Iusi-Johnston v. Iusi, 2015 ONSC 6266

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-14-3770-00
DATE: 2015-10-13

RE: JULI LYNN IUSI-JOHNSTON v. MARIO IUSI

BEFORE: LEMON J.

COUNSEL: William H. Abbott, Counsel for the Applicant

Evelyn Huber, Counsel for the Respondent

HEARD: August 26, 2015

ENDORSEMENT

The Issue

1Ms. Iusi-Johnston moves for summary judgment for her claims related to both past and future child support and s. 7 expenses. Mr. Iusi seeks a similar order against Ms. Iusi-Johnston. Mr. Iusi alternatively submits that any issue of retroactivity is an issue appropriately dealt with at trial and not by way of summary judgment. Neither seek an interim order.

2The most significant issue is whether Mr. Iusi exercises access to or has physical custody of a child or children for not less than 40 per cent of the time over the course of a year.

3Before argument, the parties filed a consent to an order that:

1. The Applicant and Respondent shall comply with the disclosure requirements of s. 21 of the Child Support Guidelines by June 1st each year, commencing June 1, 2016.

2. The Applicant and Respondent shall share all reasonable s. 7 expenses for the children on a net after tax basis in proportion to their income. Neither party shall unreasonably withhold their consent. If they cannot agree on a s. 7 issue, the Parenting Co-ordinator shall summarily arbitrate the issue.

Background

4The parties were married March 6, 2004. They have two children: G, age 11 and K, age 9. There is no dispute that the parties separated August 9, 2014.

5There is no dispute that Ms. Iusi-Johnston, in 2014, earned $89,000. Similarly, there is no dispute that Mr. Iusi earned $101,000 in 2014.

6Finally, there is no dispute that, after separation, both children resided with Ms. Iusi-Johnston. Mr. Iusi had access, pursuant to a consent order dated August 26, 2014, every other weekend and, after a short period, every Wednesday evening after school until 7:30.

7The parties had a s. 30 assessment carried out and, by consent order dated June 5, 2015, they agreed that the children would “reside” with each parent on the following schedule:

WEEK 1

Mon
Tues
Wed
Thurs
Fri
Sat
Sun

AM
Mario
Juli
Juli
Juli
Mario
Juli
Juli

PM
Juli
Juli
*Mario with K from 4-7:30 pm
Juli
Mario
Juli
Juli

WEEK 2

Mon
Tues
Wed
Thurs
Fri
Sat
Sun

AM
Juli
Mario
Juli
Juli
Juli
Mario
Mario

PM
Mario
Juli
*Mario with K from 4-7:30 pm
Juli
Julie
Mario
Mario

8Transfers of the children were to “occur at school except on PA days or stat holidays when the parents can transfer the children to one another’s homes”. There does not appear to be specific times set for transfers in that case.

9It is agreed that since March of 2015, K has not been visiting with his father. The parties disagree on the reasons for that; they each blame the other.

Positions of the Parties

10Ms. Iusi-Johnston complains that Mr. Iusi has not been paying the proper amount of support since separation. Ms. Iusi-Johnston’s interpretation of Justice Price’s order is that, on any accounting, the children have not been with Mr. Iusi more than 40 per cent of the time. Accordingly, she says that support and s. 7 expenses are to be paid by him in the normal course, pursuant to the Guidelines.

11In response, Mr. Iusi says that the children, pursuant to that order, are with him more than 40 per cent of the time and therefore support should be set off. Further, he says that since he has paid a number of household expenses since separation, those should be set off against the child support. Finally, he says that Ms. Iusi-Johnston has an outstanding costs order that should be set off against any outstanding support obligation. That, he says, should resolve any retroactive support claim.

12He says that taking into consideration the “shared parenting” of the agreement, he should pay support in the amount of $157 per month.

Analysis

Legal Principals

13The relevant parts of Rule 16 of the Family Law Rules set out that:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure

14Section 9 of the Federal Child Support Guidelines states that:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

15In L.L. v. M.C., 2013 ONSC 1801, Czutrin J. reviewed the case law with respect to s. 9. The following principles emerged from that review:

(i) The onus of proving that the 40 per cent access threshold is met, falls on the spouse seeking to invoke s. 9.

(ii) The question of whether an access parent has met the 40 per cent threshold necessary to bring the child support assessment under s. 9 is one that has generated considerable litigation. There is no universally accepted method for how to calculate access and custody time.

(iii) Forty per cent is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40 per cent.

(iv) At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access. For this reason, applying the appropriate method of calculation is crucial.

(v) The approach to be used for the assessment of time is within the judge's discretion to determine.

(vi) Section 9 of the Guidelines requires the courts to consider more than a simple mathematical comparison of the number of hours in a year and the number of hours of physical access exercised by the parent asserting shared custody. In determining the issue, the court may consider several factors, including:

(a) how the shared parenting situation evolved;

(b) any specific contractual agreements relating to joint custody.;

(c) the quality of the time the children spend with each parent.

