CITATION: Margetts v. Tristram, 2016 ONSC 1394
COURT FILE NO.: 3381/15
DATE: 2016-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH YVONNE MARGETTS
Applicant
– and –
PETER WILLIAM TRISTRAM
Respondent
In person
Not appearing
HEARD: February 25, 2016
RASAIAH J.
DECISION ON MOTION TO CHANGE
BACKGROUND
[1] The moving party, Ms. Sarah Yvonne Margetts (“Applicant”), is the mother of the children, Gareth William Tristram, born January 25, 2005 and Alyssa Emily Tristam, born January 25, 2005 (“children” or “Alyssa” or “Gareth” accordingly). The children are currently 11 years of age.
[2] The Respondent Peter William Tristram (“Respondent”) is the father of the children.
[3] The Applicant is currently 48 years of age, and the Respondent is 49 years of age.
[4] The parties had lived together in the Cayman Islands and Canada. They separated in May of 2011. At the date of their separation, they were residing with the children in Okotoks, Alberta, Canada.
[5] The parties were divorced May 20, 2012.
[6] The Applicant and the children reside in Elliot Lake, Ontario. They have been residing there since April of 2012. The move came about when the Applicant was offered a teaching position in Elliot Lake, Ontario. The Respondent consented to the move in exchange for the Applicant agreeing to terminate spousal support.
[7] The Respondent moved from Calgary, Alberta Canada to the United Kingdom in June of 2012. The Applicant believes he lived in England until January of 2013. In January of 2013 he moved to Guernsey, and thereafter back to England in early 2014.
[8] The Applicant brought and filed on July 22, 2015, a motion to change returnable October 15, 2015. The motion to change seeks to change the Order of the Honourable Mr. Justice J.L. Kenney, dated April 17, 2012. In particular, the Applicant seeks: sole custody of the children; that the Respondent have supervised visitation at the Applicant’s parents’ home or outside the home with a court appointed supervisor in Elliot Lake, Ontario, when mutually agreed; that based on imputed income of $110,000.00, the Respondent pay child support to the Applicant for the children in the amount of $1,538.00 retroactive to January 1, 2012; that the Respondent pay his pro rata share of special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($250.00 per year), camp expenses for both ($325.00 per year), swim club fees for Alyssa ($750.00 per year), sport fees for Gareth ($1,300.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,736.00; and permission to travel with the children outside of Canada without the Respondent’s permission.
[9] The Applicant set a case conference for October 5, 2015. The case conference could not be held on October 5, 2015 because the Applicant had not been able to serve the Respondent. The case was adjourned to October 15, 2015 to permit the Applicant to bring a motion for substituted service. On October 15, 2015, an order for substituted service was made by me. The Applicant by my order was permitted to serve the motion to change documents on the Respondent via priority mail to the Respondent’s father’s residence, namely 1 Place en d’amia, Villelonge del Montes, France 6670.
[10] The Applicant swore an affidavit of service on October 28, 2015 wherein she set out that she served the Respondent pursuant to the substituted service order. To her said affidavit, she attached the original sender’s Copy of the FedEx delivery slip. The Applicant also attached an email from the Respondent’s father indicating that the Respondent’s father had made the Respondent aware of the contents of the original package of documents [the first attempt she made prior to obtaining the substituted service order] and that he was going to get in touch with the Respondent about the second package of the documents that the Applicant sent per the substituted service order.
[11] A new case conference date was set for December 14, 2015. The Respondent did not attend the December 14, 2015 case conference. The presiding case conference justice, the Honourable Mr. Justice A. Kurke (“Justice Kurke”) set the matter for uncontested hearing for February 25, 2016 and ordered the Respondent to file a financial statement by January 29, 2016; to provide copies of his Canadian tax returns and Notices of Assessment for the 2011 and 2012 tax years; to provide copies of his United Kingdom tax returns for 2013 and 2014; and to provide copies of all 2015 paystubs from all employers. Justice Kurke further ordered that if the Respondent did not comply with the disclosure orders the Respondent would be deemed by the Court to have an income for the purpose of the Child Support Guidelines of $110,000.00 for 2015. The Applicant was ordered to serve a copy of Justice Kurke’s endorsement with its orders on the Respondent via priority mail to the Respondent at 1 Place en d’amia, Villelonge del Montes, France 6670, his father’s residence, and that service would be deemed to be effective.
