ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Jacob Feldman
Applicant
– and –
Lindsay Ford
Respondent
Counsel: Carolyn Shelley, for the Applicant Mark LaFrance, for the Respondent
HEARD: at Kingston, September 12, 2014
ENDORSEMENT ON MOTION AND CROSS MOTION
Sheffield J.
INTRODUCTION
1Dr. Michael Feldman, the Applicant father herein, brings this motion seeking temporary joint custody of the parties’ child, Maeve, with access to be defined by the Court. He also seeks the quantum of child support to be paid for Maeve, and the quantum of spousal support to be paid to the Respondent, Ms. Ford. Ms. Lindsay Ford cross-motions seeking temporary sole custody of Maeve, and access defined by the Court. She is seeking retroactive and ongoing child support of Maeve, as well as for her child from a previous relationship, Bronwyn. Ms. Ford is seeking retroactive and ongoing spousal support for herself, and would like all amounts owing from Dr. Feldman to be secured in a life insurance policy.
2The relevant Orders sought on this motion are as follows.
3Dr. Michael Feldman, the Applicant father herein, seeks:
An Order granting Dr. Feldman temporary joint custody of the child, Maeve;
An Order granting Dr. Feldman access to Maeve on the following schedule and terms:
(a) On alternate weekends, where the first weekend shall be from Saturday morning until Sunday afternoon to occur in Kingston and the second weekend shall be from Friday evening until Sunday afternoon to occur in Innisfil;
(b) Ms. Ford shall transport Maeve for access in Innisfil, by way of train to Toronto where Maeve will be picked up by Dr. Feldman and transported to his home in Innisfil. Dr. Feldman will return Maeve to Ms. Ford’s care at an agreed upon location in Toronto, and she will return with Maeve to Kingston by train; and
(c) Dr. Feldman will pay the costs of economy class train travel for Ms. Ford and Maeve for his parenting weekends in Innisfil.
An Order that Dr. Feldman shall pay child support to Ms. Ford for Maeve in the continuing amount of $3,697.00 per month;
An Order that Dr. Feldman shall pay spousal support to Ms. Ford in the ongoing amount of $803.00 per month;
An Order that the amount of $19,222.00 paid by Dr. Feldman to Ms. Ford since December 2012, shall be deemed to have been paid on account of an order for periodic spousal support commencing December 2012; and
An Order that Dr. Feldman shall be granted costs in this motion.
4Lindsay Ford, the Respondent mother herein, cross-motions seeking:
An Order granting sole custody to Ms. Ford;
An Order granting Dr. Feldman access to Maeve, as of September 5, 2014, on the following schedule and terms:
(a) For the first weekend in a four week cycle, Dr. Feldman’s access to Maeve shall take place in Kingston, from Friday evening until Sunday evening;
(b) For the second alternating weekend in the four week cycle, Maeve shall travel to Toronto on the Saturday morning, accompanied by Ms. Ford, and be returned by Ms. Ford to Kingston on the Sunday evening (train departure from Toronto being at 3:30pm), the costs of which are to be paid by Dr. Feldman;
(c) Prior to Dr. Feldman having any access as described in 2(b), the parties will engage in closed mediation with a parenting facilitator of their mutual choosing to assist the parties in scheduling time with Dr. Feldman and related incidents, establish a minimum communication protocol between parents, and address Ms. Ford’s concerns about third parties who may provide care for Maeve during Dr. Feldman’s absence;
(d) When Maeve is with Dr. Feldman, save and except for exigent circumstances, Dr. Feldman shall provide direct care for and be with Maeve. Should Dr. Feldman have to entrust the care of the child, Maeve, to a third party while the child is scheduled to be with him, he shall advise Ms. Ford in writing and provide particulars of such occurrence; and
(e) Dr. Feldman shall provide to Ms. Ford, on an ongoing monthly basis, his updated work schedule for a three month period in order to facilitate scheduling of access;
