ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rick Maelbrancke
Applicant
– and –
Aprille Lynde Proctor
Respondent
Robert MacLeod, for the Applicant
Walter Drescher, for the Respondent
HEARD: March 10, 2016
jUSTICE r. j. hARPER
REASONS FOR JUDGMENT
ISSUES
Issues
1The Applicant Rick Maelbrancke (Rick) seeks an order for a writ of possession of his home located at 258 Metcalfe Street North, Simcoe Ontario.
2The Respondent Aprille Lynde Proctor (Aprille) seeks a temporary order for:
a. Custody of the children Kobie Wintemute, born October 14, 2002; and Madison Wintemute, born April 21, 2001;
b. Child support for the above children;
c. Spousal support.
BACKGROUND
Background
3Aprille and the Applicant, Rick Maelbrancke (Rick) started to cohabit on June 1, 2012. They separated on September 1, 2015. Their period of cohabitation was 3 years and 2 months.
4Aprille and Rick did not have any children from their union. However, Aprille had two children from a previous union. At the time that the parties started to cohabit, Aprille’s children, Kobie and Madison were 10 and 11 years old respectively. Their biological father, Paul Wintemute has always been involved with the children. He has what Aprille refers to as “traditional access”. He also pays child support in the amount of $280 per month to Aprille.
5Aprille claims that Rick treated her children as his own children and had a close relationship with them. Rick denies that he acted as a parent to Aprille’s children and that he had any settled intention to treat her children as his own. He denies that he attended their school activities or medical appointments. He only admits that he drove them to school, activities and appointments but he claims that he was never involved with them. He also asserts that Aprille’s children never treated him like a parent. He states that he was just an adult in the house. According to Rick they never turned to him for guidance, companionship or comfort. Rick insists that it was Aprille who “ensured that I was not to be a parent to these children.”
6In his affidavit sworn March 6, 2016, Rick gave an example of an occurrence that took place in January 2016. He had asked Aprille’s son to clean his room in order for Rick to get an internet hub installed. According to Rick, Aprille told her child that he did not have to listen to him and repeatedly told them that day that her children should stop talking to Rick under any circumstances.
7Aprille claims that when Rick asked her to move in with him she came as a “packaged deal”. According to her Rick acted as a parent in all respects. She claims he disciplined them, showed them affection, was concerned about their health and took them to medical appointments. She also stated that Rick took the whole family on holidays and she attached a number of photographs showing the family on holidays and at holiday times.
THE LAW AND ANALYSIS RE: TEMPORARY CHILD SUPPORT
The Law and Analysis Re: Temporary Child Support
8In Mignella v. Federico, 2012 ONSC 5696 Price J. reviewed some of the legal considerations with respect to the determination of whether a person acted as a parent in order to be obligated to pay child support. He stated at Para 36:
Section 31 of the Family Law Act provides that:
31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
38Section 1(1) of the Family Law Act defines “parent” as “a person who has demonstrated a settled intention to treat a child as a child of his or her family…”
Jurisprudence
39In Chartier v. Chartier, in 1999, the Supreme Court of Canada considered the issue of when a spouse “stands in the place of a parent.”Justice Bastarache reviewed the conflicting jurisprudence and observed that the common law meaning of “in loco parentis” was not helpful in determining the meaning of the words “in place of a parent” in the Divorce Act. He set out the following test for determining the issue:
Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependant on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(12) of the Divorce Act.
9I agree with Price J that there must be at least a prima facie case of entitlement shown at the interim stage in order for her to succeed in obtaining an order for child support. Commencing at para 42 Price J. cited a number of cases that make this analysis clear:
In Lopez v. Lopez, in 1993, the wife applied for interim child support, alleging that her husband had stood in the place of a parent for her children. Justice E. Macdonald held that it was inappropriate in the circumstances of that case, where the parties’ evidence was contradictory in many respects, to decide the issue without hearing and weighing the evidence to be given at trial. Although she did not order interim child support, she ordered generous interim spousal support to be paid to the mother (in the amount of $7,250.00 per month, which was $2,500.00 more than the mother had requested), which she would use to meet her children’s needs, as well as her own.
43McIntyre J. of the Saskatchewan Court of Queen’s Bench, in Butzelaar v. Butzelaar, in 1998, considered whether the court should make an interim determination of whether a spouse stood in the place of a parent. He noted that in Lopez, the only undisputed facts were that the husband had financially assisted the mother and her children while they cohabitated. He agreed that where status and entitlement are in issue, it is sometimes best to leave the issue to the trial judge. In determining whether an interim order was appropriate in the case before him, he applied a test which the Alberta Court of Appeal had set out in Theriault v. Theriault, in 1994 (which the Supreme Court cited with approval in Chartier on the test to determine whether a spouse stood in place of a parent). In that case, Kearns J.A. stated:
A full inquiry into the issue of support is neither necessary nor possible when interim relief is sought: Blackmore v. Blackmore (1978), 1978 CanLII 1360 (ON SC), 7 R.F.L. (2d) 263 (Ont. Master). Nevertheless, the judge hearing the application for interim relief must decide at least whether there is a prima facie case for entitlement: McGill v. McGill, [1988] B.C.J. 2375 (B.C.S.C.), and the cases there cited. [Emphasis added]
44Justice McIntyre, in Butzelaar v. Butzelaar, points out that a determination made on an interim motion is not fixed and does not bind the trial judge. The test is whether or not the moving party has made out a prima facie case for entitlement.
