ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-5159-00
DATE: 2012-10-17
B E T W E E N:
Emily Jane Rosewarne
Beth Allison White , for the Applicant
Applicant
- and -
Eric Reeder Brown III
Gregory J. Welch , for the Respondent
Respondent
HEARD: October 10 via videoconference from Kenora, Ontario
Mr. Justice D.C. Shaw
Reasons For Motion
[ 1 ] The applicant, Emily Rosewarne, brings a motion for an order that
a) she have interim and primary care and control of the child, Eric Reeder Brown IV, age three years;
b) the respondent, Eric Brown, have reasonable access to the child on reasonable notice, during periods of time that the respondent is able to care for the child;
c) the respondent pay child support of $594.00 per month, based on income of $65,000;
d) the respondent re-imburse the applicant for the daycare costs incurred due to the child’s absence from daycare while the respondent exercises access and proportionate sharing of other extraordinary expenses;
e) the respondent maintain extended health coverage for the child for so long as it is available from his employer.
- Issues of Primary Care and Access
Background and Submission
[ 2 ] The parties began living together in March 2006. They were married on September 29, 2007. They separated on October 25, 2010. The child “Reeder” was born April 12, 2009
[ 3 ] At the time of separation, the parties were living in British Columbia. Following separation, the parties shared parenting for approximately 7 months. The respondent then moved to Sioux Narrows, Ontario where his father owns several tourist resorts.
[ 4 ] Reeder lived in the applicant’s primary care from late February 2011 until the applicant moved to Kenora, Ontario on May 3, 2011. During this period, the respondent had a 10 day visit with Reeder. Since the applicant’s move to Kenora, the parties have shared the care of Reeder on a week on/week off basis, split between Kenora and Sioux Narrows.
[ 5 ] The applicant does not take issue with the respondent’s parenting abilities. To the contrary, her counsel acknowledges the respondent is a “very good father”. Further, the applicant agrees that the parties should have joint custody of Reeder. What the applicant wants is to have primary care of the child.
[ 6 ] The applicant’s concern is that when the child is in Sioux Narrows, he is not being cared for by the respondent but rather by members of the respondent’s family and, in particular, by the respondent’s father who, the applicant alleges, makes the majority of the child care decisions when Reeder is in Sioux Narrows. The applicant alleges that the respondent’s family is dysfunctional, manipulative, prone to fighting and swearing and unable or unwilling to provide a healthy, safe environment for Reeder when he is in their care. The applicant’s position is that she is no longer content to share parenting with the respondent’s father. The applicant states her wish to enroll Reeder in Junior Kindergarten in a French Immersion school in Kenora in the Fall of 2013. She states that French immersion is not available in Sioux Narrows.
[ 7 ] The respondent denies the applicant’s allegations concerning the nature of care that Reeder receives while in Sioux Narrows. The respondent deposes that Reeder receives excellent care when he is in Sioux Narrows and that he is part of a large loving family which include his paternal grandparents, an aunt, an uncle and a cousin, all of whom live in Sioux Narrows. The respondent acknowledges some issues with the care of Reeder by Reeder’s paternal grandmother from May to July 2012, but deposes that this care was discontinued after he had discussions with the applicant.
[ 8 ] The respondent states that during the tourist season of May to November, his workday is from 8:00 am to 6:00 pm. He states that Reeder is with him at work from 8:00 am to 10:00 am and then with his father and his father’s wife from 10:00 am to 6:00 pm, during which time they play games, go fishing, boating and swimming. The respondent deposes that the time Reeder spends with the respondent’s father while the respondent is working is similar in time to that which Reeder spends in daycare while the applicant is working.
[ 9 ] The respondent wishes the present care arrangements to continue pending trial.
Discussion
[ 10 ] The affidavits of the parties are contradictory regarding the extent of the involvement of the respondent’s family in the care of Reeder and the nature of that care. What is not in dispute is that each party regards the other as a loving and capable parent who should play an important role in Reeder’s upbringing. What also is not in dispute is that since May 2011, Reeder has been dividing his time equally between Kenora and Sioux Narrows.
[ 11 ] This decision is being made on a temporary basis until the court can deal with the matter at trial, with the benefit of a full evidentiary record, including the examination and cross-examination of witnesses. This is significant where evidence is conflicting and there is a central, triable issue of whether Reeder should reside primarily with the applicant. Where there has been a consensual arrangement for Reeder’s care that has been in place for almost 1 ½ years, and where it is acknowledged that both parties are good parents, there should be a compelling reason for a change pending the trial, always taking into account what is in the best interests of the child having regard to the child’s needs and the abilities of the parents to meet those needs.
[ 12 ] The applicant has expressed her wish that Reeder be enrolled in French Immersion in Kenora in the fall of 2013. Certainly, decisions will have to be made in a year as to Reeder’s schooling, but those decisions do not have to be made at this time. The parties will be able to canvass that issue at a trial, well before Reeder enters Junior Kindergarten.
[ 13 ] I am not satisfied that the applicant has demonstrated a pressing need for a change to the present care arrangements, on an interim basis.
