Introduction

[1] This is a motion by the Applicant for child and spousal support, retroactive to the commencement of the proceedings, and s.7 expenses.

[2] The Respondent’s cross – motion is for access.

Background

[3] The parties cohabited from February, 2013 to July 12, 2014 when they separated. There are 2 children of the relationship, although at the commencement of the application, there was only 1 child of the relationship – Matthew Paul Barber, born August 4, 2013, now 2.5 years old.

[4] The second child was conceived during the relationship, but was born after the separation. When the Applicant did not name the child after its Father on its birth registration, DNA testing was required to confirm the parentage of the child. The second child, Sheryl was born March 10, 2015.

Income

[5] Prior to cohabitation, the Applicant was always employed, and earned in excess of $60,000 - $70,000 per annum. It is unclear when the Applicant applied for CPP disability, however, she alleges that her application was declined; after which, she applied for ODSP benefits. Despite requests and an order to do so, the Applicant has not yet produced the entirety of her ODSP file, to assess the nature and duration of her disability. Her ODSP self-report dated January 7, 2013 references hearing loss and pain. This production confirms that the Applicant executed the ODSP application 1 month prior to her cohabitation with the Respondent and that shortly thereafter, during cohabitation, she received ODSP. Both parties agree that, during the cohabitation, the Respondent financially assisted the Applicant by paying her mortgage and the carrying costs of her home. The frequency of such payments is not clear.

[6] On the other hand, the Respondent had been employed as a T4 employee as well as seasonally self-employed in a fish hut and bait business. During the cohabitation, the Applicant variously discloses that the Respondent worked long hours, or did not work for long periods of time and was unaware of his income. As the Applicant initially retained the Respondent’s computer and all his personal and business paper work, she used this information to base a guesstimate of the Respondent’s income. As a result, the Respondent’s income and his payment of child and spousal support are at issue.

[7] Currently, the Applicant is in receipt of in excess of $1600 monthly from ODSP for herself and the children. She also is in receipt of CTC and UCB in an undetermined amount. Her earlier documentation references receipt of $2000 plus per month. It is unclear how much of these monies are to be repaid to ODSP should she receive support from the date of separation to date. In addition, the Applicant may be in jeopardy of a reassessment of the ODSP payments from the get-go, given that she appears to have omitted advising ODSP of her change in circumstances, that is, her cohabitation with the Respondent. Unless, of course, she was under the impression that he was of limited means.

[8] Contrary to her belief of his limited means between February 2013 and July 2014, relying on retained invoices and bait licences for 2010- 2012, prior to cohabitation and separation, the Applicant now requests that the court impute the Respondent’s income to be in excess of $320,000. (see vol. 3, tab 20 para. 32) which includes the Respondents part time work at a hardware store, part time excavating for CN Rail, and seasonal operation of a bait and fish hut business. Further, the Applicant attempts to embellish the Respondent’s income by separating the income from the sale of minnows from the fish hut business. Nor does she acknowledge that the fish hut business is always at the mercy of the environment. Lastly, in his submissions, Applicant s counsel encouraged the court to consider the Respondent`s income in the range of $100,000 – $125,000, rather than the $320,000 claimed in the Applicant’s affidavit, an acknowledgement that reliance on 2010-2012 figures produced would lead to an erroneous assessment of the Respondent’s income in 2014, 2015 or 2016.

[9] The Respondent has produced his Income Tax Return summaries which reflect the following incomes:

(i) 2011 – T4 earnings of $18,587; EI earnings - $8678; gross business income of $12,975 and net business income of $2485; total income of $29,750.

(ii) 2012 – T4 earnings of $22,937; EI earnings of $8695; gross business income of $11,205 and net business income of $2757 and total income of $34,389.

(iii) 2013 – T4 earnings of $38,312; EI benefits of $5506; gross business income of $51,391 and net business income of $12,057.

