ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC 06-1403 - 02
DATE: 20141201
BETWEEN:
Sheryl Ann Miller
Applicant
– and –
David Scott Miller
Respondent
D. Friend, for the Applicant
Self-Represented
HEARD: November 24, 25, 26, 27, 2014
REASONS FOR DECISION
McGEE J.
[1] This is a Motion to Change, issued by the respondent father in June of 2012 and answered by the applicant mother in August of the same year. The trial was heard over four days: November 24th to November 27th, 2014. At the conclusion of trial the parties settled a parenting schedule for their youngest son based on directions from the court. An oral decision was given on the balance of issues.
[2] These reasons summarize that decision and set out the findings on which support mate calculations were calculated for the payment of child support, orthodontic fees and spousal support.
Background
[3] The parents have three children: Wesley born October 31, 1997, Allysha born June 11, 1999 and Bradley born October 5, 2004. When the parents separated in August of 2006 the children were almost 9, 7 and almost 2.
[4] Today the children are 17, 15 and 10. Their views and preferences were before the court through the very able assistance of counsel from the Office of the Children’s Lawyer. The court was advised that Wesley and Allysha have expressed strong and consistent views that they wish to reside with their father. Wesley has primarily resided with him since March of 2013 and Allysha since June of 2013.
[5] All three children have spent most of their lives in the midst of their parents’ conflict, and individual struggles to manage on very limited resources. Those struggles and the relentless conflict between their parents have created no end of heartache. After the sale of the family home in the summer of 2010 the mother and the children moved through four residences, including several months at a hotel. She presently resides in subsidized housing conveniently located across the road from Wesley and Allysha’s school.
[6] The father works fulltime in a demanding position. He has paid child support since separation, but for a brief period of unemployment. He was back to work that same year. He currently manages a lengthy daily commute to earn the only monies available for the wife and children’s support.
[7] The mother has not worked since separation, but for some modest monies providing daycare. She has been supported through social assistance (Ontario Works,) the Child Tax Credit, support monies from the father (most all of which were assigned to the Ministry) and various community support including the church and Salvation Army. Prior to separation, she was employed in the food services industry and home daycare.
[8] Of particular focus during the trial was the relationship between the number of children in the mother’s care and her qualification for housing and benefits.
[9] The father has continued to pay table support for all three children despite Wesley and Allysha residing fulltime with him.
[10] The issues at trial were custody and residence of the children, a parenting schedule for the youngest child Bradley; child support, spousal support and the payment of orthodontic fees for Wesley and Allysha.
Custody
[11] The Ontario Court of Appeal decisions in the cases of Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 194 O.A.C. 106, and Ladisa v. Ladisa (2005), 2005 1627 (ON CA), 193 O.A.C. 336 set out guidelines as to when a joint custody order may be appropriate. Those guidelines were summarized in the Ontario Court of Justice decision in Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556 (O.C.J.), and later adopted by this court in the case of Patterson v. Patterson, 2006 53701 (ON SC), [2006] O.J. No. 5454 (S.C.J.).
[12] To summarize, a joint custody order may be appropriate in three main types of cases:
(1) Where the parties agree to a joint custody order;
(2) Where there is a positive history of cooperation between the parties; and
(3) Where it is appropriate to preserve one parent's relationship with the child.
[13] Neither the first nor the second criteria is relevant to this proceeding. The parents are poor communicators and do not support the other’s parenting – and not always without cause. To require them to consult and work together on decision making may well create further difficulties. At the same time, my observations during the trial suggest that this potential ought not to be ruled out. When necessary, the parents have been able to cooperate to meet the needs of the children. Each hopes for a better future.
[14] The children have different needs at this time, and a separate approach is necessary for Bradley.
Bradley
[15] I find that a joint custody order is appropriate for Bradley. I make such a decision almost exclusively on the third profile of cases, as summarized above. While I remain hopeful that the parties will do better at communicating, I am concerned that absent an order for joint custody, the father’s relationship with Bradley, and his access to information concerning Bradley will be at risk.
[16] After Wesley and Allysha chose to reside with their father, the mother refused to allow Bradley to see him. I find that she did so not out of concern for Bradley, but out of fear that Bradley would also chose to live with his father, and that she would no longer be eligible for significant income support and housing benefits.
