Court File and Parties

COURT FILE NO.: FC-12-1125-1 DATE: 2016/05/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julie Pygas, Applicant AND Stephen Brown, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Unrepresented applicant Marc Coderre for the respondent

HEARD: March 1, 2016

Endorsement

[1] The applicant mother brings this motion to deal with child support historically. The mother requests that the historical review of child support payable commence as of September 2012. The mother also requests that the respondent father take the steps necessary to have the children added as beneficiaries on his employee benefits coverage for medical and dental benefits.

[2] The father had been unemployed for approximately one year as of the date of the return of this motion. He seeks suspension of child support effective April 1, 2016 and until such time as he finds employment. The father consents to an order requiring him to add the children as beneficiaries of his employee benefits coverage once: a) he obtains employment which provides such coverage; and b) he is permitted by the benefits insurer to add the children as beneficiaries.

Background

[3] The parties were married in 2002, separated in 2007, and divorced in 2012. They have two children, Connor Stephen Brown (born November 24, 2000 – “Connor”) and Hayden Joseph Brown (born June 27, 2004 – “Hayden”). On consent, an order was made by Justice Maranger in October 2012. Pursuant to that order and effective September 2012 the children have their primary residence with the mother. The 2012 order also required the father to pay monthly child support in the amount of $1,325 (the Table amount) based on the father’s income of $92,620 for 2011.

[4] The father paid child support in the amount of $1,325 per month from September 2012 to the end of 2014. Pursuant to an order made at a December 2015 case conference and on a temporary, without prejudice basis, the monthly child support payable was increased to $2,126 effective January 2015. The father paid child support in that amount for the calendar year 2015. He continued to pay child support in that amount as of the date of return of the motion.

[5] There are two historical periods in issue:

1. The academic terms for 2013-14 and 2014-15, both September through June, when Connor was attending a residential school during the weekdays; and

2. August through October 2014 when, it is argued by the father, the parties had “joint shared custody” of the children.

[6] For the most part, the evidence upon which a determination is to be made as to historical child support obligations is not in dispute. The parties are not in agreement with respect to custody of the children during the months of August, September, and October 2014.

Positions of the Parties

a) Academic Terms: 2013-14 and 2014-15

[7] The academic terms were ten months in duration, running from September through June. During each of these academic years, Connor attended Centre Jules Leger (“CJL”) from Monday through Friday. Connor’s attendance at CJL arises from learning disabilities.

[8] Connor resided at CJL Sunday through Thursday nights and spent alternating weekends at each of his parents’ homes. During the summer months, Connor’s primary residence remained with the mother. Connor did not continue at CJL beyond June 2015. He has continued his education in a regular high school setting.

[9] For the purpose of the motion the parties agree that Connor’s attendance at CJL was fully funded by the Province of Ontario. The additional expenses incurred for Connor’s attendance at CJL remain to be addressed between the parties. The parties agree that the resolution of issues with respect to those expenses is independent of and not relevant to the determination at this time of child support payable by the father during the two academic terms.

[10] It is the mother’s position that she is entitled to the full Table amount of child support for two children regardless of Connor’s attendance at CJL during the weekdays. In the alternative, the mother proposes that the child support payable during the relevant period be adjusted based on a modified set-off approach.

[11] The father’s position is that while attending CJL Connor was not residing with his mother for 60 per cent of the time. As result, there is no child support payable for Connor during the two academic terms.

b) August through October 2014

[12] For this period the father’s position is that because of a joint shared custody arrangement in place at the time there is no child support payable for either child. The mother’s position is that there was no such arrangement and she is entitled to the full Table amount of support for two children those three months. For this period the mother also advances the alternative position set out immediately above – a proposed adjustment to, and not elimination of, child support payable based on joint custody.

c) Calculation of Child Support

[13] The parties are in agreement as to the figures for: a) their respective incomes for 2012, 2013, and 2014; b) the Table amount payable for support for two children based on the father’s income in those years; and c) the Table amount payable for support for one child based on the father’s income in those years. The father’s income for 2015 is not yet certain. The parties are not, in any event, far apart in their respective estimates of the father’s income for 2015.

[14] The figures for income and Table amount of child support for the years 2012, 2013, and 2014 as agreed upon by the parties are set out in the chart below. “Table (2)” means the Table amount for two children and “Table (1)” means the Table amount for one child.

