ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 374/09
Date: 2013/NOV/04

B E T W E E N:

Julie Patricia Simms

Unrepresented

Applicant

• and -

Jeffrey Douglas Brown

Unrepresented

Respondent

HEARD: October 8th, 2013 (Kingston)

RULING ON MOTION

Pedlar, J.

1This is a motion to change brought by the respondent seeking to set the amount of any arrears of child support at zero and, because of the current order in effect which has the parties sharing the children equally, that each party should take full responsibility for their own childcare expenses.

2The respondent wishes, that in all other aspects, the existing custody and access order remain in effect and that a dedicated block of three continuous weeks in the summer be set for each party, open to change by mutual consent

3The applicant has responded to the motion for change by seeking to have the joint custody order changed to sole custody of the children to her. In the alternative, she would seek a continuation of shared custody with primary residence to her with access to the respondent.

4The applicant also is claiming retroactive child support and seeks to have the current support order reflect the disclosed incomes of the parties and to have daycare costs and other extraordinary expenses paid in accordance with those disclosed incomes.

5With regard to the respondent’s motion to change the current child support order, and reduce the arrears to zero, the respondent relies on the fact that during the last couple of years, there have been some extended periods of time where he has been off work for medical reasons. Those periods of time have resulted in temporary reductions of his income, making it difficult to meet ongoing monthly child support obligations. His annual income, however, is the primary source of establishing the amount of ongoing child support due. It is not realistically possible for child support to be adjusted whenever a relatively short term variation in income occurs. The adjustment is based on the Line 150 annual Notice of Assessment from Canada Revenue Agency. That has the unfortunate result that current exact financial circumstances are not always reflected in the child support order, which is often several months behind any changes in income.

6The applicant mother has filed, as Exhibit I, to her affidavit at Tab 31 of Volume 3 of the Continuing Record, a chart that seeks to summarize the respondent father’s actual income for the years, 2010 through and including 2012. The chart relates that to the income on which child support has been either ordered, or would be payable, pursuant to the Guidelines as compared with his actual income for those three years. The chart also attempts to take into account the change in custody, from sole to shared custody, which occurred partway through the calendar year of 2011. That, of course, results in a setoff between the incomes of the parties as provided for in the Child Support Guidelines.

7Looking at that chart, it shows for the year, 2010, the applicant mother had sole custody of the children and the court ordered support is based on his reported annual income of $74,000 per year. His actual income for that year was $86,000 and, therefore, she is claiming a retroactive amount of support of $150 per month, totaling $1,800 for the year. She made it clear in her oral evidence that the claims presented for support on this chart include not only the basic Guideline support but also claims for extraordinary expenses under Section 7 of the Guidelines, being childcare expenses in this case.

8The parties have followed a rather unusual practice of providing the Director of the Family Responsibility Office with their respective information about childcare expenses, rather than sharing that directly with each other. The applicant mother states that she has provided the Director with her invoices and receipts showing the childcare for which she has paid during all the relevant times, as it relates to this particular three year period.

9For the year, 2011, the chart at Exhibit I, Tab 31 of Volume 3 of the Continuing Record shows that the respondent father reported an income of $76,000 that year for the purpose of establishing child support, which would have resulted in a child support payment of $1,119 per month. The applicant mother’s income for that year was $53,400, which would have required her to pay $792.84, and the required child support payment on those incomes would be the difference between the two obligations. The chart also shows that the actual support paid was $400 per month. The chart then goes on to show an actual income for the respondent father for the year, 2011, of $106,260. At the time of the hearing of the motion, the respondent father confirmed that was his income for that year and explained that it was an unusual amount of income because of a severance retirement package paid to all federal employees that was a one-time payment.

10The result of that increased income for 2011 would mean that the respondent father would be liable to pay $1,492.07 per month child support and the respondent mother’s setoff against that would be $792.84, based on her annual income of $53,400. In her chart, she is claiming a difference per month owed to her of $349.23. That takes into account the payment by the respondent father of $400 per month and also adds in the $50 child support per month additional support that was included in the July, 2011 order on the understanding that she would have the children slightly more often than the respondent father. In view of the September, 2011 agreement that they would share the children equally, that additional $50 support would not appear to be something that is due under the current arrangement.

11Taking those findings into account then and recognizing that the shared parenting order was made in early July, 2011, it would appear that the applicant mother would be entitled to the full amount of child support from January to June, inclusive, and then with the children being shared equally for the balance of the year, the appropriate setoff should be made. I am not exactly sure what happened in July and August but, for the purpose of this order, I will assume that the court order of early July was in effect until the written agreement in early September so that the mother would get the additional $50 per month for July and August, even though the children probably spent vacation time with each parent, etc. that order remained in effect until September.

