SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3357/08
DATE: 2012-08-17

RE: LISA MICHELLE CLARKE, Applicant

AND:

MICHAEL JOHN PRICE, Respondent

BEFORE: MURRAY J.

COUNSEL: Christopher Martin, Counsel for the Applicant

Susan Berry, Counsel for the Respondent

Stephen Beck, Counsel for Isabella and Jack Clarke-Price

HEARD: August 13, 2012

ENDORSEMENT

[ 1 ] This matter came before me on August 13, 2012. The parties were anxious to have an answer to the questions raised by the motions of the parties as soon as possible. Although the parties were prepared to have my decision delivered with reasons to follow, given the importance of the issues to the parties, I have provided brief reasons.

The Nature of the Motions Before the Court

[ 2 ] Both parties seek to vary portions of the final order of Murray J. dated July 6, 2009. The final order of July 6, 2009 was made on consent of the parties which, at the time, obviated the need for me to make findings of fact or decisions with respect to matters in dispute. The fact that the order of July 6, 2009 was on consent led to both parties being in agreement that these motions to vary the order of July 6, 2009 could be dealt with by me.

[ 3 ] The applicant, Lisa Michelle Clarke, seeks to vary the final order to provide:

1. that the applicant be permitted to move the primary residence of the children to the United Kingdom;

2. that the respondent pay to the applicant child support based on an imputed income to the respondent of $331,000 per year; and

3. that the respondent pay to the applicant spousal support based upon imputed income to the respondent of $331,000 per year.

[ 4 ] Requests for other relief by the applicant in her motion were resolved or withdrawn at the hearing before me.

[ 5 ] The respondent, Michael John Price, seeks to vary the order of July 6, 2009 to provide:

1. that the children reside primarily with the respondent if the applicant returns to England; and

2. that the respondent pay to the applicant child and spousal support based on the respondent's current income of $135,000 per year.

[ 6 ] Requests for other relief by the respondent in his motion were resolved or withdrawn at the hearing before me.

The Evidence

[ 7 ] The applicant is 42 years of age and was born on March 18, 1970. The respondent is 50 years of age and was born on February 1, 1962. The applicant and the respondent are both from the United Kingdom.

[ 8 ] The parties met there when they were employed in the travel industry and at the outset of their relationship lived together outside of Canada. The parties began cohabiting in 1993 and were separated in early April, 2008. They never married.

[ 9 ] The applicant commenced court proceedings which concluded in a final order dated July 6, 2009. This is the order sought to be varied in this case.

[ 10 ] There are two children of the relationship: Isabella Lauren Nieves Clark-Price born on October 20, 1996, and Jack Taylor Thomas Clark-Price born on April 26, 1999. Isabella is currently 15 years old and Jack is 13. It is not in dispute that the applicant has always been the primary caregiver of the children of the relationship. The children were born in the United Kingdom. The parties have joint custody of the children. Neither party proposes a change in the custodial arrangement.

[ 11 ] After the applicant became pregnant with Isabella, the parties returned to England. The family returned to Ontario in 2006 on the respondent's work visa when the respondent was offered and accepted the position as president of a travel company, Signature Vacations. At the time, it was anticipated that the family would remain in Canada for three years. They lived in Oakville, Ontario and the respondent's employment in the travel business appeared to be very successful. The respondent earned over $300,000 when employed by Signature Vacations. Regrettably, the respondent’s employment with Signature Vacations ended prematurely, undoubtedly as a result of the economic downturn and the adverse impact of same on the travel industry. After the end of his employment with Signature Vacations, the respondent returned to England in October, 2009 where he remained for a year.

[ 12 ] When the respondent returned to England, his wish was for the family to return to England with him. However, the applicant and the children remained in Canada on the applicant’s student visa. At the time Mr. Price returned to the UK, the applicant was of the view that the best interests of the children were to stay in Canada with the children which she was able to do on a student visa. Her student visa was obtained as a result of her attending Sheridan College in Brampton on a full-time basis from September, 2009 in pursuit of a Bachelor of Applied Sciences, a four-year program which would have qualified the applicant to become an athletic therapist. Her student visa expires in 2013.

[ 13 ] The applicant is not in a position to seek full-time employment in Ontario because she is here on a student visa and full-time employment is inconsistent with the terms on which she is currently permitted to be in Canada.

[ 14 ] The applicant and the respondent agreed that the applicant would not work following the birth of their first child. It was the applicant who was primarily responsible for the domestic and household responsibilities and was the principal caregiver for both children.