Year	Father’s Income	Mother’s Income	Table (2)	Table (1)
2012	$ 102,412	N/A	$ 1,445	N/A
2013	$ 122,909	$ 76,099	$ 1,696	$ 1,060
2014	$ 192,466	$ 71,380	$ 2,497	$ 1,577

[15] With respect to 2015, the father’s position is that pending filing his income tax returns, the figure of $160,000 continue to be used, as it was at the most recent case conference, on a temporary and without prejudice basis. On that basis, child support payable would remain at $2,126 unless otherwise varied as requested by the father.

[16] The mother submits that the figure of $169,000 should be used for the father’s income for 2015. She bases her figure on an extrapolation of figures set out in a pay stub recently produced by the father. On consent a copy of the pay stub was made exhibit “A” to the motion. The Table amount of child support for two children would, on the basis of income of $169,000, be $2,232.

[17] As noted above, the mother’s alternative position (to full child support for two children) is that a set-off approach be used to determine the amount of child support payable for each of the historical periods being considered. Given my decision on the issue I have not included the details of this alternative approach.

Issue No. 1 : Academic Terms

[18] The father’s position is that Connor’s attendance at CJL is analogous to the attendance of an adult child for post-secondary education ‘out-of-town’ from his parents. The father argues that during the two academic terms he had physical custody of Connor for “not less than 40 per cent of time”. The corollary is that the mother did not have physical custody of Connor for more than 60 per cent of the time during the same periods. As a result, no child support is payable by the father for Connor during the ten-month academic terms.

[19] The father says that the change in Connor’s education setting is a “material change” within the meaning of the Federal Child Support Guidelines [Guidelines], which entitles the father to an order revising the child support payable during the academic terms.

[20] The father acknowledges that the amount of child support payable is, in accordance with section 3(1) of the Guidelines, presumptively the Table amount. He also acknowledges that he has the onus of establishing that the Table amount is inappropriate: see Lewi v. Lewi (2006), , 80 O.R. (3d) 321 (C.A.) [Lewi], at para. 96.

[21] The father relies on section 9 of the Guidelines, which addresses shared custody and provides as follows:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[22] The father relies on the decision of the Ontario Court of Appeal in Lewi in support of his position that the Table amount of support for two children is inappropriate during the 20 months that Connor was attending CJL. Lewi addresses child support payable with respect to an adult child, with some means, who is away from home while attending university.

[23] The Lewis had two children both of whom were attending university. One of the children was attending university out of town. The motions judge ordered that the child support payable for the period during which the one child was attending university out of town be reduced from the Table amount. The motions judge determined that the monthly child support payable throughout the year would be the Table amount payable for one child plus one-third of the difference between the Table amount payable for one child and the Table amount payable for two children.

[24] Although the motions judge did not fully explain her reasoning, it was inferred by the Court of Appeal that her calculation was based on the one child returning to the support recipient’s home for four months of the year (i.e. one-third of the year). It is this ‘approach’ which the father relies on in support of his request, in the matter before me, for child support to be reduced from the Table amount.

[25] In Lewi, the Court of Appeal upheld the approach taken by the motions judge. It did so on the basis that the motions judge did not err in exercising her discretion pursuant to section 3(2)(b) of the Guidelines.

[26] The Lewi decision is distinguishable from the matter before me for a number of reasons:

a) In Lewi, both parties were contributing to the expenses incurred by the child while living away from home to attend university. In the matter before me, the uncontradicted evidence is that only the mother was contributing to the expenses incurred by Connor while attending CJL; and

b) Unlike the child in Lewi, Connor is not of the age of majority.

[27] The ‘Presumptive Rule’ applicable to a child who is under the age of majority is prescribed by section 3(1) of the Guidelines as follows:

Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) The amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) The amount, if any, determined under section 7.

[28] For the father in the matter before me to be entitled, on the basis of section 9 of the Guidelines, to a reduction in the child support payable he must satisfy the criteria of having had physical custody of Connor “for not less than 40 per cent of the time over the course of a year”. In support of his position, the father considers only the time that Connor was not residing at school. That argument is not in keeping with the case law.