[12] The Applicant gave evidence that she did serve the endorsement as ordered. Also she filed her January 8, 2016 affidavit of service of Justice Kurke’s December 14, 2015 endorsement. To her said affidavit, she attached the original sender’s Copy of the FedEx delivery slip. The Applicant also attached an email from the Respondent’s father indicating that the Respondent’s father had received the papers and that he would take them to England and send them on to the Respondent.
[13] To this date, the Respondent has not filed any responding materials. The Respondent has not contacted the Applicant about the proceeding.
ISSUES
Issue: Jurisdiction
Analysis
[14] The Order of Justice C.L. Kenny of the Court of Queen’s Bench of Alberta, Calgary Judicial Centre, was granted April 17, 2012. Paragraph 4 of Justice Kenny’s order provides that the children’s residence shall not be changed from outside 100 km of the Calgary area without the consent of the other party, or an Order of this Honourable Court.
[15] As set out above, the Respondent consented to the Applicant’s move to Elliot Lake, Ontario. He has done nothing to enforce the Order or address the change of the children’s residence, if this is not the case.
[16] The children have been ordinarily and habitually resident in Ontario since April 2012 and this court accordingly has jurisdiction to deal with the matters that are subject of the motion to change.
Issue: Variation
Analysis
[17] It is clear in my view, on the evidence, that since the order was made, there have been changes in the condition, means, needs and circumstances of the children, and the parties. Approximately 4 years have passed. Both parties have moved and have new employment. The children have special needs (described below in the custody and access section). The children have increased needs and Alyssa has many medical appointments. The Applicant has been unable to obtain steady full-time work. The Respondent has not exercised access to the children since March of 2012.
[18] Additionally, paragraph 9 of Justice Kenny’s order provides that child support could be reviewed upon the earlier of a material change in circumstances or May 1, 2012. Paragraph 13 of Justice Kenny’s order further contemplates a yearly change of child support.
[19] There is no question, in my view, that this is a proper case for variation in respect of all claims set out in the motion to change, based on the above.
Issue: Custody and Access
Analysis
[20] Justice Kenny’s order provides in paragraph 1, that the parties have joint custody of the children with the primary day to day care and control with the Applicant. Paragraph 2 provides supervised access to the Respondent to the children.
[21] I have considered the best interests of the children accordingly in accordance with s.24 of the Children’s Law Reform Act, R.S.O. 1990, c.C12, as am.
[22] The Applicant has a close bond with the children. She is the only one, of her and the Respondent parenting them at this time and has lived with them in a stable home environment for some time. The Applicant is able and willing to provide the children with guidance and education, the necessaries of life, and for their special needs. She has a good source of support around her in Elliot Lake, Ontario, in respect of her care of the children, namely her parents and some good friends.
[23] The children in fact have special needs/health conditions. They were born prematurely. For Alyssa, they include cerebral palsy, VP shunt, and a seizure condition. She receives support services from a pediatrician, ophthalmologist, neurologist, neuro surgeon, orthopedic surgeon, occupational therapy, physiotherapy, and botox therapy. She has an IEP at school. For Gareth, they include learning disabilities, and sensory integration issues. He has an IEP at school. He receives occupational therapy.
[24] The Applicant is a substitute teacher with the Algoma District School Board. To September 30, 2015, she worked as an occasional teacher, and thereafter, commencing October 2015, she was able to get a long term leave (October 2015 to June 2016) in continuing education. Her parents help her with the children in the mornings and afterschool, as and when needed.
[25] The Respondent is a pharmacist. The Applicant is not aware of where the Respondent is currently working.
[26] The Applicant has requested the Respondent’s new address and phone number many times. The Respondent has refused to provide this information. Her only source of communication with him is via email. Sometimes, he will respond to emails and other times she receives no response. In the emails he does respond to, the Applicant indicates that the Respondent does not deal with any of the issues concerning the children and acts as though nothing has changed. She says it is hard to describe. She did not bring any of the emails for the hearing.
[27] The Applicant claims that the Respondent was never really involved with the care and upbringing of the children, even when they were together.
[28] The Respondent has not seen the children since March of 2012.
