Caverley v. Stanley, 2015 ONSC 647

COURT FILE NO.: F 1186/13

DATE: 2015/01/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Crystal Caverley

Applicant

– and –

Colin Stanley

Respondent

Self-Represented

Self-Represented

HEARD: November 13 and 14, 2014

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] This was the hearing of an Application involving two young children, namely three year old Angelica Rose Stanley, born November 16, 2011 (“Angelica”), and Anderson Andre Stanley, born March 19, 2013 (“Anderson”), who is almost two years old. The Applicant Crystal Caverley is the mother of the children and the Respondent Colin Stanley is the children’s father. The parties were in a relationship from 2004 until July 2013. The issues to be determined in this case are:

1. What custodial arrangement is in the best interests of the children?

2. What time-sharing regime is in the children’s best interests?

3. What has Mr. Stanley’s income been since the parties’ separation in July 2013, and what Table amount of child support should he have been paying pursuant to the Child Support Guidelines (Ontario)(O. Reg. 391/97, as am.) (the “Guidelines”) since that time?

4. What is the appropriate amount of ongoing child support?

5. Is Ms. Caverley entitled to contribution from Mr. Stanley for daycare expenses which she has incurred for the children, and if so what is the amount of Mr. Stanley’s liability to Ms. Caverley on account of these expenses?

[2] For the reasons that follow, I have determined that an order for sole custody of Angelica and Anderson in favour of Ms. Caverley is in the children’s best interests. I have granted Mr. Stanley access to the children on alternate weekends, and such other access as may be agreed upon between the parties. With respect to child support, I have determined that Mr. Stanley’s annual income was approximately $71,472.00 in 2013 and $55,346.00 in 2014, and that his 2015 income will be approximately $64,915.00. I have ordered him to pay Ms. Caverley the Table amount of child support based on these income amounts, subject to credits for amounts which he has already paid, and I have fixed the amount which he owes to Ms. Caverley on account of his contribution to section 7 expenses at $1,115.00 up to and including December 31, 2014. I have also ordered that Mr. Stanley contribute 51.2% towards the children’s ongoing section 7 expenses commencing January 1, 2015.

[3] The parties consent to an order requiring the father to name and maintain the children as beneficiaries under any dental, medical and extended health benefits plan that may be available to him through his current and future employment.

PART II: BACKGROUND AND HISTORY OF LEGAL PROCEEDINGS

[4] I make the findings set out below respecting the relevant background in this matter.

[5] Ms. Caverley and Mr. Stanley commenced their relationship in approximately 2004, and began cohabiting in 2005. Mr. Stanley has two older children from a previous relationship, and one of those children lived with the parties for a number of years while they were together. The parties separated in July 2013. The separation was largely attributable to conflict which had developed between the parties as a result of Mr. Stanley’s interactions with a female co-worker. Ms. Caverley had concerns that Mr. Stanley had become romantically involved with this co-worker, which Mr. Stanley adamantly denies. The father was terminated from his employment in the summer of 2013, and he blamed the termination on Ms. Caverley, stating that the mother had created problems in his workplace by attending there and raising issues regarding the female co-worker in question.

[6] The conflict between the parties culminated in a verbal altercation in the family home in June 2013 during which the father became angry and flung open a kitchen drawer, causing the items in the drawer to catapult against the oven and shatter the glass door of the oven. The mother asked Mr. Stanley to leave the home, but then took Angelica and Anderson to a hotel for the night. She delivered all of the father’s belongings to his sister’s home on her way to the hotel. When Mr. Stanley returned to the home and realized that all of his belongings were missing, he contacted the police for assistance. Ms. Caverley disclosed to the investigating police officer that during the argument that had occurred in the home, Mr. Stanley had picked up a coconut and threatened to “bash her” with it if she did not stop yelling. Based on Ms. Caverley’s statement and the evidence relating to the broken oven in the home, Mr. Stanley was charged with uttering a threat and mischief. He was released on an undertaking, on conditions which included a requirement that he have no direct or indirect contact with Ms. Caverley. The criminal charges resulted in Mr. Stanley receiving one year of probation, with a term that he not attend at Ms. Caverley’s home. There is no ongoing prohibition against communication with Ms. Caverley.

[7] The mother commenced the Application that is the subject of these proceedings on July 18, 2013. The Application included claims for sole custody, supervised access to Mr. Stanley, child support and spousal support. At the outset of trial, Ms. Caverley confirmed that she was not pursuing the claim for spousal support.

[8] The no contact term of Mr. Stanley’s release rendered it challenging for the parties to arrange visits between Mr. Stanley and the children following the separation. The case proceeded to a case conference on November 21, 2013. At that time, the parties agreed informally that the father would pursue anger management counselling, that he would then take steps to change the terms of his release to allow contact between the parties, and that he would begin having access to the children on alternate weekends. The parties subsequently made arrangements with Mr. Stanley’s former wife, Shauna Stanley, that Ms. Stanley would facilitate the exchange of the children for the purposes of access until Mr. Stanley was able to change the no contact term of his undertaking in the criminal proceeding.

[9] Ms. Caverley brought a motion on February 14, 2014, requesting a temporary order for sole custody of the children, child support, contribution from the father for daycare expenses, and disclosure respecting the father’s 2013 and 2014 income. The motion was adjourned to February 21, 2014, and on that date, Mazza J. made an order requiring Mr. Stanley to serve and file an updated Financial Statement and copies of his three most recent pay statements. Mr. Stanley filed an updated Financial Statement by the deadline, but did not file the pay statements.