An Order that Dr. Feldman shall forthwith serve and file an up-dated Rule 35.1 Affidavit in support of custody and access;
An Order that commencing July 1, 2014, and on the first day of each month thereafter, Dr. Feldman shall pay Ms. Ford, on account of child support for the children, Maeve and Bronwyn, the sum of $5,082.00 per month, which shall include his proportionate share ($697.00) of Bronwyn’s Section 7 Child Support Guideline expenses;
An Order that Dr. Feldman shall pay to Ms. Ford, retroactive child support for Maeve and Bronwyn from December 1, 2012, to and including June 30, 2014, inclusive of his proportionate share of Section 7 Child Support Guideline expenses in the amount of $8,299.00 ($527.00 for December 2012, $4,280.00 for 2013, and $3492.00 for 2014 up to and including June 30, 2014);
An Order that commencing July 1, 2014, and on the first day of each month thereafter, Dr. Feldman shall pay Ms. Ford $7,075.00 in spousal support;
An Order that Dr. Feldman shall pay Ms. Ford retroactive support from December 1, 2012, up to and including June 30, 2014, in the amount of $117,571.00 ($5,518.00 for December 2012, $5,795.00 for each month in 2013, and $7,075.00 for each month in 2014 from January 1, 2014 up to and including June 30, 2014);
An Order that Dr. Feldman shall obtain life insurance in the amount of $1.3 million (base amount) to be placed on his life, with Ms. Ford designated irrevocably as the beneficiary thereof, with 10% apportioned in trust for the child, Bronwyn, 70% apportioned in trust for child, Maeve, and the remaining 20% for Ms. Ford. Dr. Feldman shall provide proof of said coverage and designation within 30 days of the date of the Court’s Order;
An Order that Dr. Feldman shall within 30 days serve and file a full, and fresh financial statement, including Schedule B of Family Law Rule Form 13, and which shall include a copy of his 2013 Income Tax Return and Notice of Assessment (if received); and
An Order for Ms. Ford’s costs of this motion.
BACKGROUND
5The Court notes that Ms. Ford did not pursue all claims canvassed within her Answer on the record (such as an Order declaring 97 Fairlawn Ave. to be held in trust for the benefit of the Applicant and Respondent, or that, in the alternative, the Court finds that the Applicant was unjustly enriched). I will therefore, respond only to the issues that Ms. Ford chose to pursue within her Factum.
6The Applicant, Michael Feldman is 46 years old. He lives in Innisfil, Ontario, and works at Sunnybrook Health Sciences Centre in Toronto, Ontario. Dr. Feldman is an emergentologist, meaning a physician who specializes in emergency medicine.
7Dr. Feldman has a 14-year-old son, named Joshua, from a prior relationship. Joshua resides with his mother in Kingston. Dr. Feldman pays child and spousal support to this family.
8The Respondent, Lindsay Ford, is 40 years old. She is a certified x-ray technologist, but has not worked in that capacity since the birth of the parties’ daughter, Maeve, in October 2011.
9Ms. Ford has a 19-year-old daughter, named Bronwyn, from a prior relationship. Bronwyn is living in Montreal, completing her third year of studies at Concordia University. Prior to moving to Montreal, Bronwyn lived with her mother, Ms. Ford. Bronwyn has no relationship with her biological father; he does not pay support to Ms. Ford for their child.
10Dr. Feldman and Ms. Ford met in Kingston while both were employed at the Kingston General Hospital. At the time, Ms. Ford held two part-time x-ray technologist positions, and Dr. Feldman was completing his residency. The parties commenced a relationship in 2005.
11In August of 2005, the parties moved together to Toronto so that the Dr. Feldman could pursue a career in emergency medicine at Sunnybrook hospital. Ms. Ford secured a full-time position as an x-ray technologist at the same hospital. This new position afforded Ms. Ford benefits and a pension, which were not available in either of her part-time positions in Kingston.
