COURT FILE AND PARTIES

COURT FILE NO.: 133/11

DATE: 2012-05-15

SUPERIOR COURT OF JUSTICE – FAMILY COURT

RE: Paul Douglas McFarlane, Applicant

AND:

Susan Elisabeth McFarlane, Respondent

BEFORE: The Honourable Mr. Justice M. D. Parayeski

COUNSEL: Drew Bowyer, Esq., Counsel for the Applicant

David J. Sherman, Esq., Counsel for the Respondent

HEARD: May 8 th , 2012

Ruling on Motion

[ 1 ] Before me were two motions: one by the applicant seeking interim access to the child Emmett William McFarlane (DOB August 20 th , 1999), and a cross-motion by the respondent relative to child and spousal support.

[ 2 ] The presently named parties entered into minutes of settlement covering the access mentioned above, and I made an endorsement such that an interim order in the terms of those minutes is to issue.

Child Support

[ 3 ] There are three children under consideration in this action. They are: 1. Benjamin Noel Geffros (DOB November 17 th , 1989); 2. Sophie Elisabeth Marie Geffros (DOB October 17 th , 1994); and 3. Emmett William McFarlane (DOB August 20 th , 1999.)

[ 4 ] Benjamin and Sophie are the natural children of the respondent and one Daniel Geffros. Daniel Geffros is the respondent’s ex-husband, and he has recently been added as a party respondent to this action. Emmett was born to the applicant and the respondent Susan McFarlane.

[ 5 ] The presently named parties agreed that issues of support relative to Benjamin are to be addressed at a later time. The applicant acknowledges that he is obligated to pay child support in respect of Emmett. He denies that he is so obligated in respect of Sophie.

[ 6 ] The presently named parties commenced co-habitation on March 1 st , 1997. They married on March 13 th , 1999, and separated on August 3 rd , 2007.

[ 7 ] The issue relative to Sophie is whether the applicant “stands in the place of a parent” to her. If he does, she qualifies as a child of the subject marriage, and the applicant has a support obligation relative to her pursuant to the Divorce Act , R.S.C. 1985, as amended.

[ 8 ] Sophie came to live with the applicant and her mother when the latter commenced co-habitation. Sophie was just over 2 years old at the time. She lived in the household until the separation occurred some 10 years later.

[ 9 ] Despite this, the applicant asserts that he “never assumed” a parental role relative to Sophie, although he acknowledges “an emotional attachment” to her. He says that he was not her parent “in any meaningful way”. He denies having been “involved in making decisions on [her] behalf”.

[ 10 ] Counsel for the applicant pointed out, in argument, that, for example, he did not take Sophie to her medical appointments. As Sophie is physically disabled, it is reasonable to assume that there were many such appointments during the 10 years that she lived with the applicant and her mother. I was asked to consider this as evidence that the applicant did not make meaningful decisions regarding Sophie.

[ 11 ] On the other hand, before me is an e-mail from Sophie (exhibit “G” to the affidavit of Susan McFarlane sworn on April 30 th , 2012), wherein she describes the applicant as being “the only true father [she] has ever known”. She says that the applicant “provided emotional support, taught [her] to ride a bicycle, and assisted [her] with school projects, essays, and artwork. He encouraged [her] creatively and scientifically and supported [her] in all of [her] endeavours”.

[ 12 ] By contrast, Sophie says that she has “very little contact with [her] birth father, who lives in Northern Ontario and with whom [she] do[es] not share a close relationship.”

[ 13 ] The applicant’s counsel points out the similarity in language and format between the e-mail quoted from above and one by Benjamin, and asks me to assume that there has been coaching and/or collusion. I reject that. Cynicism, even if it can be said to have some basis, is not evidence.

[ 14 ] I prefer the evidence in support of the notion that the applicant did indeed stand in the place of a parent relative to Sophie. Many, if not most, parents divide duties such as taking children to the doctor’s office, and I am not prepared to read into this fact what the applicant wishes. A more holistic perspective on parenting is appropriate, in accordance with the test set out in paragraph 39 of the Supreme Court of Canada decision in Chartier v. Chartier, reported at 1989 33 (SCC) , [1989] S.C.J. No.79.

[ 15 ] I am of the view that the applicant’s position is nothing more than an effort to avoid his financial responsibility as it relates to Sophie.