[29] The Applicant reports that in the past, the Respondent attempted suicide twice (February of 2008 and May of 2011), with both children within the home on both occasions. Gareth had to attend counselling as a result of seeing his father unresponsive on the second occasion. He was six at this time and thought his father looked dead.
[30] The Applicant also states that the Respondent was verbally and psychologically abusive (belittling to both children and to her). He was physically abusive towards Gareth, he hit Gareth.
[31] The Applicant states that the Respondent was also unable to care for the children. When she worked, she had either her parents and/or a babysitter care for the children, even if he was in the home. This arose as a result of incidents where she would return home from work, and find the Respondent not tending to the children’s needs. On one occasion, he had gone to bed and left the children alone. On another occasion, he was in a different room listening to music. On another occasion, when Alyssa was three years of age and learning to use a walker, he left the safety gate open. The Applicant says the Respondent described himself as a “hands off dad”.
[32] Because the Respondent has not responded, I know nothing about the Respondent’s current state of health and/or ability to parent the children in accordance with their needs. Further, it seems apparent that he has taken no steps to exercise access to his children in almost four years.
[33] Notwithstanding his lack of involvement, the Applicant presents as willing to continue to facilitate supervised access to the children to the Respondent if he decides to someday exercise access. She prefers that this access is supervised based on the information she gave me above, and that it be supervised by her parents, because she is unable to supervise the access. She had to do that in Alberta and he belittled her in front of the children. She does not wish to expose the children to that. Additionally, she reports that the Respondent is different (in a good way) in front of her parents.
[34] Based on all of the foregoing under this heading, I find that it is in the best interests of the children that the Applicant has custody and that access, if the Respondent chooses to exercise it, be supervised.
Order
[35] Accordingly, I order that paragraphs 1 and 2 of Justice Kenny’s order are vacated. I order that the Applicant Sarah Yvonne Margetts shall have sole custody of the children, Gareth William Tristram, born January 25, 2005 and Alyssa Emily Tristram, born January 25, 2005.
[36] I also order that the Respondent have reasonable supervised access on reasonable notice to the Applicant, such access to be at the Applicant’s parent’s home and such access to be supervised by the Applicant’s parents.
Issue: Imputing Income
Analysis
[37] Justice Kenny’s order provided for the exchange of financial information between the parties each year. At the time of the order, the Respondent was working in Canada, and was found to have guideline income of $71,000.00. The Applicant states that the Respondent’s income was $71,000.00 at that time, because the Respondent had been off for 4 months.
[38] The Applicant has not received any income information from the Respondent.
[39] Justice Kurke as stated on December 14, 2015 ordered that if the Respondent did not comply with the disclosure orders the Respondent would be deemed by the Court to have an income for the purpose of the Child Support Guidelines of $110,000.00 for 2015. The order does not say how this amount was arrived at. The order however is the order, and I am bound by it. That being said, today, the Applicant filed the results of three internet searches she completed on pharmacists’ salaries in the United Kingdom. She used the exchange rate at the time she conducted the searches which was April 2015 when the Canadian dollar was worth more, and the salaries averaged between $73,000.00 and $121,000.00 approximately in Canadian Dollars. The Canadian Dollar is now worth less the Applicant believes accordingly, the range would be higher in Canadian Dollars. Lastly, she gave evidence that when the parties were together, the Respondent earned in Canada, $110,000.00 annually.
[40] It is not known why the Respondent left Canada and his employment in Canada. The move was a surprise to the Applicant who learned of the move, after the Respondent had already moved, after a friend of hers from Okotoks informed her that the Respondent’s job was being advertised.
[41] The Respondent chose not to defend this motion to change. In addition, he failed to meet his obligation to provide income information to the Applicant, both pursuant to Justice Kenny’s order (paragraphs 11 and 12) and Justice Kurke’s December 14, 2015 order.
[42] I would have found the amount of $110,000.00 supportable given the foregoing in accordance with section 9 of the Federal Child Support Guidelines SOR/97-175, as am. (“Guidelines”).
Order
[43] Based on Justice Kurke’s December 14, 2015 order, the Respondent’s income is imputed at $110,000.00.
Issue: Child Support: Ongoing Table Support
Analysis
[44] Paragraph 3 of Justice Kenny’s order provided for support in the amount of $1,027.00 based on income of $71,000.00.
