ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F 1322/10
DATE: 2015/11/18
BETWEEN:
Seyar Khairzad
Applicant
– and –
Meghan McFarlane
Respondent
James Brown, counsel for the Applicant
Robert Charko, counsel for Respondent
HEARD: August 17, 18 and 19, 2015
THe Honourable madam justice Deborah L. Chappel
reasons for judgment
PART I: INTRODUCTION
[1] The Applicant Seyar Ahmad Khairzad (“the Applicant”) and the Respondent Meghan McFarlane (“the Respondent”) are the parents of six year old Myah Catherine McFarlane, born August 5, 2009 (“Myah”). Their relationship ended in June 2009. This was the trial of an Application which the Applicant issued on May 15, 2014, and which involved the issues of custody, access and child support in relation to Myah.
[2] The Applicant seeks an order granting him sole custody of Myah. With respect to time-sharing, he seeks an order granting him time with the child according to the following two week, rotating schedule:
Week #1: From Friday at 8:30 a.m. until Monday at 8:30 a.m.
Week #2: From Thursday at 8:30 a.m. until Monday at 8:30 a.m.
[3] With respect to child support, the Applicant states that the above noted time-sharing regime would result in Myah being in his care 50% of the time. He is agreeable to paying the Respondent a straight set-off amount of child support of $52.00 per month, relying on the Tables under the Child Support Guidelines (Ontario) (O. Reg. 391/97, as am.) (the “Guidelines”) and based on the Respondent’s alleged income of $17,755.00 and an imputed income to him of $24,000.00. He also agrees to an order requiring him to contribute 50% towards any section 7 expenses relating to the child commencing August 1, 2015.
[4] The Respondent seeks an order for sole custody and primary residence of Myah. In her Answer and Claim, she requested an order that the Applicant have access to Myah every weekend from Friday until Sunday. However, at the outset of trial, counsel for the Respondent indicated that the Respondent’s position was that Myah should be with the Applicant according to a two week rotating schedule as follows:
Week #1: Thursday after school until Sunday evening.
Week #2: Thursday after school until Friday morning.
[5] In his Closing Submissions, counsel for the Respondent clarified that the Respondent’s position respecting access was that the Applicant should have regular access to Myah in Week #1 from Friday after school until Sunday evening, and in Week #2 from Thursday after school until Friday morning. Later in Closing Submissions, counsel suggested that the alternate Thursday access should perhaps be an evening visit only. Counsel for the Respondent indicated that the Respondent would not object to additional evening visits between the Applicant and the child during the week on either Monday or Tuesday night. He also stated that the Respondent would not object to additional access for the Applicant during the summer months when Myah is not in school, provided that the Respondent continues to have the child in her care on alternate weekends in the summer.
[6] Both parties agree that the consent of the other party should be required for either party to travel with Myah outside of Canada, and that the child’s passport should remain with the Respondent except when the Applicant requires it for travel.
[7] With respect to child support, the Respondent seeks an order requiring the Applicant to pay her the Table amount of child support commencing August 1, 2015, based on an imputed income to the Applicant of $24,000.00. In the event that a shared parenting arrangement is ordered, there appeared to be a consensus that the straight set-off amount of child support would be appropriate based on an income of $17,755.00 for the Respondent and $24,000.00 to the Applicant. The parties agree to share section 7 expenses relating to Myah on an equal basis commencing August 1, 2015. The Respondent is not pursuing contribution from the Applicant for section 7 expenses that she incurred prior to that date.
[8] The issues to be determined in this case are as follows:
What custodial arrangement is in Myah’s best interests?
What time-sharing arrangement is in Myah’s best interests?
Should the Applicant be required to pay the Respondent child support for Myah, and if so, what is the appropriate quantum of child support?
[9] For the reasons that follow, I conclude that it is in Myah’s best interests that the Respondent be granted sole custody. With respect to access, the evidence indicates that the Applicant has enjoyed liberal and generous time with Myah, but that the Respondent has not been agreeable to the existing arrangements for quite some time. I have concluded that the Applicant should continue to have generous access with Myah, but that the current arrangements are not in the child’s best interests. For the reasons that follow, I have determined that during the school year, the Applicant’s overnight access should be limited to weekends only. I have granted him access during the school year according to a four week rotating schedule which gives him extended weekend time, but also allows the Respondent to have 1.5 weekends with the child during the four week cycle. The balance of the Applicant’s access time during the school year will consist of weeknight evening visits. During the summer months, I have granted the Applicant more generous access with the child according to a two week rotating schedule. With respect to child support, I have ordered that the Applicant pay the Respondent child support in the amount of $192.00 per month commencing August 1, 2015.
(Full judgment text continues exactly as provided above through paragraph 79 and the concluding endorsement.)
Released: November 18, 2015
The Honourable Madam Justice Deborah L. Chappel