Pettis v. Tremblay, 2015 ONSC 7053

minicounsel

COURT FILE NO.: 746-2014

DATE: 2015/11/17

BETWEEN:

SCOTT PETTIS Applicant

– and –

JULIE TREMBLAY Respondent

COUNSEL: Benoit Richer, for the Applicant Daniel Therrien, for the Respondent

HEARD: October 9, 2015 (at L’Orignal)

REASONS FOR judgment

kane j.

1The applicant father presents this motion for summary judgment against the respondent mother.

2The father seeks a Rule 16 summary judgment to vary terms of the parties’ separation agreement and specifically for an order:

(a) of joint custody;

(b) that the children spend alternating weeks with each parent (Friday after school to Friday after school);

(c) that school holidays and statutory holidays including children’s summer vacation, March Break and Christmas holidays be divided equally between the parents;

(d) that PD days are to be the responsibility of the parent with whom the child resides on the morning thereof. The parent with whom the child resides on such PD day(s) shall solely be responsible for any costs incurred as a result or in relation to that day(s);

(e) that the children are to remain registered in and attend a French Catholic School until graduation;

(f) that the mother be required to provide the father immediately with (a) the children’s passports, (b) her consent to the father’s renewal of such passports, at his costs, and (c) her written authorization, previously delivered to her, permitting the children to travel with the father to Mexico between January 9 and 16, 2016;

(g) that the mother immediately deliver the parties’ marriage certificate to the father to permit him to seek a Divorce Order;

(h) that the issue of divorce be separated from and be determined independent of other issues between the parties;

(i) that with respect to income tax dependents, the father shall claim Sebastien as a dependent child for half of 2014 and every year thereafter including 2015. The mother shall claim both children as dependents for one half of 2014 and the other child as a tax dependent for the other one half of 2014 and thereafter, including 2015;

(j) that the father shall pay the mother monthly off-set Guidelines child support in the amount of $986, retroactive to 2014, and hereafter based on current respective annual incomes in the amount of $127,388 for the father and $51,416 for the mother;

(k) that the father and mother shall provide the other no later than June 1 each year with a copy of their annual income tax return and enclosures and their Notice of Assessment for the preceding taxation year;

(l) that the mother shall reimburse or credit the father with a net overpayment of child support paid by him from June 1, 2014 until November 30, 2015 totalling $3,122, plus $200 per month if she in October or November 2015, has cashed any of his $200 monthly cheques for re-payment of his prior arrears;

(m) that the mother immediately deliver to the father his remaining $200 postdated cheques delivered to her in payment of his prior child support arrears;

(n) that the parties shall contribute proportionately towards s. 7 expenses of the children at the current ratio of 71% and 29% in the case of the father and mother respectively, based on their above annual incomes for 2015, and thereafter proportionately based on their future line 150 income levels as determined in their Notices of Assessment, commencing June 1, 2016;

(o) that the s. 7 expenses, shared proportionately now 71% and 29%, shall without limitation include the children’s sports fees/equipment of two extracurricular activities. The same obligation will extend to any additional sports or extracurricular fees, equipment and expense, but only if each parent agrees to the child’s participation and enrollment in that additional activity in writing prior to enrolling the child in such sport/activity;

(p) that each parent shall fully support each child’s participation in two sports/activities and any others agreed to as above. Each parent shall be responsible for the transportation of the children to and from such sport/activity occurring on the date the child is residing with that parent; and

(q) that the Family Responsibility Office (“FRO”) are to amend their records in accordance with this decision, which if required shall be confirmed immediately by the parties to FRO. FRO shall continue to enforce child support obligations as reflected herein.

BACKGROUND

3The relevant background includes the following:

(a) The father is employed as a police officer;

(b) The mother is employed by the Canadian Armed Forces;

(d) The parties have two children who are currently 13 and 10 years of age;

(e) The parties separated on June 5, 2009;

(f) The parties executed a separation agreement dated May 21, 2010, in which they agreed to:

(i) joint parenting;

(ii) joint decision authority as to important matters involving the child;

(iii) until they become older, the children were to reside with the mother except for the following times with the father including every other weekend, one evening per week, December 25 a.m. to January 1, and two weeks in the summer;

(iv) the father was required to pay monthly child support to the mother in the amount of $1,465, to thereafter be adjusted annually, plus his share of s. 7 expenses.

ALTERNATING WEEKLY ACCESS

4Central to this motion is:

(a) whether the parties agreed to alternating weekly access; and

(b) since when has alternating access existed?

5The mother acknowledges that alternating weekly access has existed since January 2015.

6The father alleges weekly alternating access has existed since June 2014.

7The parties use this disputed commencement date to determine the start date as to when the father’s child support obligation should be adjusted to reflect off-set support and the resulting credits.