[45] Based on the fact that the Respondent resides outside of Canada, the Ontario tables apply. Based on imputed income of $110,000.00, the amount of support in accordance with the Guidelines therefore is $1,538.00 per month for two children.
[46] Accordingly, I order that paragraph 3 of Justice Kenny’s order is vacated. I order that based on imputed income of $110,000.00, commencing March 1, 2016, and on the first day of each month thereafter, the Respondent Peter William Tristram, shall pay to the Applicant, table amount of child support for the children, Gareth William Tristram, born January 25, 2005 and Alyssa Emily Tristram, born January 25, 2005 in the amount of $1,538.00 per month.
Issue: Child Support: Ongoing Special or Extraordinary Expenses
Analysis
[47] Paragraphs 6 and 7 of Justice Kenny’s order provided that the Applicant pay 26% of the children’s s.7 expenses and the Respondent pay 74% and that neither party incur a s.7 expense for which they wish the other party to contribute without the express written consent of the other party, such consent not to be unreasonably withheld. Paragraph 8 provided that extraordinary medical expenses be shared without the need for prior consent.
[48] The Applicant’s 2016 income is anticipated to be $38,128.00 because she was able to secure a long term contract like she did in 2014. Her income however fluctuates. She has been unable to obtain full-time work teaching. She says it is very difficult getting a full-time teaching position right now. She has made attempts. She has applied for long term contracts with the Board she is with. She has applied three times to the Catholic Board but says she does not get called for interviews because she is not Catholic. She is considering looking for employment outside of teaching because she desires a stable source of income to support the family and needs flexible employment to care for and attend to Alyssa’s needs.
[49] The Applicant filed income information. In 2012, she earned $20,024.00. In 2013, she earned $28,049.00. In 2014, she earned $38,128.00. In 2015, she earned $17, 963.00 plus EI for a total of approximately $19,000.00.
[50] The Applicant has no difficulty with section 7 expenses support being calculated with her actual income per the documents filed to today’s date, however suggests that her income for purposes of setting future share of special expenses be set at the middle of $19,000.00 and $38,000.00 because of the uncertainty of her income.
[51] I am satisfied on the evidence that the Applicant has been making reasonable efforts to obtain full-time employment in her field, while having full-time responsibility for the children, and further that using her current income would not be the fairest determination of her income going forward post December 31, 2016, given her proven fluctuating pattern of income. Applying section 17 of the Guidelines, the average of her three most recent taxation years (2013, 2014, and 2015) is $28,400.00, which is in fact very close to her submission.
[52] I find that Alyssa’s eye glasses and Gareth’s prescriptions are health related expenses that exceed insurance reimbursement by at least $100 annually, and accordingly these expenses ought to be shared pursuant to the Guidelines. Gareth’s average prescription costs since 2012 have been approximately $111.00 per year. Alyssa’s prescriptions are covered by Trillium Benefits. With the exception of this year, Alyssa’s eye glasses expense has been $250.00 per year. This year, the Applicant was able to save money and buy a pair at $200.00.
[53] I also find that pursuant to s. 7 of the Guidelines, the balance of all of the extracurricular expenses claimed, qualify as extraordinary expenses in this case, namely Alyssa’s and Gareth’s camp expenses; Alyssa’s swim club fees, and Gareth’s sports fees. The children have special needs and given the Applicant’s income, these expenses are expenses that the Applicant cannot reasonably cover. These expenses ought not to be subsumed in the table amount of child support in this case, again given the Applicant’s income and the children’s needs. It is in these children’s best interests to be involved in these activities for their health and socialization. The overall costs claimed are not unreasonable or out of the ordinary for these types of extracurricular expenses.
[54] Since 2012, both children have been involved in swim club at a cost of $500.00 each per year.
[55] Since 2012, Alyssa has attended Easter Seals camp at a cost of $175.00 each year. Gareth has attended Camp MacDougall in Thessalon, Ontario each year at a cost of $380.00 per year.
[56] From 2013, to 2015, Gareth took karate at the rate of $400.00 per year. For 2016, the Applicant could not afford a full year and spent $200.00. Gareth, in my view, ought to be permitted to continue to attend this extracurricular activity and would be, if not for the Respondent’s failure to contribute.
