SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-2190
RE: Saran Madina Cisse – Applicant v. Ousmane Sakho - Respondent
BEFORE: Kane J.
COUNSEL:
Saran Madina Cisse, Self-Represented
Meagan LePage, for the Respondent
HEARD: July 14, 2014
ENDORSEMENT
[1] This is a motion by the respondent father to change the Final Order of Cohen J. dated September 27, 2005 in the form of reducing child support and altering his terms of access.
[2] In the final order under review, Cohen J. granted custody of the infant son who was born on June 17, 2003 to the applicant. The respondent granted access to the child every Sunday from 9 a.m. to 5 p.m. The parties at the time both resided in Toronto.
[3] Cohen J. ordered the respondent to pay child support commencing January 1, 2000 in the amount of $464 per month including shared special expenses based upon his then annual income of $33,300. Such support order was to be enforced by the Director of the Family Responsibility Office.
[4] The respondent alleges that he is current in payment of the above child support obligation but seeks a reduction thereof as he has been limited to disability insurance payments since late 2010. The respondent now seeks a reduction in child support based on his reduced income retroactive to September 1, 2013.
[5] The present motion to change is dated September 2013 and filed by the respondent on November 19, 2013. The applicant at that time was outside of Canada and opposed any service of or dealing with the motion until she returned to Canada.
[6] The respondent filed a new motion seeking essentially the same relief on June 6, 2014. The applicant filed a cross motion on July 10, 2014 in which she also seeks a variation of the above Final Order of Cohen J.
[7] The parties were married on April 26, 2002. They separated two weeks before the birth of their son on June 4, 2003. The order of Cohen J. as to custody, child support and access is dated September 27, 2005.
Applicant
[8] The applicant left her $30,000 employment in Toronto and moved to Ottawa in April 2009 to commence law school. She states that the respondent did not object to her moving to Ottawa to attend law school. This unilateral move however negatively impacted the respondent’s right and regularity of access which was every Sunday.
[9] The applicant graduated with a civil law degree in June 2012. She states she was tired, so she took a sabbatical year commencing in October 2012. What the applicant did between June and October, 2012, is not stated in her affidavits.
[10] In the applicant’s December 20, 2013 response, she states that her “soon to be legal husband” is a diplomat residing in Chad, Africa. As of July, 2014, she denies being married to this individual.
[11] The applicant twice traveled to Chad in 2013 where she resided for many months with her partner. She states that she spent several months there to explore job opportunities in Chad and to make sure that the country was safe enough in case she decided to relocate there with her child. Obviously such a move would greatly negate the right of access between this father and son.
[12] In September, 2013, the applicant instructed counsel for the respondent to cease communicating with her regarding these proceedings until her return to Canada in December 2013. It appears the child during this time lived with his maternal aunt in Ottawa.
[13] The applicant successfully completed the Québec Bar program in April 2014 and was admitted to the Québec Bar in May, 2014. In her first affidavit, the applicant speculates she might need to move in order to practice law in Quebec.
[14] Instead of practicing law, the applicant is now enrolled in a one year national program commencing in September 2014 to obtain her degree in Common Law. The Applicant states she receives no financial support from her diplomat fiancé. She states she is currently living in subsidized housing from the City of Ottawa.
[15] No documentation was filed to support the allegation of the applicant that her annual income in 2013 and 2014 was and will be approximately $2,500.
[16] The applicant’s Notices of Assessment indicate that her income and daycare expenses were as follows:
a. $30,400 income and 4,000, $200 in daycare expenses in 2009,
b. $15,200 income and $496 daycare expenses in 2010,
c. $2,193 of income and no day care expenses in 2011,
d. $2,682 of income and $845 of daycare expenses in 2012.
[17] The applicant states that her income level in 2011 and 2012 were so low that there was no point in declaring the full daycare expenses in those years. The applicant in her December 2013 response and her July 2014 affidavit states that she continues to seek written confirmation of daycare expenses incurred by her in 2013, even though such expenses were ordered to be produced on March 7, 2014.
[18] The applicant receives financial assistance in the form of Ontario bursaries and loans but failed to disclose the historical amounts thereof.
[19] The applicant states that she had part-time employment while she was studying in law school to obtain her civil law degree.
[20] Few law students can afford to remain unemployed during the four-month summer break. The applicant states she has no such summer employment in 2014.
[21] It is appropriate to impute $9,000 minimum annual income to the applicant commencing September 1, 2013 and in the future based on her decision to not seek summer employment, the bursary portion of OSAP and her history of past law school and part-time employment.
Respondent
[22] The documentary evidence filed by the respondent indicates that he has been employed with Invesco Canada Ltd. full-time since April 2007, currently as a client relations associate. The respondent went on short-term disability due to a medical condition regarding his eyes, including eye surgery from August 2009 to February 2010. He then returned to work but again went on disability benefits and underwent further eye surgery in August 2010. He states that he has remained on long-term disability from August 2010 to date.
[23] The respondent’s net non-taxable disability benefits annually total $23,256 which, upon grossing up plus some minimal investment income, totals $26,681 annually.
[24] The respondent income tax returns and notices of assessment indicate his annual line 150 income as follows:
a. 2009 – 44,912
b. 2010 – 24,934
c. 2011 – Nil [excluding disability benefits],
[25] The respondent indicates that his recent travels abroad have been courtesy of his girlfriend who works for an airline and provided free transportation.
