SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-17753
DATE: 20130711

RE: RUTH KENNY, Applicant

AND:

**DAVID CHARLES RATCLIFFE, Respondent

BEFORE: MESBUR J.

COUNSEL: Kristen Normandin and Arin Tint, for the Applicant

David Jarvis, for the Respondent

HEARD: July 9, 2013

E N D O R S E M E N T

The motions:

1There are a number of issues on these motions for interim relief. First, mother’s claim for temporary spousal and child support and section 7 expenses pending trial. Second, mother’s claim to retrieve some of her chattels from father’s cottage. Third, mother’s claim to confirm her choice of school for the child. Fourth, father’s claim to change the current parenting arrangements pending trial, and last, father’s motion for an order for a s. 30 assessment.

2At a settlement conference in May of this year, Whitaker J fixed the trial for two weeks in January of 2014. Thus, any order or orders made today will likely be in effect for only six months.

Some history:

3The parties were never married. They did, however, live together in a long term relationship of at least 15 years.¹ They are the parents of a 5-year old daughter, Niah, who lives primarily with her mother. The parties share joint decision-making regarding Niah.

4The parties separated January 3, 2011. They entered into an interim separation agreement for the 2011 and 2012 taxation years. In it, they agreed father would pay child support of $2,090 per month and spousal support of $6,690 per month. They also agreed father would pay half of Niah’s s. 7 expenses for the period October 1, 2011 onward. These were characterized as including “the Bees Knees Nursery School, Ballet (once per week), and Gymnastics (once per week). The agreement went on to provide that neither party would incur any s. 7 expenses for which a contribution would be sought from the other parent unless they had obtained the other’s consent in writing.

5As to arrangements for Niah, the parties agreed to retain the services of Dr. Howard Irving to help them to draw up a parenting plan. The agreement provides:

Dr. Irving shall conduct “Open” Mediation. In the event that this agreement is terminated we irrevocably consent to Dr. Irving writing a Report for Court or other third party purposes.²

6The financial terms of the interim agreement were changed in March of this year. Although mother did not agree to the figure father set out as his income, she agreed, on a without prejudice basis that child support would be reduced to $1,698 per month for calendar year 2012, and spousal support would be reduced to $5,2551 for the same period.

7Father has reduced his support again, although without any agreement from mother. The parties wish the court to determine the appropriate amount of support for the period January 1, 3013 until trial in January, 2014. The real issue is what income figures should be used for the parties in order to determine the appropriate amount of periodic spousal and child support, as well as the parties’ proportionate shares for s. 7 expenses. This includes a determination of which s.7 expenses are appropriate.

8Since the parties separated, father has been seeing Niah for four overnights in every two-week period. He seeks an increase in his time with Niah, pending trial. Mother resists, and says there is no compelling reason to change a status quo that has been in place for more than two and a half years – or about half of Niah’s life.

9Father also seeks an order for a s.30 custody/access assessment. He says it is necessary and appropriate in the circumstances of this case. Mother resists, and says it is not.

10Niah will be entering senior kindergarten in September. The parties established their home together in the Leaside area of Toronto, in large part because of the nature and quality of the schools in the district. At the time, they were taken with Northlea Public School, a school that has both the primary and middle school grades, as well as providing an early French Immersion option for its students. Mother now wishes to enrol Niah at another neighbourhood school – Norman Ingram.

11Mother describes Norman Ingram as a smaller school than Northlea, with a smaller student population. She says Niah has neighbourhood friends who will be attending Norman Ingram. Mother says unlike Northlea, Norman Ingram does not hold classes in portable classrooms. She points to Norman Ingram’s park setting providing a sense of community. Mother described the principal at Norman Ingram as someone who knows the names of all the children and is very proud of her school. Mother observed lots of children’s art on the walls at Norman Ingram, in contrast to Northlea which she describes as having gray hallways, and what she felt were too many students.