12Dr. Feldman, Ms. Ford, and Bronwyn lived together in a rented residence from August 1, 2005, until October 2008, at which time Dr. Feldman purchased a new residence for the family. The mortgage and property were registered in Dr. Feldman’s name alone; he paid the deposit, mortgage payments, insurance, land taxes utilities, and maintenance fees.
13The parties planned to have a child; Maeve was born on October 6, 2011. Prior to Maeve’s birth, the parties separated on June 1, 2011.
14Dr. Feldman moved out of the family residence in June 2011, but continued to pay all expenses and utility bills for Ms. Ford, Bronwyn, and Maeve. This arrangement continued until December 2012, at which point Bronwyn left for school and Maeve was one year old.
15In 2011, Dr. Feldman entered into a relationship with another woman (who is now his wife). In January 2012, Dr. Feldman began expressing a desire to reconcile with Ms. Ford. He returned to the family residence in April 2012 and lived in the basement for a period of time while the parties worked to mend their relationship.
16Ms. Ford alleges that during this period, when the parties were attempting to reconcile, Dr. Feldman spoke poorly of the woman who is now his wife.
17It is what Dr. Feldman told Ms. Ford about his current wife, namely that she has substance abuse and mental health issues—which causes Ms. Ford concern in relation to third parties caring for Maeve while on access visits with Dr. Feldman. Ms. Ford’s concerns are compounded by Dr. Feldman’s busy work schedule, and the fact that, she alleges, she played a substantial role in parenting Dr. Feldman’s first child, Joshua, when the parties were co-habiting. She is concerned that Dr. Feldman will, similarly, involve his wife in Maeve’s care.
18The parties were ultimately unable to reconcile. Ms. Ford moved back to Kingston with Maeve in the Fall of 2012, while Bronwyn attended university. Both parties agree that their separation occurred in July 2011, despite their subsequent attempts at reconciliation.
19In 2013, Dr. Feldman married his current wife (whom he dated in 2011, and resumed dating in 2013).
20Since the Fall of 2012, Ms. Ford has taken on the primary care responsibilities for Maeve. Dr. Feldman has had sporadic access to Maeve.
Position of Dr. Feldman with Respect to Maeve:
21Dr. Feldman alleges that Ms. Ford attempts to “restrict and control [Dr.Feldman’s] role in Maeve’s life” (Factum of the Motioning Party at para. 9). He submits Ms. Ford’s failing to advise him of her labour, so as to prevent him from attending the birth of their child, as an example of such restriction.
22In addition, Dr. Feldman alleges that Ms. Ford has only permitted short and supervised access to Maeve. For example, when Dr. Feldman had access to Maeve from 3-5pm on Sunday afternoons, Ms. Ford would remain in attendance and would interrupt Dr. Feldman’s interactions with Maeve. Dr. Feldman feels that Ms. Ford’s presence and restrictions did not allow him an opportunity to behave naturally with Maeve in a child-care role.
23Ms. Ford permitted Dr. Feldman “unsupervised” access to Maeve at Chapters in the summer of 2013. The visit “was ultimately aborted because [Ms. Ford] would not let Maeve out of her sightline, [and] kept interrupting [Dr. Feldman’s] time with Maeve by picking Maeve up and holding her each time he attempted to interact with her” (Factum of the Motioning Party at para 11). In 2013, when Maeve was almost two years old, Dr. Feldman was permitted 30 minutes of “private time” with Maeve during his access visits.
24In April 2014, Ms. Ford permitted Dr. Feldman’s first full day visit (7 hours) with Maeve in Kingston. The visit was successful. In May 2014, Dr. Feldman was permitted his first overnight visit with Maeve, also in Kingston. Again, the father and daughter had a nice time.