45In Land v. Aitchison, in 2005, Pedlar J. of this Court held that on a motion for interim child support, where the issue is whether a spouse stood in place of a parent, the moving party need only establish a prima facie case. This low threshold of proof is consistent with Professor Nicholas Bala’s opinion that, for policy reasons, courts should be more flexible in applying the definition of “stand in the place of a parent” at the interim stage, to allow the child and the biological parents time to transition.
10In this case, I find that Aprille has not made out a prima facie case for entitlement to child support. I am faced with polar opposite affidavits on the issue of whether or not Rick treated the children as his children and whether he acted as a parent to them. It is not possible on the affidavit evidence before me to make a finding either way. The parties lived together for a very short period of time. The biological father has continued to be involved on a consistent basis. That fact alone does not prevent a finding that Rick acted as a parent, however, there must be some evidence that tips the balance in the analysis and I find that there is none. The onus is on Aprille to produce evidence of a prima facie case on the balance of probabilities and she has failed to do so. Her motion for temporary child support is dismissed.
THE LAW AND ANALYSIS RE: TEMPORARY SPOUSAL SUPPORT
The Law and Analysis Re: Temporary Spousal Support
11In Samis v. Samis, 2011 ONCJ 273 the court dealt with the considerations in making an interim spousal support award:
In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 CarswellMan 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions:
Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.
In Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 CarswellBC 2239 (B.C.S.C.), the court added the following considerations:
On interim support motions, needs and ability take on greater significance.
On interim motions, the need to achieve self-sufficiency is of less importance.
Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise.
Interim support should only be ordered where a prima facie case for entitlement has been set out.
12Aprille started to cohabit with Rick on June 1, 2012. At that time she was not employed. She was receiving only child support from the biological father of her children. When Aprille moved in with Rick she moved into a home that was owned by Rick alone. Aside from the child support she received she also received child tax credit and HST. Her last place of employment was in a local retail store in Simcoe Ontario in November 2014. She does not state in her affidavit why she was no longer employed there, what she earned and what efforts she has made to return to the workforce.
13Aprille claims that both Rick and her taxes were audited and that she was required to file as “common law” for 2013, 2014 and up to separation in 2015. She claims her tax liability now amounts to $20,000 as a result of what was overpaid to her in those years. The federal government is now taking one half of her present entitlement to child tax credit in order to satisfy her present arrears of taxes.
14Needs and ability of the parties takes on a greater significance at the interim stage. In this case, there is no doubt that Aprille is in need of support. She has extremely limited resources and she has the primary responsibility of 2 young children. Rick has asked for an order for a writ of possession of his home. He is entitled to such an order. This puts Aprille in a situation that creates an immediate and urgent need for her to relocate with her children. It appears from the evidence presented, at this point, that both Rick and Aprille did not file their taxes properly and the evidence before me demonstrates that Aprille is the one who is being penalized by having her tax credit payments being reduced by half. This creates a further urgent and immediate need.
15The length of cohabitation is very short. Aprille just qualifies as a spouse as the period of cohabitation is approximately 39 months. She gave no explanation as to why she is not working, nor any explanation as to what she did and can earn. Nevertheless, I find that Aprille has made out a prima facie case of entitlement to interim support for a short period of time in order to get her by this present urgent need. That need is based on her tax reassessment and her need to relocate her accommodations with her children.
16Under the circumstances I make the following order:
a) Rick is granted a writ of possession for the home located at 258 Metcalfe Street North, Simcoe Ontario. This writ shall be held and cannot be acted upon for 30 days or until Aprille and her children have relocated to alternate accommodations whichever shall first occur;
b) Rick shall pay a lump sum interim amount of $1,200 to Aprille in order for her to be in a position to rent alternate accommodation; and
c) Rick shall pay interim spousal support based on his annual income of $55,891 and no income to Aprille, the sum of $600 per month as per the SSAGs. This amount shall commence April 1, 2016. That amount of support shall be for a period of 3 months. I find that Aprille can earn at least the sum of $24,000 per annum in retail sales. The lump sum support and the 3 month period of periodic support is to allow for her to be relocated with her children. Interim support shall be reduced to the sum of $114 per month commencing July 1, 2016
Harper, J.
Released: March 30, 2016