(vii) Forty per cent is fixed as a firm threshold. It is acknowledged that when parents are exercising that level of access, child support determinations need to be approached in a different manner given the reality of the costs incurred by parents in these types of access and custody arrangements.

(viii) It is therefore desirable to be as precise as possible when determining the reality of the parents’ access and custody situation.

(ix) The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year.

(x) The relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children. The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is “responsible for their well-being”.

(xi) In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent’s home. If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent.

16In Jebb-Waples v. Waples, 2014 ABQB 26, Veit J. said:

4Because section 9 of the Child Support Guidelines assumes, prima facie, that when one of the parties meets the 40% test, the parents are in a shared parenting regime, I accept that where a parent establishes that they have physical custody of children for a minimum of 40% of the time, they are in a shared parenting situation. In determining whether a parent is parenting 40% of the time, and therefore entitled to a determination of whether an adjustment should be made to child support obligations, a court should look at the actual amount of time each parent is parenting the children, that is taking responsibility for the children, and also to the intention of the parties. In calculating the actual amount of parenting time each parent spends with the children of the marriage, it is generally not useful to look to “days” rather than to hours.

Retroactive Guideline Support

17Mr. Iusi is incorrect in attempting to set off household expenses and household liabilities against child support. Those are issues that can be resolved in the division of property. Nor does a costs order normally impinge on the obligation to pay child support. Absent a claim for hardship, the Guidelines should apply.

18There is no doubt about Mr. Iusi’s income for 2014. That income can be used to determine child support for 2014 and 2015.

19There is no doubt that Mr. Iusi did not exercise more than 40 per cent of the time with his children up to June 5, 2015. Accordingly, support is payable for both children based on his annual income of $101,000 or $1,429 per month. It appears that the parties agree on what amounts he has paid to this point and he should be credited for those amounts. Having fixed the amount of support, and relying on the chart set out at paragraph 32 of Ms. Iusi-Johnston’s factum, arrears to June 1, 2015 would be $14,721. Ms. Iusi-Johston agrees that the outstanding costs order of $1,500 should be deducted from that amount. Accordingly, to June 5, 2015, Mr. Iusi’s arrears are fixed in the amount of $13,221. If I am incorrect in that arithmetic, counsel can make further submissions in writing within the next 15 days.

Guideline Support from June 5, 2015

20Both parties put their own interpretation on Justice Price’s order. Part of their argument contemplates what will occur in the future if the children are sick or an emergency occurs. Both say they are more likely to be available; therefore more time should be allotted to them. I cannot make that determination now.

21Mr. Iusi submits that “the intent of the Order is clearly shared parenting and the language of the Assessment in the Order clearly supports this”. The term “shared parenting” does not determine this issue. As set out above, it is the number of hours or number of days that counts and not the description of how parenting is to be carried out during those times.

22As can be seen from the present order, there are simply blocks of time given to one parent or the other. There are no timelines fixed for transfers. While the parties appear to be inflexible now, the order itself includes many terms that envision change and flexibility. I prefer the analysis that a court should consider a more exacting and precise standard. On the evidence before me, I am not satisfied I can make that determination on a go forward basis.

23Further, s. 9 does not simply stop at the 40 per cent determination. If that determination is made, then the court carries on to consider the further three factors. I have very little evidence with respect to increased costs of shared custody.

24Further, K is presently not going to his father’s residence. Counselling is underway. If he does not return, the s. 9 analysis will not apply to him. That may well affect the analysis with respect to G. I cannot foresee what will occur and do not have the evidence to make that calculation now on a final basis.

25The onus at trial will be on Mr. Iusi to prove the s. 9 analysis, however, on this motion, Ms. Iusi-Johnston’s burden is to show that there is no genuine issue for trial. She has not met that test.

26I am not asked to make an interim order. Support going forward will have to be determined by further motion or trial.

Section 7 Expenses

27Ms. Iusi-Johnston also seeks a variety of s. 7 expenses against Mr. Iusi. For G, she seeks $960 for ice skating and $25.50 for field trips. For K, she seeks hockey expenses of $702, hockey equipment of $253.07, Cubs of $185 and field trips of another $25.50. In response, Mr. Iusi sets out that he has paid for the children’s swimming lessons, G’s horseback riding and figure skating as well as K’s power skating program and miscellaneous school expenses of $27.

28It is to be remembered that the relevant portions of s. 7 of the Child Support Guidelines read as follows:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. [Emphasis mine.]