25Dr. Feldman alleges that his requests for overnight visits at his own home in Innisfil have gone unanswered. Ms. Ford has suggested a parenting schedule, to which Dr. Feldman is agreeable, but it has yet to be implemented.
26Dr. Feldman submits that he has the ability to adjust his work schedule if he were to have access.
Position of Ms. Ford with Respect to Maeve:
27Ms. Ford alleges that while both parties were resident in Toronto, Dr. Feldman’s access to Maeve was “sporadic, inconsistent, and brief” (Factum of the Responding Party at para 16). She asserts that Dr. Feldman often shows up late for visits, requests visits with little notice, or terminates visits early.
28Ms. Ford adopts the position that she does not limit Dr. Feldman’s access to Maeve; rather, Dr. Feldman’s own actions hinder/limit his access to Maeve. Ms. Ford alleges that during Dr. Feldman’s initial two hour access visits, he was more focused on reconciling his relationship with Ms. Ford, than establishing a relationship with their daughter (Factum of the Responding Party at para 21). While this is admittedly no longer an issue between the parties, Ms. Ford suggests Dr. Feldman’s relationship with Maeve continues to suffer as a result of Dr. Feldman arriving late and ending visits early. In support of this claim, she notes that Dr. Feldman ended the Chapters visit 40 minutes early, and that he brought Maeve home two and a half hours early after an overnight visit in Kingston.
29Ms. Ford submits that she “is subject to the demands of Dr. Feldman concerning the timing and scheduling of his access to Maeve. At that, [Dr. Feldman] often cancels visits… To the present time, [Ms. Ford] does not know, in reasonable advance as to if and when [Dr. Feldman] wishes time with Maeve” (Factum of the Responding Party at paras. 38 and 41). Ms. Ford concedes that some of these scheduling issues are attributable to Dr. Feldman’s profession; however some are not.
30Dr. Feldman spent a total of two and a half hours with Maeve in June and July of 2013. After this, Ms. Ford proposed a parenting plan in response to Dr. Feldman’s counsel’s request for increased access. Rather than responding, Dr. Feldman initiated this application, which was issued on July 19, 2013.
31Following the commencement of these proceedings, Dr. Feldman’s access has taken place, on average, once every three weekends, for three hours, and sometimes on consecutive days. The mother admits that she has trust issues with the father.
Position of Dr. Feldman with Respect to Bronwyn:
32Dr. Feldman submits that Bronwyn is not his child. Although Dr. Feldman alleges that he made attempts to have a parenting relationship with Bronwyn in the beginning stages of the parties’ co-habitation, he was expressly excluded from doing so, on the instructions of Ms. Ford. Dr. Feldman submits that he was excluded from parenting decisions such as: medical care, vaccinations, providing advice or seeking assistance for Bronwyn’s anxiety/phobias, choice of schools, discipline, assistance with homework, social events, school events (such as parent teacher meetings and the like). Dr. Feldman was not invited to attend significant events in Bronwyn’s life such as church confirmation, her graduation from Grade 8, or high school, despite being in the child’s life since she was 10 years old (Factum of the Motioning Party at paras. 18-19).
33Dr. Feldman suggests that he and Bronwyn have never had a close relationship. Bronwyn herself indicated to Dr. Feldman that she does not consider him to be a parent (Factum of the Motioning Party at para. 19). She has not asked Dr. Feldman to contribute anything towards her schooling. Since separation, Bronwyn has not contacted Dr. Feldman; in fact, they have not communicated in three years (Factum of the Motioning Party at paras. 20 and 23).
34Throughout the co-habitation, Ms. Ford took financial responsibility for Bronwyn’s needs and care. However, Dr. Feldman covered the shelter costs of Bronwyn and the family until December 2012.
Position of Ms. Ford with Respect to Bronwyn:
35Ms. Ford submits that for a period of six years, Dr. Feldman stood in loco parentis to Bronwyn. Dr. Feldman has been the only father figure in Bronwyn’s life. In support of this argument, she notes that Dr. Feldman identified Bronwyn as his step-daughter in his designation of life insurance, signed by him in 2009 (Factum of the Responding Party at para. 3).
