Arlt v. Arlt, 2014 ONSC 2173

COURT FILE NO.: D-20558-13

DATE: 2014-04-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tina Doris May Arlt

Applicant

– and –

Craig Walter Arlt

Respondent

Carol Hartman, for the Applicant

Jerome Gardner, for the Respondent

HEARD: March 27, 2014

DECISION ON MOTION

GAUTHIER, J.

The Motions

1The Applicant Tina Doris May Arlt (the “mother”), brought a motion originally returnable on January 30, 2014, for the following relief:

a. A temporary order granting the Applicant, Tina Doris May Arlt, joint custody of the children of the marriage, Cienna Arlt (hereinafter “Cienna”) born January 4^th, 2008, and Ian Arlt (hereinafter “Ian”) born February 3^rd, 2011, with the children having their primary residence with the Applicant and with the children to be with the Respondent, Craig Walter Arlt, every second weekend from Friday at 3:30 p.m. until Sunday at 7:00 p.m.; every Wednesday from 3:30 p.m. to 7:00 p.m. and such further and other days and times as the Respondent and Applicant may agree.

b. A temporary order directing the Respondent to pay the Applicant for the support of Cienna and Ian the monthly table amount of child support as set out under the Federal Child Support Guidelines and in addition thereto, whatever amount this Honourable Court may deem just to cover the children’s special and extraordinary expenses as defined under s.7 of the Federal Child Support Guidelines, commencing January 1^st, 2013.

c. A temporary order directing the Respondent to maintain the Applicant as the sole irrevocable beneficiary under all life insurance policies presently held by him on his life for so long as he is obliged to pay child support.

d. A temporary order directing the Respondent to name the Applicant as the sole irrevocable beneficiary under all life insurance policies presently held by him on his life for so long as he is obliged to pay child support.

e. A temporary order that the Respondent’s child support obligations shall bind his estate and shall form a first charge against his estate.

2The Respondent Craig Walter Arlt (the “father”) brought a cross-motion, originally returnable on February 13, 2014, for the following relief:

a. A temporary Order granting the parties joint and shared custody of the two children.

b. In the alternative, joint custody of the children with the primary residence to be with the father.

c. In the further alternative, specified access to the children.

d. An Order for child support pursuant to Section 9 and/or 10 of the Child Support Guidelines.

3Both motions were heard by me on March 27, 2014, at which time I reserved my Ruling.

4What follows is that Ruling.

Background

5The parties are respectively 37 and 36 years of age. They began to live together in 2002 and married on September 25, 2004. This was a first marriage for both of them.

6The two children of the marriage are Cienna, born January 4, 2008 (currently 6 years of age) and Ian, born February 3, 2011 (currently 3 years of age).

7Cienna attends Senior Kindergarten at Valleyview School. Ian is in Day Care from 7:30 or 8:00 am Mondays, Tuesdays and Thursdays. On Wednesdays, the father picks him up at the day care at 3:30 pm. Ian is with the mother on Fridays as she does not work on Fridays. Cienna attends the same day care as Ian, before and after school during the week.

8The mother is employed as a dental hygienist, earning $52,820.63 per year. She has no extended health care benefits through her employment. The Wife works from 8:00 am until 5:00 pm, except during the summer months, when she works until 4:00 pm Monday to Wednesday, and until 2:00 pm on Thursday. As indicated above, she does not work on Fridays.

9The father is a geological technologist with Vale. He earned $86,862, inclusive of bonus in 2013, and will earn $75,960 base pay for 2014, having advanced to the position of Senior Geological Technologist effective January 2, 2014, and having received a base pay increase from $72,300 for 2013.

10The father leaves for work at 6:00 am and returns at 3:30 pm.

11The parties separated on July 1, 2012, although they both remained in the matrimonial home until December 2012, at which time the mother secured alternative accommodation.

12While the parties were still residing (although separate and apart) in the matrimonial home, they executed an Interim Collaborative Separation Agreement, on November 22, 2012.

13The clause entitled “Child Support” provided as follows:

10. a) Based on the current shared custody arrangements, the husband and wife agree that the husband shall pay to the wife child support for the children Cienna Arlt, born January 4, 2008, and Ian Arlt, born February 3, 2011, in the amount of $300 per month, commencing December 1, 2012, and continuing on the first day of each month thereafter.

11. b) Said child support is set on a temporary without prejudice basis and is subject to revision upon further negotiation between the parties and exchange of further financial documentation between the parties.

14The Agreement of November 22, 2012, identified the issues of custody, access, and child support as remaining outstanding.

15The mother withdrew from the collaborative Law Process in September 2013. This proceeding was commenced by Application issued on October 30, 2013.

16According to the mother, from December 2012 to late February 2013, there was no true parenting schedule and the children went back and forth between both parents. The mother says that this did not work well and that the shuttling back and forth upset the children.

17According to the mother, the children were in the care of the father for the balance of the 2013 calendar year as follows:

a. every second weekend from Friday at 3:30 pm until Monday at 6:30 am; and

b. every Wednesday at 3:30 pm until 6:30 am.

