Background and Issues

[1] The parties met in 2004. They dated but were never married and did not live together. The applicant became pregnant in 2006. The pregnancy was not planned. During the pregnancy, the couple broke up. Their child, J, was born on October 1, 2006.

[2] At the heart of this motion is the final February 17, 2010 order of McWatt J. (the 2010 Order). The 2010 Order provides, among other things, that:

(1) the applicant shall have custody of the child; and

(2) the respondent shall have access to the child on alternating weekends, every Wednesday evening and certain specified other days and holidays including, from the summer of 2012 forward, access to J for three weeks in the summer.

[3] The applicant became engaged to be married to John Scarry, an American citizen and resident of Hoboken, New Jersey, in December 2010. Their wedding was planned for August 20, 2011 in New Jersey.

[4] Mr. Scarry looked for a job in Ontario but, in June 2011, he was offered a position with British Telecom in New Jersey which provided him with an excellent career opportunity and compensation. He decided to accept the position.

[5] In July, 2011 there were legal proceedings between the parties which concerned, among other things, the applicant’s plan to take J to New Jersey for her wedding and to live with her husband there. As a result of these proceedings, a temporary consent order was made on July 21, 2011 by Herman J. This order required the respondent to surrender custody of the child to the applicant but restrained the applicant from removing J from the province of Ontario and required the applicant to deliver up the child’s passport and birth certificate pending further order of the court.

[6] On August 3, 2011, the order of Herman J. was set aside by the further consent order of Backhouse J. Justice Backhouse allowed the applicant to travel with J to the United States for the purpose of attending her wedding. The child’s passport and birth certificate were ordered to be returned to the applicant. The applicant was then required to return with the child to Ontario on August 23, 2011. Upon the child's return to Ontario, neither party was permitted to remove the child from the jurisdiction of Ontario without a written consent or further order of the court.

[7] Since August 2011, the applicant and J have been living in Ontario with the applicant’s parents while her husband lives and works in New Jersey. The applicant has been working part-time as a substitute teacher while awaiting the outcome of this proceeding.

[8] The issues in this trial are:

(1) Whether the orders of McWatt J. and Backhouse J. should be varied to permit the applicant to take J to Hoboken, New Jersey to live there with her husband?

(2) If yes, what arrangements for the respondent’s access to J are appropriate? and

(3) What child support obligations does the respondent have:

(a) in relation to alleged arrears of support; and

(b) going forward?

[9] For the reasons that follow I find that:

(1) The applicant is entitled to move to Hoboken, New Jersey with J;

(2) A different access arrangement for the respondent is required to accommodate this move, as further set out in these Reasons; and

(3) The respondent has child support obligations, both arrears and ongoing, as further set out in these Reasons.

1. Mobility

The Legal Test

[10] The Supreme Court of Canada summarized the law with respect to mobility in the context of child custody and access in the leading case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, [1996] 2 S.C.R. 27, at para. 49:

(1) The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

(2) If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

(3) This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

(4) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

(5) Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

(6) The focus is on the best interests of the child, not the interests and rights of the parents.

(7) More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[11] The Court concluded, at para. 50:

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

Material Change

[12] No serious challenge was taken to the proposition that the applicant’s marriage and plan to move to Hoboken, New Jersey to live with her husband represents a material change in circumstances which arose after the 2010 Order was made. The applicant’s marriage to a man who lives and works in New Jersey, and the applicant’s proposal to move there with J, is a change in the condition, means needs or circumstances of the child. Further, this change is material. J has ties in the Toronto area including, obviously, with his father, the respondent, who lives and works here. The proposed move will, without question, have a material impact on the respondent’s access rights under the 2010 Order. Finally, neither the marriage nor the proposed relocation to New Jersey could have been within the reasonable contemplation of McWatt J. when the 2010 Order was made. I have no hesitation in finding that the threshold for a material change has been met by the applicant in the circumstances of this case.

Best Interests of the Child

[13] Similarly, there is no debate in this case that the relevant legal threshold for purposes of resolving the dispute over the applicant’s desire to move is first, foremost and only what will be in J’s best interests. I will, therefore, turn to the considerations enumerated by the Supreme Court of Canada to assist in the resolution of this issue.

Existing Custodial Arrangements

[14] When the respondent found out, in 2006, that the applicant was pregnant, he questioned his paternity and insisted that the respondent take a DNA test. The respondent was not involved in any material way in prenatal care or classes and was not present at J’s birth. Between October 2006 and March 2007, the respondent exercised access to J on an infrequent, ad hoc basis. Although invited, neither the respondent nor his family attended J’s baptism in March 2007.