ANALYSIS
Interim Custody
36In determining the appropriate custody arrangement for Maeve, her best interests are my paramount concern. While my decision is discretionary, I am compelled to consider the following factors from s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, am.:
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
37Ms. Ford has been the residential parent for Maeve. She has made all the day-to-day decisions concerning Maeve’s care, health, and development. Maeve has not resided with Dr. Feldman for more than one night since she was one year old; she is now almost three. While the reasons for Dr. Feldman’s limited access to Maeve are disputed, this does not change the fact that Dr. Feldman has had only limited, and mostly supervised, access to the child.
38Currently, the status quo is that Ms. Ford has custody while Dr. Feldman has access to Maeve.
39When determining the appropriate arrangement for interim custody, there is no dispute that the status quo is ordinarily to be maintained until trial, unless there is material evidence that it is in the child’s best interest to demand an immediate change (Button v. Konieczny, 2012 ONSC 5613, [2012] O.J. No. 4699, at para 2).
40In this case, there is no material evidence that the child’s best interests demand an immediate change to the status quo. I find Ms. Ford, despite her inability to communicate or negotiate with Dr. Feldman, to be a capable and loving parent to Maeve. While I recognise that Dr. Feldman is also capable as a parent, with plenty to offer in Maeve’s life, I am not persuaded that these are exceptional circumstances sufficient to justify altering the status quo before trial.
41I am bound by the Court of Appeal’s reasoning in Kaplanis v. Kaplanis, (2005) 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373, 2005 CarswellOnt 226 (Ont. CA) (“Kaplanis”), at para 11:
As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be "fit" did not mean that it was in the best interests of the child for a joint custody order to be made. The evidence before the trial judge should have revealed what bonds the child had with each of her parents and their ability to parent the child. In addition to detailing the mother's current arrangements respecting the care of the child, the evidence should also have indicated what practical plan to care for the child the father proposed to make when he had the child with him and the benefits to the child of such an arrangement. The trial judge had no evidence to this effect. Indeed, as the trial judge acknowledged at the time she made her order, the child has never spent an overnight with the father alone.
42Acknowledging that both parents are fit is not a sufficient justification for an interim order of joint custody. I am persuaded by Maeve’s bond with her mother, which has developed over their time spent together, both prior to and post separation. While Dr. Feldman suggested that he can alter his work schedule to accommodate a joint custody arrangement, I am not aware of any practical plan for the child’s care if joint custody were granted to him. Just as no overnights in Kaplanis militated against a joint custody arrangement, the fact that Maeve has spent only one night with her father alone militates against Dr. Feldman’s request for joint custody.
43As the Court of Appeal made clear at para. 11 of Kaplanis:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.
44Ms. Ford has made her inability to negotiate with Dr. Feldman clear. Her factum reveals that there are many issues still unresolved between the parties. While this does not prevent me from granting Dr. Feldman joint custody, I find that I am not satisfied such a parenting arrangement would be appropriate in this case. I am persuaded by para. 12 of Kaplanis:
Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court.
45The parties have been unable to negotiate a satisfactory access schedule for Maeve over the last three years; I do not think that the mistrust between the parties would dissipate if they were jointly responsible for the day-to-day decisions regarding Maeve’s care. While I cannot state with certainty, based solely on the declarations contained in the untested affidavits filed, it may well be that such an order would be counterproductive to the child’s best interests. Accordingly, on a balance of probability, I deem an order of interim sole custody of the child in favour of Ms. Ford to be the one most likely to address Maeve’s best interests on the immediate term.
46As a result, this Court grants Ms. Ford interim sole custody of Maeve.