12Mother has registered Niah at Norman Ingram, and has made child care arrangements for Niah based on her being at this school, in an afternoon, half-day program. Mother says Norman Ingram is better rated than Northlea, is smaller and has a more child-friendly “feel”. She worries about the effect of the construction of the Eglinton subway line on travel time to and from school if Niah were to go to Northlea. She is not persuaded early immersion is the best choice for Niah. She notes that mid-immersion is available at Norman Ingram.

13Father points to the fact that Northlea is also very well rated. Indeed, Northlea’s reputation was one of the reasons he and mother chose to live where they did in Leaside. Father sees French Immersion as an excellent choice for Niah. Northlea offers early immersion. Father prefers the Northlea program in part because Niah would be in a morning programme there. Since he currently picks her up at lunch time for his Tuesday access, he says an afternoon programme would cut into his access time. He could also walk Niah to Northlea from his home.

14When it comes to his time with Niah, father takes the position the current access arrangements are far too restrictive and artificial, and do not promote the “maximum contact” presumption. He currently sees Niah every Tuesday, overnight, as well as every Friday, overnight. He proposes a significant change to the schedule, to alternate weekends from Friday to Monday mornings, every Tuesday, overnight, and alternate Thursdays, overnight. The alternate Thursdays would be in the weeks preceding mother’s weekends with Niah. He sees this as a more “typical” arrangement, and one that would maximize Niah’s contact with him. He says she needs this.

15Mother resists any change, and points to the fact that the current arrangements have been in place for some years. She says it is improper to change such a lengthy status quo on the eve of trial. She says any change to the access should be left to the trial judge.

16Finally, father seeks a s.30 assessment under the Children’s Law Reform Act. He says mother has “engaged in inappropriate behaviour involving the child and maintains an accusatory and defamatory attitude to him and to third parties about him … and prohibiting the father from attending extra-curricular activities in which the child is involved (even though he is expected to contribute to their payment.)”³ He asserts there are clinical issue warranting an assessment.

17Father describes the “clinical issues” as including:⁴

a) A suggestion the mother has a history of family issues;

b) An assertion he and the mother never agreed to an “attachment parenting” approach to Niah’s upbringing;

c) The mother’s continuing to breastfeed Niah at age 5, and having her sleep in the same bed as the mother;

d) Mother calling the police when father suggested mother share in driving;

e) Mother forbidding father from attending Niah’s extracurricular activities;

f) Mother bombarding father with emails.

18Mother denies there are any clinical issues that would warrant the court ordering a s.30 assessment. Even if the clinical issues are not a necessary criterion for the court to order an assessment, mother says there are no other compelling reasons to do so. She says the court should only make a s.30 order if there is a “genuine issue” that an assessor will help the court resolve, which it would otherwise be ill-equipped to resolve. She points to the fact that assessments are expensive and intrusive, and can cause significant delay. Last, she notes that father has failed to provide the name and curriculum vitae of any proposed assessor, along with that assessor’s consent to be appointed.

19This outline frames the issues to be discussed below.

Discussion:

20As I have said, the issues are: periodic child support, spousal support, and s.7 expenses; choice of Niah’s school; interim access; custody assessment and retrieval of chattels. I will deal with each in turn.

Temporary support

21Father’s 2012 notice of assessment showed line 150 income of $221,485. His affidavit sworn in support of this motion deposes he is now receiving about $184,000 for 2013. His affidavit goes on to say that he and his partner were “compelled to reduce our remuneration to $170,000 a year.” It is unclear to me when this reduction takes effect, or the extent to which father can actually control the amount of any reduction.

22In looking at income for child support purposes, the court must look at current information, but also must begin with the items that make up line 150 income in a party’s tax return. The best evidence I have of that is father’s 2012 notice of assessment. That said, I must also recognize that there is evidence that figure is incorrect for 2013. It is more likely to be $184,000 if not less. I propose to fix father’s support obligation on his 2013 estimate of $184,000. If this figure turns out to be incorrect, the trial judge will be able to make any necessary adjustments.