[10] Ms. Caverley’s motion was heard on March 7, 2014. Both parties were in attendance on that day. At the conclusion of the hearing, Brown, J. made a temporary without prejudice order granting the mother custody of Angelica and Anderson. In addition, she ordered the father to pay child support in the amount of $609.00 per month commencing March 1, 2014, as well as $745.00 per month on account of his proportionate share of the children’s daycare expenses. This temporary order was based on the evidence available to Brown, J. indicating that Ms. Caverley’s annual income was $52,800.00 and Mr. Stanley’s income was $41,718.00. Brown, J. adjourned the case to May 6, 2014 to be spoken to.

[11] Mr. Stanley failed to appear in court on May 6, 2014. Pazaratz, J. scheduled the matter for trial, and ordered the parties to exchange the following financial information prior to September 12, 2014:

1. Updated Financial Statements;

2. 2013 Income Tax Returns and Notices of Assessment; and

3. Proof of total year to date income for 2014, including copies of last three pay stubs.

[12] Mr. Stanley did not comply with any aspects of the May 6, 2014 disclosure order. Furthermore, he did not bring any documentary proof of his 2013 or 2014 income to the trial of this matter to assist the court in determining his income.

PART III: CREDIBILITY

[13] The credibility and reliability of Ms. Caverley and Mr. Stanley are important issues generally in this case, but in particular in regard to the nature of the parties’ relationship. The mother and father gave very different descriptions of their relationship and the cause of the difficulties. Ms. Caverley attributed the problems to the father’s interest in a female co-worker, his anger management issues, his aggression towards her, and his marginal involvement with the children. Mr. Stanley denied the mother’s concerns in these areas, and lay the blame for the parties’ problematic relationship on the mother making false allegations against him and excluding him from the children’s lives.

[14] I found Ms. Caverley on the whole much more credible and reliable than Mr. Stanley. She presented as genuine and forthright in giving her evidence. There were no inconsistencies in her testimony, and her evidence was not undermined in any way by any documentary evidence that was adduced at trial. She was able to provide specifics regarding some of the alleged incidents of aggression by Ms. Stanley and in support of her concerns regarding Mr. Stanley’s minimal involvement with the children. She has consistently attended court appearances and has complied with all court orders. By contrast, Mr. Stanley was not able to provide specifics to refute many of the mother’s allegations of aggression towards her. He did not provide any detailed evidence in response to the concerns about his extremely limited involvement with Angelica and Anderson. He missed court on May 6, 2014, did not comply with his financial disclosure obligations pursuant to section 21 of the Guidelines and breached two court orders respecting disclosure. He did not provide information regarding his 2013 and 2014 income for the purposes of the trial. There was no evidence to support his allegation that the mother has deliberately excluded him from the children’s lives. For these reasons, I prefer Ms. Caverley’s evidence over that of Mr. Stanley where their evidence conflicted.

PART IV: CUSTODY AND ACCESS CLAIMS

I. POSITIONS OF THE PARTIES

[15] With respect to custody, Ms. Caverley requests an order for sole custody of both children. She submits that she has been the primary caregiver for the children throughout their lives, and that Mr. Stanley’s involvement with the children since the parties separated has been minimal. She alleges that the history of conflict in her relationship with the father, including incidents of physical aggression towards her, is such that a joint custody arrangement is not feasible or in the children’s best interests.

[16] Mr. Stanley requests an order for joint custody of the children. He states that he was very much involved with the children when the parties were together, and that his involvement decreased after the separation due to the criminal charges which were laid against him. He submits that his limited contact with the children has also been attributable to his need to work extended hours so that he can meet his child support obligations to his children. His position is that he has done nothing that would justify him losing decision-making rights in relation to the children.

[17] The parties are in agreement that Mr. Stanley should have regular time with the children on alternate weekends, from Friday at 6:00 p.m. until Sunday at 7:00 p.m., as well as such other times as may be agreed upon between the parties on reasonable notice to the mother.

II. THE LAW

A. Legislative Framework and General Principles

[18] The applicable legislation in this case in regard to the issues of custody, residence and access is the Children’s Law Reform Ac (R.S.O. 1990, C. C-12, as amended) (“the Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, the father and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 11195 (ON SC), [2005] O.J. No. 1374 (Ont. S.C.J.); Harsant v. Portnoi, 1990 6703 (ON SC), [1990] O.J. No. 1144, 74 O.E. (2d) 33 (Ont. H.C.J.)).

[19] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger v. Kruger (1979), 1979 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.)). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[20] The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[21] Section 21 of the Act provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests analysis are set out in section 24(2):

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

[22] The list of factors set out in section 24(2) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests determination is based on a multiplicity of factors, and must be tailored to the unique facts and dynamics of each case. The court is not required to specifically enumerate and analyze the specific criteria set out in section 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide (Walsh v. Walsh, 1998 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (Ont. C.A.)). The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.)).

[23] The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child (Reeves v. Reeves, 2010 CarswellNS 265 (C.A.)).