[ 15 ] At the commencement of these proceedings, the respondent was living in the United Kingdom and the applicant in Ontario with the children, Isabella and Jack.

[ 16 ] The respondent moved from the United Kingdom to Toronto in September 2010 following the commencement of these proceedings with his then fiancée, now spouse, Ms. Rita Price. Upon returning to Ontario, the respondent started a new business, Quadra Innovations, which is engaged in media buying and representing overseas hotels in the Canadian travel market.

[ 17 ] There is little dispute that the applicant has been the primary caregiver for the children from their birth to the present day. Indeed, like many fathers, the respondent’s business obligations caused significant absences from home and, therefore, as a practical matter, he had less time available to spend with the children than did the applicant. After separation, it is not disputed that when in Canada the respondent has exercised regular access to his children in accordance with the final order, although occasionally the respondent's business travel interfered with the access schedule. The evidence before the Court indicates that during the year in which Mr. Price was in the UK from October of 2009 to September of 2010, he had difficulty in maintaining regular contact with the children due - in part - to what I think can be accurately characterized as a lack of effort by the applicant to encourage and facilitate regular contact between the children and their father. This is a concern to both the respondent and to the Court in circumstances where the applicant contemplates moving to England with Jack and Isabella.

[ 18 ] Jack is described as an intelligent boy whose special needs were diagnosed at an early age. He currently attends a private school, the TALC Academy, which has made available programs to respond to Jack's special needs and learning disabilities. While there is some lack of clarity with respect to whether the TALC Academy would have been the choice of these parents on an ongoing basis, there is little doubt that there has been a consensus that the institution is a good fit for Jack.

[ 19 ] Isabella is described as a healthy, intelligent and active young woman.

[ 20 ] There has been a property settlement in this matter. The evidence is that the capital which the applicant received as a result of the property settlement is slowly being eroded by virtue of her inability to work and the level of support which she has been receiving from the respondent. The property settlement flowing from the final order of July 6, 2009 enabled the applicant to buy a house in Oakville at 2324 Wuthering Heights Way. This was a three-bedroom townhouse. The applicant sold her home in November of 2011 and has incurred debt, both through a line of credit and by borrowing money from her mother, Susan Clark, who lives in England. The applicant and the children are currently living in rental accommodation in Oakville, Ontario, having signed a lease which expires in October, 2012.

[ 21 ] The applicant has discontinued her program of studies at Sheridan College. According to her evidence, her cessation of her education is because she could not afford the ongoing tuition payments which, for a foreign student, are approximately $18,000 for each academic year of post-secondary studies at Sheridan.

[ 22 ] The extended families of both the applicant and the respondent are in England. For the applicant, her extended family includes her mother, Susan Clarke, as well as the respondent’s parents, Ann and John Price. The evidence is that the applicant has no family or support network in Ontario.

[ 23 ] The applicant currently has no medical coverage in Ontario and her evidence is that she and her children would have medical coverage in England, including dental and orthodontic coverage.

[ 24 ] The respondent - although he has not been ungenerous - has reduced the amount of aggregate financial support which he initially paid based on an annual salary of $331,000 and this has led to further deterioration of the applicant's financial situation.

Arrangements and Plans if the Applicant Moves to England with the Children

[ 25 ] If the applicant returns to England with her children, the applicant's intention is to reside with her mother in a village near Stratford if they permitted to return. Her mother's house is the house in which she was raised and where she will have the support of her family. The applicant indicates that her plans to live with her mother are intended to be transitional until she is able to locate a residence appropriate for herself and her children, obtain employment and perhaps continue to further her education.

[ 26 ] The evidence of the applicant is that Jack has been accepted at a private school near her proposed residence which has programs tailored to respond to Jack's special needs and learning disabilities. In addition, according to the evidence of the applicant, there are schools in the area of Stratford in England that would suit Isabella's educational needs.

[ 27 ] The applicant will also be able to find employment in England and believes that there are educational opportunities available to her that will allow her to complete her education which she commenced in Ontario at Sheridan College.

The Views of the Children

[ 28 ] Mr. Stephen Beck from the Office of the Children's Lawyer represented Isabella and Jack in the motions before me. While not commenting on the advisability of the applicant's proposed move to England, Mr. Beck was unequivocal in recommending to the Court on behalf of the children that they continue to reside with their mother. Isabella and Jack both have a strong attachment to their mother and, according to Mr. Beck, prefer to live with her wherever she lives. Mr. Beck made it clear that their position, in his opinion, is independent and has not been unduly influenced by the applicant and, it should be noted, it is also his opinion that the respondent has also not interfered or made any attempt to influence the views of his children. Isabella is very close to her mother as is Jack. The two children are very close to each other.