18The children were with the father during other times in February 2013 in the summer months of July and August, and at Christmas time as outlined in the Wife’s motion material.

19The above mentioned 6:30 am drop off was changed to 8:00 am in October 2013. The children are now being dropped off at day care by the father’s mother, given that the father leaves for work by 6:00 am.

20The motion material does not address events post December 2013, but as I understand the evidence and the submissions of counsel, the above arrangement of alternate weekends, every Wednesday overnight to Thursday has continued into 2014.

21For his part, the father says that the children were on a three-day rotation schedule from December 2012 until late March 2013, at which time the schedule was changed, at the request of the mother.

22The father’s material sets out additional periods of time when the children were in his care during the calendar year 2013.

Mother’s position

23The mother suggests that the best interests of the children would be served by changing the existing parenting arrangement so that the children are with the father

a. every alternate weekend from Friday to Sunday evening (eliminating the overnight to Monday); and

b. every Wednesday for three hours (eliminating the overnight to Thursday).

24The mother relates that the children are often cranky and irritable on the days following the overnight visits (the Sunday and the Wednesday). She relies on the children’s young ages in requesting the change to the existing arrangement.

25The mother opposes any increase in the amount of time the children spend with the father and takes the position that the only reason the father is requesting more time is to avoid having to pay table amount child support.

26The mother submits that the time that the children spend with the father does not amount to 40% and, even if it did, the father has not provided the evidence required to permit the determination of child support pursuant to sections 9 and or 10 of the Child Support Guidelines.

27The father should be ordered to pay the sum of $1,256 per month of child support, effective January 1, 2013, based on his 2013 income of $86,862.

28The mother further suggests that, as the father did not voluntarily top up the child support provided for in the Collaborative Separation Agreement, after having received a bonus from his employment in 2013, the child support going forward should be based on the father’s 2013 income, even though the father has not yet received or been advised of the amount of any bonus for 2014.

Father’s position:

29According to the father, the initial three-day rotation schedule, which was in place from December 2012 until March 2013, did work well for the children. The children were happy, and their best interests would be served by returning to such an arrangement whereby the father would have the children in his care 50% of the time.

30It is his position that since January 2013, he has had the children at least 40% of the time. It is his position that the time the children are at school or day care should be taken out of any calculation of the time the children spend with each parent. He maintains that, for purposes of section 9 of the Child Support Guidelines, one should calculate only the time the children actually spend with each parent.

31He suggests that it would be appropriate for him to pay child support in the amount of $600 per month going forward, and any question of retroactive child support (before the date of the Application) should be reserved to the trial judge.

32With regard to the bonus issue, the father is prepared to be subject to an Order with a reporting clause.

33With regard to section 9 of the Child Support Guidelines, the father suggests that for the purposes of a temporary child support order, a straight set off of the applicable table amount for each spouse be used and that the further analysis required by section 9 be conducted at the trial.

Analysis

Proposed Change to the Existing Parenting Arrangement

34As is frequently the case in family law disputes, the parties do not agree on the facts in the case.

35According to the mother, she was throughout the marriage and continues to be the children’s primary care giver. She is the one to stay home to care for a sick child and she is the one who arranges the children’s medical and other health related appointments.

36According to the father, both parents were actively and equally involved in the care of the children. He was there to care for the children while the mother went shopping or to the gym after work and he was the one to get up to tend to the children if the baby monitor went off.

37The parties are also at odds about the effect on the children of the earlier three day rotation schedule.

38There is no independent evidence to assist me in assessing the reliability of the evidence of either of the parties about what is best for their children right now.

39I can only presume that when the current arrangement was agreed to, approximately one year ago, both parents were of the view that that arrangement was the best one for their children.

40There is no compelling evidence before me on this motion that the children’s best interests would be served by changing the current arrangement as requested by either the mother or the father.

41Although the mother relies on the young age of the two children to support the request to eliminate two overnights with the father, the children were even younger when she proposed the current arrangement.

42For his part, if the father was of the view that the current arrangement was not in the best interests of the children, he should not have waited until he was served with the mother’s motion before requesting a change to the existing arrangement.

43Based on the evidence before me, I conclude that the best interests of the children would not be served by making a temporary order changing the arrangement that has now been in place for approximately one year. Any change to the existing arrangement should be made on a full evidentiary record.

Child Support

44Section 9 of the Child Support Guidelines provides that:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:

(a) The amounts set out in the applicable tables for each of the spouses;

(b) The increased costs of shared custody arrangements; and

(c) The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

45Counsel referred me to the Ontario Court of Appeal decision in Froom v. Froom 2005 3362 (ON CA), [2005] O.J. No. 507 where the court concluded that there is no universally accepted method for calculating the 40% threshold.

46I was also provided with the very thorough and persuasive decision of Czutrin J. in L.(L.) v. C.(M.), 2013 ONSC, in which he confirmed the appropriateness of calculating the 40% threshold on an hourly basis.