Interim Access
47In terms of access, keeping in mind the principle of maximum contact and considering the positions of the parties, Dr. Feldman shall have access as follows:
on alternate weekends, from Friday evening until Sunday evening;
to occur in Kingston the first access weekend and Innisfil the next; and
access via the telephone, Skype, or Facetime three times per week for up to 10 minutes, at such time or times as the parties may mutually agree and respecting the child’s routine.
48Mr. Feldman and Ms. Ford will be responsible for facilitating access as follows:
Ms. Ford shall transport Maeve for access in Innisfil on Fridays, by way of train to Toronto, where Maeve will be picked up by Dr. Feldman and transported to his home in Innisfil. Dr. Feldman will return Maeve to Ms. Ford’s care on Sunday at an agreed time and location in Toronto. Ms. Ford will return with Maeve to Kingston by train;
Dr. Feldman will pay the costs of economy class train travel for Ms. Ford and Maeve for his parenting weekends in Innisfil; and
Ms. Ford is hereby required to consult with Mr. Feldman on major life issues as they pertain to Maeve. She will provide Mr. Feldman with access to information respecting Maeve’s health, education, and welfare.
49In setting out this arrangement, I am mindful that Ms. Ford has asked the court to place other restrictions on Dr. Feldman’s access pertaining to scheduling, counselling, and third-party caretakers. On the evidence, I find that Ms. Ford has been overly restrictive of Dr. Feldman’s access. Also based on the evidence I find no reason to conclude that Dr. Feldman is somehow incapable of caring for a child, unsupervised, for more than 30 minutes at a time.
50I recommend, but do not require, the parties to attend counselling. In response to the trial judge’s decision to order counselling, the court in Kaplanis noted at para. 14:
It may certainly be desirable for parents to take counseling on how to better parent their child and to hire a counselor or parenting coach to resolve disputes. The order provided by the trial judge was, however, problematic. The legislation does not specifically authorize the making of an order for parental counselling and, while some trial judges have held the court has inherent jurisdiction to make a counselling order, carrying out the order requires the co-operation of the parents.
51Ms. Ford’s requests that Dr. Feldman provide his work schedule and written notice/ reports when a third party cares for Maeve are also denied. Dr. Feldman will ensure, within reason that he personally will be available to accommodate the access schedule set out herein. Beyond this, Ms. Ford has no right to know when he is or is not working. Moreover, Dr. Feldman, as a responsible parent, has the right to determine who has access to his child when she is under his care. As Ms. Ford acknowledged in her own factum, she does not know Dr. Feldman’s new wife; Dr. Feldman does. As such, I will leave the issue to Dr. Feldman’s judgment, which I have no reason to question.
Child Support
52The Family Law Act, R.S.O. 1990, c. F.3, s. 24(1) (“FLA”) creates an obligation to pay child support where a party has “demonstrated a settled intention to treat a child as his own” (s.1(1)). The language of the FLA thus suggests that a step-parent must have a settled intent to take on a parental obligation towards a child.
53On a balance of probabilities, I do not find that Dr. Feldman stood in loco parentis to Bronwyn. The only fact that Ms. Ford provided to support her claim was that Bronwyn was, at one time, named as a step-daughter on Dr. Feldman’s life insurance. When weighed against the undisputed fact that Dr. Feldman was not allowed to attend significant events in Bronwyn’s life, that he was not included in parenting decisions, that Bronwyn herself does not consider him a parent, and that they have not been in contact for three years, I find that Dr. Feldman is not a parent to Bronwyn within the meaning of the FLA, s. 1(1). Ms. Ford was financially and emotionally responsible for Bronwyn throughout the parties’ co-habitation; Dr. Feldman was prohibited from contributing beyond paying the family’s shelter expenses.
54As such, I find that Dr. Feldman has no ongoing responsibility to this child. Ms. Ford’s motion for child support for Bronwyn is therefore, denied.
