SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-15-82768-00
DATE: 2015 10 29

RE: Chantal Elizabeth McGillen v. Jordan Barrett McGillen

BEFORE: Lemon J.

COUNSEL:
Jane Connon, for the Applicant
Usman Sadiq, for the Respondent

HEARD: October 6, 2015

E N D O R S E M E N T

The Issue

[1] Ms. McGillen seeks an interim order for custody of the parties’ child, A, or, in the alternative, that the child’s primary residence is to be with her.

[2] She seeks an interim order defining Mr. McGillen’s access to A.

[3] She seeks an interim order for Mr. McGillen to pay child support of $620 per month commencing November 23, 2013, based on an annual imputed income of $67,890. Alternatively, she seeks a similar order based on an annual imputed income of $49,008. Finally, she seeks s. 7 expenses relating to the child’s daycare. The balance of the requests in her notice of motion was not pursued in oral argument. I presume that they are withdrawn.

[4] In response, Mr. McGillen seeks an order that he have access to the child every weekend from Friday at 4:30 p.m. until Monday morning when the child returns to daycare. He also seeks an order that the child be enrolled in a different school.

Background

[5] The parties moved in together in September of 2006 and married September 21, 2008. Mr. McGillen moved out of the residence November 23, 2013.

[6] They have one child, A, who is four years of age. The child continued to reside with Ms. McGillen after separation and Mr. McGillen now resides approximately one hour away.

[7] For approximately two years, by agreement, A has been attending a school/day care facility called Carrefour des jeunes.

[8] In 2014, Ms. McGillen’s income tax return evidenced an income of $47,832.15 and Mr. McGillen’s income was $41,505.

[9] Both reside with their parents.

[10] It appears that all of those facts are not in dispute.

Custody/Principal Residence

[11] As set out above, A has been residing with Ms. McGillen since the time of separation. As will be set out below, there has also been extensive access with Mr. McGillen. Other than that, the parties agree on very little relating to custody. I cannot make that determination on the basis of conflicting affidavits.

[12] What is agreed, however, is that A has been with her mother at the residence for all of her life. Ms. McGillen resides with her parents and it appears that they will be supportive. A’s daycare facility is nearby. Mr. McGillen says that he cared for the child full time after Ms. McGillen returned to work. However, he also agrees that the child has been in daycare for approximately two years. That daycare is Monday to Friday, 8:00 a.m. to 5:30 p.m. It is a daycare agreed upon by the parties. That is the only schedule that the child knows at present. In all of the circumstances, there is no reason to change the child’s residence. Ms. McGillen is granted an order that primary residence of the child shall remain with her.

Access

[13] Ms. McGillen seeks an order that provides a great deal of access to Mr. McGillen. She wishes access to be every other weekend from Friday after school to Sunday or Monday at 6:00 p.m. as well as on the alternate weekends from Friday after school but only until Sunday at 11:00 a.m.

[14] In response, Mr. McGillen seeks access every weekend from Friday at 4:30 p.m. until Monday morning, or alternatively, every other weekend plus two mid-week visits.

[15] Shortly after separation, the parties agreed that Mr. McGillen would have access to A from Friday at 4:30 p.m. until Monday morning, returning to the daycare. At the case conference in July there was an agreed change such that Ms. McGillen would pick up A every other Sunday morning and keep her overnight, returning her to daycare on Monday morning.

[16] Mr. McGillen says that they also agreed to share holidays. I am not asked to rule on that issue.

[17] On the disputed evidence, I cannot make a determination but I can rely on what the parties agreed to in only July of this year. I can presume that the agreement was in A’s best interests. I have not been provided with any reason to change those circumstances.

[18] Accordingly, Mr. McGillen shall have access with A every other weekend from Friday after school until Monday morning when he drops her off at school. Given Ms. McGillen’s request, access shall be extended to Monday at 6:00 p.m. when he shall drop A off at Ms. McGillen’s residence if Monday is a school holiday. He shall have access on the alternate weekend from Friday after school until Sunday at 11:00 a.m. when Ms. McGillen shall pick up the child from Mr. McGillen’s parents’ home.

Child Support

[19] The first issue here is to determine what Mr. McGillen’s income is for the purposes of support. Ms. McGillen says that his income should be imputed at either $68,000 or $49,000. His 2014 income was $49,000 but she alleges that he had other income from his business. This business earned approximately $13,000 net in 2013. She complains that Mr. McGillen has failed to provide the necessary documentation to confirm his income. Ultimately, she submits that he has the qualifications to earn more than he presently makes.

[20] Mr. McGillen agrees that his income was approximately $45,000 at the date of separation; however, he was forced to change employment in August of 2014 because of various emotional problems surrounding the separation. He was employed as a truck driver but explains that he left that job because of stress and anxiety caused by the breakdown in the relationship. He therefore took another full time job that apparently pays approximately $23,000. He has provided a letter from his doctor to support his evidence.

[21] Although Ms. McGillen submits that he has various work qualifications, he says that his welding certificate expired in 1999 and he does not have a licence to transport chemicals. He says that he is continuing to look for alternate work at a higher level of pay but he has only a grade 12 education along with a three month program in blacksmithing.

[22] Mr. McGillen acknowledges that he owned and operated a small business but it closed down after separation. He says that he has made no income from that business for over two years. The income of $13,000 that he earned was in the one year that he was employed full-time at the business.

