Court File and Parties
Court File No.: Toronto D48617/09 Date: 2019-05-29 Ontario Court of Justice
Between:
V.S., Applicant, responding party (father)
— and —
I.M.B., Respondent, moving party (Mother)
Before: Justice Robert J. Spence
Heard: May 27 and 28, 2019
Reasons for Judgment released: May 29, 2019
Applicant father: In person
Respondent mother: In person
R. J. SPENCE J.:
1: Introduction
[1] This is a motion to change ("motion") brought by the respondent mother. She is seeking to change the final order of Justice Stanley B. Sherr dated April 21, 2015. ("final order")
[2] Her motion was issued by the court on July 6, 2016. In the motion she sought the following relief:
(1) That father's access to the child, N., born […], 2008, be "determined, specifically with regards to the holidays and school breaks, as well as with regards to the regular access", and
(2) "permission to travel with the child and to obtain his IDs without the consent of the father".
[3] The mother did not seek any changes to the final order pertaining to child support.
[4] In his response to mother's motion, the father sought an order permitting him to contact the child's teachers and doctors, without first obtaining the mother's consent. The father also sought an order that the child continue to receive counselling from the psychologist that he had been attending prior to the commencement of the motion.
2: EVENTS FOLLOWING EXCHANGE OF PLEADINGS
[5] The parties have been in more or less continuous conflict with one another since shortly following the birth of the child.
[6] Because of the parties' conflict, the Catholic Children's Aid Society of Toronto ("CCAS") had been involved with the family, off and on for a number of years. In or about January 2016, the CCAS reopened its file with the family.
[7] Justice Zisman, as the case management judge in this case, noted in her endorsement at a case conference held on October 24, 2016, that the parties were then involved in access mediation facilitated by the CCAS.
[8] When the matter next came before Justice Zisman on November 18, 2016, she noted that mediation did not result in an agreement between the parties. Justice Zisman observed that the high level of conflict between the parties was causing emotional harm to the child. She urged the mediator to attempt once again to facilitate a settlement with the parties regarding their conflict over the access issues.
[9] On June 7, 2017, the parties signed a temporary access agreement and filed it with the court. That consent agreement primarily addressed the issue of summer access for 2017.
[10] The balance of the motion was then essentially held in abeyance to monitor the CCAS proceeding. As a result the matter did not return to Justice Zisman in any substantive way until December 10, 2018. That attendance was for the purpose of a settlement conference.
[11] For the first time, the mother then raised the issue of child support and, more specifically, section 7 expenses pursuant to the Child Support Guidelines (Guidelines). Justice Zisman ordered the parties to make financial disclosure.
[12] In her lengthy endorsement, Justice Zisman made certain comments about the child and his views and preferences, including:
(1) Both parties agree N. should not be called as a witness. Both parties agree that N.'s stated independent views and preferences are to "equally share the weekends in the home of both parents from Friday after school to Monday morning.
(2) Both parties agree that N. will continue with his counsellor Ms. Da. per his wishes and on an as needed basis.
(3) Trial must proceed with or without counsel as child is caught in middle of conflict since his birth and wishes litigation to stop.
(4) It is agreed OCL not necessary as child's views and preferences are agreed upon.
[13] The matter was then sent to Assignment Court and subsequently adjourned to me as the trial judge for the purpose of a trial management conference, which was held March 26, 2019.
[14] At that trial management conference, mother made it clear she was seeking changes to the access schedule as well as changes to the child support order. I ordered the parties to file briefs of documents that they would be relying on at trial.
[15] At the time this matter was set down for trial, the issues were access/parenting and child support payable by father to mother.
3: THE ISSUES CHANGE ON THE FIRST MORNING OF TRIAL
[16] Both parties came to trial unrepresented. It was immediately apparent that they would each require considerable assistance and intervention by the court to ensure, as much as possible, that the relevant evidence was placed before the court.
[17] With that goal in mind, I began by focusing the parties on the specifics of access, to ascertain what they were in agreement with, and what was in dispute. As we reviewed weekend access, times for pick-up and drop-off, holiday access, summer vacation access, and so on, it became apparent that the parties were in agreement.
[18] Pursuant to N.'s wishes, they agreed to change Justice Sherr's weekend access regime from two out of three weekends with father, to alternate weekends with each parent, so that N. would be able to share his weekends equally with his parents.
[19] The parents also agreed on other aspects of the parenting arrangements, the details of which I will set out in the conclusion of these reasons.
[20] Accordingly, apart from some very minor tweaking of the parenting issues, there was complete agreement, and the parties stated to the court that it would not be necessary to call evidence on the parenting/access issues.
[21] As a result, the trial proceeded on the child support issues only.
4: CHILD SUPPORT
4.1: The Mother's Request to Vary
[22] Prior to the commencement of this trial, the parties were following a parenting regime which resulted in N. spending 42% of his time with father and 58% of his time with mother.
[23] Justice Sherr found that this division of time qualified as shared parenting as defined in section 9 of the Guidelines.
[24] Justice Sherr found that the father's gross income for support purposes was $89,176 per annum for the year 2014. He also found that that mother's income was $32,000 per annum.
