Court File and Parties

COURT FILE NO.: FS-16-85643-00 DATE: 2016-07-25 CORRECTED DATE: 2016-07-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Teka-Anne Maruga Clarke v. Damian Lysmario Dowe

BEFORE: Lemon J.

COUNSEL: Todd Jenney, for the Applicant Anup Gill, for the Respondent

HEARD: July 19, 2016

CORRECTED ENDORSEMENT

Lemon, J.

CORRECTED NOTICE: Paragraph 31, Line 9 of the original judgment has been corrected on July 27, 2016 to read: He shall pay that at the rate of $100.00 per month commencing August 1, 2016.

Background

[1] I was asked to resolve a number of issues in this family law file.

[2] Although I reserved on many of the issues, I was able to move the matter forward on an expedited basis such that some of the issues that follow were more easily determined.

[3] A settlement conference/trial management conference has been set for November 30, 2016 at 10 a.m. The trial has been placed on the January 2017 trial list. On consent, both parties are to make productions as attached to the endorsement in the file within 45 days.

[4] During argument, Mr. Dowe agreed to an order severing the divorce from the corollary issues as requested by Ms. Clarke. Accordingly, that order is granted.

Custody

[5] The parties were married April 15, 2009 and separated September 30, 2015. They have one child who is now approximately three and a half years of age. The boy has resided with Ms. Clarke since separation. Mr. Dowe has agreed-upon access each week from Thursday at 6:30 p.m. until Friday at 5 p.m. and Sunday at 5 p.m. until Monday at 7:30 p.m. Their son is in day care during the day on Friday and Monday.

[6] Ms. Clarke seeks an interim order for custody while Mr. Dowe seeks an order granting joint or shared custody of the child with equal time to both parents.

[7] The materials confirm that the parties have been able to work out the terms of access as above along with other holiday time. They have co-operated in maintaining the child’s attendance at a Montessori school. When Ms. Clarke was hospitalized for a week, they agreed that the child would remain with Mr. Dowe. For those efforts, the parties should be congratulated.

[8] On the other hand, Mr. Dowe removed Ms. Clarke and the child from his employment benefits for a time. He only recently agreed to sever the divorce despite having requested a divorce in his Answer. Ms. Clarke refused access for approximately one week. When Mr. Dowe texted her to allow contact, she sent him astonishingly rude texts in reply. In short, neither appears to be putting this matter behind them for the benefit of the child.

[9] The child has been with Ms. Clarke since separation. Mr. Dowe rents a room in a basement apartment. There is nothing here to change the current situation.

[10] The parties have been able to care for the child without the need of a custody order for almost a year. Their trial on this issue will be in less than a year. I see no overriding factor that would require an interim custody order at this time and decline to make one.

Access

[11] Except for one week, the parties have been able to work out regular access and holiday access. The Thursday/Friday and Sunday/Monday pattern shall be confirmed in an order along with such further and other access as the parties can agree upon in writing.

[12] While I have no evidence of it, I presume that both have email addresses. Any discussions that they have relating to the child shall be by email and all copies will be saved so that they can be available for the trial judge if necessary. If there are disputes about access time that cannot be resolved by the parties, the trial judge will be able to make an easy determination of who was reasonable or unreasonable relating to any further access. If the parties do not have email or text messaging that can be saved, counsel may jointly contact me to vary this term.

[13] If there are exceptional circumstances relating to access, the parties can return to court prior to trial with respect to only that matter.

Passports

[14] Ms. Clarke seeks an order allowing her to obtain and renew any passport for the child and to travel out of the jurisdiction without the necessity of Mr. Dowe’s consent. There was nothing in the materials that required such a term, and given the parties’ financial circumstances, travel seems unlikely prior to trial. I will leave that issue for the trial judge.

Office of the Children’s Lawyer

[15] Mr. Dowe seeks, in the alternative to joint or shared custody, an order for the intervention of the Office of the Children’s Lawyer to investigate and report on the issues of custody and access.

