COURT FILE NO.: 2504/11
DATE: 2014-02-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Karin Schonfeldt Mogenson
Foluke A. Ololade, for the Applicant
Applicant
- and -
Richard Anthony Adamo
Marlene J. VanderSpek, for the Respondent
Respondent
HEARD at Welland, Ontario:
September 5, 6, 9, 10 & 11, 2013
THE HONOURABLE JUSTICE T. MADDALENA
JUDGMENT
THE ISSUES
[1] The issues for adjudication during this five-day trial are:-
Sole custody versus joint custody of the child Erika Katrina Adamo, born January 21, 2010;
Access/times the child shall spend with her father, the respondent;
Child support both ongoing and retroactive;
Section 7 expenses both ongoing and retroactive; and
Issues related to the child’s schooling.
[2] The applicant mother on the first day of trial advised the court that she was no longer seeking spousal support or any property claims. Thus, the claims of the applicant dealing with spousal support and property are hereby dismissed.
BACKGROUND FACTS
[3] The applicant mother, born October 4, 1971, and the respondent father, born January 8, 1974, are the biological parents of the child, Erika Katrina Adamo, born January 21, 2010.
[4] These parents were never married. There is dispute between them as to whether they resided together, at one time, as common-law spouses. The applicant mother claims that they did reside together, whereas the applicant father states the parties resided merely as friends and in a landlord and tenant relationship. As the applicant, at the commencement of this trial, withdrew her claims for spousal support and property, this is no longer an issue regarding the court’s adjudication.
[5] The only issues therefore are the child-focused issues.
[6] The child was born while the applicant resided at the home of the respondent. The parties both agree that the applicant, with the child Erika, left the home owned by the respondent father on December 26, 2010.
A REVIEW OF TEMPORARY COURT ORDERS MADE
[7] The first court order in this litigation between the parties was a temporary order made by Justice E. S. Martin of the Ontario Court of Justice dated February 18, 2011. This order provided the respondent father access to Erika as follows:-
Week 1 – Tuesday from 3:30 p.m. to 7:00 p.m. and on weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. commencing the week of February 21, 2011.
Week 2 – Tuesday from 3:30 p.m. to Wednesday at 7:00 p.m. commencing the week of February 28, 2011.
[8] By temporary order made June 22, 2011, I ordered, among other things, increased access to the respondent as follows:-
Week 1 – from Tuesday at 3:30 p.m. to Wednesday at 7:00 p.m. and weekends from Friday at 5:00 p.m. to Sunday at 7:00 p.m.
Week 2 – Tuesday from 3:30 p.m. to Wednesday at 7:00 p.m.
[9] Thirdly, by order of Justice Reid dated December 9, 2011 the parties on a consent basis dealt with access for Thanksgiving, Easter, Christmas Eve, Christmas Day, as well as birthdays, Mother’s Day and Father’s Day.
[10] Fourthly, on April 25, 2012 Justice Arrell increased the access of the respondent to the child on week two to include Tuesdays at 3:30 p.m. to Thursdays at 7:00 p.m. commencing the week of May 7, 2012.
[11] On December 17, 2012 I ordered, and the parties consented to, among other items, minor amendments to the Christmas 2012 schedule.
[12] Further, during this litigation there were two orders made for the involvement of the Office of the Children’s Lawyer (“OCL”).
[13] The Office of the Children’s Lawyer completed a report dated March 28, 2013 whereby a series of recommendations were made. The principal recommendation to the parents was that of the parents sharing joint custody of Erika. The Office of the Children’s Lawyer recommended times with dad to include as follows:-
Week 1 – Tuesday at 3:30 p.m. to 7:00 p.m. and the weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m. to be extended to Monday if Monday is a PD day;
Week 2 – Tuesday at 3:30 p.m. to Thursday at 7:00 p.m.
[14] The OCL also made recommendations which included holidays, birthdays, March Break, and summer vacation, as well as suggestions for programs to assist each of the parents with the joint parenting of Erika.
[15] At the time of trial the access of the respondent father to the child continued as follows:-
Week 1 – from Tuesday at 3:30 p.m. to Wednesday at 7:00 p.m. and the weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m.;
Week 2 – Tuesday from 3:30 p.m. to Thursday at 7:00 p.m.
[16] This access has been in place since the order of Justice Arrell of April 25, 2012.
