ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-99-3484-01
DATE: 2012-02-14

B E T W E E N:

GEORGIA ANNE CLARK

William Abbott and Aaron Mastervick, for the Applicant

Applicant

• and -

GREGORY LAWRENCE CLARK

Rick Peticca, for the Respondent

Respondent

HEARD: January 10-13, 16-20, and February 3, 2012

REASONS FOR JUDGMENT

C. J. CONLAN J.

[ 1 ] After nine days of Trial in January 2012, counsel delivered their oral closing submissions on February 3 rd , 2012. In a typed Endorsement of that same date, the Court ruled on three issues and reserved on the substantive matters of child support (including section 7 Guidelines expenses) and costs. These are my Reasons for Judgment on the child support and section 7 issues.

[ 2 ] Georgia and Gregory Clark had a short-lived marriage in the 1990s. They have been involved in litigation for several years before and since a Final Order of Snowie J. of this Court in October 2002 (tab 1 of Exhibit 3). The within proceeding was commenced by Mr. Clark in August 2008 as a Motion to Change that Order. Both parents undoubtedly love their children. Their union created two precious girls – Courtney and Mackenzie. Regrettably, the protracted, sometimes bitter and often reactionary litigation between the parents has taken an adverse toll on their daughters.

[ 3 ] At the commencement of the Trial, counsel presented to the Court a document titled “Jointly Agreed Upon Statement of Issues for Trial”, signed by counsel on January 5, 2012.

BASE CHILD SUPPORT – ISSUES 2 AND 3

[ 4 ] The respondent, Gregory Lawrence Clark (“Father”), seeks to vary the Order of Justice Snowie made on October 22, 2002. Specifically, the Father requests an Order that the Applicant, Georgia Anne Clark (“Mother”) pay child support to the Father in the amount of $5,305.00 monthly commencing January 7, 2011 for the children, Courtney Amber Clark born January 30, 1995 (“Courtney”) and Mackenzie Alexandra Clark born April 21, 1996 (“Mackenzie”). That amount is in accordance with the Federal Child Support Guidelines (“Guidelines”) based on an alleged annual income for the Mother of $435,644.00 as of the year 2010. The Father’s Amended Motion to Change dated November 4, 2011 can be found at tab 3 of the Trial Record.

[ 5 ] The Final Order of Snowie J. provided in part, at clause 2, that “there shall be no other support payable by either party to the other on account of child support”. The Father bears the burden of persuading the Court, on balance, that the said Order ought to be changed.

[ 6 ] The Mother also seeks to vary the Order of Justice Snowie to have the Father pay Guideline child support to her in the amount of $1,159.00 monthly between May 2009 and January 2010, totaling $8,113.00. During that period of time, by Court Order the Father’s access to the children was reduced to supervised and, in reality, never occurred. It should be noted that this request by the Mother was not specifically pleaded in her Response to Motion to Change found at tab 7 of the Trial Record, although it was clearly an issue alluded to during the Trial and is in fact outlined in the Mother’s typed “Opening Trial Statement” that was presented to the Court by Mr. Abbott. The Mother bears the burden of persuading the Court, on balance, that the Order of Snowie J. ought to be varied as per the above request.

[ 7 ] This Court has considered whether there has been a change in circumstances since October 2002 to justify a variance to Justice Snowie’s Order, within the meaning of section 17(4) of the Divorce Act . That change must have been material. It must have been something that has had a measure of continuity: Marinangeli v. Marinangeli , 2003 27673 (ON CA) , [2003] O.J. No. 2819 (Ont. C.A.) .

[ 8 ] The Father’s claim is based primarily on his assertion that he has had the children more often (significantly more than 50% of the time) since December 2010 or January 2011. It is also an undisputed fact that the Mother’s annual gross income increased substantially in the tax year 2010 – it went from about $161,000.00 in the tax year 2009 to about $436,000.00 the following tax year.

[ 9 ] The Father’s claim for child support is dismissed .

[ 10 ] A large amount of time throughout this nine day Trial was spent dissecting the Father’s calendar of when the children or either of them were/was with him (Exhibits 7 and 8) and similarly analyzing the Mother’s calendar (Exhibit 2, Volume 1 at tab 2 and Exhibit 33). In the end, this Court finds that there has never been a material change in how often the children were with either parent since Justice Snowie’s Order was made; it has always been roughly 50/50.

[ 11 ] In closing submissions by counsel, it was fairly and appropriately conceded on both sides that the calendars are not that reliable. That was a responsible position for counsel to take as the very competent and exhaustive cross-examinations of the parties revealed numerous errors in the calendars. In the end, counsel for the Father submitted that Mr. Clark’s calendar should be considered more reliable than the Mother’s because the Father’s calendar was made at the time while the Mother’s was re-created after the start of the Trial and because the Father’s calendar has less errors than Ms. Clark’s. An unreliable piece of evidence is just that – unreliable. This Court puts little weight on the calendars.

[ 12 ] Counsel for the Father submits further that the Court should consider all of the evidence in considering whether there has been a material change in circumstances. I agree. This Court has done so. The fact that the Mother was Court-Ordered to have at least 10 days per month of access to the children is one factor that has been considered. But it is clear that the parties have always made adjustments to Court Orders ever since 2002. For example, the Father testified in direct examination that the parties mutually agreed to substitute Wednesdays for Thursdays with regard to clause 1(a) of Justice Snowie’s 2002 Final Order. The Father further testified in direct examination that the minimum 10 days per month for the Mother and the children on the schedule set out in Justice Baltman’s Order of January 7, 2011 was not always adhered to by the parties. When the Father in examination in-chief testified to all of the days that the children were with him from January 12, 2011 through to January 7, 2012, it became clear that the said Order of Baltman J. was not followed in every respect.

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C. J. Conlan J.

Released: February 14, 2012