8The father filed negotiation correspondence between counsel in his affidavit. The mother in paragraph 11 of her affidavit waives privilege in relation thereto. That correspondence contains their positions and offers as to the issues.

9The father in early 2014 advised he wished to have the children 50% of the time with the children residing one week with each parent. The mother replied that the father was in arrears of his child support obligation based on his increased income and the failure to adjust for that as required under the separation agreement.

10The father’s income had increased since signing the separation agreement. That agreement required annual adjustment to Guidelines child support based on the father’s income. The father’s income increased and he chose to ignore this obligation. The failure to adjust for that created a liability which the mother used as a bar to his claim for week about residency.

11The father on June 6, 2014, accepted the resulting support arrears due to his increased salary which totalled $4,080 for the period January 2010 to December 31, 2013. The parties agreed this liability would be paid at the rate of $200/month. The father gave the mother postdated cheques covering this liability which she has continued to deposit monthly. This additional liability for increased child support based on the father’s increased income was thereupon settled to December 31, 2013.

12The father then asked for implementation of alternating weekly access, failing which he asked that the issue be mediated. The mother did not accept his offer to mediate.

13The issue is what the residency of the children was between July 1 and December 31, 2014, since the mother acknowledges there has been alternating weekly residency since January 1, 2015.

14Neither party provided a residency calendar during the disputed period.

15The mother in her affidavit, paragraphs 4 and 5, alleges that the parties did “not have shared custody” until they “reached an agreement in January 2015”.

16That allegation does not address nor does she state in her affidavit whether alternating weekly residency or equal time did or did not exist during this disputed period.

17On June 26, 2014, the mother by email agreed to the children residing alternate weeks on a trial basis, but expressed concern the children were arriving late for school and were tired while residing with the father. On July 4, 2014, the father responded that the summer holidays had commenced and he wanted to implement alternating weekly access.

18The mother given her June 26, 2014 email, cannot dispute her agreement to begin alternating weekly access in July 2014 on a trial basis. Her position is however that her agreement as to alternating weekly access was not then incorporated into a formal written agreement and was not therefore binding on her. That does not address where the children resided.

19A formal written agreement was not then going to happen as alternating weekly residency required the parties to produce documents to evidence their respective income levels in order to calculate the amount of the resulting off-set child support. That documentation production and the resulting calculation of off-set support did not require, unless insisted upon by the mother, delaying implementation of rotating weekly access. The mother in the interim continued to receive the higher $1,465 child support monthly from FRO.

20The father commenced this application in September 2014 in which he seeks:

(a) Alternating weekly residence of the children with the parents;

(b) Alternatively, increased time with the children;

(d) Adjusted off-set child support based on 50/50 residency as he was continuing to pay full child support.

21In December 2014, counsel for the father wrote to confirm the October 2014 negotiations with mother’s counsel, namely the parties’ agreement to the children residing alternate weeks with each parent. There were sub-issues to that 50/50 residency agreement which required further work including, (a) written terms as to such alternating equal residency, (b) settlement of respective income levels to calculate off-set child support, (c) retroactive support credits claimed by the father as he stated the children had resided with him at least 50% of the time since June 2014 and (d) wording involving s. 7 expense liability.

22The January 6, 2015 agreement acknowledged by the mother and negotiated between counsel involved the parties’ agreement to:

(a) joint custody with equal time and alternating residency of the children with each parent;

(b) the mother had produced and the father was to produce evidence of current salary in order to calculate the off-set amount of child support;

(d) off-set child support was to be adjusted annually based on the latest annual income tax return and Notice of Assessment which each party was to exchange;

(e) s. 7 extraordinary expense provisions would apply.

23The father on January 6, 2015, in addition stated:

(a) He would provide a list of appropriate s. 7 expenses;

(b) His wish that child support be paid by bank deduction and not through FRO; and

(c) One of the party’s counsel should prepare written terms thereby amending the relevant terms of the separation agreement.

24The above January 6, 2015 agreement does not address where the children resided between July 1 and December 31, 2014.

25The father’s counsel on consent accordingly cancelled the scheduled January 15, 2015 case conference and indicated therein that:

(a) 50/50 custody and child support were settled;

(b) “alternating week on, week off, to officially start next week; and

26On January 12, 2015, counsel for the mother wrote asking for a number of amendments which included:

(a) Children were to start regular 50/50 residency rotation on Friday, January 16, 2015, after school (Friday to Friday), provided the father accepts the following amendments;

(b) Rotating weekly residency would revert to the father being limited to one weekend per 2 weeks if he criticized the mother in the presence of the children;

(d) Due to the acrimony between the parties, a parent could not attend a child’s activity during a non-custodial week;

(e) The children’s shared clothing costs are to be paid equally whereas other clothing costs staying with each parent are to be paid by that parent;

(f) The costs for extracurricular, sports and remedial programs agreed to in advance are to be paid proportionately;

(g) Child support is to be paid through FRO; and

(h) The father’s underpayment of child support in the amount of $4,080 for the period January 2010 to December 2013, is increased by such underpayment during 2014 at the rate of $253/month, or $3,036 for 2014. (emphasis added)

27The mother’s above January 12, 2015 proposed amendments do not specifically address how much time the children had resided with the father during the second half of 2014.

