ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-1147
DATE: 2013-03-21
BETWEEN:
CHANTALE SABOURIN
Applicant
– and –
KEVIN CHAMPAGNE
Respondent
Edward C. Castle, for the Applicant
Eric Lavictoire, for the Respondent
HEARD: February 1, 2013, (Cornwall, Ontario)
decision on motion
Kershman J.
Introduction
[1] This motion is brought by Chantal Sabourin (“Mother”) against Kevin Champagne (“Father”) for various relief claimed in the notice of motion. There are two children, Christopher Champagne born September 3, 2002 and Tavish Champagne born September 13, 2006.
[2] The parties were never married but lived together from about August 2000 to about June 2007. A final order dated September 27, 2007 was made by Honourable Justice Duchesneau-McLachlin in North Bay, Ontario. Partial Minutes of Settlement, dated February 1, 2013, were entered into, setting out the custody and access to the children as well as a requirement that the Mother keep the Father informed of matters relating to the children’s health, education, extracurricular activities and general welfare.
[3] At the motion, on consent, the Father agreed to maintain medical and dental coverage for the children, so long as the benefits are available to him and the children remained eligible for the coverage under the plan.
Issues
[4] The issues are as follows:
the amount of child support going forward;
whether there should be any set off or reduction in child support because the Father has to travel from Alberta to Ontario to visit with his children;
the amount of child support arrears;
s. 7 expenses, Family Law Act , R.S.O. 1990, c. F.3, and who should pay how much;
whether the beneficiary of the life insurance should be the Mother in trust, as opposed to the Father’s mother in trust, as security for child support and s.7 expenses; and
should the Father be banned from drinking alcohol while during periods of access to the children;
[5] The Father initially made an undue hardship claim pursuant to ss. 10(3), and 10(4) of the Child Support Guidelines, O. Reg. 391/97. At the motion, the Father’s counsel advised the court that he was no longer pursuing the undue hardship claim.
1) Ongoing Child Support
[6] The Father has lived in Alberta since 2007 and is currently a heavy machine operator earning approximately $131,000.00 per year. The Father agrees that child support for two children is $1,856.00 per month based on the Alberta Child Support Tables. Based on this amount, the court finds that child support of $1,856.00 shall be payable on the first day of each and every month from, and including February 1, 2013.
2) Should Child Support be Set Off or Reduced because of the Father’s Travel Costs
Father’s Position
[7] The Father seeks a reduction in the $1,856.00 in monthly child support to between $1,100.00 and $1,200.00 He claims that he has additional expenses in exercising access travelling back to Cornwall to visit the children. According to the Minutes of Settlement, the access is once per month from Thursday through Tuesday.
[8] The Father argues that he has the following additional expenses:
a) travel of $809.00 per flight;
b) vehicle parking at the airport in Ottawa;
c) a bi-weekly mortgage payment of $602.00 for a home that he claims was purchased by he and his girlfriend, Brittany Crowley; and
d) a monthly loan payment for a 2007 Yukon motor vehicle in Cornwall of approximately $500.00 per month.
[9] The Father argues that these additional costs are worth approximately $2,200.00. He argues that the amount of payable child support should be reduced between $656.00 - $756.00 per month.
Mother’s Position
[10] The Mother argues that child support should be in accordance with the table amount and that there should be no set off or reduction in child support because of the Father’s additional costs in exercising his access.
[11] She argues that if the court finds that money should be payable to the Father, this amount should not be set off against the monthly child support but rather it should be held in abeyance for a year and that in the event that the access is exercised that she will pay him the amount ordered by the court by monthly instalments commencing one year after the payments have started.
Analysis
[12] The issue is whether there should be a set off or reduction in the amount of child support payable on account of the Father’s additional expenses in relation to his travelling to Ontario for access.
[13] A review of the mortgage indicates that the sole owner of the property is Brittany Crowley. No evidence was provided to show that Mr. Champagne is either an owner or a guarantor.
[14] The financial statement filed by the Father indicates that he is paying $1,350.00 per month towards the mortgage, which the court understands to be one half of the monthly mortgage payment. On further examination of the mortgage itself, the monthly mortgage payment is $1,308.93. The monthly mortgage payment shown in the mortgage conflicts with the amount of his mortgage payment on page 3 of his Financial Statement of $1,350.00. The court finds that the mortgage payment of $1,308.93, as shown in the charge, is correct and that the mortgage payment claimed in his Financial Statement of $1,350.00 is incorrect. The court notes that he is claiming the full mortgage payment when the property is not in his name. He is not a guarantor of the mortgage.
[15] The Father claims that he pays property taxes of $229.00 per month. Based on the Father’s Financial Statement, the court finds that the property tax as claimed in the Statement is the full property tax amount as opposed to being one-half of the property tax. The court bases this finding on the fact that taxes for a $255,000.00 home would be in the range of $2,748.00 for the year ($229.00 x 12), as opposed to $5,520.00.