(iv) 2014 - Full ITR - gross business income (general maintenance services) -$96,789.52 minus GST/HST of $11,135.08 = $85,654.44 – cost of goods sold ($19,328) = $66,326.44

[10] The Respondent alleges that he transferred the bait licences and the operation of the fish huts to his sister in 2013 such that fish hut and bait business is not reflected in his 2014 Income tax Return. Although a general denial of operating the fish hut business without an evidentiary basis for such transfer (no transfer documents, no change of name) is insufficient to rebut the Respondent’s ability to generate a net income in 2014 from his bait and fish hut business, I am also concerned about the fact that the Respondent has not provided proof of his expenses, in order that I determine which, if any, are personal expenses, to be added to his taxable income. As the Respondent’s counsel has conceded that the capital cost allowance in the amount of $9,518 should be added back, a cursory review of the expenses suggest that a further $13,000 be added back, such that I impute his 2014 income to be $50,000.

[11] Pending proof of the transfer of his bait and ice hut business, I shall add to his 2014 imputed general contracting income of $50,000, the 2013 net fish and bait income of $12,000 or an imputed income for 2014 of $62,000, without prejudice to the parties to adjust this income upon full production and assessment of the Respondent’s and Applicant’s incomes for 2014.

[12] I will use the Respondent’s imputed 2014 income of $62,000 to determine child and spousal support.

Spousal support

[13] The parties had a relationship of a short duration. As a result the Respondent argues that the Applicant has no entitlement to spousal support, merely because there are 2 children of the relationship. He argues that the Applicant was obligated to seek and obtain employment certainly after the birth of the second child. She has not done so. Further, he argues that reliance on the SSAGs only follows after a consideration of entitlement. He indicates that the Court must take into consideration all of the circumstances of the parties, including the length of the cohabitation, and the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation.

[14] On an interim basis, it is clear that the Applicant had assets (her home) and was in receipt of ODSP as income. After the birth of the 1st child, Matthew, August 4, 2013, she did not return to employment but rather continued to be in receipt of ODSP and cared for the Respondent’s special needs child, Steven Jr., born January 27, 2003. She confirms that the Respondent paid for her household expenses, namely the mortgage, taxes, insurance and utilities, whenever she required him to do so. She also submits that evidence of lifestyle may be used to impute income. Her evidence of lifestyle was her testimony at examination that the parties ate out on occasion at “The Keg”.

[15] On the other hand, the Respondent, suggests, that the court must address the issue of entitlement to spousal support, on an interim basis.

[16] As in Carty-Pusey v. Pusey, 2015 ONCJ 382, I agree that a “finding of entitlement is necessary before determining the quantum of spousal support, if any, and only be ordered when a prima facie case for entitlement has been made out”. Given the brevity of the relationship, there is no evidence of a compensatory basis for support, leaving the Court to decide the question whether, on the basis of parenting the 2 children, the Applicant has been economically disadvantaged and requires interim support from the time of the separation until trial. As such, on an interim hearing, needs and ability take on a greater significance. Such analysis supports the objectives of s. 33(8)(b) (c) and (d) of the Family Law Act (FLA), which read as follows:

s.33(8) (g) An order for the support of a spouse should,

(b) share the economic burden of child support equitably;

(d) relieve financial hardship, if this has not been done under Parts I ( Family Property) and II ( Matrimonial Home).

[17] During the brief cohabitation, I am satisfied that the Respondent knew that the Applicant was not employed; he knew that the basis of her income was ODSP; that he assisted her with the household expenses and for the period of at least 1 year, after the birth of the 1st child, the Applicant was not able to seek employment. She has, apparently, lost the ownership of her home, which she owned prior to separation.

[18] Accordingly, the Applicant has made out a prima facie case for entitlement. The outstanding issue of quantum will be addressed below. The outstanding issue of duration, I will leave to the trial judge; although, in this case, I am skeptical about the ability of the Applicant to make out her need for spousal support that will exceed the duration of the relationship. In the current economic times, it is not every parent who can absent themselves from employment after one year of paternity or maternity leave.

Quantum of spousal support

[19] Essentially, the Applicant seeks to receive monies for child and spousal support greater than the monies she receives from ODSP. As the parties may proceed to trial, I will not, at this stage, order retroactive child and spousal support, as this may put both the Applicant and Respondent in a precarious position; especially since the Respondent’s offer to pay child support in modest amounts, was rejected by the Applicant. She acknowledged that such payment would reduce the monies payable to her by ODSP. I leave the retroactive payment, if any, to a determination after more fulsome production from both parties: entire ODSP file including medical report; proof of transfer of the bait licences and fish hut business; impact of environment on the bait and fish hut business for 2014 – 2016; Medical proof of Respondent’s health.