28On January 14, 2015, the mother learned the father had some rental income. She requested this be added to his income to calculate child support.

29On January 14, 2015, counsel for the father wrote and advised opposing counsel:

(a) That the father would disclose his rental income revenue and expenses;

(b) Confirming that the formal full week-on, week-off will officially start on Friday, January 16, 2015, after school;

(c) “that we’ve confirmed a clear and unequivocal 50/50 joint custody settlement when we spoke last week: only fine tuning to do.”;

(d) “For the many past months, what was really missing is a real 50/50 structured schedule: the importance of an uninterrupted weekly routine is as important for the children as for the parents.”

(e) Counsel will meet with the father and obtain instructions as to the mother’s January 12, 2015 list of amendments. (emphasis added)

30On January 16, 2015, the mother emailed the father and stated that there was no binding agreement as to 50/50 custody because no written agreement had yet been signed and that required agreement as to all issues. She concludes by stating that once an agreement is made, joint custody can begin on Monday.

31The mother again was denying fixed rotating weekly residency until the father accepted her terms.

32On February 5, 2015, counsel for the father wrote that to calculate a final child support off-set adjustment, retroactivity requires inclusion of past special and extraordinary expenses.

33The father’s letter dated March 6, 2015, contained a counter proposal to the mother’s January 12, 2015 proposed amendments. The father proposed that:

(a) The parties incomes to calculate off-set child support were $127,952 and $50,859, with the result that off-set child support was $1,001 per month and the proportionate ratios for s. 7 expenses were 72% and 28% respectively;

(b) The father’s 2010 to 2013 child support arrears as previously agreed totalled $4,080;

(d) Child support:

(i) Paid in 2014 and 2015 was $1,465 per month;

(ii) Due for January to May 2014 was $1,756 per month;

(iii) Due for June and thereafter in 2014 and the beginning of 2015, was $1,001 per month;

(e) The remaining unpaid child support arrears for the period 2010 to December 2013, was $2,280;

(f) The father was entitled to an overpayment credit for the period June 2014 until March 2015 in the amount of $4,640, based on off-set support liability of $1,001 per month;

(g) This resulted in an overpayment of $900 by the father which was to be paid to him or credited against his share of future s. 7 expenses, on the basis his child support obligation which was now $1,001 per month, FRO to be notified by the mother of that reduce support obligation and the mother not to deposit any further $200 postdated arrears cheques;

(h) The father waived his claim of $3,948 for the mother’s 50% contribution of past s. 7 expenses paid by the father provided the mother accepted this counter proposal within two weeks;

(i) The father accepted the mother’s proposal as to sharing the cost of clothing equally, including winter clothing if agreed to in advance and that normal expenditures were to be paid by the custodial parent as they arise;

(j) Section 7 expenses for extracurricular and sporting activities, to a limit of two per child, will be paid 72% and 28% respectively. Any such additional activities to be paid on the same ratio, if agreed to in advance;

(k) The father was to claim one child as a tax dependent for one half of 2014 and thereafter; and

(l) The father accepted the mother’s January 12, 2015 terms as to statutory holidays, PD days, FRO involvement and education.

34The father, on consent, scheduled a case conference for May 28, 2015, as the mother had not accepted the father’s March 6, 2015 counter proposal.

35The mother continued to:

(a) Receive monthly child support of $1,465; and

(b) Deposit the father’s monthly postdated $200 arrears cheques.

36On May 19, 2015, the father served and filed his case conference brief for the May 28, 2015 conference on the basis that the father’s March 6, 2015 counter offer had not been accepted. His proposed settlement terms in that brief were:

(a) Retroactive formulization of joint shared custody with alternating weekly residency;

(b) Settlement of all other issues on the terms of his counter proposal contained in his March 6, 2015 letter with updated accounting to May 29, 2015; and

37Counsel for the mother on May 26, 2015, just prior to the May 28, 2015 case conference, advised that she accepted the father’s March 6, 2015 counter proposal and requested the father prepare minutes of settlement incorporating the father`s March 6, 2015 terms prior to the case conference on May 28, 2015.

38The mother was attempting to not have to account for the father’s April and May overpayment of child support and her deposit during that period of his postdated arrears payments. Combined, they totalled approximately $1,328.

39Of particular note in the mother’s above acceptance is her agreement that the children resided with the father 50% of the time since June 2014. Her counsel on May 27, 2015 acknowledged she had accepted that position which had been an outstanding issue for several months.

Hindsight is 20-20

40The mother previously sought adjustment for the father’s 2014 continuing obligation to pay increased support, but was not willing to account for this $1,328.

