SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 287/12
DATE: 2012Nov27

RE: Samuel Wade Beckstead, Applicant

AND:
Gloria Dawn Beckstead, Respondent

BEFORE: The Honourable Mr. Justice Gary W. Tranmer

COUNSEL:
Gary J. Chaplin, Counsel for the Applicant
J. Douglas Grenkie, Counsel for the Respondent

HEARD: November 23, 2012 at Perth

ENDORSEMENT

[ 1 ] The significant issue in dispute in this motion is the question of interim child support and spousal support.

[ 2 ] The parties are agreed that so far as the custody and access to their two children is concerned, the status quo shall continue. Accordingly, the father and the mother shall have joint and shared custody of the children, on an interim basis, with the exchange at the children's schools. The children's school shall remain in Smiths Falls, Ontario. An interim order shall issue on consent in these terms as set out in paragraphs 1 and 2 of the mother’s Notice of Motion, Tab 17.

BACKGROUND FACTS

[ 3 ] The parties were married on June 30, 2001. They have two children, namely, Mikaela Anne, born April 25, 2002, and Andrew Deven, born July 26, 2006.

[ 4 ] The parties separated on November 1, 2011.

[ 5 ] The father continues to reside in the matrimonial home in Smiths Falls. He pays the mortgage on the home. The mother has relocated to Brockville and she drives the children to their schools in Smiths Falls when they are with her. The children reside week about with each parent.

[ 6 ] Both parties attended college. Initially, the mother worked full time, but with the arrival of the children, she assumed primary care responsibilities for them. She presently works part-time for DOLLARAMA in Smiths Falls and has earned approximately $6250 to date since May 1, 2012. It is agreed that for the purposes of this motion for interim relief, her income is approximately $12,000 per annum. The father has worked for a security firm for the past eight years. Since 2008, he has earned approximately $47,000, then $48,700 and in 2010, his income was $55,905. There is no information as to his 2011 income. He estimates that, based on a pay stub from April 2012, he will earn approximately $46,000 for the year 2012. He says he is missing out on overtime as a result of his increased childcare responsibilities. This would reflect, to some extent, the value of Mrs. Beckstead’s assumption of the primary child care responsibilities prior to separation. In this regard, it is also noteworthy that Mr. Beckstead swears that “the cost of child care with the children residing with him on a full-time basis will be $530 per month during the school year and $1200 per month during the summer,” approximately $7700 per year.

INTERIM SUPPORT

[ 7 ] Mr. Beckstead submits that the mother should be working on a full-time basis earning at minimum wage approximately $20,000 per year. The reality is that she will have to seek full-time employment to financially support herself and the children, but at this interim stage, I am not prepared to impute full-time income to her. For the purposes of this motion, I find her income to be $12,000 per annum.

[ 8 ] Mrs. Beckstead submits that her husband's income should be fixed at $60,000 per annum for the purposes of this motion. The single paystub that he has provided to his counsel would indicate an annual income of $46,000 for 2012. This would be lower than any income since 2008.

[ 9 ] The father has been paying child support in the amount of $269 every two weeks, $578 per month.

[ 10 ] On a motion for interim support, a court does not have the full information concerning income and earnings capacities that would be available by the time of trial. The court must do the best it can with the information available at this early stage. Accordingly, I fix Mr. Beckstead's income for the purposes of support on an interim basis at $56,000, the approximate level of his 2010 earnings.

[ 11 ] Interim child support therefore shall be calculated on the basis of Mr. Beckstead's income fixed at $56,000 per annum, Mrs. Beckstead's income fixed at $12,000 per annum, a 10 ½ year marriage and a week about shared custody arrangement.

[ 12 ] The question of interim spousal support was argued on the basis of what incomes should be used for the purposes of the calculation, and therefore quantum. There was no issue raised as to entitlement or not. Accordingly, interim spousal support shall be calculated based on the same parameters that I have set for the interim child support at the midpoint calculation.

[ 13 ] I leave it to counsel to make the calculations in accordance with these findings, and my decision. If they are unable to agree upon same, they may make arrangements to attend before me through the office of the trial coordinator. Counsel did not make submissions as to the start date for the interim support or as to the frequency, be it monthly or every two weeks. I shall leave that for them to agree upon.

OTHER MATTERS

[ 14 ] The mother requests an interim order that the father shall not initiate contact with Joanne Ryan when the children are in his care and that he not allow her to be in the presence of either or both children and that he will not spend time with her in the presence of the children. The evidence is that Ms. Ryan and the father are in a relationship and that she has spent time with the children. Mrs. Beckstead objects to this. That is the extent of her evidence in support of this item of relief. This appears to tie into a cruise that Mr. Beckstead had booked for February 2012, which was to include the children, Ms. Ryan and apparently Mrs. Beckstead (para.5). Mrs. Beckstead objected. Mr. Beckstead cancelled the cruise and has a credit, but cannot get a refund. He seeks an order that he can remove the children from Canada temporarily without the consent of the respondent mother for periods not exceeding 21 days.

[ 15 ] There is insufficient evidence upon which the court can base an order banning Ms. Ryan’s presence with the children. However, responsibility as a parent, common sense and the sensitivity to the needs of the children would indicate this clearly to be an excellent idea. I decline to make an order in that regard. Further, at this interim stage, in the absence of any evidence as to the reason or benefit of such a cruise or the removal of the children from Canada without the mother’s consent or the benefit of them cruising with Ms. Ryan, I decline to make the order sought by Mr. Beckstead.

[ 16 ] Mrs. Beckstead seeks an appraisal of the former matrimonial home and insists on attending inside the home with the appraiser. Mr. Beckstead objects to her presence in her former home. In the interim of not intensifying the bad feelings between the parents, which in turn, would likely impact adversely upon the children, I order that Mrs. Beckstead not attend inside the home with the appraiser. She is fully able to instruct the appraiser as to the condition of the home when she last lived there and the appraiser will no doubt report to her following the inspection and in the course of preparing the report.

[ 17 ] The final item of relief is sought by the husband, namely an order that the children not be removed from the school by their mother without his consent. In the view of the shared custody arrangements that they have agreed to and have been in place for a period of time, it is my view that this is a reasonable request and I so order.

[ 18 ] These are all of the items argued before me by way of interim relief. Counsel can draft and approve the order to reflect my decision and these reasons.

COSTS

[ 19 ] If costs are not agreed upon by counsel, they may serve and file written submissions on or before December 7, 2012 by the Respondent and on or before December 14, 2012 by the Applicant.

Tranmer J.

Date: November 27, 2012