ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-538-00 Barrie
DATE: 20120105

BETWEEN:

J.A.R. Applicant – and – S.H. Respondent

Self-Represented
Self- Represented

HEARD: November 16, 17, 18, and 21, 2011

F. Graham j.

Background and Issues

[ 1 ] Mr. J.A.R. and Ms. S.H. are the parents of a 9 year old boy, T, for whom they have joint custody and whose primary residence is with Ms. S.H..

[ 2 ] The parties agreed to relevant consent orders on August 18, 2009 (Eberhard J.), February 18, 2010 (Graham J.), June 22, 2010 (Olah J.), September 20, 2010 (Olah J.), and December 20, 2010 (Graham J.).

[ 3 ] On August 18, 2009, a final consent order made by Eberhard J. established joint custody of T, primary residence with Ms. S.H., and ‘traditional access’ with Mr. J.A.R., with pick up and drop off of T on Mr. J.A.R.’s behalf to be performed by Mr. J.A.R., his mother, or his stepfather.

[ 4 ] The August 18, 2009 order also established that Mr. J.A.R. was to pay Child Support Guidelines (CSG) Section 3 table child support of $298 per month based on an annual income of $32,520 and Section 7 extraordinary expense child support of $160 per month based on the parties’ intention to equally share extraordinary expenses, including daycare at $320 per month as well as any medical and dental expenses, even though Ms. S.H.’ annual income was agreed to be $18,000. Ms. S.H. was required to provide daycare receipts to Mr. J.A.R. on a monthly basis. In addition, the arrears for past child support owing was fixed at $3,114 to be paid by Mr. J.A.R. at the rate of $20 per month until July of 2010 when payment of arrears would increase to $100 per month until fully paid.

[ 5 ] On January 29, 2010, Mr. J.A.R. brought a Motion to Change seeking sole custody of T and supervised access for Ms. S.H..

[ 6 ] On February 18, 2010, a final consent order made by Graham J. established that T would have annual summer access with his father during the last week of July and the first week of August and annual Christmas access with his father during the first week of the school Christmas vacation in even years and during the second week of the school Christmas vacation in odd years. The order specified the days those periods were to start and end. The order also contained provisions for making up any missed access.

[ 7 ] On February 24, 2010, Mr. J.A.R. brought a Motion to Change to reduce table child support because he had become unemployed, to terminate his contribution to daycare costs effective January 20, 2010, on the basis that Ms. S.H.’ claim for daycare costs was unsupportable, and to reduce the amount of child support arrears established in the order of August 18, 2009.

[ 8 ] On June 22, 2010, a temporary consent order made by Olah J. established that Mr. J.A.R.’s table child support payments would be temporarily reduced to $169 per month based on an annual income of $19,656. Also, on consent, the court requested the involvement of the Office of the Children’s Lawyer (OCL).

[ 9 ] On September 20, 2010, a temporary consent order made by Olah J. established that Mr. J.A.R.’s obligation to pay $100 per month towards the amount of child support arrears fixed in August of 2009 was suspended until December 15, 2010 unless the suspension was extended by the court on December 15, 2010. There is no mention of the arrears in the court’s endorsement of December 15, 2010, so presumably the September 20, 2010 temporary order expired on that date.

[ 10 ] On December 20, 2010, a final consent order made by Graham J. established joint custody, primary residence with Ms. S.H., almost ‘week about’ access with Mr. J.A.R., police enforcement of the parenting schedule, the same summer and Christmas schedule as established on February 18, 2010, a requirement for Mr. J.A.R. to provide Ms. S.H. with his vacation itineraries with T 60 days in advance, a requirement that both parents authorize T to travel outside Canada with the other parent, a requirement for Mr. J.A.R. to apply for a second health card for T, and a requirement for Ms. S.H. to apply for and keep a passport for T and to provide the passport to Mr. J.A.R. when needed. The issues of Section 3 table child support, Section 7 extraordinary expense child support, and the amount of child support arrears were adjourned to be dealt with at a trial.

[ 11 ] On January 13, 2011, Ms. S.H. provided a Response to the Motion to Change. She sought an increase in table child support based on an imputed annual income of $34,617 for Mr. J.A.R. and an increase of Mr. J.A.R.’s share of extraordinary expenses to 66.3 percent, based on his imputed income of $34,617 and Ms. S.H.’ income of $17,589.

[ 12 ] In March of 2011, Mr. J.A.R. moved to British Columbia in order to find work.