41The father, notwithstanding the correctness of his position on this $1,328 issue, could have resolved this litigation at that point in time had he dropped his cost claim, dropped the adjustment for the extra $1,328, signed minutes settling all issues and avoided the further costs he has incurred.

42The mother now recants to her agreement to the terms in the father’s March 6, 2015 offer in once again disputing the level of time the children lived with their father in the second half of 2014.

43The father responded on May 27, 2015, and insisted upon incorporating the child support overpayments received and the arrears deposited by the mother for April and May 2015, in which case the proceeding was fully settled, provided the mother contribute $5,000 towards his legal costs thrown away. The father thereby increased the cost of a settlement.

44The mother’s counsel replied that his retainer was limited to negotiating for the mother, did not include appearing at the case conference and he as a result would not attend the May 28, 2015 case conference.

45The father, his counsel and the mother attended the May 28, 2015 case conference. The endorsement indicates it is adjourned 21 days to permit a possible settlement of the calculation of child support arrears, adjustment of child support as well as extraordinary expenses claimed by the father and his claim for costs, failing which the father may move for summary judgment.

46On June 19, 2015, counsel for the father offered until argument of this summary judgment motion the following terms:

(a) The parties’ exchange of their 2014 Notice of Assessment, which indicated their Line 150 incomes, to which the father must be added one-half of the net rental income, resulting in respective totals of $127,338 and $51,416 respectively which are to be used for 2014 and 2015 calculations, including monthly off-set child support of $986 and proportional 71% and 29% sharing of s. 7 expenses;

(b) The net overpayment to and including June 2015 owed by the mother was $3,122, to be repaid or off-set against monthly child support payable to the father based on the children having resided with the father 50% of the time during 7 of the 12 months in 2014;

(d) The mother’s contribution towards the father’s legal costs, in the amount of $7,000.

47Any chance of settlement was decreasing.

48The mother did not accept the above offer. She stated:

(a) contribution towards s. 7 expenses must be mutual and include those she had paid;

(b) the child support set-off amount was $1,013, not $986; and

49The mother continued to (a) receive child support payment of $1,465 and to cash the father’s arrears cheques of $200 monthly.

50Based on the foregoing:

(a) the parties concluded an agreement as to many of their individual issues. Rather than salvaging that progress and investment:

(i) the mother refused settlement absent agreement on all issues and reversed her prior agreement on issues previously agreed to; and

(ii) the father then sought increased financial returns from the mother whose annual income was $51,000.

(b) the parties never agreed on all matters; and

QUANTUM OF RESIDENCY IN SECOND HALF OF 2014

51The father in his affidavit alleges that:

(a) “In the months leading to June 2014, I gradually ended up having the children with me almost 50% of the time, however it was on an unstructured and irregular basis”: para. 10;

(b) From June to September 2014, he had “the children a little more than 50% of the time … but on an unstructured and irregular basis”: para. 12;

(c) Since June 2014, he “continually had the children in an unstructured pattern for more or less 50% of the time”: para. 15;

(d) He had “effective equal time joint custody of our children since at least June 2014”: para. 20;

(e) The children resided with him a minimum of 50% of the time since June 2014: para. 38; and

(f) In June, July and August of 2015, the children resided with the father 16, 15 and 25 days respectively: para. 38.

52In response to the above allegations on this motion for summary judgment, the mother’s limited response in her affidavit is that the father’s para. 12 is incorrect and the parties “did not have shared custody until January 2015”: paras. 5 and 6.

53Denying the father’s para. 12 may be a denial of shared residency exceeding 50% during the four months referred to, or it may refer to 50% equal residency. The court cannot speculate.

54The mother’s para. 5 may refer to actual time of residency but does not say that. If it refers to the parties agreeing that residency would rotate on an equal basis, the mother thereby corroborates the then position of the father that residency was equal and rotating. That does not address the previous six or seven months.

55The mother’s affidavit as to this issue on a motion for summary judgment is inadequate. It contains no evidence beyond this bald denial of the father’s para. 12 allegation that “from June to September 2014, he had the children a little more than 50% of the time … but on an unstructured and irregular basis” and “with him 50% of the time since at least July 1, 2014.”

56Her affidavit fails to address why she accepted on May 26, 2015, an arrears adjustment based on equal residency back to June 2014. That could however simply have been a decision during negotiations.

57The father’s allegations as to equal residency since mid-2014 could have been more specific, however his above allegations as to albeit irregular but equal residency since that point places the issue directly before the court with his repeated assertions of equal time, with some level of detail.

