SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-10-69787-00
DATE: 2012-06-22
RE: SAMAR TRUONG v. MICHAEL TRUONG
BEFORE: Justice Thomas A. Bielby
COUNSEL: Jennifer Gold, for the Applicant
Michael Truong, Self Represented
E N D O R S E M E N T
[ 1 ] This application proceeded as a bifurcated trial. On December 14, 2011, I released my decision regarding custody, mobility and access, these issues being heard in June and October 2011.
[ 2 ] The issues that now require determination are, for the most part, financial in nature, dealing with equalization and child support. There are a few other issues that I will deal with as well.
[ 3 ] The parties are husband and wife and were married on January 24, 2003. They have one child together, Shan Mazin Truong, born on January 9, 2006. This was the applicant mother’s second marriage and she has a child from her first marriage, Afnan Mahmud, who was born May 9, 1994. Afnan is now 18 years of age and will be attending university in September 2012.
[ 4 ] In my earlier decision, I granted the parties joint custody of Shan. The child was to have his primary residence with the applicant and the respondent was awarded access to the child which included alternate weekends.
[ 5 ] I also ruled that the applicant could move with Shan to Waterloo where she is employed at Research in Motion.
[ 6 ] The parties separated on June 14, 2010.
CHILD SUPPORT
[ 7 ] By interim order, dated February 7, 2011, made pursuant to minutes of settlement, the respondent was required to pay to the applicant for the support of Shan and Afnan, the sum of $1,066.00 per month, commencing March I, 2011, on a 2009 income of $72,000.00.
[ 8 ] The applicant submits that the new amount of support for the two children ought to be $1098.00 based on a reported income of $74,520.00. She submits the order ought to be made retroactively to September 1, 2010.
[ 9 ] To the respondent’s credit, he does not deny that he has an obligation to pay support for both children. However, with respect to Afnan, while the respondent recognizes the parental role he fulfilled, he submits that the natural father, Raffi, ought to be required to pay child support and that the obligation to pay support should be shared.
[ 10 ] The applicant argues that Afnan has no contact with his natural father and hasn’t since he was about five years of age. Initially, she testified that she never received child support from her first husband but, on cross examination, did admit that Raffi did commence a court application and did pay child support for a period of time. It would appear that the natural father abandoned his application and thereafter the applicant never pursued him for child support.
[ 11 ] The respondent testified that on one occasion he did bring the issue up with the applicant and was told she was not going to go to seek child support from the natural father. The respondent testified that the applicant told Raffi that if he did not pursue a relationship with Afnan she would not pursue support.
[ 12 ] Apparently, Raffi lives in the United States, has married again and has children with his new wife. The respondent never pushed the issue of child support and testified that on their combined incomes, money was not an issue.
[ 13 ] The applicant testified that Raffi just unilaterally stopped the court application. She submits she was busy with school at the time and did not pursue child support. Thereafter, with the combined incomes of both the applicant and the respondent, there was no need for child support from Afnan’s natural father.
[ 14 ] The respondent submits that the applicant could easily find out where Raffi lives as there are connections within the applicant’s cultural community. The applicant submits she does not know the whereabouts of Afnan’s natural father.
[ 15 ] I find as a fact that the applicant was content with the fact that Raffi did not pursue a relationship with Afnan and did not pursue support as it might trigger a claim for access.
[ 16 ] The Child Support Guidelines, Section 3, oblige natural parents to pay child support pursuant to and in accordance with the Guideline Table amounts. There is no doubt that Afnan’s biological father has a legal obligation to support Afnan. The obligation continues as long as Afnan remains a dependent child.
[ 17 ] However, with respect to non biological parents, section 5 of the Child Support Guidelines states:
Where the spouse against whom a child support order is sought stand 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 legal duty to support the child.
[ 18 ] Clearly section 5 of the Guidelines is a deviation from the presumptive rule established by section 3. ( Kobe v. Kobe 2002 78089 (ON SC) , [2002] O. J. No. 1250 ).
[ 19 ] Barlow v. Barlow, [2003] P.E.I.J. No. 60 , is a case where a step-parent argued that the biological father, who was not paying child support, should be required to do so. The court ruled that the mother had no such obligation and that the stepfather could commence an action and seek contribution from the natural father. The court required the stepfather to pay guideline support.
[ 20 ] deSousa v. Wilkins , 2001 CarswellOnt 4947 , is a decision of the Ontario Court of Justice. At paragraph 45 therein the learned judge stated that he was not satisfied that the wife was earnestly pursuing the natural father and at para. 47 stated:
That where the mother does not pursue support from the natural parent, the loco parentis spouse should not have to make it all up.
[ 21 ] In Cook v. Kilduff, 2000 CarswellSask 497 , the court recognized that the Guidelines, in step-parent situations, allows the judge some discretion and recognizes the legal obligation of the natural parent. From para. 20, I quote:
A claimant cannot unilaterally transfer the full obligation of support, as measured by the Guidelines, to the person in loco parentis .
Further from para. 21, I quote:
Cook (the wife) may decline to pursue the natural father for whatever reason she harbours. She cannot elect to choose between two possible payors, one of whom is in loco parentis .
[ 22 ] H. v. H. 2008, CarwellBC 798, is a decision of the British Columbia Court of Appeal. The Court recognized the discretion provided in section 5 of the Guidelines and further stated at para. 38 that the section requires a court to consider the legal duties of the natural parent. From paragraph 39, I quote:
She could not, however, choose to give the father a “pass” in favour of pursuing the stepfather for all the support the children required.
[ 23 ] There is before me some financial evidence relating to the natural parent. It appears that he is a professional and at the time he did seek access to Afnan he was earning an income in excess of $100,000.00.
[ 24 ] On this issue I find that the mother has in fact made a decision not to pursue the natural parent and has chosen to pursue the respondent who admittedly stood in loco parentis . While I am to have regard to the guidelines, I must also have regard to the legal obligation of the natural parent and am of the opinion that the respondent should not be required to pay full guideline support just because the applicant has chosen not to pursue Afnan’s biological parent.
[ 25 ] The respondent will be required to pay the full guideline amount for Shan being $677.00 payable monthly.
[ 26 ] Afnan remains living at home and will continue to do so while at university, at least for his first year. The respondent shall pay child support for Afnan in the amount of $225.00 per month.
[ 27 ] I recognize, as stated earlier, that the respondent, in March of 2011, agreed to pay child support for the two children in the amount of $1066.00 per month pursuant to the guidelines. I do not believe the respondent is obligated to pay full guideline support for two children because he consented to such an order on an interim basis.
[ 28 ] However, given that the respondent paid a greater amount of child support pending trial, I will take the consent into account and not make the new order retroactive in nature which might result in a credit to the respondent. The new support order will take effect July 1, 2012.
(continued verbatim…)
Bielby J.
DATE: June 22, 2012
COURT FILE NO.: FS-10-69787-00
DATE: 2012-06-22
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Truong v. Truong BEFORE: Bielby J. COUNSEL: Jennifer Gold, for the Applicant Michael Truong, Self Represented ENDORSEMENT Bielby J.
DATE: June 22, 2012