[15] There is ample evidence to support the conclusion that between March 2007 and November 2007, the respondent did not see J at all other than a brief visit when the parties attended at court for a case conference. It was admitted by the respondent that he again stopped exercising access to J in January 2008 and did not see his son again until February 28, 2009. The respondent also admitted that, during this second period of absence, he did not acknowledge J’s second birthday, Christmas or any other holiday with cards, presents or any other communications. He also stopped paying voluntary child support during this period.

[16] Because the respondent had not exercised access to his son for over a year and had not paid voluntary child-support for approximately 5 months, the applicant moved for summary judgment in February, 2009. This appears to have prompted action on the respondent's part and he appeared, represented by counsel, on the February 19, 2009 motion before Justice Ferrier.

[17] At that time, the parties negotiated a consent, without prejudice order giving the applicant temporary custody and the respondent temporary, supervised access every Saturday for two hours. This order also required the respondent to pay the applicant child support in the amount of $807 per month based on the respondent’s stated income of $91,244 per year.

[18] The order of Ferrier J. was varied in June 2009 to provide for increased, unsupervised access by the respondent and additional contributions by the respondent to the child’s s. 7 expenses.

[19] Since the order of Justice Ferrier, the respondent has exercised his access rights fairly consistently.

[20] The respondent gave two explanations for why he stopped seeing J for extended periods in 2007 and 2008. On one occasion, he said that he had “no other choice” because the applicant threatened to have him arrested if he did not drop out of J’s life. The respondent also testified, later, that the reason he stopped seeing J was because the applicant “stopped” giving him access.

[21] I do not think the evidence supports either of these attempted justifications. The respondent had access to counsel during these periods of time and documentary evidence suggests that negotiations for access were ongoing in 2007 in 2008. There is no evidence of police involvement and no documentary evidence of any alleged threats. In any event, the respondent had access to the courts if the applicant was acting unreasonably. There is no evidence that the respondent took any initiative in seeking the assistance of the court until after the order of Ferrier J.

[22] The respondent also maintained at trial that his access rights under the 2010 Order were persistently frustrated by the applicant’s conduct. Again, I do not think the evidence supports that conclusion. Among other things, during cross-examination the applicant agreed with his prior sworn statement in an affidavit of July 20, 2011 that there had been “minimal interference” by the applicant with his access.

[23] As noted above, the 2010 Order was a final order which granted sole custody of J to the applicant. In Gordon v. Goertz, supra, at para. 48, the Supreme Court of Canada held:

While a legal presumption in favor of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

[24] The respondent sought to counter the force of this legal directive by arguing that the 2010 Order should be varied so as to give him custody of J.

[25] The respondent's principal argument in support of this claim is that the applicant has had a plan, since February 2010 when she was given custody, to exclude the respondent from J’s life. The respondent argues that the applicant purposely searched for a potential mate outside of Ontario through an online dating service. He argues that Mr. Scarry gave only perfunctory efforts to seek employment in Ontario. He points to alleged inconsistencies in the evidence of the applicant and Mr. Scarry about the desirability of staying in Toronto versus moving to New Jersey. He argues that, had a modicum of due diligence been used, the applicant might have come up with another plan which would have enabled her and Mr. Scarry to stay in Toronto.

[26] In essence, the respondent argues that the entire exercise of the applicant’s marriage to Mr. Scarry and her planned move to New Jersey is a selfish and self-centered project to cut him off from his son.

[27] This argument, in my view, is far-fetched and entirely unsupported by the evidence. There is, to the contrary, ample evidence to support the conclusion that the applicant has made significant efforts to enable the respondent to have a relationship, and to continue his relationship, with J.

[28] The applicant has always been J’s primary caregiver. She has always been responsible for all decisions relating to J. J is thriving in her care. This was admitted by the respondent in cross examination. Importantly, in my view, the evidence supports the conclusion that the applicant does appreciate the importance of J having a meaningful relationship with the respondent and that she has facilitated access between J and the respondent, has kept the respondent informed of J’s activities, has encouraged his participation in the child’s activities and has offered him time with the child in excess of the periods set out in the various court orders.

[29] It cannot be ignored that from the time J was born until as recently as the summer of 2011, the respondent has periodically displayed a certain inconsistency or ambivalence about the role he wanted to play in J’s life.