12From January until June, 2011 then, while the mother had sole custody, she is entitled to $1,492.07 per month for a total of $8,952.42. For the months of July until December, 2011, she would be entitled to the $349.23 setoff claimed in Exhibit I. Her total entitlement then for support during the year, 2011, was $11,047.80. The respondent father is given credit for his $400 per month payment, totaling $4,800, with a balance due of retroactive support in the amount of $6,247.80.

13For the year, 2012, the respondent father’s reported income is $57,200 and the respondent mother’s income is $54,700. Based on the setoff calculations at Exhibit I, the child support payment each month, payable by the respondent to the applicant, is $313 per month. He has, in fact, been paying $400 per month. Again, deducting the setoff, the respondent father has overpaid $313 per month for those payments that had been made during 2013. As part of her affidavit filed at Tab 31, the applicant mother has stated that as of September 10th, 2013, the Director of Family Responsibility Office is refusing to enforce the current support order stating that it is too confusing. For the purpose of this order then, I will assume the $400 per month payment has been made for August and September. I am not sure if the confusion is only over extraordinary expenses or if it includes the basic child support. Not including the October payment then, I will credit the respondent father with a payment of $313 per month in excess of what was required for a period of nine months, for a total of $2,817.

14The applicant mother is prepared to acknowledge a further $800 credit that is not reflected in the chart at Exhibit I, as being the arrears according to FRO, so that amount would be reduced by $800 to be $7,773.07. Retroactive support for 2010 is $1,800, and for 2011 is $6,247.80. The total of those three amounts is $15,920.87 from which a credit of $2,817 must be deducted, leaving a balance owing of $13,103.87. I find that to be the total amount of retroactive and arrears for child support owing by the respondent father to the applicant mother based on the above findings. I am assuming that the calculations done by the Director of the Family Responsibility Office are accurate and have included a claim for extraordinary expenses in the form of daycare, based on the figures provided to them by the applicant mother. I note that for the purposes of the chart attached as Exhibit I to Tab 37 in Volume 3 of the Continuing Record, her calculations for child support based on all the incomes relied upon were accurate. The only change that I have made was to adjust the date for the commencement of the shared custody arrangement as of July, 2011, rather than January of 2011.

15The respondent father advised me, at the time of the hearing of this matter, that his current income is back to his full salary of approximately $80,000 per year. He also advised me that he is making a claim for some form of disability, which will reduce that income somewhat, so it is very difficult to know what his year end income will be for the taxation year 2013.

16For the purpose of ongoing child support based on the 2012 income, he is required to pay to the applicant, $37 per month as of October 1st, 2013. In addition to that payment, he is required to pay an additional $400 per month, commencing on the same date, towards the arrears of $13,103.87 until paid in full. Those payments are payable to the Director of the Family Responsibility Office with a support deduction order to issue.

17With regard to the extraordinary expenses, including both daycare expenses and extracurricular activities for the children, the parties are to share those expenses on a prorated basis in accordance with their disclosed incomes. Because the parties’ latest disclosed incomes are relatively similar, the ratio will be close to an equal sharing of those expenses.

18The issue regarding the cost of daycare was raised during the hearing of the motion. I order the usual practice, as contemplated by the Guidelines, that those expenses, that are legitimately incurred, are to be paid on the ratio of the respective incomes of the parties. If the respondent is able to acquire similar services without any expense, that does not mean that he does not have to contribute towards the daycare expenses of the children when they are in the care of the applicant mother. Those claims by either party for daycare expenses obviously have to be supported by receipts. The most common and sensible way of dealing with these expenses is to look at the year prior and amortize them into a monthly amount that makes sense for the average expense over the last year or two. If it is obvious that there is going to be some significant change in the upcoming year. Use that knowledge to work out a reasonable figure that might be amortized and then it can be adjusted based on the actual receipts at the end of the year.

19With regards to the extracurricular activities, such as sports or similar activities for either child, those expenses should also be shared on a prorated basis between the parties. Again, a receipt is required and the calculation should be done in accordance with the Guidelines. Given their current incomes, the sharing of the extracurricular expenses would be reasonably close to equal. It would not be unreasonable for each child to have one extracurricular activity in accordance with their interests and abilities and consistent with the combined income of both parents.