B. Sole Custody vs. Joint Custody

[24] There is disagreement between the parties in this case as to whether an order for sole custody or joint custody should be made, with the Applicant seeking sole custody and the Respondent requesting joint custody. The Act does not set out any specific criteria to assist in determining whether an order for sole or joint custody order is appropriate, apart from the general “best interests” test. However, the case-law provides guidance regarding the factors to consider in deciding between the two options.

[25] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, supra., and Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.) the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other (Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (Ont. C.A.)). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[26] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”

[27] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis supra.; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A)). Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa, ibid.). The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.)).

[28] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (Ont. C.A.); Kaplanis, supra.; Ladisa, supra.). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis, supra.).

[29] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication (Lawson, supra.; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.); aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.); aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (Ont. C.A.)).

[30] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (O.C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.)).

[31] While the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole vs. joint custody, the analysis must at all times remain firmly grounded in the best interests of the child or children before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

III. ANALYSIS

[32] I conclude that an order for sole custody of Angelica and Anderson in favour of Ms. Caverley is in the children’s best interests. In reaching this decision, I have given considerable weight to the evidence regarding the nature of the parties’ relationship over the past several years. I find that their interactions have been extremely conflictual, and that their ability to work together in a collaborative manner to meet the needs of the children has been minimal. The serious difficulties in the parties’ relationship are such that a joint custody arrangement would not be feasible and would impede effective decision-making concerning the children.

[33] Ms. Caverley testified that her relationship with Mr. Stanley has been problematic in large part due to Mr. Stanley’s poor impulse control and incidents of verbal and physical aggression towards her. I accept her evidence relating to these concerns. She described Mr. Stanley as being verbally degrading and threatening towards her on a number of occasions. She was also able to describe a number of physically aggressive incidents, including once when Mr. Stanley pushed her against a car, once when he pushed her out of a truck when she was pregnant, and one occasion when he threw a bowl of hot oatmeal at her. Ms. Caverley relayed that she was aware that Mr. Stanley exhibited impulse control problems in his previous relationships as well. Mr. Stanley did not respond in detail to these allegations except to provide a bald denial of any aggressive conduct.

[34] The evidence respecting the dispute in the home which led to the parties’ final separation in July 2013 supports the concerns about Mr. Stanley’s anger management issues. The father acknowledges that he pulled the kitchen drawer out so forcefully on that occasion that the items in the drawer flew out and smashed the glass oven door. He attempted to minimize this incident by portraying the destruction of the oven as accidental. However, common sense dictates that the force that would have been required to propel the items in the drawer in such a manner as to completely shatter an oven door must have been very significant. Furthermore, I accept the mother’s evidence that Mr. Stanley threatened to smash her with a coconut on that occasion. To expect the mother to be able to work cooperatively and collaboratively with the father on issues relating to the children after having experienced the pattern of intimidating and aggressive conduct described above is simply unrealistic and would result in a perpetuation of the abuse which she sustained during the parties’ relationship.

[35] Ms. Caverley’s position in support of sole custody is also based in part on her concerns regarding Mr. Stanley’s very limited contact and involvement with the children since the parties separated. The evidence firmly supports these concerns. With respect to contact between Mr. Stanley and the children, I find that Mr. Stanley has exercised very little access with the children since the separation. Specifically, I make the following findings:

1. Mr. Stanley did not see the children for several weeks immediately following the separation because the terms of his release prohibiting him from having contact with Ms. Caverley rendered it impossible for the parties to communicate around access issues.

2. The father’s former wife, Shauna Stanley, eventually agreed to be the middle person for the purposes of organizing access, and the parties agreed at that point that Mr. Stanley would have Angelica and Anderson on alternate weekends. However, he only had two such weekend visits, and the children only went from Saturday to Sunday. Mr. Stanley testified that he could not take the children on Friday because he had to work on Saturday. After those two visits, Mr. Stanley did not see the children again for approximately three months.

3. At the court appearance on March 7, 2014, the parties agreed again that the father would have the children on alternate weekends, from Friday until Sunday. However, Mr. Stanley subsequently again advised that he could only take the children from Saturday overnight until Sunday because of work commitments. These alternate weekend visits commenced in March 2014 and continued until September 2014.

4. The Family Responsibility Office was able to garnish the first child support payment from Ms. Stanley in September 2014. After the garnishment of the first support payment, Mr. Stanley advised Ms. Caverley that he would no longer be taking the children on alternate weekends. From that time up until the conclusion of the trial, Mr. Stanley had only seen the children twice. One of those visits was a full daytime visit, and the second was a visit from 12:00 p.m. until 6:00 p.m. on the Sunday before Halloween.

5. I do not accept Mr. Stanley’s allegation that Ms. Caverley interfered with access and undermined his relationship with the children. Ms. Caverley was able to provide very specific details about the history of the father’s visitation and the challenges in getting Mr. Stanley to commit to a consistent schedule. She presented as honest and genuine when she spoke about wanting the father to play an active role in Angelica and Anderson’s life, her efforts to encourage and facilitate contact and her disappointment about the limited involvement which Mr. Stanley has had with the children. Furthermore, a text message from Mr. Stanley to Ms. Caverley dated November 7, 2014, marked as Exhibit 16 at trial, confirmed the mother’s evidence that Mr. Stanley refused to commit to a consistent time to take the children after the Family Responsibility Office began garnishing his wages.