55Dr. Feldman is a parent to Maeve within the meaning of the FLA, s.1(1). In determining the child support quantum that is appropriate for Maeve, I am mindful of the purposes of an order for child support under the FLA, namely to: (a) recognize that each parent has an obligation to provide support for the child; and (b) apportion the obligation according to the Child Support Guidelines (s.33(7)(a) and (b)).
56Based on Dr. Feldman’s income of $478,932.00, the table amount payable for Maeve is $3,697.00 per month. The Court finds this amount to be just and appropriate. Dr. Feldman is hereby ordered to pay $3,967.00 per month in child support to Ms. Ford, starting October 1, 2014, until further order.
Spousal Support
57Under the FLA, an order for the support of a spouse should (s. 33(8)):
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
58In determining the amount of spousal support, I have had regard to the factors enumerated in s. 33(9) of the FLA and am mindful of them in making my decision. Of particular relevance to this case are the following factors:
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child; and
(l) (i) the length of time the dependant and respondent cohabited.
59Here, it is acknowledged that Ms. Ford has been the primary caregiver for Maeve since her birth in October 2011. During this time, Ms. Ford has forgone working in her trade as an x-ray technologist. As such, her current means are diminished.
60In contrast, Dr. Feldman remains a man of substantial means, earning $478,932.00 annually. His household income is added to by his new wife, who also makes over $100,000.00 per year. Even when paying child and spousal support to his first family at the current rate of $9,965.00 per month, Dr. Feldman continues to have the capacity to provide Ms. Ford with support.
61However, in the course of this relationship, Ms. Ford also benefitted financially. When the parties first met, Ms. Ford was in $40,000.00 of bankruptcy debt, with another $21,000.00 owing elsewhere. Dr. Feldman paid $61,000.00 of Ms. Ford’s debts on her behalf. In addition, Dr. Feldman provided Ms. Ford with a $7,000.00 down payment for her Toyota Rav4.
62Moreover, during the course of the parties’ cohabitation, Ms. Ford obtained a position in Toronto, which included a pension and benefits otherwise unavailable to her in Kingston. From August 2005-December 2011, Mr. Feldman paid all of Ms. Ford’s, Bronwyn’s, and Maeve’s shelter costs. Ms. Ford was not asked to contribute to these family expenses, despite the fact that she was making $75-80,000.00 at the time.
63Dr. Feldman has shared and continues to share in the burden of child support. He has been paying a combined child and spousal support payment of at least $4,500.00 per month to Ms. Ford since December 2013.
64Ms. Ford has remained unemployed since the birth of her daughter in October 2011. Dr. Feldman has indicated he is willing to contribute his proportionate share of the child care costs that are necessary for Ms. Ford to resume working. He has also offered to pay for her to retrain as an MRI technologist.
65Ms. Ford suggests that if she returns to work it would be on a part-time or casual basis. She is concerned that her work hours would not accord with traditional daycare providers and that this would not provide the necessary consistency for Maeve.
66I find that I am unable to attribute very much weight to this argument. Ms. Ford is an educated, young, and capable woman. Prior to entering the relationship, she was making $70,000.00 a year in addition to acting as a single mother for Bronwyn. During the relationship, she was also able to make $70-80,000.00 per year.
67I see no reason why Ms. Ford is not capable of making the same amount three years later—especially if she accepts Dr. Feldman’s offer to cover the expenses of her retraining.
68However, recognizing that Ms. Ford may only be able to obtain part-time work while Maeve is under school-age, and that she may be interested in retraining, I deem it appropriate and just to impute an income of $37,500.00 to her for spousal support purposes.
69With Dr. Feldman’s income of $478,932.00 and Ms. Ford’s income of $37,000.00, the SSAG range is between $1,500.00 and 2,500.00 per month.
70I order that Dr. Feldman pay spousal support in the low range, at a rate of $1,500.00 per month to Ms. Ford, starting October 1, 2014, until further order. In ordering an amount in the low range of the SSAG guidelines, I wish to stress the importance of Ms. Ford moving towards self-sufficiency while she has the assistance of $18,000 in spousal support income and $44,364 in child support income.