[ 13 ] On April 15, 2011, a trial management conference identified the outstanding issues for trial as access, Section 3 table child support, Section 7 extraordinary expense child support, and the amount of child support arrears. It was noted that Mr. J.A.R. was claiming relief with respect to the amount of child support due to hardship, pursuant to Section 10 of the CSG.

[ 14 ] On July 28, 2011, Eberhard J. granted an urgent Motion brought by Mr. J.A.R. allowing T to have access with Mr. J.A.R. in B.C. from August 3 to August 24, 2011, upon terms that Mr. J.A.R. was to provide Ms. S.H. with an itinerary, T would be picked up and dropped off by Mr. J.A.R.’s mother at the Tim Horton’s nearest to the intersection of Bayfield and Hanmer Streets in Barrie, Mr. J.A.R. was required to accompany T on any air flights, Ms. S.H. was required to provide written consents to the air flights by T, Ms. S.H. could telephone T every third day at 8 p.m. Ontario time, and T could telephone Ms. S.H. anytime he wished.

[ 15 ] During the trial, Ms. S.H. consented to Mr. J.A.R. filing late a Motion to Change seeking relief with respect to access.

[ 16 ] In a Motion to Change dated November 21, 2011, Mr. J.A.R. sought 5 weeks of summer access with T, Christmas access as previously ordered, additional access upon advance notice, regular telephone access with T, and access between T and Mr. J.A.R.’s mother for 3 hours on alternate weekends and one overnight per month.

[ 17 ] Thus, the issues for the court to determine at trial were: the terms of access between Mr. J.A.R. and T, the amount of table child support to be paid by Mr. J.A.R., the percentage of Section 7 expenses to be paid by Mr. J.A.R., how daycare costs claimed by Ms. S.H. should be treated, and the amount of any arrears owing by Mr. J.A.R..

Access - Evidence

[ 18 ] In response to Olah J’s consent order of June 22, 2010, the OCL appointed Mr. Daniel Musselman, a social worker, to investigate the custody issue that was then outstanding.

[ 19 ] Mr. Musselman provided disclosure of his findings to the parties on December 20, 2010. His findings were undoubtedly instrumental to the final consent order made that day.

[ 20 ] Mr. Musselman’s recommendations were joint custody, the almost ‘week about’ residential arrangement made by the parties, additional access between T and Mr. J.A.R. as the parties might negotiate, and maintaining the existing Christmas vacation regime.

[ 21 ] Mr. Musselman noted in his subsequent report, dated January 13, 2011, that T was emotionally connected to both parents. He also noted that T was diagnosed with Asperger’s syndrome.

[ 22 ] Mr. Musselman noted that he didn’t notice any difference in T’s comfort level between his parents’ separate homes. He also noted that T’s medical specialist specified that T has a mild case of Asperger’s syndrome.

[ 23 ] Mr. Musselman suggested that if T attended a daycare programme he should attend a daycare that has some experience in relation to Asperger’s and can provide the same level of support for T as he receives at his school.

[ 24 ] Mr. Musselman had not been made aware prior to testifying at trial that Mr. J.A.R. moved to B.C. subsequent to Mr. Musselman’s final report of January 13, 2011.

[ 25 ] Mr. Musselman opined that T should have someone who is aware of his needs accompany him on any air flights.

[ 26 ] Mr. Musselman underlined that it is very important for T to have regular contact with his father to maintain attachment and nourish their relationship.

[ 27 ] Mr. J.A.R. testified that he considers himself to have a major role in T’s life.

[ 28 ] He testified that after April of 2009, when he was no longer willing to care for T at Ms. S.H.’ home rather than at his home, Ms. S.H. frequently prevented him from having access with T.

[ 29 ] Mr. J.A.R. indicated that since he moved to B.C. he is rarely able to contact T by telephone at Ms. S.H.’ residence because his calls are rarely answered.

[ 30 ] Mr. J.A.R. noted that Ms. S.H. will not give him T’s health care when he cares for T.

[ 31 ] Mr. J.A.R. testified that T had a great visit to B.C. for three weeks in the summer of 2011.

[ 32 ] Mr. J.A.R. said that it was important for T to spend some time with his paternal grandmother.

[ 33 ] Mr. J.A.R. testified that it is difficult to maintain any communication with Ms. S.H. because she is not willing to communicate with him and does not inform him of any change to her address or phone number.

[ 34 ] Ms. S.H. testified that she was not agreeable to Mr. J.A.R. taking care of T at his home in 2009 because T would have to get up earlier at Mr. J.A.R.’s home.

[ 35 ] Ms. S.H. noted that T has been in counseling at the local native centre and indicated that he has benefited from the counseling and involvement in activities at the centre.

[ 36 ] She stated that she would consider having T attend a daycare if the daycare had any experience with Asperger’s.

[ 37 ] Ms. S.H. testified that she is reluctant to communicate with Mr. J.A.R. because she receives unpleasant communications from Mr. J.A.R.’s current spouse.

Access - Analysis

[ 38 ] The only evidence regarding whether T enjoyed his three week access with his father in B.C. in August of 2011 comes from Mr. J.A.R..

[ 39 ] On the other hand, Ms. S.H. provided no evidence that T did not enjoy his three week summer access with Mr. J.A.R. in B.C.

[ 40 ] Given Mr. Musselman’s testimony that it is very important for T to have regular contact with his father to maintain attachment and nourish their relationship, and taking into account T’s youth and the evidence that he has a mild case of Asperger’s Syndrome, the court finds on a balance of probabilities that it would be in T’s best interests to have five consecutive weeks of summer access with Mr. J.A.R. while Mr. J.A.R. is living in B.C.

[ 41 ] Although the court does not doubt that T will miss his mother while away from her for an extended period, the court finds that regular telephone contact with Ms. S.H. will meet his needs.

[ 42 ] Similarly, the court does not doubt that T misses his father during the extended times between periods of access – but, once again, the court finds that regular telephone contact with Mr. J.A.R. will meet T’s needs.

[ 43 ] The court is not prepared to make an order for access between T and his paternal grandmother given that she was not a party to the trial and did not testify.

[ 44 ] Accordingly, a final order to go as follows:

1. Ms. S.H. and Mr. J.A.R. shall continue to have joint custody of T.
2. T’s primary residence shall continue to be with Ms. S.H..
3. T shall have summer access with Mr. J.A.R. every year for 5 consecutive weeks commencing on the first Saturday in July and ending on the fifth Saturday thereafter.
4. T shall have Christmas school break access with Mr. J.A.R. every even year commencing the last day of school and ending the second Sunday thereafter and every odd year commencing the second Sunday after the last day of school and ending the day prior to the start of school in January.
5. T shall have additional access with Mr. J.A.R. as Mr. J.A.R. may request upon at least 30 days advance written notice to Ms. S.H., provided that Ms. S.H. may immediately, but not unreasonably, refuse additional access for reasons given in writing.
6. T shall spend his summer access, Christmas break access, and any additional access of at least 7 consecutive days in length, with Mr. J.A.R. anywhere inside or outside of Canada as may be decided by Mr. J.A.R..
7. T shall spend any additional access with Mr. J.A.R. that is less than 7 consecutive days in length in Ontario unless Ms. S.H. consents in advance and in writing.
8. Ms. S.H. shall ensure that T possesses his Ontario Health Card at the commencement of any access with Mr. J.A.R. and Mr. J.A.R. shall ensure that T possesses his Ontario Health Card upon his return to Ms. S.H.’ care.
9. Ms. S.H. shall ensure that T possesses his passport at the commencement of summer access, Christmas break access, and certain additional access periods.
10. All access exchanges of T shall occur at 5 p.m. at the Tim Horton’s restaurant nearest to the intersection of Bayfield Street and Hanmer Street in Barrie, Ontario unless the parties agree otherwise in writing.
11. T shall be picked up or dropped off at access exchanges by Mr. J.A.R. or by Mr. J.A.R.’s mother.
12. T shall be accompanied on all air flights during access by Mr. J.A.R., Ms. P., or Mr. J.A.R.’s mother.
13. Mr. J.A.R. shall provide Ms. S.H. in advance with a written itinerary of all access with T that will occur more than 70 kilometres from Barrie, Ontario.
14. Mr. J.A.R. shall ensure that T contacts and has a private conversation with Ms. S.H. by telephone or Skype commencing at 9 p.m. Barrie, Ontario time every Wednesday during access.
15. Ms. S.H. shall ensure that T contacts and has a private conversation with Mr. J.A.R. by telephone or Skype commencing at 9 p.m. Barrie, Ontario time every Wednesday when T is not having access.
16. Each party shall provide the other party with advance written notice of any change in their address or telephone number.
17. Each party, upon written request by the other party, shall ensure that within 14 days the other party is provided with a notarized consent allowing T to travel outside Canada with the other party.
18. Each party, upon written request by the other party, shall ensure that within 14 days the other party is provided with a notarized consent allowing T to travel by air with specified persons.
19. The court orders police officers in Barrie, Ontario, and Prince George, British Columbia, and elsewhere in Canada, to enforce the terms of these orders.