58Some of the relevant principles applicable to a summary judgment motion from Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, paras. 32-34, 36, 43-45, 50, 57-58, 62, 66 and 68, are:

(a) Judges must actively manage the legal process in line with the principle of proportionality;

(b) Proportionality is a comparative principle, it compels a motion judge to question whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication between the parties;

(c) The summary judgment motion can enhance access to justice because it can provide a cheaper, faster alternative to a full trial;

(d) Summary judgment pursuant to Rule 20 is a legitimate alternative means for adjudicating and resolving legal disputes;

(e) Pursuant to Rule 20.04(2)(a), the court shall grant summary judgment if there is no genuine issue requiring a trial. The test is no longer whether there is “a genuine issue for trial”;

(f) If there appears to be a genuine issue requiring a trial, the court should then determine if the need for that trial can be aborted by using the new discretionary power under Rule 20.04 (2.1) and (2.2), by the weighing of the evidence, evaluating credibility and the drawing of reasonable inferences;

(g) If the parties on the summary judgment motion provide the court with the evidence required to fairly and justly adjudicate the dispute; there will be no genuine issue requiring a trial;

(h) The court on a motion for summary judgment is required to assume the parties have presented all evidence that will be available at trial;

(i) The court shall decide whether it can make the necessary findings of fact, apply the law to the facts and thereby achieve a fair and just adjudication of the action based on the evidence presented;

(j) The test whether proceeding by motion will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial. The test is the court’s confidence level as to its abilities to make findings of fact to apply the relevant legal principles to resolve a dispute on the motion;

(k) Proportionality may require the motion judge to assess the relative cost, speed and efficiencies of proceeding by summary judgment rather than a trial. It may include what evidence would be available at trial; and

(l) The court must ask why it should not grant summary judgment.

59The mother has failed to introduce evidence or specific time allegations to contradict the father’s allegation of equal time since mid-2014. She has not as required presented all or any evidence to contradict the father’s allegations and demonstrate that a trial of this issue is necessary.

60The parties by this point can unlikely afford a trial of this issue in any event.

Calculating Child Support in Situations of Shared Custody

61The rules for child support for shared custody is set out in s. 9 of the Federal Child Support Guidelines, S.O.R./97-175 [Guidelines]:

Shared Custody

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

CHILD SUPPORT GUIDELINES

62Determination of the amount payable is a discretionary exercise, and not a simple mathematical determination. The leading case on s. 9 shared custody is Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 [Contino].

63In Contino, the Supreme Court accepted that under section 9(a), the “set-off approach in s. 8 could be a useful starting point to bring consistency and objectivity to the determination” but went on to warn against a rigid application of this approach where it could lead to a large change in support as a result of a small change in custody: (at para. 41).

SHARED CUSTODY

64Under s. 9, the set-off amount must be considered in light of the “continuing ability of the recipient parent to meet the needs of the child”: (para. 41). This amount, while helpful, has no presumptive value: (at para. 49).

65The court has the discretion to modify the set-off amount where it would result in a significant variation in the standard of living between the two households: (para. 51). The court must consider the financial realities of the parents, as well as the factors detailed in sections 9(b) and 9(c): (paras. 49-51).

66Section 9(b) requires the courts to consider the budgets and actual expenditures of both parents to meet the needs of the children: (para. 52). This will allow the court to apportion the additional expenses inherent in shared custody between the parents, having regard to their respective incomes.

67Section 9(c) requires the court to consider the resources and needs of both parents, and accords the court a broad discretion in this area: (at para. 68). The court should focus on “requiring a fair standard of support for the child and fair contributions from both parents”: (para. 68).

68Under s. 9(c), the court can order the payment of special and extraordinary expenses, normally considered under s. 7, and amounts to prevent “undue hardship”, normally considered under s. 10: (paras. 71-72). This results in a very broad, and flexible, discretion for the courts.

69Where the father earned 62% of the parties’ combined income, the fact that he may have met the 40% threshold under s. 9 did not warrant a variation of the Table amount. However, the substantial amount of time the father spent with the children provided a shield to him against M’s claims for add-on expenses under s. 7: M. (T.J.) v. M. (P.G.) (2002), 2002 49550 (ON SC), 25 R.F.L. (5th) 78; 2002 CarswellOnt 356 (Ont. S.C.J.)

70Where both parents maintained equivalent accommodations for the child but there was a wide disparity in income between the payor father and the recipient mother, it was appropriate to maintain child support at the Guidelines level: Bond v. Bond, 2008 ONCA 560, 53 R.F.L. (6th) 1 (Ont. C.A.).

71Where the father earned three times as much as the mother, the straight set-off approach of child support was appropriate: Garrow v. Woycheshen, ONCJ 686, (2008), 2008 ONCJ 686, 64 R.F.L. (6th) 459 (O.C.J.).

Conclusion

72Based on the evidence filed, including the mother’s lack of evidence, the court concludes that the children between July 1 and December 31, 2014, resided with the father a minimum of 40% of the time thereby engaging s. 9 of the Guidelines. The court selects July and not June 2014, because of the father’s allegation in his para. 38 and the correspondence that it was to start with the beginning of the school summer holidays in July 2014.