CUSTODY VERSUS JOINT CUSTODY
Overall Position of the Parties
[17] The applicant mother seeks sole custody. The respondent father seeks joint custody or in the alternative sole custody of the child with him. In this proceeding no formal custody order has yet been made by the court.
[18] The mother states in her evidence that joint custody could not possibly be in the child’s best interest as there is too much conflict between her and the respondent. She adamantly states that she and the respondent cannot communicate and that they would never be able to jointly parent Erika.
[19] The father states in his evidence that despite some differences, he and the applicant mother have been largely successful in co-parenting Erika, and Erika, most importantly, is doing very well under the system of joint parenting. The father fears that if mother is given sole custody she will marginalize him as a parent and eventually minimize his role in Erika’s life.
The Mother’s Evidence
[20] The applicant mother states in her evidence that the respondent father is overbearing and throughout the child’s life she has been the primary caregiver for Erika. She is adamant that she wishes to make the final decisions with respect to Erika and that this is of paramount importance to lessen conflict in Erika’s life.
[21] The applicant mother has expressed a number of concerns with respect to the respondent father which included issues that the respondent father has taken the child to bars, that he is taking showers with the child, that he gives the child too much candy, chips, suckers, etc. In addition, she complains that the father has forwarded to her in the past far too many emails and/or text messages and she has found his attitudes and behaviours to be harassing and even threatening.
[22] The applicant mother stated in her evidence that it is her view that the father will never be happy until he no longer has to pay child support and that his main goal is to not pay support for Erika.
[23] The applicant mother further claims that any exchanges of the child must now be in a public place, as in the past she was very concerned regarding the father’s harassing conduct and behaviour towards her.
[24] The applicant mother does not concur with the OCL’s recommendations that both she and the respondent father should be jointly parenting Erika. The applicant mother has stated that she should be the one making the decisions for Erika and this is in Erika’s best interests. The applicant mother further states that the whole history of the relationship has been acrimonious and that there is no historical cooperation and the parties simply cannot work together.
The Evidence of the Respondent Father
[25] The respondent father describes the applicant as a good mother but very “possessive” and “hovering” over Erika, especially when he is around. The respondent father believes that when it comes to issues surrounding Erika, the applicant mother simply does not wish the child to be with him and she does not trust him with Erika. He claims that she is far too “possessive” and “coddles” Erika too much. He states she has to be there every day and there is no consideration for him as the father of Erika.
[26] The father’s evidence was that he constantly felt “supervised” by the applicant mother and feels that the applicant mother fails to understand that as the child’s father, it is also in Erika’s best interests to spend substantial time with him.
[27] The respondent father acknowledges sending approximately 130 texts to the applicant mother over a period of time and he states in his evidence that she sent 65 texts to him. According to him, his are more simply because she did not bother responding to his texts or emails.
[28] The respondent father acknowledged that he has been often frustrated at the lack of cooperation exhibited by the applicant mother, particularly in not wishing him to have overnight access to Erika. This has prompted him, at each instance, to have to make a court motion to obtain additional access and he notes each time he made the motion he was successful in obtaining more time with Erika.
[29] It is noteworthy that the father states that things are better between him and the applicant mother now that his access has increased. The evidence from the father, which I accept, is that he provides the mother sauces made from his garden vegetables. He has provided meals for the child, which have included the mother attending. He has provided vegetables from his garden to the applicant mother and he has also on at least one occasion gone out of his way to assist with the repairing of the applicant’s motor vehicle.
[30] The father acknowledges the applicant is a good mother but states simply that he wishes to be viewed as an equal with her.
[31] The mother, for her part, has acknowledged that the father is a good cook. The father states that he makes home cooked meals including sauces, meatballs, and hosts weekend family dinners, which include Erika, and feels that it is not an issue if from time to time she has a candy and a few chips. The mother, on the other hand, states that she only provides organic snacks to Erika.
[32] The father states that he recognizes that it is important for Erika to be close to the family on both sides and has reiterated his concern that if sole custody is granted to the mother he will be minimized as Erika’s father.
[33] With respect to the issue of attending bars with the child, the father acknowledged that he brought Erika to an establishment known as the Elbow Room in Welland, which is a lunch place where many people bring their children all the time. During lunch he had one beer. When the mother complained to Family and Children’s Services regarding this, an investigation was conducted and the undisputed evidence is that the society has closed its file. The father also states that when the showering issue was brought to his attention he stopped and, again, the society has closed its file with regard to this.