Analysis

[ 29 ] With respect to the mobility question, I am to decide the issue based on the best interests of the children, Jack and Isabella. When considering the factors in determining the best interests of the children, I must be guided by the Supreme Court of Canada’s decision in Gordon v. Gertz , 1996 191 (SCC) , [1996] 2 SCR 27.

[ 30 ] The existing custody arrangement is there is joint custody with the principal residence of the children being with mother. The relationship between Jack, Isabella and the applicant is very strong as was outlined by the Children's Lawyer, Mr. Beck. The applicant has been the principal caregiver to the children.

[ 31 ] The applicant's reasons for moving are compelling. Her current status in Canada does not permit her to work. The respondent has remarried and the applicant has no support system in Canada. Her family lives in England. She is able to work in England. She is a citizen of the UK as are the children. Both the applicant and her children will have comprehensive medical coverage in England. There are satisfactory schools for both Jack and Isabella. She is returning to her hometown and a familiar environment. There is no evidence that the decision of the applicant to live and work in the UK is based on any improper motive.

[ 32 ] Given that Isabella is 15 and Jack is 13, wishes of the children are entitled to respect and must be given some weight by this Court.

[ 33 ] In my view, this respondent is wise enough to understand that an expressed preference by Jack and Isabella to live with their mother is not the same as, and is not to be equated with, any diminution of their love and affection for their father. A host of factors can and have informed their preference to live with their mother, including: her traditional care-giving and nurturing role; her role in the family as a stay-at-home mom; her history of having the primary parenting role, including when the respondent lived in the UK and she remained in Ontario with the children; and, perhaps their reluctance to be put in a situation where they would not be with their mother and they would be with their father and stepmother (who is not well known to them) in a new family environment. The children's preferences are a product of their upbringing, their sense of security and stability, and their very positive and consistent experience with their primary caregiver. Their preference is their way of expressing what they believe to be in their own best interests. In a real way, the respondent has shown his understanding of the best interests of the children when he agreed that the children should live with their mother in Ontario when he was working in England. With this respondent, I have no doubt that the preferences of the children will not be perceived by him as an indication of any lack of affection for him.

[ 34 ] While undoubtedly there have been some stresses and strains between the children and the respondent which have found their genesis in misunderstandings or misconceptions related to his re-marriage, it is also clear that the respondent is determined to maintain a warm and loving relationship with his children and that his efforts have recently been rewarded by very strong indications that any barriers between himself and his children have been or will be completely removed. There is no question that this respondent is dedicated to the best interests of his children and to having as good a relationship as is possible with them.

[ 35 ] If the applicant moves with the children to England, the practical reality is that the respondent - who is a dedicated father - will, of necessity, see less of them than he would if they lived in Ontario. As a result, no matter how rational or well-reasoned, a decision permitting the applicant to move to England with the children will have a profound impact on the respondent. To the extent possible, the adverse impact of any move to the UK by the applicant and the children will have to be rectified by giving the respondent liberal and generous time with the children.

[ 36 ] Taking all of the above factors into account, I am of the opinion that the applicant mother should be allowed to move to England with the two children, Isabella and Jack.

[ 37 ] There is evidence in the material before me that the applicant has not been as cooperative as she could have been in facilitating and encouraging the respondent’s access with Isabella, and to a lesser extent with Jack. In my view, these difficulties are not sufficient to prevent the applicant from moving with the children to the UK. It is, however, very important that the applicant not only encourage but facilitate liberal and generous access for the respondent. This includes reasonable telephone communication and also communication by other means, for example, Skype when the respondent is in Canada. It also means that if the respondent has an opportunity to travel to England on short notice or not, mother will facilitate and encourage access - including overnight access - by the respondent when he is in the UK and able to visit with his children. In addition, there should be arrangements made to have the children travel to Canada during the summertime and on other school vacation periods. The Children's Lawyer has made recommendations with respect to access which can form the basis of an agreement. If the parties are unable to agree on access arrangements, then I remain seized of this issue for purposes of making an order relating to the respondent’s right to have liberal and generous access. It is my impression that the applicant understands the importance of this and recognizes that she must encourage and facilitate a strong relationship between Isabella and Jack and their father.

