Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Kelly Lyn Wilson, applicant
AND:
Raymond Isidore Bedard, respondent
BEFORE: HENDERSON J.
COUNSEL: Kate Bennett for the applicant Jordan McKie for the respondent
HEARD: April 5, 2016
ENDORSEMENT
1The applicant moved and the respondent cross moved for certain relief.
2The applicant sought an order for temporary child support and s. 7 expenses. Those issues were resolved on consent with the respondent paying child support in the amount of $1,416 per month commencing February 1, 2016. The respondent also assumed responsibility for 74% of the children’s s. 7 expenses. The order is on a without prejudice basis.
3The remaining issue, which I have to determine, is the quantum of spousal support the respondent has to pay to the applicant.
4In his cross motion, the respondent also seeks to vary the temporary order of Templeton J. dated February 23, 2014. Specifically, he seeks an order expanding the time he spends with the children.
Background
5The parties were married June 2, 2001 and separated December 30, 2008. Despite being separated for more than seven years, there has been no final resolution of the issues between the parties. This action was commenced in 2014. I have now placed the matter on the September trial settings.
6There are two children of the marriage: Jack Isidore Wilson Bedard, born March 15, 2005, and Quinn Analise Grace Bedard, born May 8, 2007.
7In her reasons for her order of February 23, 2014, Templeton J. described Jack as follows:
Jack has severe autism. He is non-verbal and requires constant supervision and individual care. His condition also necessitates frequent trips to doctors and other health care professionals.
8There has been no significant change in his condition in the past two years. The applicant describes, among other traits, that he is learning delayed, an insomniac and exhibits challenging behaviour.
9Jack’s sister, Quinn, is healthy and has no special needs.
Discussion
10I will address each motion separately.
1) Applicant’s Claim for Temporary Spousal Support
11The applicant has not worked since Jack was born because of his high level of need. Only recently has she secured part-time employment with Autism Ontario. She works 12 hours per week at $14 per hour.
12The applicant says the job provides her with some income without an over-commitment of time. It is also flexible in that the employer is sensitive to the demands Jack’s needs places on her time.
13In addition to this income and the child support now being paid, the applicant also receives government subsidies. For Spousal Support Advisory Guidelines (“SSAG”) calculation purposes, the applicant estimated an income of $11,250 per year.
14When the parties separated, the respondent was employed as a Territory Manager of Lifetouch Canada. His employment was terminated in 2010. But for about three months in 2013, he remained unemployed until August 2015.
15In August, the respondent became employed on a contract basis earning $100,000 per year on an annualized basis. The contract was initially to run until January 31, 2016. It was then extended until June 30, 2016. The respondent has been informed the contract will not be extended further.
16The applicant believes the respondent has been intentionally unemployed or underemployed between June 2010 and August 2015. Now that the respondent is working, support should be based on his earned income. Using $11,250 for the applicant and $100,000 for the respondent, the SSAG calculates spousal support ranges as low $791 per month, mid $1,070, and high $1,386.
17The applicant states that the high range is appropriate in this case. She relies on s. 12.10 of the SSAG, which states that having a child with special needs can impact both the duration and amount of spousal support. With respect to the latter, s. 12.10 points out that spousal support may be pushed to the higher end. Otherwise, household income may be insufficient to cover the needs of a family with a special needs child.
18On this basis, the applicant is seeking support in the amount of $1,386 based on her calculations.
19The respondent argues that two factors should be taken into account. First, the applicant has the ability and responsibility to become more self-sufficient. He asks me to impute an income to the applicant in the amount of $25,000.
20Secondly, he asks me to deduct one-half of the interest payment he is paying towards the parties’ two lines of credit. Because neither party has been employed, they have been living off these lines of credit. They now total approximately $306,000. The applicant acknowledges that approximately $97,000 of that she has incurred.
21The respondent says he is paying an average monthly payment of $761.27. He asks that one-half, or $380.64, be deducted from the applicant’s support entitlement.
22His SSAG calculations, based on an imputed income of $25,000 and his of $100,000, results in a range of low $460 per month, mid $866, and high $1,275.
23Taking the mid-range amount of $866, and subtracting one-half of the debt payment of $380.64, leaves a net support payment of $485.36 per month. In the alternative, if I were to accept the applicant’s calculations, the respondent would subtract $380.64 from her mid-range of $1,070, leaving a net payment of $689.36.
24I will address first the income issue and then the adjustments to the support quantum.
25It is trite law that the purpose of a temporary order is to get the parties to trial. This matter has been placed on the September sittings.
26In support of the argument for imputation of an income of $25,000, the respondent filed into evidence a vocational analysis report regarding the applicant’s employment possibilities. The author did not contact the applicant, nor was he cross-examined. As a result, I did not find the report especially helpful.
27In view of the applicant’s employment history until Jack’s birth, the length of time she has been out of the workforce and accepting the significant demands that Jack places on her time, I find the employment the applicant has obtained is appropriate. I will not impute any income to the applicant and rely on her stated income of $11,250 per annum.
28The temporary nature of this order also influences my decision on the adjustments.
29With respect to the debt payment, the respondent cited two cases of Dunn v. Dunn, 2014 ONSC 7277 and Sartain v. McCabe, 2015 ONSC 2198. Both are distinguishable in that they are final decisions after the court has been able to determine all the facts after a full trial.
30Section 12.2 of the SSAG discourages the deduction of debt payments from spousal support awards. The debt is usually associated with an asset. Where assets exceed debt, generally there is no hardship visited upon the payer of the debt.