[34] The father’s undisputed evidence is Family and Children’s Services and the Office of the Children’s Lawyer have no concerns with respect to any of the issues raised by the mother with regard to his care of the child. All files are closed and I accept that there are no ongoing concerns with the Family and Children’s Services or the Office of the Children’s Lawyer.
[35] It is noted in the father’s evidence that he attended a six-week program at Pathstones for the purposes of understanding the effect of separation on children and ways to assist children in the separation of the parents and the important role of parents in the children’s lives. The respondent father also attended the Triple Positive Parenting course which helps him deal with the child’s behaviour.
Analysis
[36] The evidence before the court overall is that Erika is doing very well. Erika has had substantial time with her father since February 2011 when the initial access order was made. This access order was increased April 2012 and the access has been continuing.
[37] That access has gradually been increased and the child continues to do well and flourish.
[38] This child is fortunate as she has both parents who love and care for her very much.
[39] The mother’s unwillingness to grant the father more time supports that she may be “possessive” and “hovering”, and supports concerns that perhaps she feels only she knows what is best for Erika.
[40] However, from the court’s perspective, all the concerns raised by the mother have been examined and all files are closed with respect to allegations against the father. There have been no concerns raised by any third parties who investigated matters with respect to the father’s care of the child.
[41] The court has no doubt there has been conflict in the past. However, despite the conflict in the past, these parents have agreed on a number of issues with respect to Erika.
[42] The court has concerns that mother’s claims of not being able to work together and their inability to communicate may have more to do with bolstering her own claim for sole custody as opposed to the real reality with respect to Erika’s life. The court accepts that the father is genuine when he says he loves Erika and genuinely wants a role in her upbringing.
[43] Erika is doing well and is close to his family, as well as to her mother and to her mother’s family. The child’s relationship should continue with her mother’s family as well as her father’s family. The court has the same concern expressed by the father that if sole custody is granted to the mother, she will at least attempt to limit his role in Erika’s life. This is not in Erika’s best interest. Erika is indeed thriving in the care of both her mother and her father.
[44] There was evidence presented to the court in Exhibit 15 that the applicant mother, at one point, was prepared to accept less child support if the father would accept less access to the child. The evidence is, which the court accepts, that the father was unhesitatingly quick in responding that this was not acceptable and that his goal was to spend time with Erika. I find his evidence credible and clear that he wishes more time with Erika and this is in Erika’s best interest.
[45] The evidence does support that certainly in the past the mother has been hesitant with access to the father, which certainly caused frustration on the part of the father as he foresaw his access as being unduly and unjustifiably restricted.
[46] The court notes in the Statement of Agreed Facts filed by the parties that initially the mother refused to allow the father overnight access to the child. (Paragraph 22 – Statement of Agreed Facts) It is understandable that the father may have been frustrated and thus court proceedings were commenced. It is also understandable that perhaps the continued unwillingness on the part of the mother to allow increased access may have fueled some of the points of discord between the parties.
[47] The court’s only concern relates to Erika’s best interest. When parties raise issues of improper actions on the part of the other that affect the child, it is of paramount importance that these be properly investigated. I acknowledge the concerns of the mother regarding the respondent father’s care of Erika. These include the father smoking in the presence of the child, making unhealthy food choices, or showering with the child, as well as instances where police were called. I am satisfied, based on the evidence at trial, that all of the concerns of the mother were thoroughly investigated by the proper authorities and that at the end, the result was there were no concerns with respect to father’s care of Erika.
[48] The father also made complaints with respect to the mother, such as the “squealing of tires” in his driveway and not permitting court ordered access. I am satisfied, as well, that the father’s concerns were investigated thoroughly and all files were closed, and there were no concerns regarding the mother’s care of Erika.
[49] The court is satisfied that both parents are loving parents and concerned for Erika’s best interest.
[50] In making a determination with respect to the custody of a child, the court is required to consider all those factors set out in s.24 of the Children’s Law Reform Act, RSO 1990 c C.12. The test for the court is clearly what is in the best interest of Erika.
[51] Having considered all the evidence, it is in the child’s best interest for both parents to have joint custody of Erika with the access which has been put into place since April 2012 to continue. It is in Erika’s best interest for both parents to play a major role in her upbringing. The times/access with her father, therefore, are as follows:-
Week 1 – Tuesday from 3:30 p.m. to Wednesday at 7:00 p.m. and on the weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m.;
Week 2 – Tuesday from 3:30 p.m. to Thursday at 7:00 p.m.