Section 3 CSG – Table Child Support

[ 45 ] Very little evidence was presented on this issue at trial.

[ 46 ] Mr. J.A.R. indicated that his income in 2009 was roughly $34,000.

[ 47 ] Ms. S.H. presented no evidence indicating that Mr. J.A.R.’s income was greater than he admitted.

[ 48 ] Mr. J.A.R. suggested that the court should order on-going child support based on an income of $25,000 per annum.

[ 49 ] Ms. S.H. suggested that the court should use the Ontario table amount because T resides in Ontario.

[ 50 ] Section 3 (3) of the CSG specifies that the appropriate table is the table for the province where the payor resides.

[ 51 ] As noted above, on August 22, 2009, Mr. J.A.R. agreed to pay $298 per month based on an income of $32,520.

[ 52 ] When Mr. J.A.R. lost his job, however, he should have been paying $169 per month based on an income of $19,656 while he lived in Ontario.

[ 53 ] It appears, therefore, that Mr. J.A.R. underpaid by about $18 per month from August of 2009 until early 2010, then he overpaid by about $129 per month for about five months.

[ 54 ] Effective January 1, 2012, the CSG tables changed.

[ 55 ] On a rough calculus, the court finds that all of the above works out to about even as at the end of January, 2012.

[ 56 ] Accordingly, the court finds that Mr. J.A.R.’s current income is $25,000 per annum and, on a final basis, orders Mr. J.A.R. to pay Section 3 child support for one child to Ms. S.H. in the amount of $213 per month commencing February 1, 2012.

Section 7 CSG – Extraordinary Expense Child Support

[ 57 ] This issue received a fair amount of attention during the trial.

[ 58 ] As indicated above, the consent final order of August 18, 2009 established that Mr. J.A.R. was to pay Section 7 extraordinary expense child support of $160 per month.

[ 59 ] This aspect of the consent order was unusual.

[ 60 ] Unfortunately, the parties presented no evidence at trial to explain how they arrived at the terms of their agreement in August of 2009.

[ 61 ] They focused instead on whether T requires daycare from persons familiar with Asperger’s.

[ 62 ] In other words, the parties acted at trial as though the amount payable for extraordinary expenses was a variable amount rather than a fixed sum of $160 per month.

[ 63 ] Yet, the order clearly establishes a fixed sum of $160 per month and makes no provision for a periodic accounting or reconciliation.

[ 64 ] Based on the wording of the agreement, the court finds that the parties must have reached a compromise.

[ 65 ] The court finds, however, that the mere existence of a difference between the agreed fixed sum per month and Mr. J.A.R.’s otherwise proportionate share of special expenses would not alone have constituted a material change.

[ 66 ] On the other hand, it may be reasonable that Mr. J.A.R.’s loss of employment in early 2010 was a material change of circumstances.

[ 67 ] Yet, even at $19,656 per annum, Mr. J.A.R. was still earning more than Ms. S.H.’ previously agreed income of $18,000.

[ 68 ] Nevertheless, it seems clear that the existing arrangement was no longer as potentially beneficial to Mr. J.A.R..

[ 69 ] Further, according to his testimony, by February of 2010, Ms. S.H. had not provided him with any receipts for daycare since the order of August of 2009.

[ 70 ] Accordingly, the court finds that there was a material change in circumstances as at February 18, 2010 that justifies a reconsideration of the issue of special expenses from that date forward.

[ 71 ] Although Mr. J.A.R. wanted to tell the court the results of his internet and telephone search for daycare costs in T’s neighbourhood, he could not do so because the information was hearsay.

[ 72 ] As a result, the court was left without any information about the cost of alternative arrangements.

[ 73 ] Nevertheless, considerable evidence was called about the actual arrangement in place for T.

[ 74 ] Ms. S.H. testified that she has been paying her teenage daughter $10 per day to babysit T on school mornings.

[ 75 ] The daughter testified about her caregiving role on school mornings.

[ 76 ] The adult babysitter, Ms. Blake, testified regarding her responsibilities and payments.

[ 77 ] Ms. Blake testified that she is paid $20 every school morning which includes the cost of gas to drive T to school.

[ 78 ] The court gave no weight to certain leading evidence.

[ 79 ] Thus, the court is left with evidence that the daughter is paid $10 per school day and Ms. Blake $20 per school day.

