CITATION: Cabana v. Cabana, 2015 ONSC 3151
COURT FILE NO.: FS-13-13308
DATE: 20150515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karissa Lynn Cabana
Applicant
– and –
Gregory Joseph Cabana
Respondent
Jason P. Howie, for the Applicant
Gregory Joseph Cabana, acting in person
HEARD: October 15, 2014
carey J.:
Overview
[1] The applicant mother is 36 years old and employed at Accucups. The respondent is 35 and is working at BDI Canada in customer service. The parties started to live together in 2000; they married in 2006. Alyssa, their oldest child, is now 10 and Chase, their son, is 7. The applicant seeks a divorce, retroactive child support, child support going forward, medical benefits for the children, life insurance benefits and custody. The respondent father seeks shared custody pursuant to a separation agreement worked out, without counsel, by the parties. That agreement, dated October 1, 2010, is referred to as a “kitchen table” agreement by the applicant mother’s counsel and he asks that it be disregarded as unenforceable. That agreement reflects that the continental shift of the mother’s employment dictates when the children spend time with each parent. The children’s primary residence is stated as the mother’s home.
[2] According to the agreement the mother is to take the children to school on the days following the nights that she works, and then sleep while they are at school. The parties now live close to each other and have both set up homes adequately for the needs of the children. There are separate rooms and clothes for the children. I did not hear evidence of significant conflict over the schedule, and it seems to have been working well. It was designed to manage the time with both parents.
Position of the Parties
[3] The applicant mother maintains that the agreement between the parties is unenforceable and not in the best interests of the children. She is seeking support going forward as well as retroactive child support on the basis that the father should have been paying support throughout the period of the separation as the time he spends with the children is less than 40 percent.
[4] The respondent father argues that the agreement has been working well and that the practical result is a shared custody arrangement which, given the respective incomes, should result in no support being paid by either party. He argues that he would not be able to afford the present arrangements that he has made for shared custody were he to be obligated to pay support.
[5] Most of the disagreement between the parties revolves around the interpretation of how much time each parent is spending with the children and whether or not the time spent by the respondent father triggers the 40 percent time threshold as set out in s. 9 of the Federal Child Support Guidelines, SOR/97-175 (“FCSG”) under the heading Shared Custody. As is not unusual in these cases, each party urges an interpretation that maximizes their time with the child and effects the support obligation in a manner favourable to them.
Issues
Does the separation agreement meet the formal requirements of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”)?
Are the child support provisions in the agreement reasonable given the child support guidelines?
Should provisions of the separation agreement be set aside pursuant to s. 56(4)?
The Law
[6] The formal requirements for a domestic contract or agreement are set out in s. 55(1) of the FLA. A precondition to enforceability is that the agreement be in writing, signed by the parties and witnessed.
[7] Section 56 (1) of the FLA provides:
CONTRACTS SUBJECT TO BEST INTERESTS OF CHILD — (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.
Section 56 (1.1) provides:
CONTRACTS SUBJECT TO CHILD SUPPORT GUIDELINES — In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.
Section 56 (4) provides:
SETTING ASIDE DOMESTIC CONTRACT — A court may, on application, set aside a domestic contract or a provision in it.
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
[8] Froom v. Froom (2005), 194 O.A.C., 11 R.F.L. (6th) 254 (ONCA) stands for the proposition that there is no universally accepted method for determining the 40 percent of time that triggers s. 9 of the Federal Child Support Guidelines. In endorsing the trial decision in that case, the Court of Appeal said:
That approach and that method were consistent with many trial decisions, which seek to avoid rigid calculations and, instead, look at whether physical custody of the children is truly shared.
[9] The applicant argues that the Court of Appeal’s decision in Froom has been overtaken by subsequent case law, notably the decision in L.(L.) v. C.(M.), 2013 ONSC 1801, 28 R.F.L. (7th) 217.
[10] The Supreme Court of Canada’s decision in Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24 stands for the proposition that weight should be given to marriage agreements. At para. 46, the court stresses “a court should be loath to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives” of the governing legislation.
[11] The Ontario Court of Appeal has enunciated the objectives and approach to be adopted in the reference to s. 56(4), in LeVan v. LeVan, [2008] O.J. No. 1905 2008 ONCA 388. There the court makes the following statement, at paras. 50-51:
Section 56(4) of the FLA was designed to address and codify prior concerns maintained by courts that both parties fully understood their rights under the law when contracting with their spouses. It has been characterized as the “judicial oversight” provision of marriage agreements: Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550 at paragraph 14. The provision is of such significance that, in accordance with s. 56(7), it cannot be waived by the parties.
The analysis undertaken under s. 56(4) is essentially comprised of a two-part process: Demchuk v. Demchuk (1996), 1986 CanLII 6295 (ON SC), 1 R.F.L. (3d) 176 (Ont. H.C.J.). First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement. This approach was adopted and applied by the trial judge in this case.
[12] As the court set out previously in para. 33 of LeVan, even if one or more of the circumstances under s. 56(4) are identified, the decision to set aside the agreement remains a “discretionary exercise”.
Application of Law to the Evidence
[13] Pivotal to any resolution of the issues is a determination about the enforceability of the “Marital Separation Agreement” signed on October 1, 2010. It apparently was the framework for the arrangement that remained in place up to the time of this trial. It is clear the parties drafted the agreement with the primary intention of accommodating both parents’ desire to spend maximum time with the children as well as the applicant mother’s work schedule.
[14] All of the requirements of s. 55.1 are met by the agreement that the parties made on October 1, 2010, and amended on May 2, 2011.