[52] In addition the following shall be included:-
Family Day – from 10:00 a.m. to 7:00 p.m. in even years with mother and odd years with father and alternating thereafter;
March Break – the parties shall alternate March Break. The mother has March Break in 2014 and the father has March Break in 2015 and alternating thereafter.
Easter Monday – 10:00 a.m. to 7:00 p.m. in even years to the mother and odd years to the father.
Victoria Day – from 10:00 a.m. to 7:00 p.m. in even years to the mother and odd years to the father.
Mother’s Day – always with the mother from 10:00 a.m. to 7:00 p.m. and Father’s Day always with the father from 10:00 a.m. to 7:00 p.m.
Canada Day – unless it falls on someone’s vacation time, from 10:00 a.m. to 7:00 p.m. on even years with the mother and odd years with the father.
Summer holidays – Each party shall be entitled to two nonconsecutive weeks of summer vacation with Erika. The father shall choose his two weeks by May 1st in 2014. The mother shall choose her two weeks by June 1st in 2014. In 2015 the mother shall choose her two weeks by May 1st and the father shall choose his two weeks by June 1st 2015. This process shall continue with the father choosing his two weeks first in even years and the mother choosing her two weeks first in odd years.
Labour Day – on even years with the mother and odd years with the father, 10:00 a.m. to 7:00 p.m.
Thanksgiving Monday - even years with the mother and odd years to the father, 10:00 a.m. to 7:00 p.m.
Christmas – Christmas Eve, Christmas Day, and Boxing Day divided as follows:
Commencing 2014, Christmas Eve 10:00 a.m. to Christmas Day 3:00 p.m. with the father.
Christmas Day 3:00 p.m. to Boxing Day at 8:00 p.m. in 2014 with the mother.
The balance of the Christmas holidays shall be equally shared every year.
The above schedule shall be alternated between the mother and the father with balance of Christmas holidays always remaining equally divided between the mother and the father.
There shall be such other access as agreed upon from time to time.
Any communication between applicant and respondent shall be through a communication journal and shall be only for issues directly related to Erika. The parties may use email and/or texting only in emergencies.
[53] I have made no specific provisions for the child’s birthday as this can be celebrated by each parent on their respective weekends with the child. This will also permit other family members to share in the child’s birthday celebrations with each respective parent.
[54] During the holiday times if the parties are travelling, whether in the summer, or March Break, or Christmas time, a complete itinerary shall be provided to the other parent. While travelling, Erika shall be permitted to have telephone contact with the other parent at minimum every other day. Telephone contact should occur with Erika on a regular basis with the other parent with whom she is not with at the time.
CATHOLIC SCHOOL ISSUE
[55] Both parties have agreed to have Erika baptized into the Roman Catholic faith. The Statement of Agreed Facts (at paragraph 15) confirms that Erika was baptized on August 15, 2010 with the consent of both parents.
[56] Both of the parents have agreed that when Erika commences school officially in September 2014 she should attend a Catholic school until at least the completion of grade 8. The parents, however, do not agree on which school this should be.
[57] The applicant mother wishes Erika to attend the Catholic school in the district where she resides. This would be St. Charles Catholic School in Thorold, Ontario. The father prefers Erika to attend St. Andrew Catholic School in Welland, Ontario which is in his school district and where he resides.
[58] The father stated in his evidence that St. Charles in Thorold is a divided school, meaning that it does not contain from kindergarten to grade 8 and that Erika would have to, at some point, change to another Catholic school to complete grade 8. The father argues that St. Andrew in Welland has from kindergarten to grade 8 and, further, that St. Andrew is not far from the mother’s workplace, which is the Fonthill Montessori Preschool.
Analysis
[59] On the evidence I am satisfied that it is appropriate for Erika to attend the Catholic school and, indeed, to the parents’ credit, they both have agreed that this is best for Erika and there is no dispute regarding this. I find, based on the evidence, both schools are equal having heard no evidence to the contrary.
[60] The only issue appears to be whether Erika should attend the mother’s or the father’s school district. St. Charles School in Thorold would require that the child transfer to another school to complete to grade 8, whereas attendance at St. Andrew would not require a change. Erika’s friends would likely remain the same all along regardless of school.
[61] My order therefore is that Erika attend St. Charles School in September 2014 which is in her mother’s school district.