23Based on income of $184,000 father’s child support obligation for table support is $1,515/month. Commencing January 1, 2013 father will therefore pay $1,515 per month table support. He will receive credit for any amounts he has paid on account of child support since January 1, 2013.

24Both spousal support and s.7 expenses require the court to determine the recipient’s income. Mother declares no more than $5,000 per year in net income from a gardening business. Father suggests her undeclared income makes her “real” income more like $50,000. Although the parties were permitted to conduct questioning, father has not examined mother on financial or indeed any other issues. Thus, his assertions as to mother’s income have not been tested on cross-examination. At trial they will be. The issue of imputing income to mother is therefore one best left to the trial judge.

25Mother concedes income earning capacity of $15,000 for the purpose of this motion. I accept that figure, subject of course to any contrary finding the trial judge makes. The trial judge can make any necessary retroactive adjustments to reflect findings of fact at trial.

26On the basis of the incomes I have found, and having regard to the SSAGs, which posit a range of spousal support from a low about $3,605 to a high of about $4,605 per month, temporary spousal support of $3,850 per month is appropriate in all the circumstances. Commencing January 1, 2013 father will therefore pay spousal support of $3,850 per month. He is to be credited with any payments he has made on account of spousal support since that date. These prior payments are deemed to have been paid and received pursuant to this order under the relevant provisions of the Income Tax Act, so as to be fully taxable to the mother, and fully deductible to the father.

27Under s.7 and s.3.1 of Schedule III of the Child Support Guidelines father’s income for the purposes of s.7 expenses is calculated as his income less spousal support paid. Mother’s income is calculated as her income plus spousal support received. Given the incomes I have determined for each party, father’s income for s.7s is $137,800 and mother’s is $61,200. Father’s share of the s7s is therefore 69%.

28But, what are the appropriate s.7 expenses of Niah? For the purposes of this interim motion, it seems to me I should look at the parties’ agreement and see what they agreed were proper s.7s. They agreed on ballet, gymnastics and nursery school. Ballet and gym were to be for once a week only. Any other proper s. 7 expenses were to be those the parties agreed to in writing. They have not done so. Each has incurred various expenses for Niah without the other’s parent’s consent. For example, father pays for skiing expenses for her. Mother pays for Girl Guides and other programmes.

29On the record before me, and in light of the parties’ agreement, I cannot determine whether any other expenses are proper s.7 expenses as defined under the Child Support Guidelines. I therefore decline to make any other determination concerning s.7 expenses, and leave that to the trial judge.

30Therefore, commencing January 1, 2013 father will pay 69% of Niah’s weekly gymnastics and ballet lessons, and 69% of the cost of the Bees Knees nursery school. The issue of the appropriateness of any other s.7s is deferred to the trial judge.

Niah’s school

31Each parent proposes a different school for Niah for senior kindergarten in September. Mother suggests Norman Ingram, while father prefers Northlea. Both schools seem to be good choices. Each has much to recommend it. I have no real evidence that either would meet any particular need Niah has better than the other. Although the trial is relatively soon, Niah must go to school in September. She is already registered at Norman Ingram. Mother has child care in place for the mornings. While mother’s actions might be seen as pre-emptive, she has tried to resolve the issue with father. It would have been helpful for the parties to address this issue with Dr. Irving. They did not. It therefore falls to me to make the decision.

32Since Niah makes her primary residence with her mother, mother’s schedule has a bearing on the issue of choice of school. Travel issues from mother’s home are also relevant, since she does most of the to-ing and fro-ing. Travel and convenience have an impact on Niah and therefore carry some weight, particularly when there is no real compelling reason to choose one school over the other.

33Niah is only five. A choice of a school for senior kindergarten is hardly a choice that sets school choice in stone for the rest of Niah’s academic life. If the school does not suit her, she can be moved. If French immersion turns out to be a real benefit for her, she can change schools. These are all issues for which the trial judge will have relevant evidence. For now, at least, Norman Ingram is as good a choice as Northlea. Niah will attend Norman Ingram in September of 2013. This decision is without prejudice to any position father wishes to take at trial.