[57] I accept the Applicant’s evidence that she did not have paperwork to file to confirm the above amounts because she had sent them into the Family Responsibility Office and she did not keep a copy. Family Responsibility Office has not collected any of these amounts for her. She was told that because Justice Kenny’s order required permission for these expenses, they were unable to enforce without a further court order or a written consent. The Applicant prepared a letter of consent for the Respondent to file, emailed it to him and asked him to print it, sign it and return it to her. He refused.
Order
[58] Accordingly, I order that paragraphs 6 and 7 of Justice Kenny’s order are vacated. I order that on account of special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($200.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,466.00, commencing March 1, 2016 and on the first day of each month thereafter, to and including December 1, 2016, the Respondent shall pay to the Applicant, the sum of $151.04 per month, representing his proportionate share of these expenses, namely 73.5% based on imputed income to the Respondent of $110,000.00 and the Applicant’s income of $38,128.00.
[59] I order that on account of special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($200.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,466.00, commencing January 1, 2017, and on the first day of each month thereafter, the Respondent shall pay to the Applicant, the sum of $161.73 per month, representing his proportionate share of section 7 expenses, namely 78.7 % based on imputed income to the Respondent of $110,000.00 and income to the Applicant of $28,400.00.
Issue: Child Support: Retroactive Variation of Table Support and s.7 Expenses
Analysis
[60] The Applicant is seeking that the table support amount and the Respondent’s s. 7 expenses contribution variation be made retroactive to 2012, when the Respondent stopped paying support, when he left for England. This was June 1, 2012.
[61] Justice Kenny’s order was made April 17, 2012.
[62] In S. (D.B.) v. G. (S.R.) 2006 SCC 37, 2006 CarswellAlta 976, 2006 CarswellAlta 977, [2005] S.C.C.A. No. 100, [2006] 10 W.W.R. 379, [2006] 2 S.C.R. 231, [2006] A.W.L.D. 2466, [2006] A.W.L.D. 2467, [2006] W.D.F.L. 2909, [2006] W.D.F.L. 2917, [2006] S.C.J. No. 37, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, 351 N.R. 201, 377 W.A.C. 297, 391 A.R. 297, 61 Alta. L.R. (4th) 1, J.E. 2006-1543 Bastarache J. writing for the majority of the Supreme Court of Canada wrote:
[131]Child support has long been recognized as a crucial obligation that parents owe to their children. Based on this strong foundation, contemporary statutory schemes and jurisprudence have confirmed the legal responsibility of parents to support their children in a way that is commensurate to their income. Combined with an evolving child support paradigm that moves away from a need-based approach, a child's right to increased support payments given a parental rise in income can be deduced.
[132] In the context of retroactive support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly. Thus, previous enunciations of the payor parent's obligations may cease to apply as the circumstances that underlay them continue to change. Once parents are in front of a court with jurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilled obligations that have accrued over time.
[133] In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.
[134] Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating.
[135] The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them. Thus, while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed.
[63] Paragraphs 11 and 12 imposed legal obligations on the parties to exchange financial information to determine Guideline support. Paragraph 13 of Justice Kenny’s order contemplated an annual adjustment to child support on the provision of financial information. The Respondent failed to meet these provisions. Through the email from the Respondent’s father, it is apparent that the Respondent knows that the Applicant is seeking the variations set out in her motion to change, as the father indicates he made the Respondent aware of it.
[64] Additionally, the Applicant advises that the efforts she made on seeking income information and/or varying support prior to issuing the motion to change in July included emails to the Respondent, speaking to the Respondent’s sister (who attempted to advocate for her) and speaking to the Respondent’s father. The Respondent only ever responded to her emails in 2012, at which time he told her his 2011 and 2012 income information was in storage and he was not going to get it. She also made efforts through the Family Responsibility Office who she understands was seeking to have the Respondent attend court in the United Kingdom in July of 2015. She is not up to date on what transpired. The Family Responsibility Office has not contacted her. As a result of their efforts, she says she received a few payments but nothing else. She states that the Respondent takes steps to avoid paying support and to avoid the Family Responsibility Office, including quitting his employment and taking up new employment elsewhere.
[65] Based on the premise of paragraph 13 of Justice Kenny’s order and the failure/refusal of the Respondent to provide his income information to the Applicant and comply with the court orders, I am of the view that the child support ought to be varied, however, from June 1, 2012, which is the date that material changes began, namely the time frame of the Applicant and Respondent’s moves; the time frame the Respondent stopped paying support; and the date the Respondent’s conduct in failing to comply with his legal obligations to provide information to the Applicant began.