[16] In addition, based on the aforesaid reasoning, half of the property insurance would be $2,160.00 compared to the Husband’s listed amount of $4,320.00. This means that the property insurance claim on the Financial Statement is for the whole property. In other words, the Father’s budget expenses for mortgage payments, property taxes and property insurance are overstated. Furthermore, he does not appear to own even half of this property.
[17] The Court finds that it is not reasonable that the Father would purchase a 2007 Yukon - when it will only be used approximately one week per month - and leaves it at the airport to incur parking charges, while at the same time, incurring a vehicle loan of approximately $500.00 per month. Instead, he could fly to Ottawa, rent a car and use it for a week and then return it. In the court’s view this would be a much more cost efficient use of the Father’s money. It would save him the loan payment and the parking charges at the airport. The court realizes that there would be a vehicle rental charge, however it would be less expensive than the current situation.
[18] The court is in agreement that if an amount is payable it should not be set-off against child support as determined by the tables. There is nothing in the evidence before the court that would allow for the set-off of the additional expense against child support in this particular case.
[19] The case of Morrone v. Morrone (2007), 44 R.F.L. (6th) 389 (Ont. Sup. Ct.) was cited in argument. Quigley J., at paras. 47 and 48 states:
Apart from that distinguishing feature, however, in numerous decisions cited to the Court, decided both under the Divorce Act and the CLRA, courts have seen fit to fashion relief in circumstances of mobility cases that recognizes that relocation necessarily disrupts the frequency of access to the access parent in a manner that requires that some kind of economic adjustment be made. The relief is necessary to ensure that the rights of the access parent to continue to visit with the children, and more importantly the right of the children to continue to have access to the distant access parent, does not become a hollow or meaningless right in the face of financial circumstances that render it incapable of being exercised.
Although it was not a mobility case, in Crocker v. Critch (2005), [2006] W.D.F.L. 623 1 2005 CarswellOnt 7469 (Ont. S.C.J.)], Eberhard J. reduced the applicant's obligation to pay his share of child care costs as a result of the increased access costs he experienced which the respondent did not share, considering it to be "an even trade." In Jackpine v. Gamsby, 2004 CarswellOnt 407 (Ont. C.J.), Bishop J. of the Ontario Court of Justice reduced child support payable under the Ontario Child Support Guidelines to compensate the respondent for increased costs in exercising access to the child. In Drury v. Drury, [2006] O.J. No. 833 (Ont. S.C.J.), a case where the mother relocated to Ottawa from Barrie, A.P. Ingram J. ordered that the parties were to share the costs of transportation of the children for access visits to their father, and in the absence of agreement on mechanics, would meet in Belleville for exchanges, that being about the half-way point between the two cities. In Tucker v. Tucker, [1996] W.D.F.L, 2582 [1996 CarswellOnt 1376 (Ont. Gen. Div.)], Wood J. of the Ontario Court ordered that a mother, who had relocated to Nova Scotia, must pay for the costs of getting the two children either to or front Ontario at least once a year as the contribution that the respondent should make "to the increased cost of access that her move has brought about." In R.(B.) v. K.(E.), [2007] O.J. No. 278 (Ont. S.C.J.), a case decided under the CLRA, Wein J. of this court specifically ordered that a portion of a father's child support payments was to be directed towards the costs of travel following the mother's move to Newfoundland, and in Mallia v. Wellman (2003), 2003 CarswellOnt 586 (Ont. C.J.), also decided under the CLRA, the Ontario Court reduced a father's child support by almost one-third from the provincial guideline amount to recognize long distance telephone costs and access travel costs from Florida to Ontario, a case similar to this case. Finally, our Court of Appeal as well appears to have acknowledged the problem of access costs in mobility cases and recognized that it was appropriate in a case decided under the CLRA to apportion certain of those costs to a mother who relocated to Alberta from Ontario: Bjornson v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364, 62 O.R. (3d) 236 (Ont. C.A.).
[20] This court is satisfied that the Father incurs access costs due to his living in Alberta. The court is aware that some of the cases quoted above were hardship cases while others were mobility cases. This court notes that this case is neither a hardship case nor a mobility case. Notwithstanding that, on the facts of this case the court finds that the Mother should pay the Father an amount towards his increased costs of access to the children. This amount is set at $200 per visit with the maximum per year being $2,400. It could be less if the Father exercises his access less than once per month. In the event that the Father exercises access more than once per month based on any agreement between the parties, the amount of the subsidy by the Mother shall not be any more than $200 per month. This amount shall be payable by the Mother directly to the Father on a monthly basis starting 12 months after the access visits commence.
3) Child Support Arrears
Mother’s Position
[21] The Mother argues that in the Final Order of the Honourable Justice Duchesneau-McLachlin dated September 27, 2007, paragraph 6 says that on June 1 of each year the Father shall provide a copy of his T4 statement to the Mother, and child support shall be adjusted accordingly as of June 1 of that year.
[22] The Mother argues that the Father was under an obligation to provide his T4 slips and that it was mandatory that support was to be adjusted on June 1 of each year.