[30] In addition, since J’s birth, by his own choice the respondent has had limited involvement in the life of his son outside of the scheduled access visits. The respondent admitted, for example, that he has never attended a parent-teacher interview at J’s school, has never attended any school function or concert, has never met J’s doctor or dentist or taken J to a doctor or dentist appointment and, with one exception, has never attended any of J’s sporting or other extracurricular events. In the case of soccer, it appears the respondent did pick J up from soccer for his access visits on occasion, but I did not hear the respondent claim that he showed up for the games themselves or that he was involved in any way in organizing or supporting these activities.

[31] The evidence admits of no other conclusion but that the applicant’s marriage to Mr. Scarry and the planned move to New Jersey is bona fide. Mr. Scarry has good job. The community in which they propose to live is child-focused with schools, parks and children’s activities close by. The applicant plans to have more children, so it is a reasonable prospect that J will have brothers and sisters in the future.

[32] The evidence does not support the contention that the plan to move to New Jersey is a selfish and mean spirited attempt to exclude the respondent from J’s life. I do not think the respondent has discharged the onus required to vary the 2010 Order so as to take custody away from the applicant and give it to the respondent. I have, in any event, concluded that the respondent’s request for a change in custody would not be in J’s best interests.

[33] Clearly, part of the applicant’s desire to move to New Jersey is: a) to reduce the stress of what is now a long-distance relationship with her husband; and, b) enjoy the stability of a two parent household. In F.J. N. v. J.L.N., [2004] O.J. No. 3336 at para. 38, D. Gordon J. dealt with a similar issue, saying:

There are positive aspects in the relocation for the children. Financially they will be better able to participate in the community activities and their education opportunities will be enhanced. More important, however, is the stability of a two parent household. C and N [the children] have developed a positive relationship with Mr. A.T [the new husband]. Mr. A.T. recognizes he will not be their father but he will be a daily male role model. This family unit should create an atmosphere which will allow the children to better develop socially, psychologically, and emotionally. By regular contact with their father, C and N will benefit from his influence and, over all, relocation will greatly improve their lives.

[34] Mobility cases inevitably involve some degree of uncertainty about what may happen in the future following a relocation; that alone, however, is no reason to disregard the custodial parent’s views about the potential benefits of the move. It is true that economic prospects may dissolve, relationships may fail and educational opportunities make disappoint. However, notwithstanding these uncertainties, great weight must be accorded to the applicant’s views about the prospective benefits of the relocation barring an improper motive reflecting adversely on the appellant's parenting ability (see Orring v. Orring, 2006 BCCA 523, [2006] B.C.J. No. 2996 (B.C.C.A.)).

[35] On the issue of the wishes of the custodial parent, in the language of Gordon v. Goertz, the decision of the applicant, who is the custodial parent, is entitled to “great respect and the most serious consideration.” The applicant’s plan to live with J and her new husband in New Jersey is likewise “entitled to respect, barring an improper motive reflecting adversely” on her parenting ability. I find there is no improper motive at all, much less one reflecting adversely on her parenting ability.

[36] In this case, the applicant, without doubt, is the primary parent and bears a disproportionate amount of responsibility for seeing to J’s needs. J’s well-being is closely intertwined with the applicant’s. As stated by Campbell J. in Johnstone v. Brighton, [2004] O.J. No. 3477 (S.C.J.) at para.29, it is in J’s best interests to confirm the applicant’s attempt to “get on with their life.” The applicant and J can best achieve that end in Hoboken, New Jersey with the applicant’s new husband. There are clearly concomitant positive effects on the child's best interest in being cared for by a well functioning and happy custodial parent in the context of a loving relationship with her new husband who is well positioned to provide for them in the years to come.

Existing Access Arrangement

[37] Under the existing access arrangement, the respondent has access to J on alternate weekends from Friday at 4 p.m. to Sunday at 4 p.m. and every Wednesday from 4 p.m. to 7 p.m. He also has access to J on the respondent’s birthday, every Father's Day, J’s birthday in alternating years, part of the Christmas holiday each year, March break week in alternate years and, starting this summer, for three weeks (only two of which may be consecutive).

[38] The respondent argues that one of the things he will lose if J moves to New Jersey is “daily contact.” This argument is inconsistent with the fact that under the existing access schedule, the respondent does not have “daily contact” now, or anything close to it. Similarly, because the respondent is not involved in any of J’s school, extracurricular or health activities, J’s move to New Jersey will have no impact on his relationship with J in respect of those activities.