The Respondent's Income

[ 38 ] The applicant asserts that the respondent is intentionally under-employed or that he is intentionally paying himself less than he could pay himself given his majority shareholder status in Quadra Innovations.

[ 39 ] There is no dispute that the respondent earned $331,000 per annum in salary when he was the chief executive officer of a previous employer. There is no dispute that he was terminated without cause by that employer.

[ 40 ] The evidence of the respondent is that he made extensive efforts to find employment comparable to his employment at Signature Vacations but was unable to do so. There is no evidentiary basis on which to challenge the respondent's sworn assertion that he made extensive efforts to find comparable employment to that he enjoyed at Signature Vacations and was unsuccessful. There is no evidence that the respondent is intentionally under-employed.

[ 41 ] As a result, he decided to start his own business, Quadra Innovations. The respondent's evidence is that his current income is approximately $135,000 per annum, consisting of a base salary of $10,000 a month drawn from his business, with the balance coming from rental income from two properties owned by the respondent in England.

[ 42 ] The respondent has, as part of his disclosure, provided to the applicant all financial information requested by the applicant relating to Quadra Innovations, including financial statements. The applicant has not provided any analysis of the company's financial situation to support her assertion that the respondent is intentionally paying himself less than he could pay himself given his majority shareholder status in Quadra Innovations. The result is that there is no evidence that he is undervaluing his current employment or sheltering money in his company, Quadra Innovations. There is no factual basis on which to conclude that because of the majority shareholder status of the respondent he is paying himself less than the company should be paying him or that he is somehow artificially reducing his income.

[ 43 ] In fact, my gratuitous observation is that it would be inconsistent with how this respondent has dealt with his obligations to his children to conclude that he is avoiding responsibility by intentionally earning less than he can. The record supports a conclusion that he has been paying child support at a level consistent with or higher than would be required by the Guidelines for a person with his income.

[ 44 ] In any event, as stated above, there is simply no evidence to support an order by this Court imputing an income to this respondent in the amount of $330,000 per annum.

[ 45 ] I accept the respondent's evidence that his current income, for purposes of calculating child and spousal support, is $135,000 per annum.

Conclusion

[ 46 ] This court orders that the applicant Lisa Michelle Clark shall have permission to move to England with the two children: Isabella Lauren Nieves Clark-Price born on October 20, 1996, and Jack Taylor Thomas Clark-Price born on April 26, 1999.

[ 47 ] The applicant Lisa Michelle Clark shall provide to the respondent father all educational information related to the children's schools including report cards and in addition provide all medical reports and health information related to the children which is available to her as soon as is practicable after receipt of same.

[ 48 ] Based on the respondent father's income of $135,000 per annum, it is ordered that Michael John price paid to the applicant the sum of $1838 per month of child support for Isabella Lauren Nieves Clark-Price born on October 20, 1996, and Jack Taylor Thomas Clark-Price born on April 26, 1999. These payments shall commence on 1 September, 2012 and continuing on the first of each and every month thereafter until varied by agreement of the parties or by order of this court.

[ 49 ] The applicant was able to obtain part-time employment in Canada. It is expected that she will do so when she is in England and therefore for purposes of calculating her contribution to section 7 expenses, she will be deemed to have an income of $10,000. Therefore, section 7 expenses shall be borne in proportion to the income of each spouse using $10,000 per annum as the current income for the applicant.

[ 50 ] It is ordered that the applicant shall immediately notify the respondent of the details any employment which she commences after arriving in England. It is the expectation of this court that she will make reasonable efforts to obtain suitable employment as soon as is practicable after arriving in England.

[ 51 ] This court orders that the parties shall exchange copies of their respective income tax returns for the year 2012 by no later than June 1, 2013 and thereafter. The applicant and the respondent shall provide copies to each other of income tax returns for the previous year no later than June 1 of each year until further order of this court.

[ 52 ] This court orders that the applicant and the respondent shall attempt to reach an agreement with respect to generous and liberal access for the respondent father failing which the matter may be brought back before me for purposes of final resolution.

[ 53 ] With respect to compensatory spousal support, this is a matter that should be addressed by counsel in light of my findings with respect to the income of the respondent. Therefore, if the parties cannot agree on a resolution of this matter, it too should be brought back before me for purposes of final resolution.

Costs

[ 54 ] If the parties are unable to resolve the issue of costs, then this issue also may be brought back before me for purposes of determination.

MURRAY J.

Date: August 17, 2012