Court File and Parties

COURT FILE NO.: 47768-13

DATE: 2013/09/09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary-Frances Wilson, Applicant

AND:

Sean Ralph Wilson, Respondent

BEFORE: The Honourable Mr. Justice D. J. Taliano

COUNSEL: Edmund Louis Wellhauser, Q.C., Counsel for the Applicant

Danya Pilat, Counsel for the Respondent

HEARD: August 8, 2013

ENDORSEMENT

[1] The parties were married on July 7, 2001. They had two children, Dalton, who was born on May 1, 2002 (11 years of age), and Heather, born on November 16, 2003 (9 years of age). The parties separated on December 1, 2004. The applicant/mother has a child by a prior relationship, Fiona, who is 20 years of age and attends Fanshaw College. There are three issues brought before the court by motion namely:

a. the respondent/father’s claim for child support;

b. the father’s claim for s. 7 expenses; and

c. the mother’s claim for contribution to Fiona’s post-secondary school expenses.

The Father’s Position

[2] Despite the lengthy separation, child support has never been paid by one parent to the other. The father alleges that the mother separated from the husband leaving the children in his care and that she has provided minimal parental support to the children since then. Rather, she has relied on her extended family to discharge some of her parental responsibilities.

[3] During a brief period when she was looking after the children in the mornings before attending school, the children were consistently late for school. Eventually, the father turned to subsidized home care to ensure the care of the children and their prompt arrival and attendance at school. Although the father has repeatedly requested child support from the mother and alleges financial hardship by reason of not having received it, the mother has never contributed to the financial support of the children, despite having an income of $39,352.51 in 2012 which would trigger Guideline support of $569 for two children. The father’s current income as a welder is $51,141 per annum.

[4] The father also seeks a contribution to day care costs in the sum of $67 for the months of July and August 2013.

[5] When the children return to school, the father plans to use Joan Scott to look after the children in the mornings before school after he leaves for work. He prefers this arrangement to a former arrangement where he dropped the children off at the mother’s home at 6 am and the mother would look after them until 8 am at which time she would drop them off at her brother’s home who would then arrange to get the children to school. The father states that this arrangement was too much back and forth for the children. He alleges that the children were tired, stressed and confused by the routine and he therefore had to hire a babysitter to care for the children for the interval between his departure for work and the children leaving for school at 8.30 am. The cost of this arrangement is approximately $160 per month. His proportionate share would be 67.5% or $106.40 and the mother’s share would be 32.5% or $53.60 per month.

[6] The father states that the mother’s weekend access has been inconsistent and the children have been spending the majority of weekend time with him in their primary residence. When the mother wishes access, it is usually exercised at her parents’ home on Saturday at 2 pm until Sunday at 4 pm. He is ultimately proposing that he have sole custody of the children and that the mother’s access be every second weekend at the grandparents’ home, which is the current practice.

The Mother’s Position

[7] The mother submits that the parties have had a workable arrangement since the separation of sharing the children and accordingly she resists paying any child support. Alternatively, she submits that any obligation she has for child support should be offset by monies owing by the father to the mother for Fiona’s college expenses. I will deal with this claim momentarily.

[8] With respect to the child support issue, the mother alleges that the children were brought to her home and to her care at approximately 6 am on school days. She would deliver them to her brother’s home at 8 am when she went to work. Their father would be responsible for them on school days from 5.30 pm to 6 am the next day when the process would repeat. The mother alleges that she had the children on weekends from 6 am on Friday to 7.30 pm on Sunday. When school was not in session, Fiona would babysit the children.

Findings

[9] The mother’s evidence on why she should not be paying child support is internally contradictory and at odds with the more detailed evidence provided by the father on the subject of time sharing. For instance, the mother’s general allegation that her daughter, Fiona, often babysat the children for her is not really convincing since Fiona was away at school for 8 months last year. Secondly, the mother counts time that the children are in school as time in her care. Finally, the mother’s evidence with respect to weekend time with the children is vague and is not convincing.

[10] By contrast, the father’s evidence on the time sharing of the children is very specific and detailed. He alleges in his pleadings that it is he who looks after all of the children’s needs which includes their clothing, their meals and all of their schooling needs. He is the primary care person, makes all of the decisions with respect to healthcare issues and is fully involved in their schooling activities. He alleges that the children are in his care 70% of the time. I accept the father’s evidence.

