ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-0175
DATE: 2012-08-13
B E T W E E N:
SHARON ANN WOJCIECHOWSKI,
Kristen Bucci , for the Applicant
Applicant
- and -
MICHAEL EDWARD LUTZ,
Respondent unrepresented attended by video-conference from Sioux Lookout
Respondent
HEARD: May 3, 2012, at Thunder Bay, Ontario
J. dep. Wright, J.
Reasons On Motion To Change Order of 22 March 2010
[ 1 ] This is a motion to change the temporary order of the Hon. Mdm. Justice Coats dated 22 March 2010. The mother claims temporary support for the child, Addison Susan Maria Aurelia Lutz. born 17 November 2008, in the table amount of $479 per month (based upon income of $54,000) plus $240 as his contribution to her child care costs being 40% of average monthly expenses totaling $600. She asks that this be retroactive to January 2011 when she indicated her intention to adjust support by writing for his financial information.
[ 2 ] The father asks that the provisions for access be revisited given the mother’s withdrawal of support for access and the entry of the child into school this Sept. Terms of access were not argued. My understanding is that the trial date was being set shortly after this hearing.
[ 3 ] The order of March 2010 provides, amongst other things,:
¶8(a) Liberal and generous access to the child in Thunder Bay or the GTA. [Mother had moved to Thunder Bay, Father was still in the GTA.]
¶15 there will be no claims for retroactive child support, including section 7 expenses, from either party against the other.
¶ 16 due to the respondent’s anticipated costs for monthly access transportation, there will be no child support or section 7 expenses (special and extraordinary expenses) payable from either party to the other at this time. This provision is premised on the fact that the respondent will incur a significant amount of costs for access transportation each month, and the said costs would amount to the same, if not greater, amount he would be required to pay in child support to the applicant under the Federal Child Support Guidelines . This will be reviewable annually as per the Federal Child Support Guidelines or upon a material change in circumstances.
¶17 the father was to advise the mother in writing of any changes to his employment status and would provide full details of his employment
¶18 by May 1 each year each party was to provide the other party with a complete copy of his or her income tax return and was also to provide a copy of the notice of assessment within 30 days of receiving the same.
[ 4 ] At the time the order was made the father was unemployed or employed with a minimal income. The mother was seeking to remove the child from the Brampton area, where both parties lived, to Thunder Bay. As a result the father was facing significant transportation costs with respect to his access to the child.
[ 5 ] In the spring of 2010 the father graduated with a teaching degree.
[ 6 ] In September 2010 the father moved to Fort Frances Ontario, the closest place to Thunder Bay where teaching jobs might be available. He obtained a low level part-time teaching job there.
[ 7 ] The father's income in 2010 was $22,235.
[ 8 ] January 2011 the mother wrote for financial information thereby notifying the father of her intention to vary the existing order.
[ 9 ] On June 3, 2011 the mother commenced this motion to change.
[ 10 ] In September 2011 the father obtained a more permanent teaching job in Sioux Lookout, a community approximately 400 km from Thunder Bay.
[ 11 ] The father's income for 2011 was $53,047. Half of this would be from Fort Frances and the other half from Sioux Lookout.
[ 12 ] The mother has income of $74,000.
[ 13 ] The first question is: has there been a material change in circumstances since March 2010?
[ 14 ] The answer to that is obvious. When the original order was made the father was unemployed or minimally employed. He is now employed full time.
[ 15 ] The next question is: how should the cost of access be borne by this couple?
[ 16 ] A review of the case law indicates a custom which has arisen whereby the noncustodial parent ordinarily pays the costs of exercising access. I know of nothing in the law which makes this mandatory. In this particular case, right from the very beginning, the parties in fact shared the costs of access. This seemed fair to them at the time and still seems a fair disposition. During cohabitation the parties and child resided in the Greater Toronto Area. The mother obtained court approval for a move to Thunder Bay. This action by the mother created a substantial expense for access. Subsequently the father found employment of a sort in Fort Frances thereby reducing the cost of access but notwithstanding this that cost remained substantial. The father has now obtained a better job in Sioux Lookout but his cost of access is said to be in excess of $400 per access visit. The mother now declines to assist with this cost. She argues that in fact the father has not exercised access every month. The father replies that the expense has prohibited him from doing so. Ordinarily her contribution would be set off against what he is obligated to pay to her. It seems hard to insist that he pay the full amount to her when she has not contributed to him.
[ 17 ] The child care cost will be eliminated commencing 1 September 2012 when the child is enrolled in school.
[ 18 ] A temporary order will go that the father pay to the mother for the support of the child based upon his income of $54,000 the sum of $519 per month for the period 1 February 2011 to 1 August 2012. This is calculated taking the table amount of $479 adding child care contribution of $240 and subtracting child access contribution of $200.
[ 19 ] Commencing 1 September 2012 the father shall pay the sum of $279 a month based upon the table amount for income of $54,000 less the mother’s contribution of $200 to access costs.
[ 20 ] I understand that this was to have been set down for trial. The trial judge will decide whether or how this temporary order should be modified at that time given the order that will then be made regarding access.
_______ ”original signed by”_ ___
The Hon. Mr. Justice J. deP. Wright
Released: August 13, 2012
COURT FILE NO.: FS-11-0175
DATE: 2012-08-13
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SHARON ANN WOJCIECHOWSKI Applicant - and – MICHAEL EDWARD LUTZ Respondent REASONS FOR JUDGMENT J. deP. Wright J.
Released: August 13, 2012
final
/mls