MONTESSORI SCHOOL
[62] Erika, at the time of trial, had been attending the Fonthill Montessori School. Her mother is a teacher there. Erika attends, according to the evidence at trial, three days one week and four days the next from 9:15 a.m. to 11:45 a.m. Erika has been attending this Montessori school since April 2011 and still attends except for summers.
[63] The mother’s evidence at trial is that on January 23, 2011 the father agreed to the child attending this Montessori school. Previous to the child attending the Montessori school the parties’ respective mothers had each been involved in babysitting Erika. The mother submits that the child is flourishing at the Montessori. The mother states that when the father found out that she would be one of Erika’s teachers, and further that the Montessori was not free of charge, he withdrew his consent.
[64] Further, the father alleged that there was a conflict of interest if the applicant taught Erika at the Montessori school and therefore launched a series of complaints against the applicant and the Montessori school.
[65] Investigations were carried out and the dispute was resolved in favour of the school ascertaining that there were no conflicts with the child’s mother teaching Erika. It is also noted that the applicant was only one of three teachers that Erika had at the Montessori school. As a result, the father disagreed with the findings of the assessment board and then withdrew his consent for Erika to attend the Montessori school. The father objected stating the Montessori school was of no benefit to Erika and that his mother would be prepared to babysit. He further asserted this was not a reasonable expense that he could afford to pay.
Analysis
[66] The father did agree on January 23, 2011 with Erika attending Montessori school and this is confirmed in emails filed in the evidence. The father evidence is that he gave his consent based on being told by the mother that because she was a teacher there the Montessori school would be free for Erika. He states this is an expense he cannot afford to pay that, indeed, he is unwilling to pay unless the court orders it.
[67] The evidence of both parents, as already referred to, is that Erika is doing well. That is a credit to both of these parents and fundamentally underlies the court’s reasoning for granting joint custody to both applicant and respondent. Erika has been attending the Montessori school since 2011. I accept the evidence of the mother that this has been beneficial for Erika. This is helping Erika, not only in learning skills, but likely important in assisting her in acquiring important socialization skills. The father initially consented but withdrew his consent based on what he felt were misrepresentations or misinformation given to him by the mother. There is no doubt this issue has fueled the past conflict between these parties.
[68] The court has no objection to grandparents babysitting a child and, indeed, grandparents should always, wherever possible, be an important part of any child’s life. Notwithstanding, and under the circumstances, I find that Montessori schooling is a benefit to Erika and is in her best interest.
[69] Further, it is not an unreasonable expense given the circumstances of these parents and, as such, I find this a legitimate s.7 expense. I will deal with this expense under the further heading herein of s.7 expenses.
CHILD SUPPORT
[70] Both parties agree that the applicant left the residence of the father with the child on December 26, 2010. The child was born January 21, 2010 and was approximately 11 months old when the mother left the residence owned by the father. The father had been employed fulltime at EnergeX Tube, JMC Steel Group, Welland, Ontario.
[71] The respondent father was injured at his workplace on February 13, 2013. He was off work due to the injury for one month. He returned to work on modified duties on March 12, 2013.
[72] On May 13, 2013 he was terminated from his employment. The evidence is that the employer’s position is that this was with cause and, thus, no severance was received by the respondent father. The respondent father will receive his pension benefits at age 65.
[73] According to the further evidence of the respondent, his union is of the view that he was unjustly terminated. As a result, an arbitration hearing was scheduled in November 2013.
[74] I order that the respondent father disclose to the applicant the results of the arbitration hearing.
[75] The respondent father continued at trial to take the position that he remained unable to work due to health related issues.
[76] I am satisfied that the respondent is required to take multiple medications for stress, anxiety and other injuries, but I am not satisfied based on the evidence that he is totally disabled so as to prevent him from pursuing any type of work. While some medical evidence was produced by the respondent father to support his claims, there was no medical evidence presented at trial to suggest that the father is completely disabled and cannot perform any type of work.
[77] The applicant through counsel suggested to the respondent that his 2013 income ought to be imputed in the amount of approximately $30,000.00. The respondent agreed with this. This $30,000.00 included a combination of employment earnings from January to May 2013 as well as including employment insurance benefits for the balance of the year. The respondent father also stated in his evidence that if required he is prepared to retroactively adjust any child support that may be owed by him as well as s.7 expenses for dance and gymnastics, but he was not in agreement with the s.7 expenses claimed for the Montessori school (unless court ordered).