Disposition

[11] I am satisfied that the father has been discharging the responsibilities of a primary care parent of both of these children and has borne the full cost of their up-bringing up until now. The mother has not paid any support to the father notwithstanding that she has been asked to do so. It is time for her to contribute to the cost of raising her children.

[12] Although the father is seeking support for the past 7 years, the evidentiary record before the court is contradictory. Although the father did present a claim in the Ontario Court of Justice for child support, his claim was not pursued and was ultimately dismissed. His child support claim in this court was only commenced in June 2013 although he alleges that he has asked the mother for child support at various times. However, specifics have not been provided.

[13] On the other hand, the mother alleges in her affidavit dated July 4, 2013 that she was never asked by the father to pay basic child support to him but rather was only asked to contribute to the cost of specific things.

[14] In the face of these contradictions, an order for retroactive support cannot be supported on this evidence and is therefore denied.

[15] However, I am satisfied that an order for child support should be made requiring the mother to pay Guideline child support commencing July 1, 2013 in the monthly sum of $569 for Dalton and Heather. In addition, I order the mother to pay her proportionate share of day care expenses of $134 for the months of August and September 2013 in addition to the monthly sum of $53.60 for day care during school months, commencing September 1, 2013.

[16] It does not appear that a custody order has been made and no submissions were made by counsel on this subject although Broad J. made an order seeking the involvement of the Office of the Children’s Lawyer (OCL) and fixed access in the meantime to the applicant. Certainly, I am prepared to order and I do order, that primary residence of the children shall continue to be with the father and that the status quo be maintained pending a response from the OCL.

Fiona’s College Expenses

[17] With respect to the applicant/mother’s claim for contribution to the post secondary school expenses of Fiona, once again the evidence is contradictory. Before reviewing the evidence it must be noted that the mother’s claim appears to be a strategic move to defend the father’s claim for child support since the mother did not advance such a claim when Fiona enrolled in her first year at college.

[18] With respect to the contradictions in the evidence, the mother alleges that the father wanted to adopt Fiona but never did because they could not afford the paper work. It is not clear exactly when this sentiment was expressed, but the critical fact is that the adoption never occurred and things obviously changed in the father’s attitude later on in the relationship. The mother admits that after the birth of their first child, the relationship between the father and Fiona deteriorated and the father had less and less contact with her, became more critical of her and has had even less contact with her since the separation.

[19] The father does not dispute the mother’s allegation that discussion about adoption of Fiona did take place. However, he goes on to say that although he was fond of Fiona and liked to do things with her, he did not act as her father. It was Fiona’s mother who was responsible for discipline and ensuring that her needs were met. In addition, since the final separation in January 2005, the father has only seen Fiona on approximately five occasions. He was not invited either to her primary school or high school graduations.

[20] Post separation relations are only relevant in so far as they may reflect the relationship that existed between the father and Fiona during the period of co habitation. In this case, the current relationship between the father and Fiona is consistent with the father’s description of the earlier relationship between them in which case a finding of a parental relationship between the father and Fiona is not supportable.

[21] It is also clear that the father cannot afford to contribute to Fiona’s educational needs. He has not only had a series of layoffs since the separation but in addition, he has, on several occasions, been threatened with eviction and can barely support himself and his two dependent children.

[22] Finally, I would observe that Fiona successfully completed her first year of study at Fanshaw College without financial assistance from the respondent and with little or no meaningful financial assistance from her mother. It appears that Fiona can get her education without financial contribution from a parent although I am sure that it is challenging for her. As unfortunate as it is for Fiona to be forced to bear the full cost of her own education, it is equally unfortunate to order the father who seems to have been only a good friend and perhaps a mentor to Fiona and who is having financial difficulties providing for his own biological children, to fund the cost of Fiona’s education. Accordingly, the mother’s motion for s. 7 expenses must be and is dismissed.

[23] If the parties cannot agree on costs, the father may make written submissions as to costs within 15 days of the release of these reasons. The mother has 15 days after receipt of the father’s submissions to respond. All such written submissions are to be forwarded to me at my chambers at the Court House, 59 Church Street, St. Catharines, L2R 7N8. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Taliano J.

Date: September 9, 2013