[29] In Re Meloche and Kales (1997), , 35 O.R. (3d) 688 (Gen. Div.) [Meloche], Cusinato J. addressed the determination of the percentage of time which a child spends with the non-custodial parent. Cusinato J. held that for the purpose of section 9 of the Guidelines it is not the amount of time relative to that spent with the custodial parent which is relevant. Rather, the non-custodial parent is required to exercise access or physical custody 40 per cent of the entire time. The fact that, because of a child’s school attendance, the time spent with the child by each parent is almost equal does not render section 9 of the Guidelines applicable. In addition, the fact that the support payor’s time is reduced because of the child’s school attendance is not in and of itself grounds for variation of the amount of child support payable.

[30] I rely on Meloche in finding that the father in the matter before me has failed to establish that as a result of Connor’s attendance at the CJL the father had physical custody of Connor for not less than 40 per cent of the entire time during the academic terms.

[31] Having failed to satisfy the criteria of section 9 of the Guidelines, the father in turn fails to satisfy the criteria of section 17(4) of the Divorce Act, R.S.C. 1985, c. 3. Pursuant to that section, before the Court makes a variation in a child support order, the Court must be satisfied that “a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.”

[32] I also take into consideration the evidence as to which of the parties was primarily responsible for Connor during the academic terms. Based on the uncontradicted evidence of the mother, I find that she paid the day-to-day expenses associated with Connor’s attendance at Centre Jules Leger. The mother’s evidence includes receipts for expenses incurred for outings in which Connor participated with the school, special lunches and other events held at the school, and incidentals. Also based on the mother’s evidence, I find that she was the individual (or, on occasion her new partner) who took Connor to hockey events and health-care appointments during the school year. I also find that the mother paid the expenses associated with transportation to and from those events.

[33] In summary, I find that during the two academic terms the parties continued to be responsible for Connor in the same manner as they had been prior to his attendance at CJL. The broader context of the parenting arrangement did not change from what it had been prior to the beginning of the 2013 academic year: see Barnes v. Carmount, 2011 ONSC 3925, 7 R.F.L. (7th) 399 and the cases cited therein.

[34] I also rely on the contents of the separation agreement executed by the parties in 2007 (“the Separation Agreement”) and of the Divorce Order dated October 2012. The latter document is based on minutes of settlement executed by the parties in September 2012 (“the Minutes of Settlement”). There are differences between the child support provisions in those documents. The differences are relevant to the determination of child support payable during the 2013-14 and 2014-15 academic terms.

[35] In section 5.7 of the Separation Agreement the parties specifically identified terminating events for child support. Included as one of the potential terminating events is “when a child: (a) no longer resides with both custodial parents, (“Resides” includes living away from home for school, summer employment or vacation)”. The parties did not include any age-related restrictions with respect to this terminating event.

[36] I contrast that provision with the contents of the Minutes of Settlement (and the Divorce Order based on those minutes). There is no terminating event for the payment of child support identified in the Minutes of Settlement. In fact, section 4.9 of the Minutes of Settlement provides as follows:

Unless the support is adjusted by an amending agreement, court order or arbitration award, Stephen will continue to pay the child support and his contribution to the children’s special and extraordinary expenses under the parties’ most recent written agreement, court order or arbitration award.

[37] Similarly, the Divorce Order does not include any terminating event with respect to the payment of child support.

[38] The parties were represented both when they entered into the Separation Agreement and when the Minutes of Settlement were negotiated and signed. The parties were mindful in 2007 when they negotiated and signed the Separation Agreement of the potential for one or both of their children to not live with either parent while attending school. I draw an inference and find that the parties were equally mindful in 2012 when they executed the Minutes of Settlement of the potential for one or both of their children to live away from home while attending school. The parties chose, in 2012, to leave child support as a continuing obligation without identifying a child living away from his parents for the purpose of education as a terminating event: see Bockhold v. Bockhold, 2006 BCCA 472, 231 B.C.A.C. 263.

[39] The continuing obligation to pay child support is based on the father’s income from year-to-year. The child support obligation set out in the Minutes of Settlement (and the Divorce Order) is based on the father’s income in 2011. I find that given the changes to the father’s income since that year, a variation of child support payable is warranted.

Summary

[40] Child support is payable for two children based on the Table amount for the years 2012, 2013, and 2014. The parties are, with one exception, in agreement that the Table amount payable for those years is as set out in “Scenario 1” of exhibit ‘E’ to the affidavit of the father sworn on January 14, 2016 and filed in response to the mother’s motion.

[41] In exhibit ‘E’ the father calculated the support owing for the months of August, September, and October 2014 on the basis of ‘joint custody’. The child support calculated for those three months is less than the Table amount for two children. For the reasons discussed below, the mother’s position is that the full Table amount for two children is payable during those months.