[ 16 ] Turning to the quantum of support owed by the applicant relative to Sophie, I am required to consider section 5 of the Guidelines. It reads:

“5. Where a spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.”

Thus, while the Guideline is not in and of itself definitive, it should be considered as part of the process leading to determination of the “appropriate” amount.

[ 17 ] The most recent evidence relative to the applicant’s income is that he earns $93,079.92 per annum . The applicant acknowledges that the Guideline amount for Emmett alone (in respect of whom he readily and appropriately acknowledges a support obligation) is $825.00 per month. The Guideline amount for both Emmett and Sophie is $1,330.00 per month.

[ 18 ] Sophie’s natural father, the newly added respondent Daniel Geffros, appears to earn $36,901.43 per annum (see exhibit “B” to the affidavit of Susan McFarlane sworn on April 30 th , 2012). His child support obligation relative to Sophie alone according to the Guideline is, I am told, $325.00 per month.

[ 19 ] Sophie is physically disabled, although she is an accomplished scholar and athlete. While the affidavit of the respondent contains evidence of considerable extraordinary expenses relating to Sophie, I am asked, at this time, to consider basic support only.

[ 20 ] The current evidence relevant to Sophie’s basic needs is not as fulsomely developed or tested as it might be at some later date. What does present at this time, however, suggests to me that the Guideline amount is appropriate for now. Interim child support is not something that should wait while every affidavit is closely cross-examined upon and every possible aspect thoroughly vetted.

[ 21 ] Accordingly, I am of the view that the applicant should pay to the respondent, on an interim, interim without prejudice basis, child support in respect of both Emmett and Sophie in the sum of $1,005.00 per month. That amount is arrived at by taking the Guideline amount for both children of $1,300.00 and deducting from it the amount payable in respect of Sophie alone by her natural father Daniel Geffros, i.e. $325.00 per month.

Spousal Support

[ 22 ] Until relatively recently, both the applicant and the present respondent earned approximately the same income, and spousal support was not a live issue. However, commencing in the spring of 2011, the respondent began to suffer from knee pain, arthritis, and irritable bowel syndrome. She also started to have psychological issues, including panic attacks. She stopped working in May of 2011. She used up her sick leave benefits, exhausting them in February of 2012. She applied for, and was denied long term disability benefits. That denial is being appealed. She applied for, and was getting employment insurance benefits. She anticipated that those will have ended as of May 5 th 2012. She says that she has been unable to accumulate any meaningful savings. Her income has dropped to $25,350 per annum from $95,207.37 per annum . It appears that she is now in significant financial difficulty.

[ 23 ] According to the reasons in the Manitoba Court of Appeal decision of Kloos v. Kloos , reported at 1996 7294 (MB CA) , 1996 M.J. No. 146, at paragraph 15 , I am to take into account in determining both entitlement to, and the quantum of, spousal support , illness, “even if such illness is not causally connected to the marriage”.

[ 24 ] I am prepared to find, on an interim basis at least, that the respondent has proven entitlement to spousal support.

[ 25 ] In terms of quantum, the range of spousal support, after taking into account receipt of child support for both Emmett and Sophie, is from $125.00 per month to $893.00 per month, with a mid-point of $498.00. Of course, this is based upon the applicant earning $93,000.00 per annum and the respondent earning $25,350.00 per annum .

[ 26 ] In his submissions, counsel for the applicant pointed out that Mr. McFarlane had a reduced ability to pay spousal support because he had been assisting the respondent with some household expenses on a voluntary basis. It was telling, to me at least, that the respondent’s being prepared to waive her claim for spousal support should the applicant undertake to continue with such assistance was met with silence.

[ 27 ] It is appropriate that, on an interim, interim, without prejudice basis, the applicant pay to the respondent spousal support at the mid-point noted above, that being $498.00 per month. This is a far cry from equalizing their incomes, which, of course, is not the point of spousal support.

[ 28 ] Order to go in the terms set out in this ruling, with the standard deduction order phrasing to be included.

Costs

[ 29 ] If the parties are unable to agree upon costs, they may each make brief, written submissions in that regard on or before June 15 th 2012. Each set of submissions shall be no more than 3 type written pages in length, and should be sent to my attention at the John Sopinka Court House, at 45 Main Street East in Hamilton Ontario.

The Honourable Mr. Justice M. D. Parayeski

Date: May 15, 2012