[ 14 ] I do accept, on the basis of the applicant’s materials, including a copy of a letter dated January 17, 2012, to her from the respondent’s father, that the applicant’s relationship with the respondent’s father has become strained and that the respondent’s father has become involved, at least emotionally, in the dispute between the parties.
[ 15 ] When arrangements or decisions have to be made concerning Reeder, it is appropriate that those arrangements be between the parties, as Reeder’s parents. The applicant should not have to deal with the respondent’s father. Accordingly, all communication regarding the child shall be directly between the applicant and the respondent unless the applicant chooses otherwise.
- Issue of Child Support, Including Daycare Costs
Background and Submissions
[ 16 ] The applicant seeks child support based on the respondent’s 2011 income of approximately $65,000. The respondent deposes that during 2012 he will earn $34,547.00. He accepts that the value of the free accommodation that he enjoys during November through May at the tourist camp is equivalent to $500.00 per month, for a total yearly benefit of $3,500.00. Adding this benefit to his income for 2012 results in imputed income for the purposes of child support of $38,047.00. The respondent provides documents to confirm his 2012 income.
[ 17 ] The applicant has an income of $31,749.90 for 2012.
[ 18 ] The applicant is eligible for fully subsidized daycare, based on her income. Reeder is allowed to be absent from daycare for three sick days per month at no cost to the applicant. While in the applicant’s care, Reeder does not miss more than three days per month, so the applicant does not incur any daycare costs when the child is with her. However, when Reeder is absent from daycare while in the care of the respondent, daycare charges $33.00 per day to hold his spot. This works out to about $330.00 per month. However, the applicant does get an income tax deduction for the daycare expenses. The net cost to her has not been made clear in the materials of either party.
[ 19 ] The respondent takes the position that because he looks after Reeder’s needs when Reeder is in his care he should not be responsible for paying the daycare costs charged to the applicant.
[ 20 ] In the alternative, the respondent states that based upon the parties respective incomes and the “Child View” calculations provided to me, his proportionate share of after tax daycare expenses, plus his periodic support based on shared custody, would be $122.00 per month, made up of $70.00 periodic support and $52.00 towards daycare costs. This calculation assumes daycare costs of $33.00 per day x 13 weeks x 5 days per week = $2,145.00.
Discussion
[ 21 ] For the purposes of this motion, the applicant has not established that the respondent’s income for 2012 should be set at $65,000.00. That income was earned, in part, in British Columbia and, in part, as a signing bonus and moving expenses related to the tourist resort in Sioux Narrows. I take the respondent’s income for 2012 to be $38,047.00 inclusive of non-taxable income of $3,500.00 for his rent-free accommodation.
[ 22 ] In my opinion, the parties should share Reeder’s daycare costs in proportion to their income. I do not have sufficient evidence before me to satisfy me that the respondent’s calculation that he should be responsible for $52.00 per month of the $330.00 per month cost is correct.
[ 23 ] I will assume, for the purposes of setting the amount of the respondent’s contribution to daycare costs, that on an annualized basis the cost of daycare to the applicant is $330.00 per month for 12 months or $3,960.00. Based on the parties’ respective incomes of $38,047.00 (including $3,500.00 of non-taxable income) and $31,749.00, the respondent’s proportionate share of s.7 Guidelines expenses is 55.1%.
[ 24 ] On a shared custody arrangement, the respondent would pay an offsetting table amount of $82.00 per month. Assuming a 20% marginal tax rate for the applicant, I calculate the respondent’s share of daycare expenses, based on the above assumptions as to incomes (including non-taxable income for the respondent’s rent free housing), to be approximately $145.00 per month, for a total support payment of $237.00 per month.
[ 25 ] An order shall go that the respondent pay to the applicant interim, interim child support of $237.00 per month for both periodic support and for his share of daycare costs, commencing September 1, 2012. The issue of whether there should be an order for child support pre-dating September 1, 2012 would be best dealt with at trial.
[ 26 ] I make the order interim, interim to enable either party, if he or she wishes, to bring a further motion on better material to establish: (a) that the offset table amount should be varied to reflect the principles of support for a shared custody situation as set out in Contino v Leonelli-Contino , 2005 SCC 63 () , [2005] S.C.J. No. 65 (S.C.C.) and (b) that the respondent’s proportionate share of daycare expenses should be varied to take into account income tax considerations that were not presented to me on the present motion.
- Health Care Coverage
[ 27 ] An order shall go that the parties shall maintain extended health care coverage for the child available to them through their employers.
- Costs
[ 28 ] If the parties are unable to agree on costs, they shall attend before the trial co-coordinator within 30 days to set a date to speak to the matter.
_______ ”original signed by”_ ___
The Hon. Mr. Justice D.C. Shaw
Released: October 17, 2012
COURT FILE NO.: FS-12-5159-00
DATE: 2012-10-17
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Emily Jane Rosewarne Applicant - and – Eric Reeder Brown III Respondent DECISION ON MOTION Shaw J.
Released: October 17, 2012
/mls