[36] My decision to grant sole custody to Ms. Caverley is also based on the role which she has played in the children’s lives. I find that she has been the primary care-giver of Angelica and Anderson since their birth. Since the separation, she has been the parent who has attended to the children’s day to day needs, arranged all necessary appointments for them and dealt with medical emergencies that have arisen respecting them. She has done an excellent job in meeting the children’s needs and has made sound and responsible decisions respecting their care. I accept the mother’s evidence that Mr. Stanley has not participated in decision-making since the separation, despite efforts on her part to engage him in this regard. By way of example, I find that on one occasion, Anderson was in hospital with pneumonia and an ear infection, and that Ms. Caverley contacted Mr. Stanley to advise him of the situation and to seek his assistance. Mr. Stanley responded to this request by stating that he could not assist because he was out of town. He did not make any efforts to return to assist Ms. Caverley with the children, participate in medical decision-making respecting Anderson or to see the child while he was in the hospital. Ms. Caverley did not hear from him for a week after she called him about Anderson’s hospital attendance, and eventually sent him a text message advising him that she was upset about his apparent lack of concern. By way of further example, on November 7, 2014, Ms. Caverley sent Mr. Stanley a message advising that she and the children were ill, but Mr. Stanley did not respond or offer to assist in any way.

[37] Mr. Stanley’s request for joint custody is based in part on concerns that the mother may leave with the children to the United States of America. He alleged that Ms. Caverley has talked many times about her wish to move to the United States. The evidence does not support the father’s concerns about Ms. Caverley leaving the jurisdiction. I find that the mother wants the children to have a strong and loving relationship with their father, and there is no evidence to suggest that she has attempted to abscond with the children in the past. Mr. Stanley’s concerns in this regard can be addressed by means of an order that places appropriate restrictions on the mother’s right to relocate with the children.

[38] I accept Mr. Stanley’s evidence that he truly loves his children, and that he has suffered tremendous pain as a result of the separation and the breakdown of the family unit. However, the decision respecting custody of the children does not turn on the amount of love which he has for them. While this is an important factor, the other considerations which I have discussed above satisfy me that a joint custody order is not in Angelica’s and Anderson’s best interests, and tip the balance in favour of an order for sole custody to Ms. Caverley.

[39] With respect to access, as previously noted, the parties are in agreement that Mr. Stanley should have time with the children on alternate weekends, and such other times as agreed upon between the parties. Given Mr. Stanley’s inconsistency in exercising access to date, and that he has only taken the children from Saturday evening overnight until Sunday I am ordering that he have access on alternate weekends from Saturday at 4:00 p.m. until Sunday at 6:00 p.m., and such other times as agreed upon with Ms. Caverley in writing. I am also ordering that he confirm with Ms. Caverley in writing by 6:00 p.m. on the Wednesday before his weekend access as to whether he intends to exercise his access, failing which the visit may be cancelled without notice to him.

PART V: CHILD SUPPORT CLAIMS

I. POSITIONS OF THE PARTIES

[40] In regard to child support, Ms. Caverley seeks the Table amount of child support based on Mr. Stanley’s actual income commencing July 2013. Her ability to take a specific position respecting child support was hampered by the father’s failure to provide documentary disclosure of his 2013 and 2014 income. Ms. Caverley acknowledges that Mr. Stanley should be credited the sum of $1,000.00 on account of two voluntary payments of $500.00 each which he made to her for the support of the children following the separation. In addition, she acknowledges that she received two child support payments totalling $831.73 through the Family Responsibility Office, specifically $285.37 on September 24, 2014 and $260.99 on October 20, 2014.

[41] Mr. Stanley agrees to pay the Table amount of child support under the Guidelines based on an income of $53,000.00, commencing October 2014. With respect to child support for the period from July 2013 until September 2014, he raised concerns about his ability to pay support due to his support obligations towards his other children and the family debt which he assumed following the separation. However, his Answer and Claim did not include a defence to the child support claim based on undue hardship, and in any event he did not adduce the evidence required to support this defence.

[42] Ms. Caverley also seeks contribution from Mr. Stanley for daycare expenses which she incurred for the children from November 2013 until February 2014 and for any future section 7 expenses. Mr. Stanley is not agreeable to contributing towards past daycare expenses, but he consents to an order requiring him to contribute 50% towards any future daycare and other section 7 expenses.

[43] Finally, Ms. Caverley seeks an order requiring the father to name and maintain Angelica and Anderson as beneficiaries on any dental and extended medical and health care benefits plans which may be available to him through his employment. Mr. Stanley agrees to this order.

II. THE LAW

A. General Principles

[44] The applicable legislation in regard to the issue of child support in this case is the Family Law Act (R.S.O. 1990, c. F.3, as amended)(the “FLA”). Section 33 of the FLA provides that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. “Dependant” is defined in section 29 of the FLA as a person to whom another has an obligation to provide support under the Act. Section 31 of the FLA establishes the obligation of a parent to support a child, as follows:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[45] The purposes of an order for child support as set out in section 33(7) of the FLA are to recognize that each parent has an obligation to support the child, and to apportion the obligation according to the Guidelines. Section 1 of the Guidelines elaborates on the purpose of an order for child support as follows:

Objectives

1. The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances. O. Reg. 391/97, s. 1; O. Reg. 25/10, s. 1.

[46] The case-law has described the object of the child support provisions set out in the FLA and the Guidelines is being to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.); Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 33397 (C.A.)).