[78] The evidence of the respondent’s income as shown on his income tax return is as follows:-
2010 - Line 150 $50,274
2011 - Line 150 $56,553
2012 - Line 150 $52,628
2013 - Agreed Upon $30,000
[79] With respect to the respondent’s income tax returns and the issue of real estate rentals, the court notes that the respondent is taking 50% deductions on insurance, interest, maintenance and repairs, property taxes, and utilities. I find these are within the acceptable range and thus make no adjustments that would affect the line 150 income on the tax return.
Mother’s Employment
[80] The mother is a teacher at the Fonthill Montessori School. Financial statements filed by the mother indicate that her income is in the range of approximately $18,000.00 to $20,000.00 per year. It is not clear whether this figure includes employment insurance, which the mother stated she receives in the summer.
[81] The mother’s financial statement sworn April 25, 2013 shows an income of $21,931.00 (rounded $22,000.00), but again it is unclear whether this includes employment insurance in the summer.
[82] The mother’s 2012 notice of assessment at line 50 indicates an income of $19,414.00.
Temporary Order of June 22, 2011
[83] My order of June 22, 2011 ordered the respondent father to pay child support to the mother for the benefit of the child in the amount of $489.00 per month, to commence February 1, 2011 and continue on the first day monthly thereafter.
[84] This was based on the father’s income of $52,782.00. The father’s line 150 income in 2010 was $50,274.00, and his line 150 income in 2011 was $56,553.00 and in 2012 $52,628.00.
[85] Given this evidence, I make no adjustment on child support for the balance of 2011 and for the year 2012. The above order of June 22, 2011, therefore, shall continue until and including December 1, 2012 at which time it shall terminate.
Temporary Consent Order of July 31, 2013
[86] By July 31, 2013 the respondent father had no income.
[87] My order of July 31, 2013 provided, on the consent of the parties, and on a without prejudice basis, that effective June 1, 2013 the respondent father should pay to the applicant mother the sum of $50.00 per month for the support of Erika. This order further provided that this was due to the respondent father’s current unemployment status.
[88] For 2013, the parties agreed that $30,000.00 ought to be imputed to the respondent father.
[89] Based on the evidence at this trial, I do impute at least $30,000.00 of income to the respondent for 2013.
[90] Accordingly, therefore, my order of July 31, 2013 is varied so that effective January 1, 2013 based on an imputed income of $30,000.00 to the respondent, the respondent shall pay support to the applicant, for the child Erika, in the amount of $245.00 monthly. This shall commence January 1, 2013 and continue on the first day of each and every month thereafter until further court order or agreement of the parties.
[91] Further, I order that the parties shall continue to exchange income tax returns by July 1st of each year and their notices of assessment as soon as available from Revenue Canada. The next exchange shall occur July 1, 2014.
Calculation of Arrears with Respect to Child Support
[92] The respondent father has stated in his evidence that he is willing to catch up and pay any arrears accumulated under the court orders made.
[93] The applicant provided a calculation for some arrears, however neither the applicant nor the respondent provided a Family Responsibility Office (“FRO”) statement of arrears. Without a FRO statement of arrears it is not possible to determine the exact arrears.
[94] Based on my orders, FRO will be able to calculate arrears. Once the arrears of child support are calculated by FRO, my order is that the respondent shall pay those arrears at the rate of $50.00 per month until fully paid commencing March 1, 2014 and continuing on the first day of each and every month thereafter until fully paid.
SECTION 7 SPECIAL EXPENSES
Montessori School Expenses
[95] I have already earlier dealt with the Montessori school and considered it as a s.7 expense.
[96] The evidence at trial relating to this expense, paid fully by the applicant mother and supported by receipts, is as follows:-
April 2011 to June 2011 $ 465.00
September 2011 to December 2011 $ 310.00
June 2012 to June 2012 $ 930.00
October 2012 to December 2012 $ 585.00
January 2103 to June 2013 $1,170.00
Total Montessori Expense $3,460.00
[97] The mother asks that the father pay 70% of the Montessori expenses as representing his proportionate amount.
[98] The legislation provides s.7 expenses are shared by the parties in proportion to their respective incomes, after taking into account subsidies, benefits, or income tax deductions or credits relating to that expense. Section 7(3) under the Child Support Guidelines reads as follows:
“Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.”