[16] There is nothing in the material that would suggest any information about this three-and-a-half-year-old child that cannot be put forward by the parties. The delay in applying to, and hearing from, the Children’s Lawyer is not in the best interests of the child. The trial can likely be heard before the Children’s Lawyer’s office is able to respond. Accordingly, that request is dismissed.

Child support

[17] Despite the lack of a custody order, Ms. Clarke is in need of child support.

[18] Mr. Dowe’s 2015 income tax return suggests that he earned $54,927.54 gross income as a self-employed massage therapist. His net income was $47,586.00 but he has failed to provide any information with respect to his $6,845.00 in expenses. Despite filing an Answer in March 2016, Mr. Dowe has not provided that information to the court. His counsel acknowledges that some of those expenses are not appropriate deductions for family law purposes.

[19] Mr. Dowe says that he does not make that amount since his income fluctuates depending on his employment. However, in a very short period of time, Mr. Dowe has trained to become a massage therapist and found steady employment. There is nothing to suggest that his success will be short lived.

[20] Although Ms. Clarke submits that Mr. Dowe’s real income is approximately $70,000 per year, for the purposes of this interim motion, she seeks support based on $54,927.54. That is supported by Mr. Dowe’s T4 slips that she has provided. For the purposes of the interim motion, that is an appropriate figure to use. If Mr. Dowe’s income is more or less than that, the trial judge will be able to review and reconsider this interim order.

[21] Mr. Dowe further submits that I should take into consideration that he has access to the child more than 40% of the time and he should therefore not pay full child support. Instead, he submits that support should be determined on a setoff basis.

[22] In his affidavit he says:

Since the date of separation I have had access to our son for three – four days per week.

I have regular access to our son from Sunday evening to Monday evening and also Thursday evening to Friday evening. This is conceded by my wife in her affidavit affirmed June 22, 2016.

I have also had our son with me on all statutory holidays and have been equally sharing access to our son on all major holidays including Christmas and March break. My wife and I have not yet determined a summer holiday schedule.

[23] In Khairzad v. McFarlane, 2015 ONSC 7148, Chappel J. summarized the case law in this area. The onus is on the parent who is relying on s. 9 to establish that the 40% threshold has been met. The Ontario Court of Appeal has said that there is no universally accepted method of deciding the 40% threshold; rigid calculations are not necessarily appropriate. However, the weight of authority since that time is that the 40% threshold is met if the parent has the child in their care for 3504 hours per year. And “care” is determined on a case by case basis.

[24] The wording of the section requires the s. 9 analysis once the 40% threshold is met. However, a finding that a shared patenting arrangement exists does not automatically dictate a deviation from the Guideline amount.

[25] A judge making such a determination must carefully consider the table amounts, the increased costs of the shared custody arrangement and the condition, means, needs and other circumstances of each party and the children for whom support is requested. None of the three factors set out in the section prevail over the others. The weight to be given to each of the factors will vary according to the particular facts of the case.

[26] The simple set-off of one support obligation against the other has no presumptive value in the calculation, particularly where a careful examination of the respective household standards of living raise concerns of a drastic reduction in child support.

[27] A court must consider whether one parent is actually incurring a higher share of the child’s costs than the other.

[28] Financial Statements and child expense budgets are necessary to carry out the analysis. A court should not make assumptions regarding costs in the absence of evidence relating to this issue.

[29] As can be seen, there is much more to this analysis than simply claiming 40% and demanding a set off. Mr. Dowe has two days of access per week and some further access throughout the year. On the material before me, I can make no such determination. Perhaps, on a proper evidentiary basis, the trial judge will be able to make that finding but I will leave that to the trial judge.

[30] In the meantime, and commencing August 1, 2016, Mr. Dowe shall pay child support in the amount of $497.00 per month pursuant to his 2015 income of $54,927.54 and the Child Support Guidelines.