[47] Section 33(11) of the FLA stipulates that a court making an order for child support shall do so in accordance with the Guidelines. Section 2(4) of the Guidelines provides that the Guidelines apply with such modifications as the circumstances require to interim orders and orders varying child support orders. There are two exceptions to this rule set out in section 33 of the FLA. First, section 33(12), allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 33(14), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[48] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[49] Section 3(1) refers to section 7, which deals with special and extraordinary expenses 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.

[50] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) 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. This principle is subject to section 7(4), which provides that in determining the amount of an expense, the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[51] In Titova v. Titov, 2012 CarswellOnt 15666 (C.A.), the Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

1. Calculate each party’s income for child support purposes;

2. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

3. Determine whether the expense is necessary in relation to the child’s best interests;

4. Decide whether the expense is reasonable in relation to the means of the spouses and to those of the child and to the parties’ spending pattern prior to separation;

5. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary;”

6. If the court concludes that the claim is appropriate, determine the net amount of the expense after taking 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;

7. Determine what amount, if any, the child should reasonably contribute to the payment of the net amount of the expense; and

8. Determine how the balance of the expense after taking into account the child’s contribution, if any, should be apportioned between the parties.

[52] Sections 4, 5, 8 and 9 of the Guidelines address a number of circumstances in which the presumptive rules delineated in section 3 do not apply, and outline the applicable principles regarding the calculation of child support in those situations. Section 10 of the Guidelines grants the court the discretion to award an amount of child support that is different from the amounts determined under sections 3 to 5, 8 and 9, where the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Section 10(2) of the Guidelines sets out the following non-exhaustive list of circumstances that may cause a parent, spouse or child to suffer undue hardship:

Circumstances that may cause undue hardship

10(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2).

B. Income Determination

[53] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[54] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal Child Tax Benefits and GST/HST Tax Credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). In addition, in calculating income for the purposes of determining the Table amount of child support, it is necessary to deduct any universal child care benefit amount that is included to determine the payor parent or spouse’s total income in their T1 General Income Tax form (Guidelines, Schedule III, section 3(b)). However, in calculating income for the purposes of determining an amount under section 7, it is necessary to include the amount of any universal child care benefits that are not included in determining the party’s income and that are for a child for whom section 7 expenses are requested. Any such amounts that relate to a child for whom s. 7 expenses are not being requested must be deducted from income (Guidelines, Schedule III, section 3.1).

[55] Section 16 of the Guidelines does not require the court to blindly use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is generally to ascertain current income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court generally determines the party’s Guidelines income for the upcoming twelve months from when child support will be paid (Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.)). The exception to this principle is where there is an agreement or order in effect that stipulates that income for the purposes of prospective child support should be based on the annual income for the previous year.

III. ANALYSIS

Issue # 1: Calculation of the Parties’ Incomes

[56] The children are residing primarily with Ms. Caverley, and there is no dispute that the Applicant is entitled to child support. The standard approach to the determination of child support as set out in section 3(1) of the Guidelines applies. A determination of the parties’ respective incomes for the period from 2013 until present is the first step in carrying out the child analysis.

1. The Respondent’s Income

[57] I make the findings set out below respecting Mr. Stanley’s income disclosure and income for the period from 2010 to present. Although the mother is only claiming child support from July 2013 onward, the historical evidence is a relevant consideration in determining the father’s current income.

2010:

[58] Mr. Stanley filed a Notice of Assessment for 2010 indicating that his income for that year was $83,706.00. He did not file his Income Tax Return or Notice of Reassessment for that year, despite his obligation to do so pursuant to section 21(2) of the Guidelines.

2011:

[59] Mr. Stanley did not provide any income information for 2011, despite his obligation to do so under section 21(2) of the Guidelines.

2012:

[60] Mr. Stanley’s Notice of Assessment indicates total income of $93,136.00. Mr. Stanley did not comply with his obligation to produce his 2012 Income Tax Return, which would have included details regarding his total income, or his Notice of Assessment. Based on the Respondent’s oral evidence, I find that his sole source of income in 2012 was from employment with Canada Power Product as a welding supervisor.

2013:

[61] As I have already highlighted in these Reasons, Mr. Stanley did not comply with the May 6, 2014 order of Pazaratz, J. requiring him to produce his 2013 Income Tax Return and Notice of Assessment and proof of his total 2014 year to date income by September 12, 2014. He did not produce these documents at trial. His complete disregard for his financial disclosure obligations has placed me in the position of having to estimate his 2013 and 2014 income based on his historical earnings and his testimony at trial. A child support payor who places a trial judge in this position does so at their own peril, and cannot return to court at a later date to revisit findings about their income that are made within an evidentiary vacuum that is of their own creation.

[62] Based on the father’s oral evidence, I find that his employment with Canada Power Plant was terminated in early July 2013. Given that his gross 2012 income from Canada Power Product was $93,136.00, or $7,761.00 per month, I find that he earned gross employment income from that company of approximately $46,566.00 from January until early July 2013 ($7,761.00 per month x 6 months=$46,566.00). In addition, based on his oral evidence at trial, I find that he received an additional amount of $1,900.00 from Canada Power Product as severance.