[25] Had there not been shared parenting, the Guideline table support would have amounted to $795 monthly, payable by the father to the mother. However, Justice Sherr's analysis pursuant to the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, led Justice Sherr to conclude that the appropriate amount for monthly support was $700, rather than $795.
[26] However, under the new parenting schedule which the parties agreed to at the outset of this trial, the father's time with N. has fallen considerably below the 40% threshold required for a shared parenting determination under section 9 of the Guidelines.
[27] Turning to the statutory authority, where a request to vary child support is made, section 14 of the Guidelines provide:
Variation of Orders for the Support of a Child
Circumstances for variation
14. For the purposes of subsection 37 (2.2) of the Act [Family Law Act] and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
[28] In the present case, there have been three changes since the final order.
[29] First, the child's living arrangements no longer gives rise to a shared parenting regime, so that now the table amount of support applies, rather than some form of set-off according to a Contino analysis.
[30] Second, the father's income has changed since the date of the final order. Since 2014 (the income tax year Justice Sherr applied in making his final order), the father's line 150 tax income, has changed as follows:
- 2015 – $91,335
- 2016 – $109,892
- 2017 – $108,478
- 2018 – $91,888
- 2019 – $126,000
[31] And third, at the time of the trial before Justice Sherr, there were no special or extraordinary expenses pursuant to section 7 of the Guidelines.
[32] Paragraph 24 of the final court order states:
The parties, by June 30th of each year shall exchange full copies of their income tax returns and notice of assessment.
[33] This kind of clause is typical in orders which provide for the payment of child support. The purpose is to allow the parties to determine whether there should be a variation in the amount of support from year-to-year, in accordance with section 14 of the Guidelines.
[34] There was no evidence led in this trial whether father had complied with paragraph 24 requiring him to make annual financial disclosure. Accordingly, I am not prepared to conclude that he failed to comply with paragraph 24.
[35] For whatever reason, the mother decided in her change motion to seek changes only to the access/parenting schedule. As I noted earlier, she did not raise the issue of child support until the parties appeared before Justice Zisman on December 10, 2018.
[36] Justice Zisman did not require the mother to make a formal amendment to her change motion, and for the father to formally respond. She simply proceeded as though this was a valid claim before the court, given that the father was then on notice that the mother was seeking a variation to the child support order. This made sense given that the litigation had been ongoing for some extensive period of time and it was clear to Justice Zisman that it was not in N.'s best interests to further delay the proceedings by requiring the parties to undertake formal amendments to their pleadings. Nor was there any indication that the father objected to the matter proceeding in this manner.
4.2: Should the Variation be Retroactive?
[37] In her document brief filed for this trial, the mother was seeking section 7 expenses retroactive to 2015. These retroactive expenses totalled $8,601.
[38] The extraordinary expenses are comprised of such items as clinical consultations for the child, therapy, summer camp, math tutoring, and sports activities.
[39] The parties disagreed at trial as to whether the father had contributed to some of these expenses. Furthermore, the father testified that had the mother given him the invoices for the psychological services provided to the child, he would have been able to make a reimbursement claim through his employment benefits package.
[40] In D.B.S. v. S.R.G., [2006] 2 SCR 231, 2006 SCC 37, the Supreme Court of Canada stated at paragraph 5:
A modern approach compels consideration of all relevant factors in order to determine whether a retroactive award is appropriate in the circumstances. Thus, while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases either. Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect. Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility.
[41] In the present case, the mother's request for a retroactive increase in support was not made by her until December 2018. As against that delay, I find no blameworthy conduct by the father.
[42] As the paying parent, the father is entitled to some measure of certainty. And because of this, a delay of three years in seeking retroactive support, with no countervailing blameworthy conduct on the father's part, results in the pendulum swinging away from retroactive support for all the years up to and including 2018.
4.3: Support Variation beginning in 2019
[43] Because the shared parenting regime is no longer in place, the court is required to make a support order in accordance with the table amount of support, together with any section 7 expenses, in the event the court exercises its discretion to order section 7 contributions by the father.
[44] Typically, the table amount of support would be based on the prior year's line 150 income of the paying parent, as the current year's income is generally not known until the end of the current year.
[45] However, where the current income is known, the Guidelines require that the current income information is used in determining the table amount of support payable.
[46] As I noted earlier, the father did disclose his current income for 2019 in his sworn financial statement. That current income is $126,000.
[47] The table amount of support for one child based on $126,000 is $1,115 per month.
[48] I turn next to the mother's claim for section 7 expenses.
[49] The father did not dispute that the following items are reasonable, necessary and in the best interests of N. Accordingly, they fall within section 7 of the Guidelines:
- Mathematics Academy – $1,470 yearly (September to June)
- School Lunch Program – $284 yearly (September to June)
- Summer sports Camp – $715 for three weeks
- After-school care – Mother was paying $4,000 to an individual to pick up the child from school and look after him until mother arrived home from work. However, mother said there is an after-school program which would be an acceptable alternative. This program costs $2,000 for the year.
- Basketball Elite Camps – $381
[50] The total of the foregoing is $4,850 per annum.
