15th, 2019, at 10:00 am at Orangeville is vacated.
No costs are ordered here.
Justice Bruce E. Pugsley
OCJ at Orangeville