[99] No evidence was provided by either party of income tax credits or deductions relating to the Montessori tuition expense. The financial statements of the mother filed with the court, along with the notices of assessment, do not assist the court in this regard. No one gave evidence with respect to the net cost to the mother of the Montessori school after tax benefits, credits, or subsidies.
I will therefore reduce the Montessori expense by $460.00 to account for credits and subsidies and leave the expense at $3,000.00 to be shared equally by both the mother and the father. In this case I do not order that the parties share the expenses in proportion to income. While I realize that the father’s income is higher than that of the mother, including the income in 2013, the father is ordered to do the driving in terms of the pickup and drop-off for the child. I take this into consideration also in coming to my conclusion that the father and the mother shall share the Montessori expense of $3,000.00 equally. Thus, the father’s share on account of the Montessori school expenses for the child shall be fixed at $1,500.00 and I will deal with the payment of this under paragraph 107 herein.
Dance Classes
[100] The evidence presented at trial is that Erika enjoys dance classes. The respondent father stated in his evidence he has no problems with paying for Erika’s dance classes, both on a go forward basis and retroactively.
[101] The evidence is that for 2012 and 2013 the dance classes total cost is $573.00. The evidence further is that all the cost was paid by the applicant, and the father did not contribute. The mother further states that ongoing dance classes cost $46.00 per month and the classes operate from September 2013 to May 2014.
[102] No evidence was presented as to whether the dance classes are subject to subsidies or tax credits, in particular whether the dance classes have tax credit eligibility. In any event, the amounts are not large and therefore I order that the father pay one half of those expenses on account of 2012 and 2013 dance classes, which equals $287.00.
[103] On account of the ongoing dance classes, I order that the father pay one half of the cost of the ongoing directly to the provider of the classes.
Gymnastics
[104] The evidence is that Erika is also involved in gymnastics. The respondent father is not opposed to paying for Erika’s gymnastics. For the year 2012 the evidence of the mother is that Erika’s gymnastics’ expense was $392.00, of which the father paid $91.00.
[105] Given that gymnastics is in Erika’s best interests, and both parties agree with the activity, I find that arrears on account of gymnastics are fixed at $105.00 owing by the respondent father to the applicant mother. Continued monthly amounts for the gymnastics are to be shared equally by each of the parents and each parent shall pay directly to the gymnastics provider one half of the total monthly amount as applicable.
[106] I also order that the parties shall advise each other of all future activities for Erika, and all future activities shall be consented to by both parties which consent shall not be unreasonably withheld.
[107] The total arrears on s.7 are: Montessori $1,500.00, dance classes $287.00, and gymnastics $105.00, for a total of $1,892.00. Total arrears therefore are $1,892.00 owed by the respondent father to the applicant mother on account of s.7 expenses for Erika’s Montessori school, Erika’s dance classes and Erika’s gymnastics. The arrears of $1892.00 shall be paid by the respondent father to the applicant mother commencing March 1, 2014 and continuing on the first day of each and every month at the rate of $100.00 per month until fully paid. This is in addition to the regular child support ordered herein.
Insurance
[108] The respondent father shall designate Erika as beneficiary on all life insurance policies available to him. He shall designate the applicant as trustee for Erika and this designation shall continue for as long as Erika is dependent.
[109] The applicant mother shall designate Erika as beneficiary on all policies of life insurance available to her, and she shall further designate the respondent father as the trustee for Erika on said policy. This designation shall continue for as long as Erika remains a dependent child.
SUMMARY OF ORDERS
[110] Summary of orders:
(1) The applicant and the respondent shall share joint custody of Erika Katrina Adamo, born January 21, 2010.
(2) Access to the respondent father is as follows:
(i.) Week 1 – the respondent father shall have Erika on Tuesday from 3:30 p.m. to Wednesday at 7:00 p.m. and on the weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m.
(ii.) Week 2 – the respondent father shall have Erika on Tuesday from 3:30 p.m. to Thursday at 7:00 p.m.
(3) Family Day – from 10:00 a.m. to 7:00 p.m. in even years with mother and odd years with father and alternating thereafter.
(4) March Break – the parties shall alternate March Break. The mother has March Break in 2014 and the father has March Break in 2015 and alternating thereafter.
(5) Easter Monday – 10:00 a.m. to 7:00 p.m. in even years to the mother and odd years to the father.
(6) Victoria Day – from 10:00 a.m. to 7:00 p.m. in even years to the mother and odd years to the father.
