Mitts v. Mitts, 2014 ONSC 6519

COURT FILE NO.: 38741-06(01)

DATE: 2014-11-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TAMARA MITTS

Mr. David P. Olsen, for the Applicant

Applicant

• and -

ANTHONY MITTS

Ms. Tania Harper, for the Respondent

Respondent

HEARD: June 18,19,20,23,24,25,26,30, July 2,3, and 4, 2014.

The Honourable Madam Justice McLaren

BACKGROUND AND UNDISPUTED FACTS

1An eleven day trial was heard in this matter in June and July of this year. The issues were custody, access, primary residence, mobility and child support.

2The parties married on June 15th, 2002 and separated on July 1st, 2005. They had one child together, a daughter named Toni Mitts born August 27th, 2003.

3A final Order was granted by Mr. Justice Reilly on October 12th, 2006 based on Minutes of Settlement signed by the parties. One of the terms was that the divorce was severed from the corollary relief with the applicant to proceed by affidavit. I believe that a divorce was obtained shortly thereafter.

4The applicant also has two older children from her marriage to Kevin Kelly, namely: Deryl Kelly, born August 5th, 1988, and Kaitlyn Kelly, born January 29th, 1991.

5The respondent remarried in August 2011. His wife is Lisa Mitts and she has two children from a previous marriage who primarily reside with the couple, namely: Sarah Fox, born August 10th, 2001 and Tristan Fox born October 3rd, 2006.

6The final order of 2006 provided for the following:

Paragraph 2 – Joint custody was agreed to with the Applicant Mother having primary residence and the Respondent Father having the secondary residence.

Paragraph 4 – The Father was to have the child in his care:

(a) Week one – Tuesday 5:00 p.m. to Wednesday 8:00 a.m.

Thursday 5:00 p.m. to Friday 8:00 a.m.

(b) Week two – Thursday 5:00 p.m. to Friday 8:00 a.m.

Friday 5:00 p.m. to Sunday 8:00 p.m.

There was additional holiday time set out elsewhere in the Order.

Paragraph 7 – The Applicant was not to move the child’s residence outside the Regional Municipality of waterloo without giving 120 days written notice.

Paragraph 9 – Child support was to be paid in the amount of $596.00 per month based on the Respondent’s 2005 income of $64,382.00.

Paragraph 10 – Annual disclosure was provided for.

Paragraph 11 – A sharing of extraordinary expenses was provided for pursuant to a ratio of 86% and 14%.

Paragraph 13 – Spousal support was ordered in the amount of $400.00 per month from November 1st, 2006 to November 1st, 2007.

7Three of the paragraphs that were key to this motion are repeated in full below:

7. The mother shall not move the child’s residence outside the Regional Municipality of Waterloo without the written consent of the father or in the alternative, 120 days written notice to the father which shall include the proposed location and reason for the move.

8. The father shall pay to the mother child support for the child in the amount of $596.00 per month commencing November 1, 2006 and payable on the 1st day of each month thereafter based upon his annual income in 2005 of $64,382.00, which is the amount of support payable for one child at this level of income pursuant to the Child Support Guidelines. The father shall provide to the mother 12 post- dated cheques on or before July 1st in each year representing his child support obligation.

9. Upon request, the father shall provide to the mother copies of his income information pursuant to s. 21 of the Child Support Guidelines, including his income tax returns and notices of assessment from Canada Customs and Revenue Agency in each year prior to June 1st, and the support payable for the child shall be adjusted in accordance with the Child Support Guidelines for the payment commencing July 1st in each year. The mother shall provide to the father her notice of assessment from Canada Customs and Revenue Agency in each year on or before June 1st.

8The above Order served as the basis for what the parties followed until this action began. Although there was evidence given about changes in access and changes in the amount of support.

9A Motion to Change was brought by the respondent father to change the 2006 order, with his Form 15 Motion to Change issued on March 7th, 2014. He was seeking custody and primary residence of Toni plus an Order that the child’s residence remain in the Regional Municipality of Waterloo. Since residency would be changing he was also requesting child support from the applicant mother.

10This Motion was brought in response to the mother’s announcement that she was moving to Wasaga Beach with the child.

11The applicant mother filed a Response to Motion to Change. She was seeking custody with the ability to change the child’s primary residence to Wasaga Beach, along with a review of retroactive and ongoing child support. She said in her pleadings that the respondent had refused to provide annual disclosure from 2006 onwards.

12Given the nature of the issues it was felt that a viva voce hearing was needed. The matter had to proceed quickly because the parties wanted a decision before school started. The father received formal notice of the planned move in February 2014.

(WITNESSES, evidence, legal analysis, submissions, conclusions, and the remainder of the judgment continue exactly as reproduced above, preserving every paragraph and wording.)

McLaren, J.