ONTARIO
SUPERIOR COURT OF JUSTICE
A RESTRICTION ON PUBLISHING ANY INFORMATION THAT COULD DISLCOSE THE IDENTITY OF THE CHILDREN IN THIS MATTER IS IN EFFECT
NEWMARKET COURT FILE NO.: FC-08-029284-00
DATE: 20130308
BETWEEN:
N.S.
Applicant
– and –
C.N.
Respondent
A. Rosen, for the Applicant
R. Shawyer, for the Respondent
G. van Hoogenhuize, for the Office of the Children’s Lawyer
HEARD: By written submissions
SUPPLEMENTARY REASONS FOR DECISION
ON PREVIOUSLY UNDETERMINED ISSUES
HOWDEN J.:
[1] After a three-week trial, the court delivered Reasons for Judgment orally and in writing on January 24, 2013. The terms of the original order were provided to counsel and time was granted for counsel to consult with their clients and address me with any changes which they wished to submit. I heard from both parents’ counsel and reserved the terms of the final order until the following day, January 25, 2013, when the terms of the final order were delivered to counsel. Because this trial focused so much on custody and care issues, the following largely monetary matters were left for further submissions by counsel:
The respondent shall pay to the applicant an amount to be determined on account of arrears of child support to September 2011...
The respondent shall pay to the applicant an amount to be determined on account of his contribution to the children’s S. 7 expenses to October 2012...
…the children’s RESP remains to be dealt with as I do not have any agreement by the parties as yet to how it is to be held in the future...
[2] In addition, I granted leave to counsel to address two other issues: the equal proportionate sharing of the cost of the Horowitz assessment and up-date on the past and future care issues of the children; and the proportionate share of each party for the cost of the reunification counselling up to the start of the trial. The latter issue had not been addressed in my order.
[3] I have now received the submissions of Ms. Rosen, the responding submissions of Mr. Shawyer, and Ms. Rosen’s reply submissions. I will deal with each of these issues in turn, having had the opportunity to review all of the submissions. However, I must make one thing very clear to both counsel and their clients. I am still dealing with an order following a trial in which all the evidence had been heard. There has been no leave granted to raise new issues or submit further evidence. All of the evidence was completed and each party closed his or her case. The only leave granted was to counsel to submit further argument on the above issues.
(a) Retroactive Child Support Arrears owing by the Respondent to September 2011
[4] According to the FRO statement marked as Exhibit 46 in the trial, the respondent owed $3,132 to September 16, 2011. That amount was not challenged or even addressed by the respondent during the trial. Mr. Shawyer indicated that he would be obtaining a further FRO statement but no such statement was filed. In addition, Ms. Rosen asks that because the income for 2011 of the respondent was made known during the trial, being $89,500, more than the $70,100 income the support was based on, there should be added to the $3,132 the sum of $2,196 as 9 months (to September 2011) underpayment using the table amount for the respondent’s 2011 income. The total arrears on this basis would be $5,328 to September 2011.
[5] Mr. Shawyer and the respondent do not dispute this amount. However, Mr. Shawyer now submits for the first time a FRO statement in the name of payor N.S. starting on March 1, 2012 and ending on January 1, 2013. According to this partial statement, that has nothing to do with the amount of the respondent’s arrears to September 2011 which is the issue that I had ordered to be addressed, it shows Ms. S. as owing $2,667.99. Apart from the problem that the set-off now claimed by the respondent against his arrears to September 2011 relies on evidence not before the court during the trial and therefore not reviewable or cross-examinable by the applicant now – apart from that, this latest FRO statement does not start when custody changed from the applicant to the respondent in September 2011 and therefore any payments made before March 1, 2012 are not accounted for, except by a starting minus balance of $1334.00 which has no detailed breakdown to confirm it or not. Additionally, Mr. Shawyer embarks on a re-calculation of child support from 2008 to 2011, based on the respondent’s income year to year for which assessment notices were filed with his current financial statement marked Exhibit 107 in the trial. None of this was testified to by the respondent at trial, and he did not dispute the amount of arrears in evidence during the trial. Why he failed to deal with these changes each year, I do not know, but he did not. One shows a substantial decrease in income in 2010, two years ago.
[6] I appreciate that the order of Perkins J. made interim child support subject to “later retroactive adjustment (on consent, on motion, or at trial)”. That order does not purport to change the court rules and allow for an adjustment based on evidence submitted after the trial.
[7] I cannot now in fairness, when no proper testing of evidence can occur, in fairness accept untested evidence recalculating 4 years’ of support on different income levels and new FRO evidence of only partial detail as a claimed set-off of what the applicant owes in arrears. The only issue I had needed help with was the amount owing by the respondent to September 2011. This was because I simply did not have exhibit 46 at my fingertips after virtually all of the submissions dealt with serious custody issues, not child support.