20With regards to the custody and access issues, I have a number of concerns. It is obvious from reading the affidavits, together with the attached copies of emails, plus listening to the parties at the time the motion was argued, that there is a significant failure to communicate and cooperate in a manner that is appropriate for parenting these children. In my view, it will, in the long term, be destructive to the children to continue to share equal time with them until the issue of cooperation and communication between the parents is solved. The children are left in a world of parallel parenting, rather than joint parenting. Some of the issues raised by the applicant mother give me great concern about whether the children’s best interests are in fact being addressed adequately.

21The respondent father is currently insisting that he pick up the children each Friday after school to deliver them to the respondent mother’s home even when they are going to that home for the following week to reside with the applicant mother on the current week-about arrangement. That action is in direct contravention of the written agreement between the parties dated September 6th, 2011, and flies in the face of common sense. The minute school ends on that Friday, the children are in the care of the mother and the respondent father should not be intervening by picking the children up and taking them to her home. It is, in my opinion, an attempt to undermine her position as a parent.

22There have been numerous examples given, and referred to in email attachments to affidavits, to indicate that there have been occasions when the respondent father has stated that their son can participate in hockey, provided that the applicant mother not only pay the full expense related to equipment and registration for that activity, but also travel to Lansdowne from Kingston, and return, in order for the child to attend practices or games. Some of those practices are after school, early evening and some are early on weekend mornings. In reviewing the emails, it is clear that the respondent father takes the position that the choice of hockey, about which he was not consulted as an activity for their son, is for the sole benefit of the applicant mother and that he is not willing to cooperate in any way except as set out above. The applicant mother states that the child thoroughly enjoys that activity and is extremely upset when it does not happen because of lack of cooperation by the respondent father. The respondent father has chosen to move to Lansdowne after the granting of the joint custody order, at which time he resided in the city of Kingston where the applicant mother resides and the activity takes place. From the attitude of the respondent father displayed in the emails filed as attachments to the applicant’s affidavit at Tab 31, it is clear that he is putting his own interests ahead of that of his son. His bitterness towards the applicant mother is blatantly obvious in those emails. He sees the issue of hockey as a power struggle between himself and her, rather than something to be supported by him for the benefit of his son.

23In fairness, it must be noted that some of the applicant mother’s replies are also rather combative, but most of that is in frustration generated by the respondent’s dealing this issue. It is the responsibility of a parent to allow their children to take advantage of opportunities to develop their various interests, rather than attempt to direct those interests into something of the parent’s choosing. Obviously, the respondent father has failed to support their son’s participation in hockey in any meaningful way. I see that as a symptom of a much larger issue between the parents, rather than simply dealing with the current disagreement over providing transportation and paying the expenses for the activity. It seems to be rooted in a much more complex and toxic element of the relationship between these two parents. Actions do, indeed, speak louder than words and these two failures by the father to recognize how destructive his conduct will be in the long term to his children give me great concern.

24At the same time, I am uncomfortable in making a significant change in the existing custody and access arrangement, based on the affidavit material filed, without a more sophisticated analysis of the best interests of these children. My obvious concern is that the children, who care deeply about each parent, will continue to be caught in the tension between the parents and will suffer long term emotional damage as a result. That is totally predictable, unless the current dynamics are improved significantly within the foreseeable future. In my view, if the father continues to pick up the children at school on the Friday when they are going to their mother’s home to stay for the week, or if he continues to fail to provide transportation for the children for their reasonable extracurricular activities while they are in his care, then there would be reasonable grounds to bring a motion to change the custody arrangements back to sole custody to the mother, in view of his lack of insight and judgment demonstrated on those two very basic issues.

25As I stated at the time of the hearing of the motion, the greatest gift these parents can give their children is to stop fighting. That requires a major change in attitude and a willingness to cooperate. From the material disclosed at this point, it appears that the father is the person who needs to demonstrate that he can truly focus on the children’s best interests by putting their interests ahead of his own in very practical ways. At this point, both parents need to see the toxic nature of their relationship as an outside threat to the wellbeing of their children and make every attempt to support these children.

26The question of the sharing of information about the health education and welfare of the children was addressed during the course of the motion. The applicant mother has the authority to make final decisions regarding medical issues, but the respondent father is entitled to information about the children’s health, and every effort should be made to share that information in a reasonable way so that both parents are informed. In that way, it is hoped that the kind of mistrust that has arisen over their son’s diagnosis and treatment can be avoided and both parents can fully support him in an appropriate way.

27Under the circumstances, although I obviously have several concerns, I do not feel comfortable making any significant change to the current order without a more detailed process to exam all the aspects of that issue. The goal of the process should be to have as good a relationship as possible with both parents. Failure to achieve that goal is a failure by the adults who have the responsibility for the care of these children.