[63] The father testified that he did not secure full time, steady employment for approximately 1.5 months after his position with Canada Power Product ended, but that he did private jobs on the side until he found full-time employment. He did not adduce any evidence about how much he earned during this hiatus in his employment situation. By mid-August, 2013, he had secured employment with Triple Crown Enterprises. He was still working with this company as of the end of 2013. The only documentary evidence which I have respecting his 2013 income is a weekly pay statement from Triple Crown Enterprises for the payroll period ending September 28, 2013. That pay slip indicates that his total 2013 income from that company as of the end of September 2013 was $9,009.00. His weekly salary was $808.50. There were approximately 13 weeks remaining in the year 2013 following the pay period ending September 28, 2013. Based on this information, I conclude that he earned an additional $10,510.50 from Triple Crown Enterprises during the period from September 29, 2013 until December 31, 2013, and that his total income from that company in 2013 was therefore approximately $19,519.50.

[64] Mr. Stanley did not adduce any oral or documentary evidence respecting the cash income that he earned over the 1.5 months before he began to work at Triple Crown Enterprises. Based on his weekly income of $808.50 with Triple Crown Enterprises, I conclude that a part-time income of $400.00 per week for that 1.5 month period, or a total of approximately $2,400.00, is a reasonable additional amount to attribute to the father. Based on the foregoing findings, and applying a gross up to take into account the fact that the Respondent did not pay tax on his cash income, I conclude that the Respondent’s total gross annual income for 2013 was approximately $71,472.00.

2014:

[65] Mr. Stanley continued to work for Triple Crown Enterprises until mid-May 2014. Based on his oral evidence, I find that in 2014, he earned $23.00 per hour while he was at Triple Crown Enterprises, and that he worked 40 regular hours per week. His gross weekly income was therefore $920.00, and his total gross income for the period of approximately 19 weeks from January 1, 2014 until mid-May 2014 was in the range of $17,480.00.

[66] The father left Triple Crown Enterprises voluntarily partly because he did not feel that his career was progressing at that company, and he wished to find a more lucrative position that had more promise for future advancement. He admitted that he also left the company because the Family Responsibility Office began garnishing his wages. He began to work as a welder/fitter through a placement agency, Auto Tech, soon after his employment with Triple Crown Enterprises ended. He continues to obtain work through Auto Tech to date. I find that he earns $23.00 per hour and works 40 regular hours per week. In addition, he works approximately 6 overtime hours each week at the rate of $24.00 per hour. His weekly income with Triple Crown Enterprises, including overtime pay, is therefore approximately $1,064.00. This translates into an annual salary of approximately $55,328.00. His earnings through Auto Tech for the 7 month period from June to December 2014 were therefore approximately $32,274.00.

[67] I find that Mr. Stanley also began doing welding/fitting jobs on the side for cash when he started working at Auto Tech, and that he continues to have a cash business. I find that this additional work yields him on average approximately $550.00 per month, which must be grossed up on account of the tax-free status of this income. I conclude that his total cash earnings for the 7 month period from June to December 2014 were roughly $3,850.00. Based on the foregoing, I conclude that the father’s total 2014 income was approximately $55,346.00.

[68] Although Ms. Caverley did not raise the issue of whether income should be imputed to Mr. Stanley for the year 2014, I will comment on this issue given the decrease in Mr. Stanley’s income from 2013. I accept Mr. Stanley’s explanation for this decrease in income, and I am satisfied that income should not be imputed to him for the year 2014. The father explained that he was extremely lucky to have secured a supervisory position with Canada Power Product, but that he has been unable to secure an equally lucrative position since he was terminated from that company in July 2013. He explained that he held this position for a number of years, and that he would require additional training now to obtain a comparable position. I accept the father’s evidence that he does not have the finances or the time to embark upon this training at this point, having regard for his child support obligations in relation to Angelica, Anderson and his other children. His higher income in 2013 is attributable to the fact that he was employed at Canada Power Product until July 2013.

2015

[69] As of the conclusion of this trial, Mr. Stanley was still obtaining work through Auto Tech, earning an annual income of approximately $55,328.00. In addition, he still had his cash business, earning on average an additional $550.00 per month, or $6,600.00 annually. Taking into account the tax gross up for the cash income, I find that the father’s income for child support purposes commencing January 2015 is approximately $64,915.00.

2. The Applicant’s Income

[70] A determination of the Applicant’s income since 2013 is required for the purposes of addressing her claim for contribution to section 7 expenses respecting Angelica and Anderson. I make the following findings respecting her income:

2013:

[71] The Applicant is employed as a dental hygienist with Shankman Corporation. In 2013, she worked until March 2013, at which time she went on maternity leave following the birth of Anderson. She received employment insurance benefits during her maternity leave. Based on the Applicant’s 2013 Notice of Assessment, I find that her total 2013 income, not including universal child care benefits, was $33,909.00. Her income including universal child care benefits was $36,309.00.

2014 and 2015:

[72] Based on the Applicant’s testimony at trial and the pay statements which she attached to her Financial Statement sworn September 11, 2014, I find that her annual income for 2014 and on an ongoing basis commencing January 1, 2015 is approximately $58,000.00, not inclusive of Universal Child Care Benefits. For the purposes of apportioning section 7 expenses, her income inclusive of Universal Child Care Benefits is $60,400.00.