73The mother filed no financial statement on this motion. Her limited affidavit does not allege the father provides the children with a higher standard of living than she is able to. Unlike the father however, she was unable to engage legal counsel throughout this proceeding. That suggests a disparity as reflected in their incomes, of which the father earns 71% of their combined total income.

CHILD SUPPORT SET-OFF AND ARREARS ADJUSTMENT

74The court assumes that the mother has until November 30, 2015:

(a) Received monthly child support of $1,465; and

(b) Deposited the father’s $200 arrears payments monthly since July 1, 2014 in reduction of the 2010 to 2013 child support arrears totalling $4,080.

75The father on the evidence has proven the children resided with him a minimum of 40% of the time between July 1 and December 31, 2014. He is entitled to a set-off adjustment during that period.

76Using the parties 2014 Notices of Assessment, their respective annual incomes in 2014 were $127,388 and $51,416 respectively, regular Guidelines set-off child support for 2014 and 2015 would be $986 per month, subject to the following determinations.

77The mother while acknowledging the father is entitled to a $1,713 credit as he overpaid support since January 1, 2015, uses an incorrect amount for his income in calculating that credit.

78Based on the limited annual income of the mother who has equal custody of two children, the potential impact on the children of collecting arrears from her at her income level and the much higher income level of the father; the court determines that the set-off child support owing from July 1, 2014 to November 30, 2015, at $1,200 per month: Contino, paras. 41 and 49.

79From January 1 to June 30, 2014, the father pursuant to the separation agreement underpaid and owes further child support based on his increased income ($1,750 versus $1,465) in the total amount of $1,710.

80The remaining balance owing after November 2015 by the father of his $4,080 underpayment of child support for the period January 2010 to December 2013 is $680. The mother is directed to immediately give the remaining four postdated cheques to the father.

81The father, at $1,465 instead of $1,200, overpaid child support between July 1, 2014 and November 30, 2015, in the total amount of $4,505 for which he is entitled to a credit.

82The father therefore for the period January 2010 to November 30, 2015, overpaid child support and is entitled to a total reimbursement in the amount of $2,115 ($4,505 minus $1710 and $680) from the mother which shall be repaid by her at the rate of $100 per month commencing January 1, 2016, in the form of $100 per month reductions in the $1,200 monthly child support payable by the father.

CHILD SUPPORT

83Monthly set-off child support commencing December 1, 2015, payable by the father to the mother shall be $1,200 per month based on s. 9 (b) and (c) of the Guidelines due to the mother’s limited income of $51,416 upon which she is supporting two children and the court’s understand that the mother is not living with a partner.

84If the mother is currently living with a new partner, the father’s obligation for child support shall be the regular set-off Guidelines child support in the amount of $986 per month commencing December 1, 2015.

85The mother is directed to advise FRO and the father immediately in writing if she resides with a partner and that the father’s obligation to pay child support is reduced to $986 per month, or $1,200 per month if she resides alone with the children, commencing December 1, 2015, subject to para. 82 above.

86Ongoing child support is payable to and collectible by FRO.

SECTION 7 EXPENSES

87The ratio of contribution towards s. 7 expenses based on the parents 2014 annual incomes, for 2014 and 2015, are 29% to be paid by the mother and 71% to be paid by the father.

88The father claims $1,910 as the mother’s 29% share of the $7,789 of s. 7 expenses he has paid for the period January 2010 to June 30, 2015.

89There are a number of problems related to this retroactive claim of the father, namely:

(a) The mother claims she paid s. 7 expenses for which the father owes her 71% contribution. The mother has not listed however what those expenses are, the cost thereof or produced any evidence thereof. That evidence may have been presented had the mother been represented throughout by legal counsel and not been presented with this claim for the first time on May 28, 2015.

This was a claim the father revived or added during negotiations. It is waived in his counter offer of March 6, 2015, if the terms thereof were accepted by the mother. The father now requests this court order numerous terms in that counter offer. It is not referred to in the father’s May 28, 2015 case conference brief. It was only articulated as to individual expenses and dates, in the father’s June 19, 2015 correspondence.

(b) The Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, set out four main factors a court should consider when determining entitlement to retroactive child support, namely:

(i) Reasonable excuse for delay;

(ii) Conduct of payor parent;

(iii) The circumstances of the child; and

(iv) Any hardship occasioned by the retroactive award.

90The structure set out in D.B.S. applies equally to claims for retroactive extraordinary expenses under section 7.

91The court in D.B.S. identifies four factors for courts to consider when deciding whether to grant retroactive support, namely:

(i) Reasonable excuse for delay: Delay is not presumptively justifiable. The party seeking retroactive support must show a basis for not seeking the intervention of the courts sooner. On the other hand, courts should be open to the practical concerns associated with applications, such as a fear of retaliation or limited financial means: (para. 101).

