SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-000540-01
DATE: 2012-10-12
RE: ALLISON RILEY - and - ANTONIO LEWIS
BEFORE: Justice J.F. McCartney
COUNSEL:
Robert K. McQueen, for the Applicant
Respondent, Self-Represented
HEARD: October 10, 2012
E N D O R S E M E N T
[ 1 ] This is a motion to change a final order – that being the order of McLean J. of November 6, 2006, pursuant to Minutes of Settlement.
[ 2 ] The issues before the Court are the following:
(1) Variation of travel arrangements.
(2) Variation of child support.
(3) Child support arrears.
(4) Variation of access provisions.
[ 3 ] The following is a brief summation of the facts:
(1) The parties are the parents of Alaina Jardane Riley-Lewis (Alaina), born September 23, 2005 - presently 7 years old.
(2) The Applicant, who is from Jamaica, met the Respondent in Jamaica in 1999, and in 2004 came to live with his family in August 2004.
(3) On August 27, 2005, due to an altercation between the parties the Applicant was required to leave the home and took up residence at a neighbour’s house for the next few months with the child Alaina.
(4) The Applicant applied to the Court for, among other things, custody and support of Alaina, and this resulted in the order of November 16, 2006 which is the subject matter of the present variation application.
1. Variation of Travel Arrangements
[ 4 ] Paragraph 4 of the subject order states that neither party can remove Alaina from Ontario without the written permission of the other. At that time of the order the Applicant was only in Canada on a visitor’s visa. She is now a permanent resident, and the Respondent’s fear about losing the child has abated. The parties are in agreement that the Applicant should be able to take Alaina on vacation without the consent of the Respondent as long as she provides him with their itinerary in advance. Consequently, paragraph 4 of the order of November 16, 2006 is to be deleted, and replaced by the following:
- Neither party shall remove the child from the Province of Ontario without the written permission of the other party. However, the Applicant may, without permission, take the child on vacations out of the Province as long as she provides the Respondent with an itinerary in advance.
2. Variation of Child Support
[ 5 ] The subject order of November 16, 2006 sets child support at $281.00 monthly based on 2005 income of $31,010.67. Other material filed shows the Respondent, a brick layer, has the ability to make much more than this. However, the income tax returns filed with his financial statements shows virtually no income for 2007, 2008 or 2009. His explanation for this is problems - marital, legal, along with physical injuries to his shoulder - have kept him from working full time, even though it appears he was able to earn at least $18,500.00 in 2011, and is still working on a part-time basis in 2012.
[ 6 ] Based on what appears to be the Respondent’s best year - 2006 - where he earned about $40,000.00, the Applicant urges me to impute income to him in this amount so to increase monthly child support. The law is clear that imputing income must be done on a reasoned basis, and I am not convince there is sufficient evidence for me to do other than confirm the existing situation, i.e. support of $281.00 monthly.
3. Child Support Arrears
[ 7 ] The Respondent admitted that he has never made a single support payment to the Family Responsibility Office, and thus I assume that the Director’s Statement herein, showing arrears up to March 18, 2011 of $16,954.83 is correct, even though he says he has paid money indirectly to support Alaina. However, for the same reasons as I am disinclined to increase child support, I do not intend to fix a sum for repayment on the arrears at this time.
4. Variation of Access Provisions
[ 8 ] The Applicant has asked me to vary the Respondent’s access under the subject order to delete overnight visits, and to allow access every second Saturday and every second Wednesday evening. Her main concerns seem to be that Alaina is being left with her adult step-sisters too often. She also says she has smelled smoke on Alaina’s clothing which could be marijuana. Also the Respondent is always late with the exchanges. Presently, the Respondent, under an interim order of November 29, 2011, only has supervised access to Alaina.
[ 9 ] I do not see how changing the agreed upon overnight access in the subject order will rectify the Applicant’s concerns. It seems to me that the present regime is quite appropriate for a seven year old visiting with a parent over a weekend. However, I do feel that the weekday access will unnecessarily complicate access. So I would delete paragraph 7 of the order of November 16, 2006, and replace it with the following:
The Respondent’s access to the child shall include visits on special occasions such as birthdays, Father’s day, holidays and the like.
[ 10 ] Exchanges during access visits are to take place at the Brampton Access location.
Costs
[ 11 ] The parties did not address the matter of costs, but unless I hear from them within the next 15 days, no costs are awarded herein.
J.F. McCARTNEY J.
DATE: October 12, 2012
COURT FILE NO.: FS-08-000540-01
DATE: 2012-10-12
SUPERIOR COURT OF JUSTICE - ONTARIO RE: ALLISON RILEY - and - ANTONIO LEWIS BEFORE: Justice J.F. McCartney COUNSEL: Robert K. McQueen, for the Applicant Antonio Lewis, on his own behalf ENDORSEMENT J.F. McCartney J.
DATE: October 12, 2012