[20] Having regard to the SSAGs, I agree with the Respondent’s submission that I must first prioritize child support, including the Respondent’s obligation to support his son, Steven Jr., who suffers from disabilities, in my calculation of spousal support, if any.

[21] A caveat to both parties – the Divorcemate calculations and comments must be read in conjunction with the SSAGs and Divorcemate is not determinative of spousal support duration and review. To share the economic burden of child support equitably and to lessen the Applicant’s financial burden, I order that the Respondent pay the Applicant as per the Divorcemate attachment:

(a) Child support in the amount of $921 and,

(b) Spousal support in the sum of $ 258 per month pending further order of the court.

Both commencing May 1, 2016 and on the 1st of each month thereafter pending further order of the court.

[22] Support Deduction Order to issue.

Access

[23] The Respondent is anxious to reengage and develop a relationship with his 2 young children, the youngest being breast fed. The impediment to the Applicant’s comfort with the suggestion that the father have unsupervised access to the 2 children, has been the Applicant’s perception that the presence of the Respondent’s son, Stephen Jr., born January 27, 2003, at access would pose a significant risk to the infant children.

[24] Stephen Jr. is acknowledged to be a special needs child diagnosed with Autism Spectrum disorder, Oppositional Defiance Disorder and Attention Deficit Disorder. Apparently, Stephen Jr. has triggers that make him quick to anger and lash out physically, which he would do whenever the Applicant attempted to discipline him. In fact, the cause of the separation was the poor relationship between the Applicant and the Respondent’s son, such that the Respondent had to choose between the 2 of them. The Respondent chose his son, Stephen Jr. and vacated the home that they occupied as a family, moving back to his residence in Brechin.

[25] Initially access by the Respondent to the 2 young children was denied by the Applicant, but since May 12, 2015, the Respondent has had access to the children at Smart Moves, in Barrie, once per week on Thursday evenings from 5:00 – 7:00 pm.

[26] The Respondent Father requests alternate weekend access, in the presence of his sister, an experienced parent, and his son Stephen Jr., who he will closely supervise, as per the letter from the CAS found at Vol. 3, Tab 25, Exhibit “C”.

[27] Not unexpectedly, the Applicant suggests that the Respondent is violent, although this opinion is not supported by the attached police reports. However, of greater significance and concern to her is the step brother’s potential for violence and lack of safety.

[28] Essentially, the Father has had limited and supervised access for approximately one year.

[29] I am satisfied that he will closely supervise and monitor the interaction between Stephen Jr. and the 2 young children, as per the CAS recommendation. He will have the assistance and safety net of his sister and her adult children who reside with him in their family compound.

[30] Although supervised access must not be indefinite, it is suitable for a short period, especially when the father and the children need to reengage.

[31] Accordingly, I make the following order:

(c) The Respondent shall have supervised access to the 2 children at the Supervised Access Centre (SAC) 1 evening mid-week for 1 hour and 2 hours every week on Saturday or Sunday as arranged with the Barrie SAC. His sister and his son Stephen Jr. may attend.

(d) This supervised access shall occur for 2 months and thereafter, the Father shall have access in the presence of his sister at his home for Saturday from 10:00 am – 6:00 pm and Sunday from 10:00 am – 6:00 pm, each weekend for a further 2 months with pick-up and drop-off at the SAC; after which he will have access to the children alternate weekends from Saturday at 10:00 am overnight to Sunday at 6:00 pm with pick-up and drop-off at the SAC, until further order of the court.

(e) The Father is to obtain a crib for the youngest child, and a proper bed for the almost 3 year old, as well as the required CSA approved car seats. He shall have the local CAS attend to approve the sleeping arrangements and car seats.

(f) At all times, when he has the care of the children he shall strictly supervise his son Stephen Jr.

Costs:

[32] If the parties do not agree as to Costs, they may submit their written submissions with respect to Costs, limited to 2 pages typed together with their Bill of Costs and Offers to Settle on or before May 2, 2016, by e-mailing same in Word format to my secretary, taralynn.mountney@ontario.ca .

L.M. Olah J.

Date: April 7, 2016

Snow v. Barber, 2016 ONSC 2394

Case Summary

Introduction

Background

Income

Spousal support

Quantum of spousal support

Access

Costs:

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues