CITATION: A.A. v. R.R., 2016 ONSC 3784
COURT FILE NO.: FS-15-20422
DATE: 20160607
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.A.
Morris Cooper, for the Applicant
Applicant
- and -
R.R.
Harold Niman and Erin Mackenzie, for the Respondent
Respondent
DECISION
D.L. Corbett J.:
[1] This is a motion for interim child support payable by the respondent father to the applicant mother. The circumstances and litigation history are a little unusual.
[2] The parties had a brief sexual relationship. Of this was born their child, A.R., born […], 2015. The respondent says that he did not want a child and that the applicant lied to him about her use of birth control. Once the applicant was pregnant, she refused to have an abortion, as the respondent wished.
[3] The respondent commenced a civil action against the applicant claiming $4 million in damages, in connection with the pregnancy and subsequent birth of A.R. Justice Perell struck out the respondent’s statement of claim, without leave to amend (PP v. DD, 2016 ONSC 256). The respondent appealed that decision to the Ontario Court of Appeal; that appeal has been argued and is under reserve.
[4] In this proceeding the applicant seeks child support from the respondent. The respondent seeks access to the child.
[5] Both parties are medical doctors.
Support
[6] Prior to commencement of this application, the parties agreed to interim without prejudice child support of $779 per month based on the respondent’s stated 2014 income of $87,279.80. This has been paid effective from the date of birth, […], 2015.
[7] The respondent’s income was substantially higher than $87,279.80 in 2014: that figure failed to include the respondent’s earnings through his professional services corporation. In his financial statement sworn December 7, 2015, the respondent’s income is shown as $178,619.40.
[8] The respondent says that his income for 2015 will be substantially lower than his income for 2014. He says that the support obligation for 2015 ought to be based on 2015 income. Thus, though he agrees that his 2014 was much higher than the basis on which support was calculated for the interim without prejudice order, it is his 2015 income that matters for the purposes of calculating support.
[9] This is a motion for temporary support pending trial.
[10] There is no trust between the parties.
[11] It is not a useful expenditure of resources for the court or for the parties to attempt a detailed analysis of income on an incomplete record. Child support ought to be fixed at a reasonable level pending trial, without annual adjustment pending trial. The parties can then devote their energies to dealing with the support issue on a final basis at trial, and the trial judge, with the benefit of a complete record, can adjust support arrears, fix prospective support, and determine an efficient method for these parties to adjust prospective support annually.
[12] I fix the respondent’s income for child support purposes at $150,000. This amount is not subject to adjustment prior to trial. It is without prejudice to adjustment by the trial judge. It is based on (a) the respondent’s income for 2014; (b) his own estimate that his income for 2015 will be around $116,000. The average of the two years is about $150,000. The respondent says that his reduced income is a result of a continuing back injury which, he says, may well affect his earnings into the future. The respondent has an obligation to support his daughter and will have to provide more than his own brief narrative to persuade the court that he has a disability materially affecting his ability to earn a full income as a medical doctor. This is a matter for the trial judge to assess on a full evidentiary record.
[13] I am satisfied that the respondent will be able to pay support based on an estimated annual income of $150,000 per year pending trial. I am also satisfied that support at this level pending trial will not result in hardship for the applicant or the parties’ child. I fix the effective date of support based upon this income as of the date of birth, […], 2015. Based on these findings, I would expect counsel to able to agree on the quantum of arrears in temporary support and the amount of prospective temporary monthly support.
[14] I have not adopted the figure of $150,000 on the basis of the respondent’s argument that support ought to be limited because the financial needs of an infant are modest. I see no basis for applying such a principle in the circumstances of this case: this conclusion is, of course, without prejudice at trial, where the trial judge may give this argument as much or as little weight as is thought appropriate.
Interim Disbursements
[15] I see no basis to order interim disbursements at this early stage in the proceeding. This request is dismissed without prejudice to its being renewed once the parties have completed documentary disclosure and questioning. Similarly, I would not order the respondent to contribute to birth expenses claimed by the applicant, without prejudice to this claim being advanced before the trial judge. On first principles, the respondent will be responsible for his share of s.7 expenses. However, if the trial judge concludes that the child was conceived and brought into the world by the applicant without the respondent’s informed consent, it may be that birthing costs will be solely for the applicant’s account: that is an issue best decided at trial.
Access
[16] I made an order respecting access at the conclusion of the first appearance on this motion on March 22, 2016. I found:
There is no basis for refusing an access order. Order to go for interim access, starting March 25, 2016, on terms sought by the respondent. It would be best if the parties could agree on a precise schedule and mechanism for transferring [A.R.] between the parents. They shall do so by March 23, 2016 and advise this court of their agreement or shall speak to these terms before D.L. Corbett J. on March 24, 20167, 10 am.
[17] The parties returned before me on March 24, 2016. Salient portions of my endorsement from that day are:
On consent, access will commence April 6th. The second access visit will be April 8th. Venues for these 4-hour access visits have been agreed.
The respondent has raised concerns that A.R. was out of the country and not available for access as ordered for March 25th. Apparently this information was not communicated to the Respondent until both he and his parents had changed their plans in the hope and expectation that they would see A.R. this weekend for the first time in a long while. This may be raised with me again when it comes to the matter of costs.
It is anticipated that there will be a variation motion to establish a more extensive access regime after an initial period of access has been established. I am seized of that motion.
[18] The applicant’s primary argument on the access issue is that the respondent seeks access for purely tactical reasons, having taken the position that he did not wish the child to be born.
[19] The respondent would not be the first father to have preferred to avoid or delay the obligations of paternity, but who then embraced them fully once they were upon him. If the respondent’s evidence about the circumstances surrounding the conception and birth of this child are correct, it should be no surprise that he was upset about it at the time. But time moves on and feelings change.
[20] A.R. is now in the world. Access with R.R. is A.R.’s right. And it is in A.R.’s best interests to form a strong and loving relationship with R.R. Whatever disagreements there may be between A.A. and R.R., the relationship between R.R. and A.R. should be encouraged and supported. A.A. should understand, now, that this is an important aspect of her duties to A.R. as the parent with primary responsibility for A.R.
Sealing Order
[21] Although I was not provided with all the details, I was advised that Perell J. granted a sealing and anonymity order in the civil proceeding that he dismissed (PP v. DD, 2016 ONSC 256). I granted such an order on March 22, 2016 and directed that the parties be known as “A.A.”, “R.R.” (for “applicant” and “respondent”) and that their child be known in this proceeding as “A.R.” This is for the purpose of protecting A.R. given the nature of the allegations made respecting the circumstances of the conception and birth.
Costs
[22] If the parties cannot agree on costs they shall bring their bills of costs and be prepared to make oral submissions on June 21, 2016. If the parties need not attend on June 21, 2016 because they have resolved terms for access then they shall provide their bills of costs and brief written costs submissions to me no later than June 27, 2016.
D.L. Corbett J.
Released: June 7, 2016
COURT FILE NO.: FS-15-20422
DATE: 20160607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.A.
Applicant
- and -
R.R.
Respondent
DECISION
D.L. Corbett J.
Released: June 7, 2016