[8] Based on the evidence at trial and having considered counsel’s submissions, the respondent is ordered to pay $3,132 as arrears of child support. Ms. Rosen had not presented through the applicant or to the respondent in cross-examination her re-calculation of support for the nine months of 2011 and for the same reason, I see it as unfair to add that recalculated amount now. As she suggests, no doubt in each case, if there are arrears owing for different periods by the applicant or the respondent, “then FRO will secure those arrear payments from (the parties) directly through their own process”.
[9] In conclusion, pursuant to clause 25 of the order outlined in the Reasons, the amount to be paid by the respondent to the applicant on account of arrears of child support to September 2011 is $3,132. As requested, that amount shall be paid forthwith to the applicant out of the respondent’s share of the proceeds of sale from the matrimonial home held in trust by the real estate lawyer.
(b) Arrears owed by the Respondent on Account of his Proportionate Responsibility for the Children’s s. 7 Expenses.
[10] The applicant claims the arrears of s. 7 expenses owed by the respondent amount to $3,968.73. She produced a chart at trial detailing the amounts and the proportionate shares according to Perkins J.’s order. The respondent does not dispute this amount but says that he paid $2,813.50 for A.S.N.’s Taekwondo membership (Exhibits 54 and 87), as well as indoor soccer (Exhibit 60) and outdoor soccer, the invoice for which was not entered at trial.
[11] Ms. Rosen notes that Exhibit 97 shows the parties’ joint account record out of which some of A.S.N.’s Taekwondo was paid. However, that record goes only to March 1, 2008. The respondent identified his own cheques (Exhibit 87) that paid for Taekwondo in the fall 2008 and early 2009, and said he paid about $2,500. The cheques total $1,430, all well after the amounts paid out of the joint account for an earlier year. No record was submitted at trial to show how the outdoor soccer expenses were met. There is simply no proof in the trial record that the other expenses were not met by the parties and the invitation to make submissions does not include a right to continue to file new evidence as Mr. Shawyer again attempts to do with the outdoor soccer account which I never saw at trial.
[12] The respondent shall pay $2,538.73 ($3,968.73 - $1,430) to the applicant forthwith to meet his proportionate obligation, such payment to come out of his share of the proceeds of sale of the matrimonial home. This deals with the s. 7 expenses up to 2011.
(c) The apportionment of the assessment/update cost
[13] In the applicant’s view, the respondent should have to pay 80% of these costs because the respondent failed to admit his alienating behaviour and its consequences for the children. I do not accept that an early admission by the respondent would have obviated the need for any assessment because there was more to what has happened to these children than what the respondent did to them. He has admitted his behaviour now though not his intent. In these aspects, both parties have a way to go in coming to terms with what their conduct together cost their children and themselves. The assessment and update were in the end both valuable to the parties and the court. The update served as a slight corrective to the conclusions in the original. I did find the respondent’s alienating behaviour to be the primary cause for what happened but also that the applicant failed to recognize how her own behaviour played into his and made the whole experience volatile for A.S.N. in particular, and A.V.N. to a lesser degree. In saying this, I do not adopt the view in Mr. Shawyer’s memo that both alienated the children. That shows a misunderstanding of parental alienation. What I have found is that this couple, while they were together, were never happy and could never be, and that played into their behaviour with the children. Each could push the other’s buttons, as they say, and did so in the children’s hearing. I will revisit this aspect as part of the overall costs issues when I see how this all plays out in the next four to five months and the review hearing.
[14] No order is made at this time on this part of the cost issues.
(d) Apportionment of the pre-trial Willow Centre Therapy Cost
[15] This has a direct relationship to my findings with regard to the respective roles played by the parents in causing the children’s difficulties and in A.S.N.’s case, his alienation from his mother. The amount and intensity of the therapy required here is beyond anything I have seen as resulting from a breakdown of a marriage, both as a practising lawyer and as a judge in the family law field. The reason, as I found, is primarily due to the alienating conduct of the respondent over five to seven years. The applicant’s conduct also played a part but the cost of this reunification therapy stems primarily and directly from the conduct of the respondent. If it were not for his change in conduct recently, the apportionment against him would have been far more severe.
[16] I find that, in the circumstances, the respondent should pay two-thirds of the cost of this therapy and the applicant should pay the rest, one-third.
(e) RESP Fund Held for the Children
[17] The parties agree on this issue. The respondent is content that the applicant continue to manage solely this fund, applying it equally over 4 years to each child’s post-secondary expenses. Each child is deemed to be entitled to 50% of the portfolio at the time A.S.N. commences university. The parties will share in any shortfall annually due to insufficiency of the fund to cover their total post-secondary expenses, either as ordered by the court or in shares proportionate to their incomes. So ordered.
HOWDEN J.
Released: March 8, 2013