29As can be seen, I need to determine child support first. Second, it is necessary to have evidence of both the reasonableness and the necessity of the expense before it can be awarded. What little evidence there is, in those regards, is disputed. In her last affidavit, Ms. Iusi-Johnston puts Mr. Iusi “to the strictest proof” of some of those expenses. He shall have to do so at trial. I cannot make a final determination on the basis of the material before me.

Further Thoughts

30Justice Price’s Order of June 5, 2015, ordered, on consent, that:

The parties shall make best efforts to actively foster and facilitate the relationships between the children and the other party or members of the other party’s extended family.

31In Jackson v. Jackson (2008), 2008 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. S.C.), Murray J. states:

This case involves parents who describe themselves as being in high conflict. The material filed in court corroborates the accuracy of this description.

As with many parents in high conflict, they purport to wage war for the best interests of their children. They solicit friends and relatives to support their position at the expense of the other parent. They solicit the opinions of their children about where they might want to live and with whom. They hurl insults at each other.

The practical reality is that they have no apparent interest in curbing conflict to minimize the potential of harm to their children. They appear oblivious to the collateral damage that high conflict between them might have on their children.

The Toxicology of Conflict

I can do no better than to quote at length from High-conflict Separation and Divorce: Options for Consideration, a paper prepared for the Department of Justice, Canada, by Glenn A. Gilmour. In this paper, Mr. Gillmor summarizes the factors which contribute to impasse and conflict. These factors were identified by Johnston, Campbell and Tall (1985) using data on 80 divorcing families with 100 children, to develop a typology of factors contributing to impasse in divorce. Mr. Gillmor’s summary of these factors is worth quoting in full:

At the external level are unholy alliances and coalitions the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse’s parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other.

Interactional elements include the legacy of a destructive marital relationship, in which each spouse while married had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the exspouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other; a need to ward off of helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them.

Some of these factors are visible at the tip of the iceberg of this conflict laden dispute.

The Impact of High Conflict Separation and Divorce on Children

Too many parents in high conflict matrimonial disputes are or appear to be totally oblivious to the potential adverse impact on children of high conflict. Too many parents in high conflict matrimonial disputes are so self-absorbed and so absorbed in conflict that the best interests of their children are effectively ignored. Of course, they do not always perceive that this is the case. Sometimes, they simply may not care.

Often the war between the parents is waged in the name of the children and - according to the parents - war is waged for the best interests of their children. Winning is said to be equated with the children’s best interest. But since winning is about the parents winning against each other, usually winning is not the same as the children’s best interests. Winning is the objective of war. It is the war that is the most hurtful to children.

The amount of research in this area is remarkable. It is neither possible nor practical for most of us to endeavour to acquire the knowledge and expertise of professional counsellors, psychiatrists and psychologists and other family and child care professionals who are best suited to give advice in a particular case. However, as members of the judicial system, we can attempt to help parents see the potential adverse impact on children of their often selfish, self-indulgent, unbridled, hurtful and relentless parental conflict. Then we might be more successful in having such parents become more aware of the implications of their conduct and in having them understand the benefits of seeking trained, professional help.

32The parties might keep those thoughts in mind. At 11 and 9, the children will know of this dispute even if the parents attempt to keep it from them. While the determination of what constitutes 40 per cent in this case will make for an interesting trial for the lawyers and the judge, I see little net benefit to this family to take it to trial.

33Pursuant to Rule 16(9), I may give further directions. When the matter came before me on August 26, 2015, a Settlement Conference had been set for late September. I took the file with me on holidays in order to review the file and, as can be seen, my decision was not available until October. I am advised that a new settlement conference is set for January 29, 2016. No submissions were made with respect to directions and I am not prepared to make any up from my own thoughts. I therefore make no order with respect to the trial. I do, however, offer to counsel that, if they wish, I may be approached by conference call to arrange a settlement conference/trial management conference before me so that this matter may be ready for the January trial sittings.

Result

34The Applicant and Respondent shall comply with the disclosure requirements of s. 21 of the Child Support Guidelines by June 1st each year, commencing June 1, 2016.

35The Applicant and Respondent shall share all reasonable s. 7 expenses for the children on a net after tax basis in proportion to their income. Neither party shall unreasonably withhold their consent. If they cannot agree on a s. 7 issue, the Parenting Co-ordinator shall summarily arbitrate the issue.

36Mr. Iusi’s arrears are fixed to June 5, 2015, in the amount of $13,221. If I am incorrect in that arithmetic, counsel can make further submissions in writing within the next 15 days. The arrears shall be paid within 30 days.

37With that payment, Ms. Iusi-Johnston’s costs as ordered by Edwards J. are satisfied.

38The balance of the motions is dismissed.

39If the parties cannot agree on costs, submissions may be made to me in writing. Ms. Iusi-Johnston shall make her submissions within 15 days and Mr. Iusi shall make his within 15 days thereafter. Each submission shall be no more than three pages not including any offers to settle or bills of costs.

Lemon J.