[23] The evidence of the Father is that he did not provide the T4 slips in each year but provided all of them in 2012. The Mother argues that based on the Father’s T4s that the following amounts are due and owing:
Year
Father’s income
Child Support Payable
Child Support Paid
2008
$77,570.00
$1,118.00
$640.00
2009
$107,702.00
$1,535.00
$640.00
2010
$113,341.00
$1,613.00
$640.00
2011
$131,601.00
$1,853.00
$640.00
2012
$131,601.00
$1,856.00
$640.00
2013
$131,601.00
$1,856.00
$640.00
[24] Based on this table, the amount due and owing is $58,516.00 up to and including January 31, 2013.
Father’s Position
[25] The Father agrees that there are child support arrears of $58,516.00 as of January 31, 2013 but that they should be reduced to an amount of $30,000.00.
[26] The Father argues that the Mother is partially at fault for the child support arrears because she did not bring an action earlier in order to enforce the arrears.
Analysis
[27] Paragraph 6 of the September 7, 2007 Order places a positive obligation on the Father to provide the T4s. There is no positive obligation on the Mother. The court finds that the Father breached his obligation under the Order. The court finds that there was no blameworthy conduct on the part of the Mother.
[28] Accordingly, this court finds that the amount of child support is set at $58,516.00 as of January 31, 2013.
[29] As to the payment of child support arrears, the Father’s position is that the arrears should be paid at the rate of $5,000.00 every six months. The Mother’s position is that they should be paid at the rate of $800.00 per month. The Court finds that the payment should be made on a monthly basis and they should be paid at the rate of $800.00 per month, which coincidently is $4,800.00 every six months as opposed to $5,000.00.
[30] The Mother’s counsel requested that the child support payment arrears be made by the Father directly to the Mother as opposed to proceeding through the Family Responsibility Office (“FRO”). This court orders that these payments be made directly to the Mother. This court orders that if there is any default in the payment of these arrears that the Mother can have the arrears enforced through the FRO.
[31] The payments shall commence on the 15th day of each and every month from an including April 15, 2013. A series of 12 post-dated cheques shall be provided by the Father to the Mother commencing April 15, 2013. A further series of post-dated cheques shall be provided on the 15th of April in each and every year from and including April 15, 2014 until such time that the arrears are paid.
[32] In the event that there are any monies currently with the FRO which have not been disbursed to the Mother, and which are on account of the child support arrears, that amount shall be paid by FRO to the Mother and credited against the $58,516.00 of child support arrears but only in the final year of the payment of those arrears. Until that time, the monthly payment towards arrears will continue at $800.00 per month.
4) Section 7 Expenses
[33] The Mother argues that the Father should pay s. 7 expenses on a monthly basis in proportion to his income.
[34] The Father argues that s. 7 expenses have traditionally been split on a 50/50 basis and that they should continue to do so. Currently, the Father pays $100.00 per month.
Analysis
[35] Notwithstanding the fact that section 7 expenses have been split 50/50 in the past, the court does not see any reason why this should continue. The court orders that the section 7 expenses shall be paid by each party in proportion their incomes.
[36] The Father will pay $100.00 directly to the Mother on a monthly basis commencing February 1, 2013 toward s. 7 expenses. There shall be reconciliation on a yearly basis on June 1 of each year commencing June 1, 2014 to adjust for the s. 7 expenses and the monthly payment going forward. The parties shall consult with each other about s. 7 expenses by email. The Mother shall not incur needless s. 7 expenses and at the same time the Father should not unreasonably withhold his consent to section 7 expenses. In the event the Father does not pay his share of s. 7 expenses, they can be enforced by FRO.
5) Life Insurance Designation
[37] The Father argues that his mother should be the beneficiary in trust of the insurance policy for his children. The Mother argues that it should be herself in trust for the children.
[38] In the court’s view, the beneficiary designation should be changed to the Mother in trust as opposed to the Father’s mother and orders that it be changed accordingly. This will ensure that in the event that the insurance proceeds are required, that there will be a smooth transition in terms of payment of the funds in lieu of child support and s. 7 expenses.
6) Alcohol Ban
[39] The Mother argues that the Father should not consume alcohol during his access visits based on a prior issue in relation to drugs. The Father’s position is that there should be no such ban as there has been no alcohol concern in the past. As evidence of this he provided a test by a laboratory showing that there is no alcohol in his blood.
Analysis
[40] Based on the evidence before the court, and the fact that there has not been an issue of alcohol consumption during access times or any other concerns in relation to alcohol, the court declines to issue an alcohol ban.
Costs
[41] The parties shall have 14 days to resolve the matter of costs. In the event that the costs issues is not resolved, the Mother shall have 14 days to submit written costs submission of no more than three pages together with a Costs Outline. The Father shall have a further 14 days thereafter to submit his costs submissions of no more than three pages together with a Costs Outline. All costs submissions shall comply with rule 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[42] Order accordingly.
Kershman J.
Released: March 21, 2013
COURT FILE NO.: 09-1147
DATE: 2013-03-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANTALE SABOURIN
Applicant
– and –
KEVIN CHAMPAGNE
Respondent
REASONS FOR JUDGMENT
Kershman J.
Released: March 21, 2013