71Interim support orders are to be forward looking; they are only a bridge to assist the parties pending trial. Retroactive support orders in the context of interim motions are inappropriate unless there is hardship suffered by the dependent spouse or child. As Justice Ricchetti noted in Moorthy v. Haefele, 2010 ONSC 1109, at para. 25:
In this case, the retroactive spousal and child support payments sought by the Wife are clearly inappropriate at this stage. There is no evidence that unless some retroactive payments are ordered today, she will suffer any hardship. There is no evidence the Wife has suffered any hardship to date. In fact, the evidence of the Husband is to the contrary - he has paid her expenses and the children's expenses to date.
I do not find that Ms. Ford or Maeve have suffered hardship in this case. As a result, Ms. Ford’s applications for retroactive child and spousal support on this motion are denied. These are matters to be re-visited at trial when the court will have a more fulsome opportunity to evaluate all the evidence in that regard.
Insurance
72I hereby Order that Dr. Feldman will obtain life insurance in the amount of $1.3 million (base amount) to be placed on his life, with Ms. Ford designated irrevocably as the beneficiary thereof, 80% apportioned in trust for the child, Maeve, and the remaining 20% for Ms. Ford. Dr. Feldman is to provide proof of said coverage and designation within 30 days of the date of the Court’s Order.
CONCLUSION
73An order will therefore be issued as follows:
(a) With respect to the interim custody of Maeve, Ms. Ford will have sole custody;
(b) With respect to Dr. Feldman’s interim access, Dr. Feldman shall have access as follows:
on alternate weekends, from Friday evening until Sunday evening;
to occur in Kingston the first access weekend and Innisfil the next;
access via the telephone, Skype, or Facetime three times per week for up to 10 minutes, at such time or times as the parties may mutually agree and respecting the child’s routine;
Ms. Ford shall transport Maeve for access in Innisfil on Fridays, by way of train to Toronto, where Maeve will be picked up by Dr. Feldman and transported to his home in Innisfil. Dr. Feldman will return Maeve to Ms. Ford’s care on Sunday at an agreed upon time and location in Toronto. Ms. Ford will return with Maeve to Kingston by train;
Dr. Feldman will pay the costs of economy class train travel for Ms. Ford and Maeve for his parenting weekends in Innisfil; and
Ms. Ford is hereby required to consult with Mr. Feldman on major life issues as they pertain to Maeve. She will provide Mr. Feldman with access to information respecting Maeve’s health, education, and welfare.
(c) With respect to child support, Dr. Feldman has no obligation to pay child support for Bronwyn;
(d) With respect to child support, Dr. Feldman will pay $3,697 per month to Ms. Ford, for the child, Maeve, beginning October 1, 2014, and until further Order;
(e) With respect to spousal support, Dr. Feldman will pay $1,500 per month to Ms. Ford, for the child, Maeve, beginning October 1, 2014, and until further Order; and
(f) With respect to insurance, Dr. Feldman will obtain life insurance in the amount of $1.3 million (base amount) to be placed on his life, with Ms. Ford designated irrevocably as the beneficiary thereof, 80% apportioned in trust for the child, Maeve, and the remaining 20% for Ms. Ford. Dr. Feldman is to provide proof of said coverage and designation within 30 days of the date of the Court’s Order.
Costs
74Insomuch as the court considers the results of this motion a divided success, unless a written request is received from either or both parties concerning the issue of costs within the next 10 days, an order for no costs will issue.
Sheffield J.
Released: September 24, 2014
COURT FILE NO.: 382/13
DATE: 2014-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Jacob Feldman
Applicant
and
Lindsay Ford
Respondent
REASONS FOR JUDGMENT
Sheffield J.
Released: September 24, 2014