Interim access

34When it comes to Niah’s time with her father, mother suggests the status quo should remain until trial. Father seeks an increase in his access time. Dr. Irving has provided the parties with a draft parenting plan. In it, he sets out a proposal for a daily schedule that he says he believes “given Niah’s age and the rather high conflict between the parents, that this schedule at this time is in Niah’s best interest”⁵ Dr. Irving’s letter and proposed parenting plan are the only pieces of independent evidence I have concerning Niah’s current needs and best interests.

35Father’s current access to Niah is really quite limited, although it includes overnight access two nights a week. Father’s position is that he should have even more time with Niah than what Dr. Irving recommends. As I see it, neither party’s position is particularly reasonable.

36It is all very well for each party to assert his or her position should prevail until trial. The trial is six months from now. That gives an excellent window of opportunity to see how things go in the interim, with mother’s choice of school, and some increased access for father. If neither arrangement is working well, then I am sure the trial judge will hear about it. Conversely, if new arrangements work smoothly, that will be important for the trial judge to know. I do not see this as “experimenting” with Niah’s best interests. Instead, I see it as an opportunity to provide the trial judge with important, up to date evidence about two very important things in Niah’s life – her time with her father, and her adjustment to a new school. I would hope that Dr. Irving can assist the parties with any issues arising from these arrangements. It will also give Dr. Irving the ability to opine on whether his recommendations have turned out to be in Niah’s best interests.

37Accordingly, commencing the week of July 14, 2013, on a temporary without prejudice basis, Niah will be with her father as follows, as Dr. Irving recommends:

a) Alternate Mondays for dinner, from 4:00 to 7:30 p.m.;

b) Every Tuesday overnight as is currently the arrangement;

c) Every Friday overnight, as is currently the arrangement; and

d) Alternate Saturdays overnight.

38In light of this order, I do not see that Niah’s attending the afternoon programme at Norman Ingram will unduly interfere with her time with her father, if at all.

Custody assessment

39The parties are participating in open mediation with Dr. Irving. Their interim agreement specifically provides that they “irrevocably consent to Dr. Irving writing a Report for Court or other third party purposes”. From this I infer the parties wish Dr. Irving to report to the court with his recommendations as to Niah’s best interests if the parties are unable to agree.

40While Dr. Irving’s role may not be exactly akin to that of a custody assessor, he is a trained professional with years of experience and expertise in dealing with custody and access issues. The parties themselves entrusted him to report to the court. His reporting to the court is not limited to advising whether or not the parties have reached an agreement. Here, the parties’ agreement contemplates a report if and only if they have not been able to reach an agreement. The only purpose of such a report must be to advise on what Dr. Irving’s professional opinion is concerning Niah's best interests. He has already done so in relation to temporary arrangements for Niah. If the parties do not reach a final agreement prior to trial, then I expect Dr. Irving to prepare an expert report setting out his opinion as to the arrangements that would be in Niah’s best interests.

41Since the parties have already agreed on a mechanism for some independent expert evidence for the court, I see no reason to order a s. 30 assessment. I am not persuaded there are any clinical issues here. The fact this is a fairly high conflict case does not mean there are clinical issues. I am also not persuaded there are any particularly difficult issues that the court is ill equipped to resolve and that an assessment would help the court to resolve.⁶ Again, while high conflict cases can be difficult, they do not necessarily present issues that the court is ill equipped to resolve without the assistance of an assessor.

42Here, Dr. Irving can provide some assistance to the court if he is unable to help the parties resolve the issues themselves. I therefore dismiss the motion to appoint an assessor, particularly since I have no idea of who father proposes, what their qualifications might be, whether they consent to be appointed, when they could conduct the assessment, and what the cost would be. The trial is fixed for January. There should be no delay in the trial. The motion for a s. 30 assessment is therefore dismissed.