[39] In Johnstone v. Brighton, supra, Campbell J. said (at paras. 34-35):

Although Jack has a close loving relationship with his father, is also certainly emotionally attached to his mother, his primary parent. Except for losing his midweek contact, which, by itself, maximizes the frequency of contact between Jack and his father, the result of Ann’s proposal could possibly expand John's total, or quantity of, time with his son. The distance between the homes dictates that John and Jack spend less frequent time, but longer times together; otherwise, the logistics cannot work… I am satisfied that, with certain caveats placed into the order, Ann will indeed “maximize” time between Jack and John and, if he chooses to avail himself of time with Jack in Pennsylvania, John can actually increase the total time he and Jack spend together, over the amount that he initially negotiated in the Agreement.

[40] In the circumstances of this case, while the respondent is undeniably a loving father, it is also clear that his exposure to J, even today, is relatively limited. There is no evidence to suggest that his relationship with J will be seriously jeopardized if the access arrangements are altered so as to take account of the relocation – something less frequent, for example, but of longer duration.

Desirability of Maximizing Contact

[41] In Gordon v. Goertz, supra, the Supreme Court of Canada held (in paras. 24-25) that:

the “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact.… The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

[42] It was common ground throughout this trial that, all else equal, J’s best interest would be served by maximizing contact with his father. As noted by the Supreme Court, however, this is a factor to be considered, not an absolute. As the facts of this case clearly demonstrate, this factor (the respondent’s access will suffer to some extent if the child resides in New Jersey) must be weighed against the positive benefits which are also attendant on the move. “In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new?” (Gordon v. Goertz, supra, para. 50).

[43] As noted in Johnstone v. Brighton supra, as well, alternate arrangements for access may be structured so as to ameliorate any detrimental impact on the maximum access principle resulting from the move.

[44] In my opinion, in this case any detrimental impact on the maximization of contact is more than offset by significant benefits resulting from J being with his mother (the custodial parent) in her new home environment. Accordingly, I would not refuse the court’s permission for the applicant to move to New Jersey with J on the basis of this factor.

The Views of the Child

[45] In my view, given the age of the child, this factor is not applicable. Indeed, during the trial, I declined to admit hearsay evidence of the child’s wishes on the basis that I would, inevitably, afford it no weight.

Reason for Moving

[46] The custodial parent’s reason for moving is generally not relevant. This factor is to be given consideration only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. As noted above, I have found, on the evidence, that there is no nefarious or mean-spirited purpose behind the applicant’s plan to move with J to New Jersey. I have, therefore, found that her reason for moving does not adversely reflect on her parenting ability.

[47] To the contrary, if anything, the applicant’s reason for the move, so that she can live with her husband and raise J in a loving home environment with, they hope, younger brothers and sisters (i.e., “to get on with their lives” as Campbell J. put it), is evidence of an enhanced ability to parent likely to result in positive advantages to J.

Disruption of a Change in Custody

[48] As noted above, the applicant has been the only custodial parent throughout J’s life. She has been the only parent to take responsibility for ensuring all of J’s needs are met, physically, emotionally and developmentally. She has been the only one responsible for looking after J’s health care needs, educational enrolment and development and social and extracurricular activities. The respondent has, since the 2010 Order, seen J on four days out of every 14 and has, apart from his access visits, had essentially no involvement in looking after J’s health care, educational development or extracurricular activities. In this context, I find that any change in custody at this stage would be extraordinarily disruptive and not in J’s best interests.

Disruption of the Move

[49] The respondent placed a date great deal of emphasis on this factor. He argues that not only will his own relationship with J suffer, but that J will be deprived of strong relationships with his paternal and maternal grandparents and extended family here in the Toronto area.

[50] The respondent also argues that J will suffer disruption by virtue of being removed from his home (he and his mother have been living, temporarily, with the applicant’s parents since last August), school and extracurricular activities such as soccer.

[51] Notably, J’s maternal grandfather, Joseph Maloney, testified as part of the applicant’s case. While he testified to a close and loving relationship with his grandson, he also testified that he had “no concerns” about J moving to New Jersey. According to Mr. Maloney, it was a “wonderful” move that would enable his daughter and J “to get on with their lives.” Mr. Maloney testified that he felt he would always have a close relationship with J. New Jersey is only a one hour flight away and he and his wife would be back and forth to New Jersey on a regular basis. Mr. Maloney was entirely supportive of J relocating to New Jersey because, as he said, his daughter was married and wanted to get on with life. Her husband had a great employment opportunity there, his family base in New Jersey is strong and they are moving to a great neighborhood.