(ii) Conduct of payor parent: Courts must consider any blameworthy conduct of the payor parent. This includes any behaviour that privileges the payor’s interests over the child’s right to an appropriate amount of support: (para. 106).

(iii) Circumstances of the child: Courts must consider both the past and present circumstances of the child. A child who is currently enjoying a high standard of living may benefit less from a retroactive award: (at para. 111). Past hardship can be an important consideration: where the child enjoyed the advantages he or she would have had the payor fully met his or her obligations, the argument for retroactive child support is weaker: (para. 113). In considering hardship, the courts are not to consider any hardship suffered by a recipient parent or other family member who was forced to make sacrifices: (para. 113).

(iv) Hardship occasioned by retroactive award: Before granting a retroactive award, courts must consider whether doing so would lead to hardship on the payor or others the payor supports: (paras. 114-5). Though the payor should have made the payments in the past, enforcing the obligation now can cause complications that were not present at the time: (para. 115).

92The general rule is that “it will usually be inappropriate to make a support order retroactive to a date more than three years before formal notice was given to the payor parent”, even where effective notice predates this. Such an order would undermine the payor parent’s reasonable interests in certainty: (para. 123).

93The father has shown no justification for his delay since 2010 to make this claim.

94Presentment of his articulated claim on June 19, 2015 extends well beyond the normal limitation of three years.

95Imposition of the mother’s share of these expenses dating back five years will create financial hardship on the mother who is earning $51,000.

96The father’s list includes some items which are not s. 7 extraordinary expenses such as a pass to a water park, X-Box fees, graduation pictures, skate sharpening and boot wax.

97The father’s claim should not be enforceable until presentment and adjudication of the mother’s mirror claim against the father. She cannot afford counsel however to present such a claim and if she does, even more legal expenses will be incurred which the parties cannot afford.

98Based on the above legal principles and factual considerations, the court determines that neither party is entitled to retroactive contribution for s. 7 expenses prior to the date of this decision. This claim by each party is accordingly dismissed.

OTHER ORDERS

99The court makes the following orders which reflect the agreement of the parties in accepting the other terms in the father’s March 6, 2015 counter offer which contain proposals of the mother.

CHILDREN’S CLOTHING

100The parties will each pay 50% of the children’s clothing cost that are worn in/to both homes. That equal responsibility includes the children’s outer winter coats (and pants) provided the purchase thereof is agreed to prior to the purchase thereof, otherwise the purchasing parent is responsible for 100% of the cost thereof.

101Each parent shall be solely responsible for the cost of children’s clothing that remains at the home of that parent.

102Ordinary expenses for things like children’s haircuts must be alternated 50/50 as much as possible to prevent one parent habitually being responsible to pay for such ordinary and ongoing expense.

DENTAL AND MEDICAL EXPENSES

103The father shall through his employment benefits maintain dental and medical care coverage of the children as long as they are financially dependent on either party.

SECTION 7 EXPENSES

104Special and extraordinary expenses pursuant to s. 7 of the Guidelines are to be paid by the parties proportionate to their annual incomes from time to time. The current ratio is 71% by the father and 29% by the mother. That ratio will be adjusted annually based on the previous year’s line 150 income.

105Section 7 acceptable expenses are to include the children’s sports fees/equipment and extracurricular expenses, subject to the following. The children may each be enrolled annually in two sport/extracurricular activities. The expenses of any additional sport/extracurricular activities of the children shall be shared by the parents, if and only if, both parents agreed to it, in writing and prior to enrolling the child in such additional sport/extracurricular activities.

106Both parents will be fully and positively supportive of each child’s sport/extracurricular activities. Unless agreed otherwise, each parent will be responsible for the transportation of the children to said sport/extracurricular activities while the child resides with that parent.

REGULAR CUSTODY SCHEDULE

107The children will reside with each parent during alternate weeks which commence every Friday at the end of that school day, until the following Friday after school.

STATUTORY HOLIDAYS

108Statutory holidays consisting of summer, March Break and Christmas school holidays will be divided evenly.

PD DAYS

109Professional development days will be the responsibility of the parent who has the child on the morning thereof. The custodial parent, on whom the PD day falls, will be solely responsible for all costs associated with such PD day. Pick up will be done by the other parent when the PD day is on a Friday.

EDUCATION

110The children shall continue to attend a French Catholic school until they graduate.

111The Family Responsibility Office (“FRO”) are to amend their records in accordance with this decision, which if required shall be confirmed immediately by the parties to FRO. FRO shall continue to enforce child support obligations as reflected herein.

DIVORCE

112The mother shall immediately deliver the parties’ Marriage Certificate to the father.

113The issue of divorce is severed from any other issues in this proceeding.

114The father at his cost may seek a divorce of the parties based upon their separation.

