Court File and Parties

Date: May 14, 2019 Court File: 2013-116 Ontario Court of Justice at Orangeville

Between: Cassandra Covert, Applicant

and

Erik Powell, Respondent

Before: Justice B. E. Pugsley

Heard: May 8th, 2019 Released: May 14th, 2019

Appearances:

• Applicant and Duty Counsel: Gary Wright
• Respondent and Duty Counsel: Lisa Cherry

Endorsement

Background and History

[1] The parties never resided together. They have one child, Zoey (F)(DOB: […], 2006).

[2] The Applicant brought on the initial Application here in 2013 when Zoey was 7. A month later the parties agreed that the Applicant have final custody and that there be undefined access by the Respondent to their child. The Respondent was to make financial disclosure but failed to do so and in April of 2014 he was noted in default and a final order was made with regard to support for Zoey. Support was fixed at the interim amount agreed to by the Respondent.

[3] On June 1st, 2016, the Respondent served a Motion to Change seeking to vary the order made on April 2nd, 2014, and to fix the final access order made in December 2013. His claim was to backdate child support based upon the income he failed to disclose in 2013 and 2014. The Applicant cross-claimed to increase child support.

[4] On December 21st, 2016, on consent, a final Order was made settling the Motion to Change and the claim in response. Access by the Respondent was defined and child support was reduced effective January 1st, 2017.

[5] By Motion to Change returnable on November 7th, 2018, the Applicant asked the court to order a change to the child support paid by the Respondent effective December 1st, 2017. The Respondent served a Response to Motion to Change asking that he have custody of Zoey, with defined access by the Applicant and that the Applicant pay him child support.

[6] The Office of the Children's Lawyer declined to become engaged here.

[7] Each party served and filed a Motion for temporary relief ultimately returnable on May 8th, 2019. I heard argument and reserved my decision.

Evidence and Procedural Matters

[8] At the return of the motions the Respondent filed a recently obtained pay stub for his new employment as a tractor trailer instructor. On consent the stub was exhibit 1 on the argument of the motions. The parties both recognised that the result of the motions as defined by them would leave the Respondent paying a new level of child support, so a Support Deduction Order Information form was prepared and filed pending the decision on the amount of child support to be paid.

The Applicant's Motion

[9] The Applicant's motion seeks a new temporary child support level based upon the high level of income enjoyed by the Respondent before parting company with his former employer, and payment of $5,000.00 in unpaid section 7 Child Support Guideline (Ontario) expenses dating back years based upon the provisions of the original Order made in April 2014 with regard primarily to daycare. She states that she provided receipts to the Respondent for these expenses until it was clear that he had no intention of paying anything.

The Respondent's Motion

[10] The Respondent's motion seeks that the Applicant meet him half way for access exchanges and that the court take care in fixing a new child support amount based upon his past income. He submits that after they separated the Applicant moved away and now she should drive half the time. He notes that he has obtained new employment after his former employers made it clear that they were not going to give him enough truck driving loads to make a living. After he stopped working in his old job he was diligent in finding new employment. On the issue of unpaid past section 7 expenses he submits that the Applicant did not provide him with receipts and that he is prepared to pay half of the receipts he did receive.

Analysis and Findings

Custody

[11] The Respondent sought a change to custody but made no submissions on that issue. The Applicant has had custody of Zoey for her entire life. There is simply no evidence upon which a change to that situation is warranted at this time.

Limitations of Interim Relief

[12] Further, there is limited relief available here on this record because these are interim motions and the evidence between the parties has yet to be tested in any real way.

Section 7 Arrears

[13] The Applicant seeks to have a large amount of section 7 arrears defined and ordered to be paid, today, founded on the 2014 order. There is a dispute over the quantum of arrears and whether proof of payment was given to the Respondent. The Respondent agrees that he should pay half of $2,700.00. I will order that based upon his consent, without prejudice to the Applicant proceeding to seek to prove that the arrears should be higher on tested evidence. There is no urgency that any other section 7 arrears be fixed now.

Child Support Income

[14] Similarly, the Applicant asks to have the Respondent pay child support based on what he made in 2018: about $64,000.00. The Respondent agrees that he made that amount, then, but notes that since then he has changed jobs. The parties agree that for the months of September, October, November and December of 2018, the Respondent ought to have paid support based on that higher amount. The Applicant submits that the Respondent engineered his changed income and asks the court to impute his current income at that past rate of income based upon an allegation that he is now under-employed. If such is to be ordered in the future it will require more, tested, evidence than that available to me now. There are text messages filed between the Respondent and his past employer. For the purpose of this interim motion I can draw little conclusion from that sketchy information short of the fact that the Respondent changed his past truck driving employment.

[15] The Respondent's current income, extrapolating his pay stub (Exhibit 1) is $43,348 per annum. There is no doubt between the parties that the Respondent has changed employment although as just noted, why he changed it is disputed. His old 2018 annual income has been overtaken by events and the best evidence as to the Respondent's current income is that it is $43,348.00. Current support, again without prejudice, will be fixed based upon that figure.

Shared Transportation

[16] On November 6th, 2013, (five and one half years ago) when the Applicant started the original Application she resided in the Grand Valley area in this county. The Respondent lived in Mississauga. Access was a prominent issue between the parties then and later when the Respondent brought the first Motion to Change. By then he had moved to Hamilton and the Applicant and Zoey still lived in Grand Valley. At no time in his Motion to Change did the Respondent raise the issue of shared driving although his request for access was extremely detailed. The Applicant and Zoey still live in Grand Valley and the Respondent still lives in Hamilton.

[17] There is no credibility to the Respondent after five and one half years now asserting that driving for access should be shared. In submissions, the Applicant offered a middle meeting place which seems reasonable. The Respondent may be advised to take her up on that offer.

[18] There is no changed circumstance that requires that the court to address the issue of shared driving at this time.

Custody (Reiteration)

[19] There is no changed circumstance that requires a change in custody at this time.

Costs

[20] Neither party had private counsel nor were any submissions made as to costs. Success here is mixed. If there were outstanding, written, offers to settle related to the motions here I will hear the parties in writing on the issue of costs: the Applicant within ten days, and the Respondent within ten days thereafter.

Order

[21] I therefore make the following temporary order (not on consent):

1. Without prejudice to either party seeking a final order on other terms, the Respondent shall pay to the Applicant on account of unpaid past section 7 expenses related to daycare the sum of $1,350.00, payable within four months;

2. Commencing on September 1st, 2018, to and including the monthly payment due on December 1st, 2018, the Respondent shall pay to the Applicant for the interim support of the child of the parties Zoey (F)(DOB: […], 2006), the monthly sum of $595.00 based upon his 2018 annual income of $64,000.00 for one child under the Child Support Guidelines (Ontario);

3. Commencing on January 1st, 2019, and on the first day of each month thereafter, the Respondent shall pay to the Applicant for the interim support of the said child of the parties the monthly sum of $398.00 based upon his estimated 2019 annual income of $43,348.00 for one child under the Child Support Guidelines (Ontario);

4. Support deduction order to issue;

5. The Respondent's claim to change custody of the said child on an interim basis is dismissed;

6. The Respondent's claim for shared transportation on an interim basis is dismissed;

7. Unless varied by further order here shall be no costs of the motion and cross-motion here; and,

8. Adjourned to August 14th, 2019, at 10:00 am as previously ordered.

Justice B. E. Pugsley