[52] The applicant testified to J’s resilience. He is a happy, well-adjusted boy who makes friends easily. J would be changing schools the September anyway and, in any event, has no “special friends” in his class. The types of activities available to J in Markham are all equally available to him in New Jersey. Mr. Scarry has many relatives in the New Jersey/New York area. The applicant anticipated that her own parents, and other Ontario relatives, would visit on a regular basis. She also anticipated that she and J would be returning Toronto to visit grandparents etc., on a regular basis.

[53] The applicant and her husband plan reside with J in a 1300 sq. ft. apartment with a doorman. It has two bathrooms and two bedrooms, one of which is for J. There is a children’s indoor playground in the building and an outdoor pool. In front of the building is a courtyard where there are often concerts for children. The building is on the banks of the Hudson River. Within the building there are many organized children's activities including a soccer club and kayaking and boating on the Hudson for both children and parents. There are nearby parks and areas for biking. Also nearby are activities for children including soccer, basketball and swimming. Piano lessons are all also available in the neighborhood. The applicant intends to enroll J in a public school within walking distance of their residence. She will be remaining at home full-time, caring for J in the reasonably foreseeable future and hopes, as noted earlier, to have more children.

[54] On the available evidence, I can come to no other conclusion but that the benefits to J of moving to New Jersey outweigh any limited disruption resulting from the move.

Conclusion

[55] Having regard to the factors enumerated by the Supreme Court in Gordon v. Goertz, supra, and viewed through the lens of the child’s best interest, I have concluded that the August 3, 2011 temporary order of Backhouse J. should be set aside and the final 2010 Order varied so as to permit the applicant to move with J to New Jersey, in accordance with para. 1 of the applicant’s draft order, filed at Tab 4 of the applicant’s Opening Statement.

2. Access

[56] The applicant has proposed, should she be permitted to move with J to New Jersey, that the respondent should have the following access arrangement:

(i) one weekend every month in Toronto, except in the months of December every year, February in even numbered years, the month of the child's school spring break in odd numbered years and November in odd numbered years;

(ii) the weekend in June shall be on Father's Day weekend. The child shall always spend Mother's Day weekend in the applicant’s care;

(iii) an additional weekend every month in New Jersey on reasonable notice;

(iv) commencing in 2012 and every year thereafter, the entire month of July;

(v) for the Christmas vacation period commencing in 2012 and every even numbered year thereafter, the respondent shall have access for the last half of the holiday. Commencing in 2013 and every odd numbered year thereafter, the respondent shall have access during the first half of the holiday. The Christmas vacation period is deemed to begin on the morning after the last day of school before the holiday and ends at 7 p.m. on the prior day prior to the child’s return to school;

(vi) commencing in 2014, and every even numbered year thereafter, the child’s school winter break (February) commencing on the day after the last day of school before the start of holiday and ending on the day prior to the first day of school after the holiday;

(vii) commencing in 2013, and every odd numbered year thereafter, the child's school spring break commencing on the day after the last day of school before the start of the holiday and ending on the day prior to the first day of school after the holiday;

(viii) commencing in 2013 and every odd numbered year thereafter, the American Thanksgiving holiday starting on the last day of school before the start of the holiday and ending on the day before the resumption of school; and

(ix) additional access to be arranged on consent if the respondent is in New Jersey or when the applicant and J are in Ontario.

The applicant also proposes that each party would ensure there is a webcam set up in their respective homes so that the child can talk to the other parent by way of Skype and/or video conference at any time. The parties would also ensure the child has access to e-mail and facilitate e-mail contact between the child and the other parent. The applicant also proposes that she would be responsible for the child’s transportation and costs of transportation to Ontario for purposes of facilitating this access.

[57] In my view, the applicant’s plan for J’s custody and access arrangements maximizes the available time and meets the requirements of section 16(10) of the Divorce Act. As noted by D. Gordon J. in S.J.N. v. J.L.N., supra (at para. 41):

father, and his family, will benefit from these extended time periods. In some respects, this access will be an improvement on alternate weekends. Routines can be established as well as allowing for special events. The children will be able to spend more time with their extended family, particularly when father is at work.