47At paragraph 31 of that decision, he said this:

While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294)). In commenting on Froom the review states “[w]ith respect, the overwhelming authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis”. This approach is applied by the court in Rockefeller v. Rockefeller, 2005 14325 (ON SC), [2005] O.J. No. 1736 (Ont. S.C.J.). Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, [2011] O.J. No 1169 (Ont. S.C.J.).

48At paragraph 34 of L.(L.) v. C.(M.), Czutrin J. goes on to say that the court does not have a discretion with regard to the 40% threshold. That threshold is “fixed as a firm threshold”.

49Calculating the threshold on an hourly basis provides the precision required.

50I turn now to the father’s submission that the time the children spend in school or day care is neutral. That submission cannot be sustained in the face of the decision in L.(L.) v. C.(M.). I reproduce paragraphs 38 and 39 of that decision:

38. In his paper, “A Practitioner’s Guide to the Economic Implications of Custody and Assess under the Divorce Act and the Federal Child Support Guidelines”, Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children ((2002) 32 R.G.D. 1-36, at 8). The Calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being” (Sirdevan v. Sirdevan, [2009], O.J. No. 3796 (Ont. S.C.J.)).

39. In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent’s home (Cusick v. Squire, [1999] N.J. No. 206 (Nfld. T.D.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No. 3717 (Ont. S.C.J.), at para. 43).

51The father’s case, at its highest, has him having the care of the children 33.2% of the time. He has not met the 40% threshold and therefore section 9 is not applicable. I need need not address the evidence required to conduct a section 9 analysis. The father should be paying the table amount of child support.

Effective Date of an Order for Table Amount Child Support

52The mother asks that the child support, in the amount of $1,256 per month be payable effective January 1, 2013. For his part, the father suggests that the issue of retroactivity be left to the trial judge.

53The timing of the events is significant. The Collaborative Separation Agreement was executed on November 22, 2012. The mother did not withdraw from the collaborative law process until September 2013. There is no evidence before me to establish what, if any, request for table amount child support was made by the mother to the father at any time before the Application was issued in October 2013.

54I conclude that it is more appropriate for the trial judge to deal with the request for table amount support for the period pre-dating the Application, and he/she can consider what “further negotiation between the parties and exchange of further financial documentation between the parties” (clause 10(b) of the Interim Collaborative Separation Agreement), occurred before October 30, 2013.

55On the other hand, it is appropriate that the father begin to pay the table amount of child support as of December 1, 2013, which is one full month following the start of the proceeding. He should pay child support for December based on his 2013 income of $86,862, that is the sum of $1,256 for December 2013.

56Effective January 1, 2014, he should pay support based on his base pay of $75,960; that amount is $1,188 per month. That amount of support will be subject to re-adjustment once the father becomes aware of the amount of his bonus.

Other Issues

Joint Custody

57Both parties sought an Order for joint custody of the children as part of their claim for relief. No submissions were made with regard to this claim, however given that both parties requested that there be a temporary Order for joint custody, it is appropriate that I make that Order.

Life Insurance

58The father agreed to name the children as the sole irrevocable beneficiaries of the life insurance policy available to him through his employment and I made that Order on March 27, 2014. What is at issue is who is to be the Trustee for the children. The mother requests that she be named as the Trustee; the father suggests one of his family members.

59On a temporary basis, it is entirely appropriate that the mother be designated as the Trustee for the children. The children are primarily in her care and there is no evidence that the mother would not appropriately discharge her obligations as Trustee.

Extended Health Care Coverage

60The father agreed to continue to provide extended health care coverage for the mother and the children for as long as such coverage was available to him through his employment, and I made an Order to that effect on March 27^th.

Temporary Order to Go as Follows:

61The parties shall have joint custody of the two children, Cienna Arlt, born January 4, 2008, and Ian Arlt, born February 3, 2011, with the primary residence of the children to be with the mother.

62The children will be in the care of the father every alternate weekend from Friday at 3:30 pm until Monday at 8:00 am and every Wednesday from 3:30 pm until Thursday at 8:00 am.

63The father shall pay child support for the two children in the amount of $1,256 for the month of December 2013 in accordance with the Child Support Guidelines and based on his 2013 income of $86,862.

64Commencing January 1, 2014, the father shall pay child support in the amount of $1,188 per month in accordance with the Child Support Guidelines and based on the father’s base income of $75,960.

65The mother’s claim for retroactive child support for the period from January 1, 2013, until December 1, 2013, is adjourned to the Trial Judge.

66The father shall provide documentary proof of his bonus entitlement within 10 days of becoming aware of that entitlement, and the amount of child support will be adjusted accordingly.

67The father will designate the mother as the Trustee for the children of the life insurance policy on the father’s life.

68Save and except for the claim for joint custody of the children at paragraph (a) of the father’s Notice of Motion dated February 10, 2014, the father’s motion is denied.

69If the parties are unable to agree on the costs of this motion, they shall communicate with the Trial Co-Ordinator within 20 days of this Ruling in order to set a date and time to argue costs, failing which there will be no costs.

The Honourable Madam Justice Louise L. Gauthier