[17] These are not unreasonable concerns. But the mother’s ongoing, irrational refusal to allow Bradley to see his father at all, demonstrates a tenacious pattern of placing her own needs ahead of those of Bradley, and also of Wesley and Allysha.
[18] It is not contested that Bradley suffered tremendously from the loss of a regular, normalized relationship with his father and his two older siblings. The father was required to return the matter to court on three occasions to finally achieve the access order of February 17, 2014. That order did not provide for overnight access. And the mother has not been prepared to agree to overnight access for her 10 year old son since – a situation existing until this trial, contrary to the recommendations of the OCL.
[19] From June 2013 to March 2014 Bradley’s older siblings were also deeply affected by the mother’s decision to forbid Bradley to see his father. Not living in their mother’s home under these circumstances was an overwhelmingly painful decision for each of Wesley and Allysha. It meant never seeing their younger brother at their home. Neither made the decision lightly. Both missed their brother, and keenly felt their father’s frustration and their mother’s stubbornness. They were caught in the middle.
[20] The intractability of the situation may well have been responsible for some of the deterioration in Wesley’s mental health over the period from June 2013 to March 2014.
[21] I find that the mother’s failure to place Bradley’s needs ahead of her own for a significant period of time is sufficient cause to hesitate in granting her claim for sole custody. I also find that the father’s relationship with Bradley, and his access to information concerning Bradley may well be at risk were he not to also be a custodial parent.
[22] As for his schedule, Bradley’s strong views and preferences as presented by the OCL are to remain within his mother’s primary residence, but to return to the schedule that he enjoyed with his father prior to June 2013. That schedule includes weekend overnights.
[23] Final order to go that the parties shall have joint custody of Bradley, that the mother shall be primarily responsible for the care and upbringing of Bradley; and that Bradley’s schedule with his father shall be in accordance with the consent filed.
Wesley and Allysha
[24] On the evidence before me, and for oral reasons given and those repeated above, I am satisfied that joint custody is not appropriate for Wesley or Allysha. I make a final order that they shall reside primarily with their father and that he shall have sole custody.
Child Support
[25] Much unnecessary evidence was led on the question of what amount of time Wesley and Allysha spent at their mother’s residence. The calculation of table amounts of support presupposes that a non-residential parent contributes to a child’s expenses while in her or his care. There is no payment of child support to a parent until a child is primarily in his or her care – irrespective of a pattern of visitation with the other parent.
[26] Commencing June 1, 2013 the order of October 17, 2008 shall be varied to provide that the father shall pay table support for one child in the amount of $615, based on his income of $67,228.
[27] As the mother’s income is below the floor of the Federal Child Support Guidelines no table support for Wesley or Allysha is payable.
Spousal Support
[28] Prior to trial the parties had not had a fulsome analysis of the claim for spousal support. Support has been assigned throughout. At the same time, spousal support was never released, nor was the claim dismissed. The consent order of October 17, 2008 provided that no spousal support would be paid “at this time.”
[29] That order did provide for a payment of tuition within a specified period for the mother to pursue a certificate in Early Childhood Education. Much evidence was tendered on this account. It was a term of consent entered into by the parties which had the attraction of being outside the usual assignment of benefits. It was not exercised for reasons that are in dispute between the parties and are unnecessary for the court to determine.
[30] Periodic support remains to be determined.
[31] There are a number of challenges in assessing such a claim retrospectively. First, the period for tax deductibility of any amounts paid before December 31, 2012 has been lost. Second, government credits, tax credits and benefits, social assistance and community support received to date has been predicated on the terms of the prior order.
[32] The Supreme Court of Canada case of S. (D.B.) v. G. (S.R.), 2006 SCC 37, 31 R.F.L. (6th) 1 (S.C.C.), (D.B.S.) has made it clear that the granting of a retroactive order is not presumptive. There are a number of factors that must be assessed. Although such factors speak to claims for child support, they have also been applied to parallel claims for spousal support.
[33] I am not satisfied that an award of spousal support to Mrs. Miller for any period between the date of separation to May of 2013 would create a just result. Mr. Miller would incur significant hardship at a time during which he is the custodial parent of two children. Mrs. Miller would not receive any benefit as the support was assigned. The Ministry previously settled their interest and has chosen not to participate in this trial.
[34] I am prepared to make an order for periodic spousal support in the amount of $995 commencing June 1, 2013. That amount of spousal support is calculated as follows:
(a) The father’s income of $67,228.
(b) The mother’s income of $1,100.
(c) Two children aged 17 and 15 residing with the father.
(d) One child aged 10 residing with the mother.
(e) Each of the mother and father receiving the appropriate tax benefits and credits commensurate with the number of children in his or her home.
(f) The parties being married for 18.75 years and the mother’s age at separation being 39.
(g) The father paying the after tax amount of uninsured orthodontic fees of $4,800 per annum for a period of 24 months: amortized over the period of June 1, 2013 to May 31, 2015.[1]
[35] There was no evidence tendered at trial that the mother is unable to earn monies towards her and her children’s support. Although she wishes to remain available for the children during the school day, their need for financial security is as pressing, if not more pressing than the need for caretaking.
[36] I am prepared to impute income to the mother for the purpose of calculating her support, while mindful of her need to transition back into the workplace, and the effect that her changed circumstances will have on her eligibility for benefits. I thus impute a modest income of $8,000 per annum commencing June 1, 2015. This amount represents income on a part-time basis in an entry level position.
[37] Thus, spousal support in the amount of $800[2] commencing June 1, 2015 shall be paid by Mr. Miller. That spousal support is calculated as follows:
(a) The father’s income of $68,000.
(b) The mother’s income of $8,000.
(c) Two children aged 19 and 17 residing with the father.
(d) One child aged 12 residing with the mother.
(e) Each of the mother and father receiving the appropriate tax benefits and credits commensurate with the number of eligible children in his or her home.
(f) The parties being married for 18.75 years and the mother’s age at separation being 39.
(g) There being no special expenses (as the prior payment of orthodontic costs would be discharged.)
[38] The amount of spousal support commencing June 1, 2015 is subject to a material change in circumstances which may include, but is not limited to the father paying of post-secondary education expenses for any of the children.
[39] In the event that Bradley resides with the father, the amount of spousal support can be reviewed.[3]
[40] In order to provide as strong as possible an incentive for the mother to return to the workforce, I order than she may earn up to $30,000 prior to the father bringing a motion to reduce the quantum of spousal support.[4] Her increased income is to be factored into her proportionate share of any section 7, including post-secondary education expenses.
[41] It is recommended that the father complete a new T1 profile with his employer so that less tax is withheld at source. In that manner the tax deductibility of the spousal support will be realized commensurately with receipt of his income, rather than upon the filing of his Return.
[42] It is recommended that the parties apply for an order for divorce.
[43] Each party[5] will need to refile their 2013 income tax return in accordance with the terms of the order on or before December 31, 2014. To that end, I direct that the issuing and entering of this order be expedited.
[44] In summary, final orders to go as follows:
(1) The father shall have sole custody of Wesley born October 31, 1997, and Allysha born June 11, 1999.
(2) Wesley and Allysha’s primary residence shall be with their father.
(3) Wesley and Allysha shall spend time with their mother subject to their wishes and preferences; and, such access shall be confirmed through text, either by the parent or Wesley or Allysha, to the other parent.
(4) The parents shall have joint custody of Bradley born October 5, 2004. Each shall have full entitlement to any medical, educational, dental and health records.
(5) The mother shall be primarily responsible for the care and upbringing of Bradley.
(6) The father shall continue to cover Wesley, Allysha and Bradley on any health, medical, drug and dental benefits available to him.
(7) The father shall pay any uninsured health, medical and dental expenses for the children.
(8) Bradley shall spend time with his father as follows:
a. Except as otherwise provided herein, a weekend visit from Friday at 7:00 p.m. until Sunday at 7:00 p.m. which shall occur every second weekend commencing December 5, 2014. The visit shall be extended by one day if Bradley child is not required to attend school on the Friday before or the Monday after an access weekend if the father is not scheduled to work.
b. The father shall have access to Bradley Tuesday evening from 6:30 p.m. until 8:45 p.m. Regular access will be superseded during periods of special access as included in paragraphs c) to g) below.
c. On Thanksgiving weekends the father shall have Bradley from Saturday at 10 a.m. until Sunday at 2 p.m.
d. Christmas: the father shall have Bradley from December 24 at 10 AM until December 25 at 2 PM and the mother shall have Bradley from December 25 at 2 PM until December 27 at 10 AM. The remainder of the school holiday will be divided equally alternating the commencement week.
e. March Break: the parties shall endeavour to keep the children together and shall split the March Break equally between them so that the parent having the children the weekend beginning March break will have the children until Wednesday at Noon. If the father is required to work when he has the child, the mother shall be given the option of providing child care for Bradley; and thereafter, Bradley will be with the father.
f. Every Mother's Day and every Father's Day, regardless of the weekend access schedule, the other party shall have the same rights in relation to his/her day from Saturday at 6 p.m. until Sunday at 5 p.m.
g. Summer access: each party shall have the right to three one week holidays with Bradley each summer which may be two weeks consecutively. Notice shall be given to the other party by June 1 of each year. In the case of conflict, the father shall have priority in even numbered years and the mother shall have priority in odd numbered years. If the father is required at work during his time, Wesley and or Allyssa shall be given the option of caring for Bradley; and if not, then the mother shall be given the option of caring for Bradley. No parent shall put any unreasonable expectation on Wesley or Allysha as to whether they are to take on responsibility for Bradley's summer childcare
h. Easter; the parties shall equally share the Easter weekend on an alternate basis and each shall have two consecutive days. The father shall have a Good Friday and Saturday and the mother shall have Easter Sunday and Easter Monday.
i. The father shall have unlimited telephone access during reasonable hours.
j. The father shall have such further another access as the parties may agree upon from time to time to allow for special events.
k. Each party shall ensure that Bradley attends school and any of his extracurricular activities during their scheduled time.
l. Access exchanges shall take place at the home of the applicant mother.
(9) The parties shall keep each other informed as to their residential address and telephone number, and notify the other whenever this information changes.
(10) Neither party shall speak negatively about the other party in the children's presence and both shall make their best efforts to prevent all third parties from doing so as well. Furthermore, neither party shall discuss this court case or other adult issues involving the parties with the children.
(11) The parties shall provide the other party with at least 90 days advance written notice of a planned change of residence outside the City of Barrie.
(12) Both parents shall exchange written itineraries of all vacations taken with the children prior to the vacation and shall provide all necessary consents and documentation including travel passport consents in a timely manner.
(13) Commencing June 1, 2013 the final order of October 17, 2008 shall be varied to provide that the father shall pay table support for one child in the amount of $615, based on his income of $67,228.
(14) Commencing of June 1, 2013 the final order of October 17, 2008 shall be varied to provide that the father shall pay $995 in tax deductible spousal support.
(15) Commencing of June 1, 2015 the amount of spousal support shall be reduced to $800 in tax deductible spousal support.
(16) Support Deduction order to issue accordingly.
(17) The entitlement to, and quantum of spousal support is subject to a material change in circumstances which may include, but is not limited to the father paying any:
(i) uninsured health, medical and dental expenses, or
(ii) section 7 expenses, or
(iii) post-secondary education expenses for the children.
(18) The mother earning up to $30,000 per annum shall not constitute a material change in circumstances for the purposes of reducing the amount of $800 payable in spousal support, but will affect the proportionate sharing of any section 7 or post-secondary expenses.
(19) Each parent shall provide the other with a copy of his or her Income Tax Return for the prior calendar year within 7 days of filing, commencing May 1, 2015.
(20) Notices of Assessment are to be exchanged upon request.
(21) The father is to ensure that life insurance is available for the children so long as they are dependent and he has such benefits available through his employment, or privately.
(22) The issuing and entering of this order is to be expedited.
(23) There shall be no order as to costs.
McGee J.
Released: December 1, 2014
[1] Absent the payment of orthodontic fees, the spousal support that I would have ordered would be $1,085 being the midpoint within the Spousal Support Advisory Guidelines range. I choose the midpoint to recognize that the father’s costs of earning his salary and the lack of income earned by the mother at a time during which I find that she has an ability to earn income.
[2] This amount bridges the range between mid and high spousal support. The amount recognizes modest financial contribution from the mother, and the lack of tax benefits for Wesley as he is 18 or older.
[3] The range of spousal support payable within the SSAG to Mrs. Miller would increase significantly were she no longer in receipt of child support.
[4] Any change in income would affect the table child support payable for Wesley or Allysha.
[5] Particularly the father as his eligibility to deduct spousal support from his taxable income expires at the end of the calendar year before the last calendar year. The mother ought to receive some tax advice as to whether receipt of spousal support will create a payment of taxes. Any monies paid to date will be a credit to this order.