[ 80 ] Ms. S.H. also testified that she pays her daughter $10 per hour to take care of T on other days.

[ 81 ] However, the daughter gave no evidence about caring for T during those additional periods.

[ 82 ] The court found it unreasonable to treat the daughter’s care as equivalent to outside employment wages.

[ 83 ] There is also an issue about whether Ms. S.H. worked as frequently as she claimed.

[ 84 ] Despite repeated requests, Ms. S.H. did not produce her work schedule until trial.

[ 85 ] Numerous discrepancies were identified between her testimony and employer records.

[ 86 ] Ms. S.H. asserted that the employer’s record was inaccurate.

[ 87 ] The court was unable to accept her evidence on this point.

[ 88 ] The court also found significant irregularities in the daycare receipts.

[ 89 ] The daycare receipts were disclosed late.

[ 90 ] The court accepts Ms. Blake’s testimony regarding payment rates.

[ 91 ] The court takes judicial notice that there are about 200 school days per year.

[ 92 ] The court discounted the number of school days per annum to 150.

[ 93 ] This translates to approximately $3,150 per annum or about $260 per month.

[ 94 ] The court declined to count the daughter’s early morning supervision as compensable.

[ 95 ] Nor were weekends and holidays included.

[ 96 ] However, the court found a reasonable amount for summer care would be $20 per day.

[ 97 ] This brought the estimated daycare total to about $3,550 per annum.

[ 98 ] In 2010, Mr. J.A.R. earned $19,656 and Ms. S.H. earned $16,294.

[ 99 ] Mr. J.A.R.’s proportionate share would therefore be about 55 percent.

[ 100 ] Some claimed expenses were not extraordinary expenses within the meaning of Section 7 of the CSG.

[ 101 ] The court identified certain qualifying extraordinary expenses including school trips, educational equipment, and medication.

[ 102 ] These totalled approximately $172 over twenty‑one months.

[ 103 ] No receipts for acceptable extraordinary expenses were provided for the period after Mr. J.A.R. moved to B.C.

[ 104 ] Based on the court’s rough calculations, the appropriate contribution might have been about $168 per month.

[ 105 ] However, the court was not satisfied that Mr. J.A.R. should have paid either more or less than $160 per month.

[ 106 ] The court finds that $160 per month is a reasonable quantification of Mr. J.A.R.’s share up to the present time.

[ 107 ] If Mr. J.A.R. stopped paying the $160 per month after June 22, 2010, he would be in arrears.

[ 108 ] The court finds that Mr. J.A.R.’s current income is $25,000 and Ms. S.H.’ is $15,675.

[ 109 ] Accordingly, Mr. J.A.R.’s current share of extraordinary expenses should be 61.5 percent.

[ 110 ] The court orders that extraordinary expenses be paid proportionately going forward.

[ 111 ] The parties remain free to agree to a fixed monthly contribution if they wish.

[ 112 ] Accordingly, a final order shall go as follows:

1. The order of August 18, 2009 requiring $160 per month for extraordinary expenses shall terminate on January 31, 2012.
2. If arrears exist, Mr. J.A.R. shall pay $50 per month towards those arrears commencing February 1, 2012.
3. Commencing February 1, 2012, Mr. J.A.R. shall reimburse Ms. S.H. 61.5 percent of all Section 7 extraordinary expenses incurred for T subject to proof and maximum daily daycare limits.
4. Reimbursement must occur within 30 days of receiving receipts and required proof.

Arrears of Child Support

[ 113 ] The court informed Mr. J.A.R. that it would not reduce the child support arrears ordered on consent on August 18, 2009.

[ 114 ] The court notes that Mr. J.A.R. benefited from a temporary suspension of arrears payments.

[ 115 ] Neither party provided a Family Responsibility Office statement of account.

[ 116 ] Nevertheless, the court finds that a permanent reduction in the monthly arrears payment is appropriate.

[ 117 ] Accordingly, a final order shall go as follows:

1. Commencing February 1, 2012, Mr. J.A.R. shall pay $50 per month towards any balance owing on the arrears fixed on August 18, 2009 until those arrears are paid in full.
2. The order of August 18, 2009 is varied accordingly.

Support Deduction Order

[ 118 ] A support deduction order shall issue upon the usual terms.

Costs

[ 119 ] If either party seeks costs in this matter, they may serve and file a brief written submission as to costs within 21 days, the other party may then serve and file a brief written response within 21 days, and the first party may then serve and file a brief written reply within 10 days.

F. Graham J.

Released: January 5, 2012