Issue # 2: Calculation of Historical Child Care Expenses and Entitlement to Contribution from the Respondent

[73] Ms. Caverley is requesting an order requiring Mr. Stanley to contribute his share towards daycare costs which she incurred for the children from November 2013 until February 2014. I find that the mother returned to work in November 2013, and that she incurred daycare expenses for the children in the amount of $60.00 per day in November and December 2013, for four days each week. Her total daycare expenses for 2013 were therefore approximately $1,920.00. Based on Ms. Caverley’s oral evidence and her bank statements marked as Exhibit 14 at trial, I find that she incurred child care expenses totalling $1,772.00 in January and February 2014.

[74] I am satisfied that the daycare expenses which the mother incurred were necessary in relation to the children’s best interests and that they were reasonable within the meaning of section 7. The amount of the daycare fees is extremely reasonable, and the Applicant required daycare for the children in order to return to work. She does not have any family members in the area who can assist her with child care. Accordingly, I am satisfied that the Applicant is entitled to receive contribution from the Respondent for these expenses.

Issue # 3: Calculation of Child Support Payable by the Respondent to the Applicant

[75] Based on the findings set out above, the Table amounts of child support which Mr. Stanley should have been paying since July 2013 are as follows:

1. Commencing July 1, 2013 and continuing until December 31, 2013, he should have paid $1,058.00 per month based on his estimated annual income of $71,472.00.

2. Commencing January 1, 2014 and continuing until December 31, 2014, he should have paid $822.00 per month based on his estimated annual income of $55,346.00.

3. Commencing January 1, 2015 and on an ongoing basis, he should pay $965.00 per month based on his estimated annual income of $64,915.00.

[76] With respect to the daycare expenses which the Applicant has incurred, the guiding principle is that the net expenses should be shared in proportion to the parties’ respective incomes. The Applicant was inconsistent on her position respecting the appropriate share which the Respondent should contribute. At one point she indicated that she was requesting a 50% contribution from the Respondent, but at other points she took the position that section 7 expenses should be shared on a proportionate-to-income basis. There is no evidence before me to suggest that it would be appropriate to divide section 7 other than in accordance with the guiding principle set out in section 7(2) of the Guidelines.

[77] The net amount of the daycare expenses for 2013, after taking into account the tax deduction available for the expense, was $854.00. Based on the mother’s 2013 income of $36,309.00 for apportioning purposes and the father’s 2013 income of $71,472, the father’s proportionate share is 66.3%, which results in a liability to Ms. Caverley in the amount of $566.00.

[78] The net amount of the daycare expenses for 2014 was $1,149.00. Based on the mother’s 2014 income of $60,400.00 for apportioning purposes and the father’s 2014 income of $55,346.00, the father’s proportionate share is 47.8%. Accordingly, he owes Ms. Caverley $549.00 on account of these expenses.

[79] There are no current section 7 expenses relating to the children. However, based on the mother’s 2015 income for apportioning purposes of $60,400.00 and the father’s 2015 income of $64,915.00, Mr. Stanley’s proportionate-to-income share of any future section 7 expenses is 51.2% and Ms. Caverley’s share is 48.8%.

[80] In calculating the total amount of child support which Ms. Stanley owes to Ms. Caverley as a result of the terms of this order, Mr. Stanley must be credited any amounts which the Family Responsibility Office has enforced pursuant to the temporary child support order of Brown, J. dated March 7, 2014. In addition, Ms. Caverley acknowledges that the father should be credited the sum of $1,000.00 on account of voluntary child support payments which he made directly to her soon after the parties separated.

[81] As noted earlier in these Reasons, Mr. Stanley suggested in his evidence that he is unable to pay the appropriate Table amount of child support because of his support obligations respecting his other children and the fact that he assumed the majority of the family debts following the parties’ separation. In essence, he attempted to advance a hardship claim at trial. However, as I have already indicated, he did not plead this defence in his Answer and Claim. Moreover, he did not adduce the evidence required to support such a defence. He did not provide particulars or any documentary evidence respecting his other alleged support obligations, or whether he has been complying with those obligations. Similarly, he did not provide specifics or documentary proof of the family debts which he alleges he assumed following the separation. For these reasons, I am not reducing the Table amount of child support payable to Ms. Caverley on the basis of hardship.

PART VI: TERMS OF ORDER TO ISSUE

[82] Based on the foregoing, a final order shall issue as follows:

1. The Applicant shall have sole custody of the children Angelica Rose Stanley, born November 16, 2011, and Anderson Andre Stanley, born March 19, 2013 (“the children”).

2. The children shall reside primarily with the Applicant.

3. The Respondent shall have access to the children as follows:

a. On alternate weekends, from Saturday at 4:00 p.m. until Sunday at 6:00 p.m., commencing February 7, 2015; and

b. At such other times as agreed upon with the Applicant in writing.

4. The Respondent shall confirm with the Applicant in writing by no later than 6:00 p.m. on the Wednesday immediately before his weekend access is scheduled to occur as to whether he intends to exercise his access, failing which the Applicant may cancel the access without notice to the Respondent.

5. The Applicant shall not move the children’s residence beyond a 100 kilometre radius from the outer perimeter of the City of Hamilton without first obtaining the written consent of the Respondent or a court order authorizing a proposed move.