[23] I ought not to impute income without a solid evidentiary record. The letter from Mr. McGillen’s doctor is not admissible evidence. It is also not particularly supportive of Mr. McGillen’s position. It is from his doctor approximately one year after he left his employment. It appeared only after the case conference. The letter simply sets out what Mr. McGillen has told the doctor. It evidences that Mr. McGillen is concerned about his separation, the litigation that followed and the challenge of earning enough money to support his daughter. One would think that those are the normal stresses of an individual in his position. There is nothing to suggest that he is unable to work.

[24] Mr. McGillen’s closing of his business shortly after separation seems rather suspicious. As well, he has apparently gone away on weekends rather than continue to exercise access to A. He will need to bring much better evidence to trial to confirm his inability to earn the income he had at separation.

[25] His change of employment is a very suspicious change of events arising during the litigation. Again, this is an area in which he will require significant evidence for the trial judge to accept that this is the best Mr. McGillen can do.

[26] On the other hand, Ms. McGillen sets out in her affidavit that Mr. McGillen “advertised a sale of his tools, materials and products in February 2015 on Facebook.” This is substantial evidence that he is no longer carrying on that business, for cash or otherwise.

[27] For now, however, I agree with Mr. McGillen’s counsel that this is an issue that is a matter for the trial judge. On the evidence that I have, I can only find that he will earn $23,878 this year.

[28] The second issue is what support should be paid by Mr. McGillen. The parties separated November of 2013. There is no dispute that Mr. McGillen earned $41,505 in 2014. For 2015, I have found that he has earned $23,878. He has, however, only paid $500 per month towards the daycare expense.

[29] Mr. McGillen submits that, based on his regular weekend access, he has “equal time” and therefore he is not required to pay child support. He is wrong in that analysis.

[30] Section 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.

[31] In 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.

[32] In Jebb-Waples v. Waples, 2014 ABQB 26, Veit J. said:

[4] Because 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.

[33] It is not clear on this record that Mr. McGillen has had more than 40 percent of the time with A. Accordingly, child support is owing since the date of separation. He shall pay monthly support of $375 on the basis of an income of $41,505 from November 23, 2013 to August 1, 2014. He shall pay monthly support of $191 from September 1, 2014 and ongoing on the basis of an income of $23,878.

[34] Mr. McGillen’s share of the childcare expense since separation shall be determined on the incomes set out above. I leave it to the parties to determine what the arrears of support are, less the amounts that Mr. McGillen has paid to date. If that cannot be resolved between the parties, written submissions may be made within the next 30 days.

School

[35] Mr. McGillen seeks to change the child’s school. He says that when A began attending daycare at the age of two, they enrolled her in Carrefour des jeunes. This is a completely French speaking daycare/school. He says that he had no choice but to consent to her attending the daycare because it was the only daycare that had a spot available. He says that it always bothered him that he could not communicate with the teachers because they refused to speak English. Any letters or work that came home was strictly in French. He had to rely upon Ms. McGillen to interpret those documents.

[36] Now that A is starting junior kindergarten, Mr. McGillen is no longer agreeable to continuing at the French immersion school. He points out that there is a school directly opposite Ms. McGillen’s home, Agnes Taylor Public School. Agnes Taylor offers French immersion starting when A attends grade one. If A was to attend that school, he would be able to be involved in her education including all school functions, conversing with teachers and assisting with homework.

[37] In response, Ms. McGillen points out that they agreed to the school when they were together. The present school is only a few minutes away from her home. A has already started there and Mr. McGillen only raised this issue on September 3, before school started September 7. It was not raised at the July case conference. She sets out in her affidavit that support in English is available for Mr. McGillen’s assistance.

[38] Since the parties agreed on the present circumstances and the child is already involved in this term, I do not see that it would be in her best interests to change the school for this term. I should not be taken to have found that it is in the child’s best interests to always be at Carrefour des jeunes. There is a settlement conference set for February 2016. While that likely means that A will remain in the present school for the balance of the school year, both parties would be well advised to produce for the settlement conference all evidence upon which they rely to show that it is in the best interests of the child to remain or move. I can see difficulties with the present circumstances continuing if Mr. McGillen is unable to speak with the school’s teachers. It may be, depending on how the year plays out, that a change of school will be appropriate before the commencement of the next year.

Result

[39] Accordingly, on an interim basis, I order as follows:

(a) Ms. McGillen is granted an order that the primary residence of A shall remain with her.

(b) Mr. McGillen shall have access with A every other weekend from Friday after school until Monday morning when he drops her off at school. Access shall be extended to Monday at 6:00 p.m. when he shall drop A off at Ms. McGillen’s residence if Monday is a school holiday. He shall have access on the alternate weekend from Friday after school until Sunday at 11:00 a.m. when Ms. McGillen shall pick up the child from Mr. McGillen’s parents’ home.

(c) Mr. McGillen shall pay child monthly support of $375 on the basis of an income of $41,505 from November 23, 2013 to August 1, 2014. He shall pay monthly support of $191 from September 1, 2014 and ongoing on the basis of an income of $23,878.

(d) Mr. McGillen’s share of the childcare expense since separation shall be determined on the incomes set out above.

(e) I leave it to the parties to determine what the arrears of support are less the amounts that Mr. McGillen has paid to date. If that cannot be resolved between the parties, written submissions may be made within the next 30 days.

(f) Mr. McGillen’s motion to change the child’s school is dismissed.

(g) On consent, the settlement conference is set for February 9, 2016 at 10:00 a.m.

Costs

[40] If the parties cannot agree on costs, written submissions may be made to me. Ms. McGillen shall make her submissions within the next 15 days and Mr. McGillen shall respond 15 days thereafter. Each submission shall be no more than three pages not including any bills of cost or offers to settle.

Lemon J.

DATE: October 29, 2015