Court File and Parties
Court File No.: FC-13-407 Date: 2016/07/14 Superior Court of Justice - Ontario
Re: Alaina Elizabeth Woolfrey (FARAHANI), Applicant And: Ali Farahani, Respondent
Before: KANE J.
Counsel: Ms. O. Eskicioglu, counsel for the Applicant Mr. W. L. Smith, counsel for the Respondent
Heard: June 21, 2016
Amended Endorsement
The text of the original endorsement was amended on February 22, 2017 and the description of the amendment is appended
Chronology
1The relevant chronology includes the following:
(a) The parties were married on August 28, 2010 and separated on December 21, 2012.
(b) The parties have a four and one half year old child. The child alternates residence between each parent every two or three days. During a two week period, the child sleeps seven nights with each parent and spends more hours with the mother because unlike the father, she is not working as she currently is a university student.
(c) The father’s 2015 T-4 income, to November 30, 2015, (11 months) at Pet Smart was $341,892 including bonus and severance pay. He was unemployed in December 2015. His current annual gross income is $80,000 on which he calculates child support is payable at the rate of $724 per month.
(d) While married, the mother’s annual income was between $70,000 to $90,000. However, in November 2012, while on extended maternity leave, she was laid off and received some $60,000 as termination compensation. She then started attending university in the fall of 2013. In December 2015, she obtained a B.Sc. In April 2017 she will obtain a B.A in Law and a B.Sc. in Psychology in August 2017.
(e) The father’s position is that by attending university, the mother is intentionally under employed. He requests the court impute an annual income to her of $65,000, which would result in off-set child support payable by him of $130 per month.
(f) Since 2013, multiple motions have been brought by the parties. That led to mediation and their entering into a January 6, 2014 separation/settlement agreement (the “Agreement”).
(g) Under the Agreement and until September 2015, the child in week 1 slept 4 nights including one weekend with the father and during week 2, slept 3 nights with the father. The Agreement provides the above formula is to return to mediation for review by March 31, 2015, which did not happen.
(h) Each party then brought a motion. The father brought a motion for judgment in accordance with the Agreement. The mother sought an order to set aside the Agreement. The result thereof was a consent final order dated November 26, 2015 (the “Order”).
(i) Under the Order, there is joint custody, monthly child support in the amount of $988 payable by the father but only to November 1, 2015, after which he has paid no child support on the theory that he has child related expenses and the child is with him a total of 7 out of 14 nights, as was the case pursuant to the Agreement.
(j) The anomaly is that the child support obligation pursuant to the Order terminated 26 days before the date of the Order.
(k) The Order states the parties are to re-attend mediation before Ms. Ruppert with respect to the parenting schedule, child support, property and other parenting concerns. That has not occurred and each faults the other for that.
(l) Regardless of the cross fault alleged, MacLean J. on June 7, 2016 found the mother in contempt of the Order’s requirement that she attend mediation before Ms. Ruppert and gave her 14 days to purge that contempt (the “Contempt Order”).
(m) The mother’s income limitations impact what she can afford, including her necessity to negotiate with Legal Aid which threatened revocation of her certificate if she paid her share of Mr. Ruppert’s fees to mediate. The mother negotiated Legal Aid’s acceptance to pay up to 5 hours towards her cost of mediation however Ms. Ruppert was not available until July 6 which she communicated to the father. The mother therefore proposed the use of alternate mediation services available before July 6.
(n) The father responded by suggesting that the July 6 mediation date become mediation and arbitration. The mother refused that suggestion. The father responded with his current amended contempt motion.
Contempt Relief
2In his affidavit in support of his amended contempt motion, the father states that:
(a) given the mother’s attitude, he is no longer confident that mediation alone will be productive; and
(b) the Order stipulates that if mediation is not successful, the disputed issues may be brought to court without the need to establish a change of circumstances.
3Rather than seeking an order that the mother participate in mediation only before Ms. Ruppert on July 6, the father in his amended contempt motion seeks a further contempt finding or continuance of the June 7th contempt finding. He seeks orders that:
(a) During July and August, 2016, and then in argument extended to include the next 2 or 3 years, the child will reside alternating weeks with each parent; and
(b) The pickup and drop off by the father will be at the child’s school, by himself or a member of his family.
4The above relief is sought on the basis of contempt and not as a motion to vary the Order.
5The mother opposes the relief sought by the father. On June 1, she served a cross motion for current and arrears of child support and an order that the mediation required in the Order be cancelled or in the alternative that mediation if ordered be limited to one day only but procede before a mediator other than Ms. Ruppert.
6Through negotiation with Legal Aid and in obtaining and communicating the first available date to mediate by Ms. Rupert and two other mediators, the mother expunged her contempt and complied with the Order. Her unwillingness to accept the addition of arbitration does not constitute contempt. She is not currently in contempt of the Order as to mediation.
7It appears neither party wishes to proceed by mediation. The father has lost confidence the mother will genuinely attempt to settle their difference through mediation. The mother opposes mediation beyond one five-hour session and proposes using a new mediator. Expecting success using a new mediator for one session given the history and number of outstanding issues is not realistic.
8In the absence of contempt, the court lacks jurisdiction to grant the relief requested in the father’s current motion. I also doubt that the relief sought by the father is available in response to contempt in any event. The appropriate procedure is a motion to vary.
Child Support
9The father’s pay stub indicates his income from his current employment has existed since January 2016.
10On an interim without prejudice basis, the father shall on the 1st day of each month, pay the mother interim child support in the amount of $724 commencing June 1, 2016 based on his current gross income of $80,000.
11The child support arrears claimed are to be dealt with later in this proceeding.
12In July, 2016, the mother shall file a current financial statement and provide the father if that has not occurred with a copy of her 2013 to 2015 income tax returns and Notices of Assessment.
13The mother successfully defended the father’s motion and was partially successful on her own motion. The father was unsuccessful on his motion.
14Any party seeking costs is required to serve and file short written submissions within 30 days.
15Any reply thereto is due 20 days thereafter.
Kane J.
Released: July 14, 2016
COURT FILE NO.: FC-13-407 DATE: 2016/07/14 ONTARIO SUPERIOR COURT OF JUSTICE RE: Alaina Elizabeth Woolfrey (FARAHANI), Applicant AND Ali Farahani, Respondent BEFORE: KANE J. COUNSEL: Ms. O. Eskicioglu, counsel for the Applicant Mr. W. L. Smith, counsel for the Respondent amended ENDORSEMENT Kane J. Released: July 14, 2016
Appendix
February 22, 2017: On page 1, paragraph 1, subparagraph (c), the previous amount of $160,414 has been replaced with $341,892.
February 22, 2017: On page 1, paragraph 1, subparagraph (c), “and severance pay” has been added to the text.
February 22, 2017: On page 1, paragraph 1, subparagraph (c), “became” has been replaced with “was”.