JANUARY 9 TO 16, 2016 MEXICO TRAVEL

115The mother shall immediately deliver to the father:

(a) The children’s expired passports;

(b) Her written consent to his application to obtain new passports for the children at his cost;

(c) Her written consent that the children may travel with the father to Mexico between January 9, 2016 and January 16, 2016.

INCOME TAX DEPENDENTS

116The father will for income tax purposes claim the son as a dependent child for one half of 2014 and thereafter. The mother will similarly claim the daughter as a dependent for tax purposes for those periods.

MOTHER’S 2012 TO 2014 INCOME TAX RETURNS AND NOTICES OF ASSESSMENT

117The parties will by June 1 each year provide the other party with a copy of their previous year’s income tax return and enclosures, and their Notice of Assessment for such year. Without limitation, the mother will within 30 days provide the father with her 2012, 2013 and 2014 Income Tax returns together with her Notices of Assessment for such years.

COSTS

118The father seeks an award of $14,000 costs against the mother based on a draft bill of costs consisting of:

(a) Full indemnity fees and disbursements for the period June 2011 to August 2015 totalling $20,335;

(b) 96.4 docketed hours by the father’s lawyer; and

119The court has seen the various correspondence proposals made to settle this proceeding.

ANALYSIS

120The relevant factors as to costs under Rule 24 of the Family Law Rules, O. Reg. 114/99 are the following:

(a) A successful party is presumptively entitled to the costs: Rule 24(1);

(b) A successful party who has behaved unreasonably may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs: Rule 24(4);

(i) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(ii) the reasonableness of any offer the party made; and

(iii) any offer the party withdrew or failed to accept: Rule 24(5);

(d) If success in a step in a case is divided, the court may apportion costs as appropriate: Rule 24(6).

(e) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately: Rule 24(8).

(f) A person setting the amount of costs shall consider:

(i) the importance, complexity or difficulty of the issues;

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case;

(iii) the lawyer’s rates;

(iv) the time properly spent as to the work performed;

(v) Expenses properly paid or payable; and

(vi) Any other relevant matter: R. 24(11).

COST PERIOD CLAIMED

121This Application commenced in October 2014. This motion for summary judgment was filed September 8, 2015.

122There is no basis to award costs prior to the commencement of this proceeding. Prior to that date, these parties were negotiating and each party was making proposals towards a possible settlement.

LEVEL OF SUCCESS

123The father has obtained summary judgment on many issues, a good number of which were not opposed. Those unopposed elements however remained unobtainable as the mother was unwilling to commit on them unless she obtained an agreement on all points. The commencement of this proceeding was therefore necessary. Once commenced, the mother did not actively oppose many of the smaller points ordered herein and thereby increase legal costs.

124The father was successful regarding a minimum of 40% residency between June and December 2014. He was partially successful as to the set-off amount during that period.

125The father was successful in finally implementing a set-off child support amount which even on the mother’s position, should have occurred without litigation commencing January 1, 2015.

126The father was partially successful as to the set-off support amount on and after January 1, 2015.

127The father and mother were unsuccessful as their retroactive s. 7 expense claims.

128The father and mother were on occasion unreasonable in their positions.

129Parties have the right to adopt negotiating positions. Neither party could afford this litigation but despite that, each pursued this litigation regardless of mounting costs.

130The mother refused to commit and delayed implementation of fixed alternating residency, even after she conceded the point in June 2014.

131The mother even after accepting that weekly rotating residency commence in January 2005, retained that as an open issue as she negotiated other issues.

132Each party had the ability in May 2015 to conclude a full settlement of all issues on terms acceptable to them, but for the amount of $1,328.

133The father then commenced adding additional claims such as s. 7 reimbursement and legal costs when he must have known the mother regardless of merit, lacked the financial capacity to agree to and thereby prevented any remaining possibility of settlement.

134Parties of limited financial capacity do not for that reason have the right to litigate with immunity as to costs.

135This proceeding would have been shorter, more focussed and less costly had the mother committed to issues as agreed upon. She had the assistance of legal advice during most of the negotiations.

136The mother’s lower level of income limits the costs which this court may award as that may impair the children.

137The above factors eliminate the costs claimed prior to commencement of this proceeding, must factor in the important but also mixed outcome obtained by the father and reflects the responsibility of family law litigants to narrow and litigate only what is disputed rather than using the proceeding to control or punish their former partner.

138The father is awarded costs in the amount of $3,500, all in. Those costs are to be paid at the rate of $100 per month commencing December 1, 2015, via reduction in that amount from the amount of child support payable by him to the mother.

139For clarity, FRO shall not enforce payment of child support by the father commencing December 1, 2015, in excess of $1,000 per month, until expiration of the mother’s obligations to reimburse the father for costs and the prior child support credit as determined herein or further order of this court.

Kane J.

Released: November 17, 2015

ONTARIO SUPERIOR COURT OF JUSTICE