[31] Ms. Clarke also seeks retroactive support for the ten months back to the date of separation. She says that Mr. Dowe has paid approximately $4000.00 since separation which is made up of Montessori fees and a further $1000.00 in support directly to her. In return, Mr. Dowe says that he has paid $585.00 per month towards the Montessori expense. Apparently, he has paid no other child support. He does not comment on Ms. Clarke’s evidence that he paid $1000.00 to her. I will therefore accept her evidence on that point. Accordingly, Mr. Dowe owes retroactive support in the amount of $3970.00 (10 x $497.00 - $1000.00). He shall pay that at the rate of $100.00 per month commencing August 1, 2016.

Section 7 Expenses

[32] Ms. Clarke seeks a contribution from Mr. Dowe towards the Montessori school fees in the amount of $920.00 per month. Mr. Dowe says that he has been paying $585.00 per month for the school costs.

[33] Section 7 expenses must be determined in accordance with both parties’ income. As set out above, Ms. Clarke complains that Mr. Dowe has not provided sufficient detail relating to his 2015 income tax return. And yet, despite commencing her application in February of 2016, Ms. Clarke has not even filed her income tax return for 2015. Her financial statement only sets out that in 2015, her income was $27,317.00.

[34] In her affidavit, Ms. Clarke says that she had major surgery on June 9, 2016 and has been off work entirely since then. She does not know exactly when she will be able to return to work but when she does, it will just be part time at first. There is no other information with respect to her means and needs in her affidavit. There is no time estimate for her return to work or duration of part-time work. There is nothing to suggest the reason for the surgery. There is nothing about benefits while off work.

[35] In her financial statement, Ms. Clarke says that she has total monthly income of $1,312.00 and total monthly expenses of $9,095.45 for a yearly loss of just over $90,000. I cannot rely on that financial statement to determine her means and needs.

[36] Without knowing more about Ms. Clarke’s financial circumstances, I cannot make a determination of Mr. Dowe’s share of the Montessori expense. I will accept his contribution on an interim basis and order that he continue to pay $585.00 per month towards the Montessori school expense. He shall pay that to Ms. Clarke (or the FRO) commencing August 1, 2016. I will leave it to the trial judge to make any further order as a trial judge might think fit based on appropriate evidence.

[37] Since Mr. Dowe has been paying that amount to the school since separation, there is no need for a retroactive order.

Spousal Support

[38] For the reasons set out above, I cannot make a determination of Ms. Clarke’s present, interim, spousal support need. Based on Mr. Dowe’s present financial circumstances, after the payment of child support and his s. 7 contribution, it is unlikely that he could pay much, if any, spousal support in any event.

[39] I leave it to the trial judge to make the determination of retroactive or on-going spousal support on a better evidentiary record. For now, that claim is dismissed on an interim basis.

Benefits

[40] Ms. Clarke seeks to be maintained on Mr. Dowe’s benefits while at the same time seeking a divorce. This is likely inconsistent however, on an interim basis, Mr. Dowe shall maintain Ms. Clarke and the child on his employment benefits. He shall provide a copy of the benefit plan and cooperate in processing any of her claims. Given his evidence that the parties have been able to cooperate in the past, there is no reason to think that they will not do so going forward.

Costs

[41] It would seem to me that success has been divided such that both parties would pay their own costs. However, there may be factors of which I am not aware. If the parties cannot otherwise agree upon costs, written submissions shall be made to me. The party seeking costs shall provide those submissions within 15 days and the responding party shall provide their response within 15 days thereafter. Both submissions will be no more than three pages in length not including any offers to settle or bills of costs. There shall be no reply submissions unless I ask for them.

Lemon, J.

Released: July 25, 2016 Corrected Date: July 27, 2016

COURT FILE NO.: FS-16-85643-00 DATE: 2016-07-25 CORRECTED DATE: 2016-07-27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TEKA-ANNE MARUGA CLARKE Applicant - and – DAMIAN LYSMARIO DOWE Respondent ENDORSEMENT Lemon, J. Released: July 25, 2016 Corrected Date: July 27, 2016