(7) Mother’s Day – always with the mother from 10:00 a.m. to 7:00 p.m. and Father’s Day always with the father from 10:00 a.m. to 7:00 p.m.
(8) Canada Day – unless it falls on someone’s vacation time, from 10:00 a.m. to 7:00 p.m. on even years with the mother and odd years with the father.
(9) Summer holidays – Each party shall be entitled to two nonconsecutive weeks of summer vacation with Erika. The father shall choose his two weeks by May 1st in 2014. The mother shall choose her two weeks by June 1st in 2014. In 2015 the mother shall choose her two weeks by May 1st and the father shall choose his two weeks by June 1st 2015. This process shall continue with the father choosing his two weeks first in even years and the mother choosing her two weeks first in odd years.
(10) Labour Day – on even years with the mother and odd years with the father, 10:00 a.m. to 7:00 p.m.
(11) Thanksgiving Monday - even years with the mother and odd years to the father, 10:00 a.m. to 7:00 p.m.
(12) Christmas – Christmas Eve, Christmas Day, and Boxing Day divided as follows:
(i.) Commencing 2014, Christmas Eve 10:00 a.m. to Christmas Day 3:00 p.m. with the father.
(ii.) Christmas Day 3:00 p.m. to Boxing Day at 8:00 p.m. in 2014 with the mother.
(iii.) The balance of the Christmas holidays shall be equally shared every year.
The above schedule shall be alternated between the mother and the father with balance of Christmas holidays always remaining equally divided between the mother and the father
(13) There shall be such other access as agreed upon from time to time.
(14) Any communication between applicant and respondent shall be through a communication journal and shall be only for issues directly related to Erika. The parties may use email and/or texting only in emergencies.
(15) During the holiday times if the parties are travelling, whether in the summer, or March Break, or Christmas time, a complete itinerary shall be provided to the other parent. While travelling, Erika shall be permitted to have telephone contact with the other parent at minimum every other day. Telephone contact should occur with Erika on a regular basis with the other parent with whom she is not with at the time.
(16) Erika shall attend St. Charles Catholic School in September 2014.
(17) The respondent father shall disclose to the applicant the results of the arbitration hearing.
Child Support
(18) The order of June 22, 2011 requiring the respondent father to pay child support to the applicant mother in the amount of $489.00 monthly from February 1, 2011 shall terminate December 1, 2012.
(19) Commencing January 1, 2013 the respondent shall pay child support to the applicant, for the child Erika, in the amount of $245.00 monthly. This shall continue on the first day of each and every month thereafter until further court order or agreement. This is based on the respondent’s income of $30,000.00 annually.
(20) The parties shall exchange income tax returns by July 1st of each year and their notices of assessment as soon as available from Revenue Canada. The next exchange shall occur July 1, 2014.
(21) Once the arrears of child support are calculated by FRO, the respondent shall pay those arrears at the rate of $50.00 per month commencing March 1, 2014 and continuing on the first day of each and every month thereafter until fully paid.
Section 7 Expenses
(22) Arrears for s.7 expenses (Montessori, gymnastics and dance) are fixed at $1,892.00 payable by the respondent to the applicant at the rate of $100.00 per month commencing March 1, 2014 and continuing until fully paid.
(23) On account of the ongoing dance classes and gymnastics, the father shall pay one half of the costs directly to the providers of the activities.
(24) The parties shall advise each other of all future activities for Erika, and all future activities shall be consented to by both parties, which consent shall not be unreasonably withheld.
Insurance
(25) The respondent father shall designate Erika as beneficiary on all life insurance policies available to him. He shall designate the applicant as trustee for Erika and this designation shall continue for as long as Erika is dependent.
(26) The applicant mother shall designate Erika as beneficiary on all policies of life insurance available to her, and she shall further designate the respondent father as the trustee for Erika on said policy. This designation shall continue for as long as Erika remains a dependent child.
Other Claims
(27) The applicant mother’s claims regarding spousal support and property are dismissed.
(28) A support deduction order shall issue in accordance with the support orders in this judgment.
COSTS
[111] Given the mixed success of the parties, there shall be no order as to costs.
Maddalena J.
Released: February 28, 2014
COURT FILE NO.: 2504/11
DATE: 2014-02-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Karin Schonfeldt Mogenson
Applicant
- and –
Richard Anthony Adamo
Respondent
JUDGMENT
Maddalena J.
Released: February 28, 2014