6. The Respondent shall pay the Applicant child support for the children in accordance with the Tables under the Child Support Guidelines (Ontario) as follows:

a. Commencing July 1, 2013 and continuing on the first day of each month that follows until December 31, 2013, he shall pay $1,058.00 per month based on his estimated 2013 income of $71,472.00.

b. Commencing January 1, 2014 and continuing on the first day or each month that follows until December 31, 2014, he shall pay $822.00 per month based on his estimated 2014 income of $55,346.00.

c. Commencing January 1, 2015 and continuing on the first day of each month that follows, he shall pay $965.00 per month based on his estimated current income of $64,915.00.

7. The Respondent’s liability to the Applicant on account of his contribution to section 7 expenses for the children is fixed in the amount of $1,115.00 up to and including December 31, 2014.

8. Arrears of child support owed by the Respondent to the Applicant shall be recalculated based on the terms of this order. In calculating these arrears, the Respondent shall be credited the following amounts:

a. Any amounts of child support that have been enforced against him pursuant to the temporary order of Brown, J. dated March 7, 2014; and

b. The sum of $1,000.00 on account of child support which he paid directly to the Applicant.

9. Commencing January 1, 2015, the Applicant and the Respondent shall contribute to the children’s section 7 expenses in proportion to their respective incomes. For the purposes of determining their respective contributions, the Applicant’s current income is $60,400.00 and the Respondent’s current income is $64,915.00. The Applicant’s proportionate contribution to section 7 expenses is therefore 48.8% and the Respondent’s proportionate contribution is 51.2%.

10. A party requesting contribution towards any section 7 expense shall provide the other party with a written request for contribution and documentary proof of the total expense being claimed within 30 days of the expense being incurred, or in the event that they have not yet incurred their share, within thirty days of deciding that the expense should be incurred. The other party shall then pay the requesting party their share of the expense within fourteen days of receiving said proof.

11. In the event that a party disputes a request by the other party for contribution towards a section 7 expense, the party disputing the request for contribution shall bring a motion no later than 60 days after the request has been made, on at least 7 days’ notice to the other party, for an order of the court to resolve the dispute. If the party disputing the request fails to bring this motion, they shall be deemed to have accepted the claim for contribution and the claim may be enforced by the Family Responsibility Office in accordance with paragraph 9 herein.

12. In the event that a section 7 expense ends for any reason, the Applicant shall advise the Respondent forthwith of this fact and shall take all necessary steps to ensure that enforcement of the expense ceases at the appropriate time.

13. For so long as child support is paid, the Applicant and the Respondent shall provide updated income disclosure to each other each year in writing within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines (Ontario), and again by June 1st each year. The income disclosure required by June 1st each year shall consist of the documentary financial disclosure set out in section 21 of the Child Support Guidelines (Ontario).

14. The Respondent shall advise the Family Responsibility Office in writing of any change in his employment within seven days of securing new employment, and he shall also within this time frame provide the office with all of the details regarding his new employment which the office requires for the purposes of enforcing the child support terms of this order.

15. The Table amount of child support shall be adjusted upward forthwith in the event of any increase in the Respondent’s income. If it becomes apparent when annual income disclosure is made by June 1st each year that the Respondent’s income increased during the previous calendar year, and that the Respondent accordingly underpaid the Table amount of child support for the previous calendar year and the period from January 1st to June 1st of the current year, the Respondent shall pay the Applicant the full amount of the underpayment up to and including June 1st by June 30th of the current calendar year and shall begin to pay the adjusted Table amount on a monthly basis commencing July 1st.

16. The Respondent shall designate and maintain the children as beneficiaries under any dental, medical and extended health benefits plans available to him through his current or future employment. He shall within 30 days from the date of this order, or within 30 days of becoming eligible for coverage under any future benefits plan, provide the Applicant with a copy of the designation and proof that the designation has been filed with the appropriate benefits provider.

17. The Respondent shall execute any documentation required to authorize the Applicant to make claims on behalf of the children directly to his benefits provider. If the benefits provider does not allow the Applicant to deal directly with the provider, the Respondent shall forthwith endorse and forward to the Applicant any reimbursement cheques which he receives on account of claims which the Applicant has submitted on behalf of the children.

18. The Respondent shall irrevocably designate the children as beneficiaries, in equal shares, of any life insurance policies which he has or may later acquire through his employment, and shall name the Applicant as trustee of said policies on behalf of the children. With respect to life insurance policies in effect at the time of this order, he shall provide the Applicant with copies of the irrevocable designations and proof that they have been filed with the insurance provider within 30 days from the date of this order. With respect to policies acquired after the date of this order, he shall provide the Applicant with copies of the designations and proof that they have been filed with the insurance provider within thirty days from the date when the Respondent acquires the policies.

19. The Applicant’s claim for spousal support is dismissed.

20. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

21. This order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

22. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by February 10, 2015. Any responding submissions shall be served and filed by February 16, 2015. Reply submissions shall be served and filed by February 20, 2015. There shall be no extensions to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

The Honourable Madam Justice Deborah L. Chappel

Released: January 29, 2015

CITATION: Caverley v. Stanley, 2015 ONSC 647

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Crystal Caverley

Applicant

– and –

Colin Stanley

Respondent

REASONS FOR JUDGMENT

Chappel, J.

Released: January 29, 2015