[58] The applicant’s plan, while it decreases the frequency of J’s access visits with the respondent, will allow him to have longer periods of time and will potentially expand his total time with J. This is because the applicant’s plan allows room for the respondent to exercise more access to J by traveling to New Jersey on non-access weekends.

[59] The respondent did not propose any alternative access arrangements nor did he comment on the applicant’s access plan, other than to criticize it as being a poor substitute for his current access.

[60] In the circumstances, I order that the respondent shall have access to J in accordance with the draft order provided by the applicant in her Opening Statement, Tab 4, para. 2 (a) to (e).

3. Support

Arrears

[61] The parties agree that Table support is payable by the respondent to the applicant for the child. The parties also agree that there are arrears of support payable by the respondent to the applicant. The parties do not, however, agree on the quantum of arrears payable because of a dispute over essentially three issues:

(1) whether income should be imputed to the respondent because of an alleged cell phone benefit;

(2) whether certain payments were made at all; and

(3) whether income should be imputed to the applicant as a result of alleged intentional underemployment.

[62] The applicant seeks to impute $1,800 per year of income, grossed up for taxes, as a result of an alleged cell phone benefit provided to the respondent by his employer.

[63] The respondent’s evidence at trial was that his monthly cell phone bill was approximately $450 and that he paid this amount from its own funds. He said that because he uses his cell phone for work purposes, his employer reimburses him $150 per month towards his cell phone expense. It was, therefore, the respondent's position that this $1,800 per year is not a benefit but, rather, a “wash” because he incurs the expense and the employer simply reimburses him for it.

[64] The applicant argues that the respondent himself has, in prior filings, described this payment as a “benefit” and argues that he should be fixed with that characterization.

[65] In my view, the $1,800, grossed up for taxes, should not be added back to the respondent's income for child support purposes. The $150 per month paid by his employer is simply reimbursement for employment-related expenses. Subject to that qualification, the annual incomes used for purposes of calculating Table amount shall be the line 150 incomes set out in the applicant’s supplementary closing submissions at Tab 1.

[66] There is also a disagreement about whether the respondent gave the applicant $1,400 cash in late December 2006 or early January 2007 on account of child support. The respondent’s bank statement shows a cash withdrawal from his account on December 27, 2006 in the amount of $3,500. The respondent testified that he gave the applicant $1,400 from that cash withdrawal.

[67] The applicant denies that she received these funds. The applicant’s position is that the respondent’s evidence is not credible because he has not produced any documentary evidence to corroborate his claim of a cash payment to her in this amount.

[68] Further, the applicant argues that the respondent’s evidence regarding the alleged cash payment is contradicted by his own court filings. In his Answer, dated April 18, 2007, the respondent listed the payments he claimed to have made to the applicant by way of child support starting in January 2007. Nowhere in that list did the respondent include a cash payment of $1,400.

[69] The respondent was under a legal obligation to pay child support following J’s birth. This is conceded by the respondent in these proceedings. It is, therefore, the respondent’s onus to show that he fulfilled that legal obligation.

[70] In my view, the respondent has not discharged the onus of showing, on a balance of probabilities, that he made this payment. I agree with the applicant that in April 2007, if he had recently made a $1,400 payment to the applicant on account of his support obligations, the respondent would have been expected to identify that payment in his Answer.

[71] Accordingly, the respondent shall not receive a $1,400 credit on account of the alleged $1,400 cash payment which, I find, he has failed to prove.

[72] Finally, the respondent argues that income of $74,375 should be imputed to the applicant for 2011as a result of her alleged intentional underemployment. The applicant testified at trial that in June 2011 she requested a personal leave from her position as a full-time teacher with the Toronto Catholic School Board in anticipation of her marriage and move to New Jersey. As a result of the granting of that leave, when the Herman J. and Backhouse J. orders were made prohibiting the applicant from moving to New Jersey with J, she was unable to return to her full-time teaching job in the fall of 2011. As a result, the applicant took on supply teaching at a reduced annual income.

[73] The respondent argues that the applicant recklessly jumped the gun thereby losing her full-time teaching position. The respondent therefore argues that the full salary ought to be attributed to her for the 2011/2012 academic year.

[74] I do not think the full salary should be imputed to the applicant. I say this because, in my view, it was not precipitous or reckless for the applicant to apply for a leave from her regular teaching job.