Order
[66] Accordingly, based on Guidelines Divorcemate software calculations for the applicable years in question, I order on account of retroactive variation of the table support and s.7 expenses, that:
(a) Commencing June 1, 2012 to February 1, 2016, based on imputed income of $110,000.00, the Respondent Peter William Tristram, shall pay to the Applicant, table amount of child support for the children, Gareth William Tristram, born January 25, 2005 and Alyssa Emily Tristram, born January 25, 2005 in the amount of $1,538.00 per month, for a total amount owing for this period, in the amount of $69,210.00; and
(b) For the period of June 1, 2012 to December 31, 2012, for special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($250.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,516.00, the Respondent shall pay to the Applicant, the sum of $2,128.54, representing his proportionate share of these expenses, namely 84.6 % based on imputed income to the Respondent of $110,000.00 and the Applicant’s 2012 income of $20,024.00
(c) For the period of January 1, 2013 to December 31, 2013, for special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($250.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,516.00, the Respondent shall pay to the Applicant, the sum of $2,005.25, representing his proportionate share of these expenses, namely 79.7% based on imputed income to the Respondent of $110,000.00 and the Applicant’s 2013 income of $28,049.00.
(d) For the period of January 1, 2014 to December 31, 2014, for special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($250.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,516.00, the Respondent shall pay to the Applicant, the sum of $1,869.39, representing his proportionate share of these expenses, namely 74.3 % based on imputed income to the Respondent of $110,000.00 and the Applicant’s 2014 income of $38,128.00.
(e) For the period of January 1, 2015 to December 31, 2015, for special or extraordinary expenses for the children, namely eyeglasses for Alyssa ($250.00 per year), camp expenses for both children ($555.00 per year), swim club fees for both children ($1,000.00 per year), sport fees for Gareth ($400.00 per year), and prescriptions for Gareth ($111.00 per year) in the total annual amount of $2,516.00, the Respondent shall pay to the Applicant, the sum of $2,120.99, representing his proportionate share of these expenses, namely 84.3% based on imputed income to the Respondent of $110,000.00 and the Applicant’s 2015 income of $19,000.00.
Issue: Travelling Outside of Canada
Analysis
[67] Paragraph 3 of Justice Kenny’s order provides that neither party shall travel with the children out of the Country of Canada without the express written permission of the other party, such permission not to be unreasonably withheld.
[68] The best interests of the children test as set out above, applies to analyzing this request for variation along with the material changes that have occurred since the order was made.
[69] At the time this order was made, both parties and the children were residing in Canada. The Respondent no longer resides in Canada. In addition, the Respondent refuses to keep/stay in contact with the Applicant.
[70] The Applicant stated that it took some time and pressure to get the Respondent to sign the paperwork permitting the renewal of the children’s Canadian passports, simply so she could go shopping across the River [Sault Ste. Marie, Michigan, U.S.A].
[71] The Applicant has ties to Canada for the health of her children that she states she does not plan to leave.
[72] This provision, in these circumstances, is impractical to say the least. There are no safety concerns in respect of the Applicant. It makes no sense, nor is it in the best interests of the children for this term to continue.
Order
[73] Accordingly, I order that paragraph 3 of Justice Kenny’s order is vacated. I order that the Applicant may travel with the children outside of the Country of Canada without the express written consent of the Respondent.
[74] If the Applicant wishes to make any submissions as to costs, she will have 15 days from of the date of release of this order do so in writing with the particulars as to what she is seeking by way of costs, and on what basis.
[75] Within 15 days of receipt of a copy of this Order, a copy of this Order shall be served by the Applicant on the Respondent via priority mail to the Respondent’s father’s residence, namely 1 Place en d’amia, Villelonge del Montes, France 6670 and she shall file and affidavit of service thereafter in the court file.
Rasaiah J.
Released: February 25, 2016
CITATION: Margetts v. Tristram, 2016 ONSC 1394
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH YVONNE MARGETTS
- and -
PETER WILLIAM TRISTRAM
REASONS ON MOTION TO CHANGE
Rasaiah J.
Released: February 25, 2016