[26] The respondent was ordered on March 7, 2014 to disclose his 2012 and 2013 income tax returns together with the Notices of Assessment in relation thereto, along with an updated 2014 letter from his employer and income/benefits payment record. Such tax returns are not in evidence on this motion.
[27] The letter from the respondent’s employer however states that he continues to be on long-term disability.
[28] The letter dated April 16, 2014 from RBC Insurance indicates that the non-taxable benefit for group long-term disability claimants like the respondent is $1,938 per month or $23,256 annually.
[29] Based upon the above financial information, the respondent’s liability for child support, retroactive to September 1, 2013, is $215 per month.
[30] The respondent therefore overpaid child support from September 1, 2013 until February 28, 2004 in the amount of $249 therefore per month ($464 minus $215), and thus is entitled to a credit or retroactive adjustment in his favor in the amount of $1,494.
Child Support
[31] The respondent shall pay interim child support starting September 1, 2014 in the amount of $215 per month.
Interim S. 7 Expenses
[32] There is no evidence of childcare or other extraordinary expenses during 2013. There is evidence of 2 monthly $400 daycare payments in 2014 when the applicant attended the Québec bar admission course. Being without employment since May, 2014, it is inappropriate to be claiming child care costs from May to August 2014.
[33] The ratio for s. 7 expenses between the parties, at $9,000 and $26,000 respectively, is 74% and 26%. The respondent’s share of the $800 paid for daycare in 2014 is $343, which is hereby deducted from the above retroactive adjustment owing to the respondent.
[34] Commencing September 1, 2014, the respondent shall be responsible for 74% of reasonable daycare and s. 7 expenses actually incurred but only upon presentation by the applicant to him of evidence in writing of such expenses.
[35] The remaining balance of the above retroactive credit owed to the respondent in the amount of $1,151 shall be reimbursed and extinguished by his share of future s. 7 expenses commencing September 1, 2014, subject to the applicant providing the respondent with written evidence of any reasonable s. 7 expenses paid by her.
Access
[36] Each party agrees the existing order of access requires amendment.
[37] The applicant has been comfortable with her son traveling alone via Greyhound bus to Toronto since 2011. Bus line policy requires that the son travel during daylight hours. This dictates that he may not travel to Toronto after school on Friday and must return to Ottawa during daylight hours on Sunday. The respondent’s eyesight limits his ability to drive long-distance.
[38] The respondent is required to provide the applicant with a copy of his 2012 and 2013 income tax returns by September 1, 2014. Conditional upon compliance with that obligation, the respondent has the following rights of access with his son:
in Toronto, from Saturday morning to Monday midday during the long weekend of family holidays each year;
in Toronto, one half of the child’s March break school vacation;
in Toronto, on odd numbered years, from Saturday morning until Monday midday during the long Easter weekend;
in Toronto, for one month or two, two week periods during the child’s summer vacation each year, the dates of which will be determined before June 1 each year, unless otherwise agreed;
in Toronto, from Saturday morning to Monday midday during the long weekend of Thanksgiving each year;
in Toronto, for one week during the child’s Christmas school vacation each year;
in Toronto, for each weekend followed by a P.D. day in April, May and June from the morning of the first day of such period to and including midday of the final day of such long weekend;
in Toronto, during such further times as the parties may agree upon;
Additional access to the child shall be provided in Ottawa upon providing the applicant with reasonable prior notice of the respondent’s intention to travel to that city.
The respondent shall have liberal telephone and email access with the child at all reasonable times.
The child may travel alone via Greyhound bus to and from Toronto, the cost of which shall be shared pursuant to the above s.7 ratio.
Each party may travel with the child outside of Canada during their respective times with their son provided that seven days prior written notice is provided to the other parent including details of the itinerary, location, and contact information, subject to paragraph 15 below. Each party shall promptly provide written consent to permit such travel.
The child’s passport shall travel with the child for each above access visits with the father but return with the child to Ottawa.
The residence of the child shall remain in the National Capital Region of Canada (Ottawa-Gatineau) and not be changed by either party without written consent of the other parent or by court order prior to any relocation.
The child may not travel outside of the Toronto – Ottawa corridor unless accompanied throughout that travel period by either of the parties.
The respondent may not travel with his son outside of North America unless he provides the applicant with 30 days prior written notice of the countries to be travelled to in order to permit the applicant to obtain any necessary vaccinations for their son. The respondent shall be liable to reimburse the applicant for the cost of such vaccinations upon her producing written evidence of such expense for travel with the respondent.
[39] Commencing in 2015, the parties shall exchange their Tax Returns and Notices of Assessment by June 30 each year. Child support shall be varied to reflect any changes in income.
[40] There shall be no retroactive child support or s. 7 expenses owing or arrears by the respondent as of September 1, 2014.
[41] The above Final Order of Cohen J. is amended as ordered herein but is otherwise unamended and in force.
[42] Subject to any written offers of settlement as to this motion and cross-motion, the respondent shall be entitled to his cost on a partial indemnity basis. Monthly child support commencing September 1, 2014 shall cease until payment of that liability. Failing agreement of the parties, this court shall fix such cost award upon receipt of brief written submissions within 30 days from this date.
Kane J.
Date: August 8, 2014
COURT FILE NO.: FC-13-2190
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Saran Madina Cisse – Applicant
AND
Ousmane Sakho - Respondent
BEFORE: Kane J.
COUNSEL: Saran Madina Cisse, Self-Represented
Meagan LePage, for Respondent
ENDORSEMENT
Kane J.
Released: August 8, 2014