[75] There is ample evidence, both oral testimony and documentary evidence, to support the applicant’s contention that in the spring and summer of 2011, she did not anticipate any problems with moving to New Jersey. The parties were discussing alternate access arrangements and, at one stage, the respondent proposed giving up all connection with J by having Mr. Scarry adopt J in exchange for the release of all support obligations into the future. Indeed, in cross-examination, the respondent conceded that an agreement was reached in this respect and that, after having second thoughts, he could not go through with it. He further conceded that, in light of his agreement to resolve all custody and access issues in this way, he could understand why the applicant was upset and disappointed when he changed his mind.

[76] It was, in my view, entirely reasonable and responsible for the applicant, in June 2011, to make plans for the future assuming that she would be moving with J to New Jersey following her marriage to Mr. Scarry. It was equally reasonable and responsible for her, on a similar basis, to advise the TCSB that she would not be teaching in the fall of 2011.

[77] For this reason, I am not prepared to impute income to the applicant for the academic year 2011/2012.

Special and Extraordinary Expenses

[78] The applicant claims contribution from the respondent with respect to special and extraordinary expenses incurred for J from 2006 to 2012. The amounts, supported by invoices contained in Exhibit 6, are listed in the table at Tab 1 of the applicant’s supplementary closing submissions.

[79] The respondent takes the position that only J’s day care expenses qualify as legitimate special and extraordinary expenses. Further, the respondent argues that the applicant has failed to take into account “income tax deductions or credits relating to the expense” pursuant to section 7 (3) of the Child Support Guidelines. Specifically, the respondent argues that no credit has been given in the calculation of claimed daycare expenses for child care expense deductions on line 214 of the applicant’s income tax returns for 2007, 2008, 2009 and 2010 (for example, in 2010, the applicant claims total section 7 expenses of $9,273.71. In that year, however, she claimed $7,000 as a line 214 deduction from income on account of “child care expenses.”)

[80] Clearly, daycare expenses make up the lion's share of the claimed special and extraordinary expenses. I am not persuaded by the respondent’s argument that only these expenses may be claimed. Even accepting, arguendo, that the respondent had no notice of these additional expenses, in my view his consent could not unreasonably be withheld. I am not persuaded that the relatively minor additional expenses fall outside the ambit of special and extraordinary expenses for the purposes of section 7 of the CSG.

[81] It does appear to me, however, that any income tax deduction relating to the daycare expenses must be taken into account in calculating the claimed expense under section 7. It is not clear to me that the applicant has done so. Also, the incomes used for the purposes of the applicant’s calculations are, to some extent, not consistent with my findings above.

[82] Accordingly, I direct the parties to recalculate the child support and section 7 expenses in accordance with my findings in these Reasons. The parties shall attempt to come to an accommodation on the numbers consistent with these Reasons. Within 21 days, I am to be provided with either: a) the parties’ agreed-upon calculations; or b) additional written submissions outlining the parties’ positions on the appropriate amounts (or some combination of a) and b)).

Ongoing Support

[83] The respondent concedes that he continues to be subject to a child support obligation. The respondent’s evidence was that his current base salary is $91,560. He also testified that he received a profit-sharing payment in the amount of $2,518 on March 9, 2012. Accordingly, the respondent’s 2012 income is $94,078. This is the amount that shall be used for the purposes of calculating 2012 child support. The parties shall continue to exchange their annual tax filings and notices of assessment for purposes of updating their income status.

[84] The applicant concedes that, given her choice to stay out of the job market in 2012 once she moves to New Jersey, it is appropriate that income be attributed to her (for purposes of calculating special and extraordinary expense contributions) in the amount of $79,000 on a go forward basis.

[85] My order is to issue accordingly.

Costs

[86] I urge the parties to come to an agreement on the disposition of costs. In the absence of an agreement, however, any party seeking costs shall do so by filing a brief written submission (not to exceed four typed, double-spaced pages) together with a Bill of Costs and any supporting documents within 30 days. Any party wishing to respond to a request for costs may do so, subject to the same page limit, within a further 15 days.

Penny J.

Released: June 4, 2012

COURT FILE NO.: FS-08-015308

DATE: 20120604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMANDA MALONEY

Applicant

– and –

VICTOR BRIAN CHOO-SHEE-NAM

Respondent

PENNY J.

Released: June 4, 2012

Maloney v. Choo-Shee-Nam, 2012 ONSC 3254

Case Summary