[51] The undisputed income of the mother is $33,128 per annum. The father's current income, as noted earlier, is $126,000 per annum.
[52] Subsection 7(2) of the Guidelines provides that the "guiding principle" is that section 7 expenses are to be shared by the parties in proportion to their respective incomes. Using the foregoing incomes, the proportionate share for the father's contribution is 79%, or $3,831 per year. This equates to $319 per month.
[53] In deciding not to deviate from the guiding principle, I take into account a number of considerations.
[54] First, the father's partner, with whom he lives has an annual income of $90,063. Although the father says that he and his partner are not interdependent financially, he did say that his partner pays 50% of all household-related expenses, such as utilities, insurance, repairs and maintenance and so on. To the extent that the father is thereby relieved of having to bear those expenses on his own, this amounts to a financial benefit to him.
[55] Second, between 2015 and 2018, the father's annual income did increase meaningfully, as set out earlier. Despite these increases, his child support obligation as provided for in the final order remained unchanged. While I do not attribute any bad faith to the father, it seems clear that had mother sought changes to that final order, and had she put the father on notice that she was seeking changes, the court would likely have increased the father's support obligation, regardless of the shared parenting Contino analysis. Accordingly, to the extent that father enjoyed increases in his income without any corresponding increase in his support obligation, he gained a significant financial benefit.
[56] Third, the court notes that there is a very significant disparity in incomes between the mother and the father. And because of that disparity the father is able to enjoy a higher standard of living, including owning his own home, rather than renting modest premises as mother is required to do.
[57] As a result, the father will be required to pay a total of $1,434 per month in child support.
5: CONCLUSION
[58] On the issue of access/parenting time, the court varies the final order as follows, all on consent:
(1) Commencing May 31, 2019 N. will spend alternate weekends with the father, pick-up to be at N.'s school at the end of school on Friday, and drop-off at school Monday morning (or Tuesday morning if Monday is a school holiday).
(2) If Friday is a school holiday, the father will pick up N. from the mother's apartment lobby at 6:00 p.m. on Friday.
(3) In the event N. wishes to have a mid-week access visit with the father from time-to-time, including an overnight visit, he shall be permitted to do so, in his discretion.
(4) Summer access will be shared equally, with each parent having a three-week block of travel time with N., with the balance of the summer weeks to be shared equally between the parents, on a week-on, week-off basis.
(5) Commencing in 2020, N. shall spend the first week of summer vacation with the mother.
(6) Summer travel time shall proceed in the following manner:
(a) In the event that either parent wishes to travel with N. for a three-week block of time, that parent shall provide notice in writing of his/her intention to do so, including the dates of travel, no later than May 15th of that year.
(b) The parents shall alternate priority for choosing the first three-week travel period each year, with mother to have priority for determining travel dates commencing in 2020, as the parents have already made their summer travel plans for 2019.
(c) At the conclusion of the first three-week travel period the child shall spend the week immediately following with the other parent.
(d) Unless the parties otherwise agree in writing, there will be a two-week gap of time between the first travel period and the second travel period with the non-priority parent.
(7) Travel consent letters shall be signed by the non-travelling parent. The travelling parent shall submit the consent letter to the non-travelling parent not sooner than 60 days prior to the intended travel dates, and not later than 30 days prior to the travel dates. The consent letter shall be signed by the non-travelling parent and returned to the travelling parent within seven days after receipt of same.
(8) Where it is necessary to renew N.'s passport, the parents shall cooperate with one another in signing the necessary forms and processing the passport application in a timely manner.
(9) The child's cell phone shall remain with the child at all times regardless of which parent the child is with. Neither parent will interfere with the child's use of the cell phone, apart from regulating its usage when the child is preparing for bedtime and during the night while he is sleeping.
(10) N. will participate in counselling only on an as-needed basis, with consideration to be given to N.'s views and wishes.
(11) Father will have direct third-party access to information from N.'s service providers, including schools and doctors and dentists, without the need for mother to consent to such information.
(12) For non-emergency matters, the parents will communicate with each other regarding child-related issues through Our Family Wizard, which the father will continue to pay for on a 100% basis.
(13) For emergency matters pertaining to child-related issues, the parents will ensure that each provides the other with his/her current cell phone number so that they can contact each other by text message.
[59] On the issue of child support, the court varies the final order as follows, not on consent:
(1) Commencing January 1, 2019 the father shall pay the mother for the support of one child, a total of $1,434 per month, comprised of table support in the amount of $1,115 and section 7 support in the amount of $319, based on father's 2019 income in the amount of $126,000, and mother's current income of $33,128.
(2) Commencing in 2020, by June 30th each year, the parties shall exchange copies of their full income tax returns and Notices of Assessment.
(3) A support deduction order shall issue.
[60] Any other claims, either in the motion or in the response to motion not dealt with in this order are dismissed.
[61] All other paragraphs in the final order, not otherwise varied by the foregoing, shall remain in force and effect.
[62] In view of the parties' divided success as compared to their respective positions taken at trial, together with the fact that each parent was self-represented at trial, there will be no order as to costs.
Released: May 29, 2019
Justice Robert J. Spence