31The applicant urged me, and I accept, that it is best to address debt payments in the context of a final solution. This is especially so in view of the fact that it is the applicant’s view that the respondent was underemployed or intentionally unemployed, resulting in the significant debt.
32However, by the same token, I am not prepared to move to the higher end of the SSAG range. First, I have no specific evidence that it is necessary to do so. Secondly, there are a number of issues that will need to be established at trial that will determine ultimately whether the high range is necessary.
33Therefore, I see no reason at this stage to move from a mid-range of support. I rely on the applicant’s SSAG calculation and order, commencing September 1, 2015, the respondent shall pay spousal support for the applicant in the amount of $1,070 per month.
2) Respondent’s Claim to Vary Temporary Parenting Schedule
34At the time of the order of Templeton J., the applicant was living in London with the children and the respondent was residing in the family cottage in Bayfield, Ontario.
35Justice Templeton ordered the following parenting schedule which cycles on a four week rotation:
Week 1 – both children are with the respondent from Friday after school until Sunday at 5:30 p.m.
Week 2 – Jack shall be with the respondent on the weekend over the same period of time and Quinn remains with the applicant.
Week 3 – Quinn shall be with the applicant on the weekend over the same period of time and Jack remains with the applicant.
Week 4 – Both children are with the applicant.
36Both children are with the respondent each Wednesday evening from after school until 7:00 p.m. The weekends would be adjusted, taking into account P.D. days and long weekends. March Break and all religious holidays alternate. Summer holidays are shared equally subject to two weeks of summer camps for the children.
37On September 17, 2015, the applicant was asked during oral questioning whether she would give the respondent more access if he moved back to London. She answered “absolutely.”
38On the basis of that answer, the respondent put the cottage up for sale and in January 2016 he moved into an apartment in London. The cottage sale was scheduled to close on April 1, 2016.
39On the basis of the applicant’s answer and his move, the respondent seeks to vary a portion of the temporary order of Templeton J. as follows:
The time the children spend with the respondent on the weekends is extended to Monday when school resumes.
Wednesday time would be extended overnight to the resumption of school on Thursday morning.
40The holiday parenting schedule would remain the same.
41The respondent argues there has been a material change in the children’s circumstances relying on s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].
42The respondent incorrectly relies on s. 17 of the Divorce Act. The Court of Appeal, in Brooks v. Brooks, 1998 CanLII 7142 (ON CA), [1998] O.J. No. 3186, 39 R.F.L. (4th) 187, has stated that the power to vary a custody order under s. 17(1)(b) is limited to s. 16(1) custody orders, i.e. final orders and not interim orders of custody made under s. 16(2).
43The ability to vary a temporary order flows from the fact that the order is temporary.
44The courts have tried to discourage the blizzard of unnecessary motions, particularly those involving children. Consequently, a standard higher than a material change in circumstances, as contemplated by s. 17, has come to be expected.
45Justice Mitrow, in Miranda v. Miranda, 2013 ONSC 4704, summarized the law as follows at para. 26:
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
46There is simply insufficient evidence to compel me to change the status quo. Even though the applicant agreed to more access, there was no evidence before me that she was asked what change in the parenting schedule she would be agreeable with. The respondent assumed that only the weekly schedule would change. It is possible that Templeton J. ordered the generous holiday schedule because of the distance between the parties. Perhaps if he were to have more time on a weekly basis, he may have less over the holidays.
47The respondent cited two cases to support his position. One was McEachern v. McEachern, 1994 CarswellOnt 408, a decision of Sheppard J. Interestingly, Sheppard J. noted that the “generally accepted principle that the status quo ought not to be changed in the absence of evidence that the existing arrangement is harmful to the children.”
48While Sheppard J. makes a distinction between interim orders made before and after discovery, I believe it is reasonable to infer that there would have to be compelling evidence flowing from the questioning to change a status quo.
49In this case, the applicant’s answer that she would increase access is not enough.
50The second case is Copeland v. Perreault, 2007 ONCJ 217, a decision of E.B. Murray J. in the Ontario Court of Justice. At para. 49, Murray J. writes:
49 The principle that there must be a good reason in a custody case to change the status quo before trial flows from two concerns: a concern for fairness to the parties and a concern for the child's best interests. Generally, it is not in a child's best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.
51In the case before Murray J., there was an issue about what the status quo was and, in this type of case, Murray J. considered two other factors: i) the quality of the evidence at that stage of the proceedings; and ii) the time to trial.
52In the case, Murray J. found there was substantial evidence tested by cross-examination. Secondly, there was as much as over a year to trial.
53This is not the present case. The evidence is limited to a stark response by the applicant and the matter has been placed on the September sittings.
54While I agree that some consideration may be given to the parties, any decision must be determined ultimately in the children’s best interests.
55A trial is around the corner and the court will have the benefit of all the evidence to determine what is in the best interest of these children. The status quo has been in place for two years and on basis of the frugal evidence before me, I am not satisfied to change it. I therefore dismiss the respondent’s motion.
56In summary, the following order shall issue:
Commencing September 1, 2015, the respondent shall pay support for the applicant the sum of $1,070 per month.
Any arrears created by this order shall be repaid in the amount of $200 per month.
The respondent’s motion is dismissed.
57The applicant shall make brief cost submissions within 20 days and the respondent shall respond within 10 days of receipt of the applicant’s submissions.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: April 29, 2016