[15] The parenting schedule is set out on pp. 1-3 of the Marital Separation Agreement as follows:
Week One:
Monday Evening – Karissa is required to work, the children will be in Gregory’s custody from Monday evening prior to 6:00 p.m. until Karissa is relieved of work the following morning after 6:00 a.m.
Tuesday Evening – Karissa is required to work, the children will be in Gregory’s custody from Tuesday evening prior to 6:00 p.m. until Karissa is relieved of work the following morning after 6:00 a.m.
Wednesday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Thursday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Friday Evening – Karissa is required to work, the children will be in Gregory’s custody inclusively from Friday evening prior to 6:00 p.m. until the following Monday morning when Karissa is relieved of work after 6:00 a.m.
Saturday Evening – Karissa is required to work, the children will be in Gregory’s custody inclusively from Friday evening prior to 6:00 p.m. until the following Monday morning when Karissa is relieved of work after 6:00 a.m.
Sunday Evening – Karissa is required to work, the children will be in Gregory’s custody inclusively from Friday evening prior to 6:00 p.m. until the following Monday morning when Karissa is relieved of work after 6:00 a.m.
Week Two:
Monday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Tuesday Evening – Karissa is not required to work, hence the children will be remain in Karissa’s custody.
Wednesday Evening – Karissa is required to work, the children will be in Gregory’s custody from Wednesday evening prior to 6:00 p.m. until Karissa is relieved of work the following morning after 6:00 a.m.
Thursday Evening – Karissa is required to work, the children will be in Gregory’s custody from Thursday evening prior to 6:00 p.m. until Karissa is relieved of work the following morning after 6:00 a.m.
Friday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Saturday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Sunday Evening – Karissa is not required to work, hence the children will remain in Karissa’s custody.
Please note that the above schedule only pertains to the appropriate employment requirements of Karissa’s regularly scheduled continental evening work shift and does not include any of Karissa’s employers Shut Downs or Lay Offs as well as additional Overtime employment, Holidays or Vacations, as these days will be determined on an individual basis and met with a mutual agreement between Gregory and Karissa.
Any changes relating to Gregory’s current employment status of full time Monday thru Friday day employment or Karissa’s current employment status of full time continental evening employment, regarding employment shift rotation between days and evenings or any new potential employment opportunities with different employers, will result in Gregory and Karissa revisiting the Shared Custody Arrangement to produce an amicable revision that will be both beneficial to each individual and provide them an equal arrangement with their children.
[16] I found the father’s evidence on the negotiation of the agreement credible. I accept that the current arrangement (shared custody) as described by him has been working well and allows not only for maximum time with each parent but with both sets of grandparents. The applicant tried to convince the court that the respondent had demanded the arrangement and that there was a level of coercion by him on her that resulted in the current agreement. Her evidence did not convince me that the respondent coerced or manipulated her in any way, or that the result was an unfair agreement that did not protect the best interests of the parties or the children. It is significant that the agreement has been in place since 2010 when the parties were still living under one roof. I prefer the respondent’s evidence that the agreement has continued to work well through the father’s transition to his own residence.
[17] The father impressed me as being very involved in his children’s lives. The mother attempted, at every turn in her evidence, to describe the father and his motivations and actions in a negative manner. I prefer the father’s evidence over the mother’s as I found the mother’s evidence frequently self-serving and biased.
[18] The applicant’s position is that the days she makes breakfast and lunch for the children before they are picked up by the school bus, are all days when they are in her custody. She sleeps while they are in school on the days where she works all night. Both parents are reachable by phone by the school if required. The children arrive back every day by school bus on a return trip that averages 40 minutes.
[19] When the mother has a day off and the children are at school, both parents remain reachable. The shared custody arrangement acknowledges their equal involvement in the children’s education.
[20] School vacation time seems to have been shared equally with an equal division of daycare or summer camp expenses provided for by the agreement.
[21] In my view, the spirit of the agreement voluntarily entered into by the parties in 2010 is best served by treating school time, summer camp time and any time at daycare as neutral time for the purposes of s. 9 of the FCSG. I consider the Froom decision as the prevailing law in Ontario and have looked at whether physical custody is truly shared.
[22] Separating couples should be encouraged to reach fair, amicable settlements without litigation and comply with their terms. The fact that the agreement was not drafted with or by lawyers is not critical in my view to its enforceability. Neither is it critical to an analysis of enforceability that the applicant mother brought her claim for child support in 2011. I find no basis under s. 56 of the FLA for setting aside the agreement of the parties and ordering child support to be paid by either party.
[23] What is of key importance is that this ‘kitchen table’ agreement has mapped out the status quo for the last four and a half years. That status quo has operated to the benefit of both parties and the children. The agreement was clearly designed not only to share custody but to accommodate the applicant’s work schedule. The agreement’s clause respecting child support is perfectly reasonable weighing the factors set out in s. 9(a) to (c) of the FCSG.
Conclusion
[24] Based on the evidence of the parties and a fair reading of the agreement between the parties, I have concluded that this is an example of a situation where custody is truly shared 50-50 between the parties. Given the relative parity of salary between the parties and similar expenses providing accommodation for the children, the applicant mother’s application for support and retroactive support is dismissed. A divorce order will issue. The respondent husband will include both children on any employment benefit program available to him. The respondent was self-represented at trial. In the circumstances, there will be no order as to costs.
Original signed “Carey J.”
Thomas J. Carey
Justice
Released: May 15, 2015
CITATION: Cabana v. Cabana, 2015 ONSC 3151
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karissa Lynn Cabana
Applicant
– and –
Gregory Joseph Cabana
Respondent
REASONS FOR JUDGMENT
Carey J.
Released: May 15, 2015