Mother’s household contents

43The parties have agreed that mother will attend father’s cottage with a third party on July 21, 2013 to pick up the belongings listed in Exhibit J to father’s affidavit sworn July 3, 2013 and described as “”Chattels Applicant May Obtain”. Father will cooperate and facilitate the mother’s retrieval of her belongings by providing to her or an agreed to third party the necessary key and alarm code. This is without prejudice to mother’s arguing she is entitled to more chattels than those listed as set out above.

Decision:

44For these reasons, without prejudice temporary orders to go as follows:

a) Commencing January 1, 2013 father will pay $1,515 per month table support for Niah. He will receive credit for any amounts he has paid on account of child support since January 1, 2013;

b) Commencing January 1, 2013 father will pay spousal support of $3,850 per month. He is to be credited with any payments he has made on account of spousal support since that date. These prior payments are deemed to have been paid and received pursuant to this order under the relevant provisions of the Income Tax Act, so as to be fully taxable to the mother, and fully deductible to the father;

c) commencing January 1, 2013 father will pay 69% of Niah’s weekly gymnastics and ballet lessons, and 69% of the cost of the Bees Knees nursery school. The issue of the appropriateness of any other s.7s is deferred to the trial judge;

d) Support Deduction Order to issue;

e) Niah will attend Norman Ingram Public School in September of 2013. This decision is without prejudice to any position father wishes to take at trial; and,

f) Commencing the week of July 14, 2013, on a temporary without prejudice basis, Niah will be with her father on alternate Monday’s for dinner from 4:00 to 7:30 p.m.; every Tuesday overnight as is currently the arrangement; every Friday overnight, as is currently the arrangement; and alternate Saturdays, overnight.

45As to the balance of the relief sought, father’s motion for a s.30 custody assessment is dismissed. On consent, order to go permitting mother to attend father’s cottage with a third party on July 21, 2013 to pick up the belongings listed in Exhibit J to father’s affidavit sworn July 3, 2013 as “Chattels Applicant May Obtain”. Father will cooperate and facilitate the mother’s retrieval of her belongings by providing to her or an agreed to third party the necessary key and alarm code. This is without prejudice to mother’s arguing she is entitled to more chattels than those listed as set out above.

46The parties had agreed that partial indemnity costs of between $5,500 and $6,500, all inclusive, would be appropriate if a party had enjoyed complete success. It seems to me success on the motions has been fairly evenly divided. My inclination is to make no order as to costs, unless there are offers that might bear on this issue. If the parties disagree with this proposed disposition they may make brief written submissions to me of no more than 3 pages in length. They will do so within two weeks of the release of these reasons. The submissions will include any relevant offers, and outline cogent reasons why a party suggests an entitlement to costs.

MESBUR J.

Released: 20130711

ONTARIO

Court File Number

Ontario Superior Court of Justice

FS-11-17753

(Name of Court)

at

Toronto

Endorsement

DATE: 20130913

(Court office address)

Date

Applicant(s):

Ruth Elizabeth Kenny

Present

September 13, 2013

Counsel:

Kristen Normandin

Present

Duty Counsel

Respondent(s):

David Ratcliffe

Present

Counsel:

David A. Jarvis

Present

Duty Counsel

Order to go in accordance with minutes of settlement or consent filed.

Fac Factums required on all motions 2 days before.

47I have now received the parties’ written costs submissions on the motion I heard in July of this year. Having reviewed the submissions and the settlement offers, my view remains that success was divided and there should be no order as to costs.

48Accordingly, no order as to costs.

Footnotes

1. 1Mother says it was longer. Regardless of whose position is right, father concedes mother’s entitlement to spousal support on this motion
2. 2Paragraph 2(a) Interim Agreement executed September 2011
3. 3Father’s factum at paragraph 10
4. 4See paragraph 18 of father’s affidavit sworn July 3, 2012
5. 5Dr. Irving’s letter to the parties and their counsel dated November 24, 2012.
6. 6See, for example, Haggerty v. Haggerty 2007 CarswellOnt 4151 (S.C.J.)