[42] As calculated by the father, the child support arrears based on the Table amount for two children during the academic years ending as of June 2015, adjusted for the three-month period in 2014 of joint custody, is $15,765. If the Table amount is not adjusted for the three-month period in 2014, then the arrears total $18,927 ($3,162 + $15,765).

Issue No. 2 : August to October 2014

[43] The mother’s position is that there was no agreement to a joint custody arrangement at that time. Her evidence is that the father unilaterally and through direct discussion with Connor and Hayden effectively orchestrated a joint custody ‘scenario’. It is also her evidence that once the father realized what joint custody entailed, and for reasons of personal choice unrelated to the boys, the father unilaterally ended the joint custody ‘scenario’. The mother’s position in this regard is supported by copies of e-mail communication between the parties.

[44] In response to the mother’s detailed evidence and exhibits, the father’s evidence is restricted to the following statement: “[O]n or about August 1, 2014, the 2 children resumed the joint shared custody situation until October 2014.” The father does not offer any specific evidence in response to the detailed evidence of the mother.

[45] Based on the mother’s uncontradicted evidence, I find that the parties did not agree to a joint custody scenario for the three months from August through October 2014. The unilateral changes effected by the father do not entitle him to a reduction in the child support payable during those months. As a result, the total arrears in child support for the period September 2012 through June 2015 are $18,927.

Other Matters

[46] The father seeks relief with respect to child support payable as of April 1, 2016. He does so on the basis that he was let go in March 2015 from his management position with Walmart. The severance package which the father received in March 2015 from Walmart “runs out” as of the end of March 2016. The severance package was in the amount of $120,000 and intended to represent a full year of severance pay.

[47] There is no dispute that the father has been looking for work, that he is continuing to do so, and that he was hopeful of obtaining employment in the months, if not the weeks, following the return date for the motion. However, as of the return date of the motion he did not have definitive employment. The father proposed that a determination of child support payable from January 2015 forward be adjourned for four to six weeks. The father anticipated that by the end of the four to six week period his employment or employment prospects would be more solid, allowing for a determination on more fulsome evidence to be made with respect to child support obligations from January 2015 forward.

[48] There is currently no review provision in place with respect to child support. The mother is interested in finalising a review provision so that the parties are in a position to deal with child support on an annual basis without the requirement to return to Court for a variation order.

[49] The father consents to an order providing for the ‘standard’ disclosure obligations on an annual basis on the part of each of the parties. He points out, however, that the typical review provision, based on mid-year disclosure of prior year’s income, is not based in law and is based on practicalities.

[50] I agree with counsel for the father that the practical and cost-effective approach to dealing with child support for 2015 and ongoing as of this date is to adjourn that aspect of the motion for four to six weeks. Those four to six weeks have now passed. A determination is required as to child support payable for 2015 and 2016. Either of the parties may bring this motion back for a determination of this remaining issue.

[51] The father’s temporary state of unemployment is not in my view grounds for suspension of child support payable. The father shall continue to pay child support in accordance with the order made at the case conference in December 2015.

[52] Given the complexities of judicial scheduling the parties may not want to wait until I am available to hear the balance of this motion. It is therefore open to the parties to schedule the continuation of the motion before me or before another judge of this Court.

Order Made

[53] For the reasons set out above, I order as follows:

1. The respondent father shall pay to the applicant mother for arrears of child support for the period from September 2012 to and including June 2015 the sum of $18,927.00 plus the applicable interest.

2. Pending further order of the Court, the father shall pay child support in the amount of $2,126.00 in accordance with the order made at the December 2015 case conference.

3. Either of the parties may bring this motion back before me or before another judge of this Court for a determination of the following issues: a) Child support payable for the period from January 1 to December 31, 2015; b) Provisions for annual review of child support payable; and c) Child support payable effective January 1, 2016.

4. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, this order shall be enforced by the Director and amounts owing under this order shall be paid to the Director, who shall pay them to the persons to whom they are owed.

Costs

[54] Issues raised by the applicant mother and the respondent father on the matter before me remain to be determined. Pending a determination of those issues an order with respect to costs would be premature. As a result, the costs of the appearance before me are reserved to be determined by the judge, whether me or one of my colleagues, on the continuation of the motion.

Madam Justice Sylvia Corthorn Released: May 9, 2016