Court File and Parties

COURT FILE NO.: FS-16-00409009-0000 DATE: 20160823 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TOM BARKER Applicant – and – MARIE BARKER Respondent

Counsel: Elliot Birnboim and A. Watkins, for the Applicant Martha McCarthy and L. Hanna, for the Respondent

HEARD: July 26, 2016

HOOD J.

REASONS FOR DECISION

Introduction

[1] The Applicant (“Tom”) and the Respondent (“Marie”) were married on September 14, 1996, having already lived together for a number of years. They separated in October, 2015. Marie claims it was October 5, 2015. Tom claims it was October 16, 2015. For this motion it doesn’t matter. They have one child, Scarlet, who turned 14 on May 14, 2016. Since January, 2012 they lived in Toronto and Scarlet has attended Branksome Hall for her schooling.

[2] Tom is currently living in the United Kingdom. Marie and Scarlet are currently living in Toronto.

[3] Tom seeks an order the Scarlet be ordered to live in the United Kingdom with him and be ordered to attend Dean Close School in Cheltenham, England for the 2016/2017 academic year. Marie is opposed to this and seeks an order for interim child and spousal support and s. 7 expenses.

Decision

[4] For the following reasons I dismiss Tom’s motion. I also order that Tom is to pay Marie temporary interim monthly child support for Scarlet in the amount of $1,411.00 per month starting April 1, 2016, temporary interim monthly spousal support in the net amount of $1,500.00 per month to Marie on a non-taxable basis starting April 1, 2016 and temporary interim s. 7 expenses based upon their respective 2016 incomes of $170,000.00 for Tom and $60,000.00 for Marie plus the net support payment of $1500.00 per month.

Facts

[5] A brief recitation of facts is set out in paragraph 1 above.

[6] Both Tom and Marie work in the academic field. Since January, 2012 Tom has been a full time professor and chair of the Digital Futures Initiative at OCAD in Toronto. Marie has been a part-time professor at OCAD since January 2012.

[7] In early 2015, prior to separation, Tom was offered the position of Dean of the Faculty of Arts and Technology at the University of Gloucestershire in Cheltenham, England. His contract was to commence in December, 2015.

[8] Tom and Marie disagree over whether it was always the family plan to return to the United Kingdom. For the purpose of this motion, whether this was the plan or not is irrelevant.

[9] Following the receipt of the offer for the position of Dean, Marie says she reluctantly supported Tom’s career move in order to make him happy. While Scarlet was upset about moving from Toronto, there were no plans to leave her in Toronto.

[10] In June, 2015 Tom accepted the position and in the summer of 2015 Scarlet wrote entrance exams to a number of private schools in the Cheltenham area of England. She was accepted at Dean Close School.

[11] As mentioned previously, Tom and Marie separated in October, 2015. Marie immediately told Tom in an email dated October 16, 2015 that “I will not rush into a decision about Scarlet and my future and will not commit to where we will live after the end of the current school year”.

[12] However, Tom alleges that Marie “represented” to him that she and Scarlet would only stay in Toronto until the end of the school year, and that once school was over in June 2016, that she and Scarlet would move permanently to the United Kingdom. He alleges that based upon this representation he moved back to England to take up his position as Dean.

[13] There is no evidence of this representation other than Tom saying so. It is vehemently denied by Marie. It stands in sharp contrast to Marie’s email of October 16, 2015. One would have thought that if there had been such an important representation made by Marie that Tom would have confirmed it via email or some other form of correspondence. For this motion I am not prepared to find that there was such a representation.

[14] Even if there was such a representation, this is not a case of promissory estoppel and holding Marie to a previous representation. It is a determination of where a 14-year old girl should reside pending a final decision of the court.

[15] Tom also argues that Marie’s commitment, made prior to the separation, to move to England with Scarlet, while not a binding agreement, is evidence of her acceptance of what is in Scarlet’s best interests.

[16] Marie argues that her then willingness to move and to move Scarlet was clearly premised on the three of them being together as a family, and that once she and Tom separated any previous arrangement was no longer relevant.

[17] I am not prepared to find that this is an admission by Marie as to what is in the best interests of Scarlet. Similar to the alleged representation, whatever may have been decided in the summer of 2015 between Tom and Marie has no bearing upon what I have to now decide in relation to Scarlet.

[18] Marie initially brought a motion returnable April 26, 2016 seeking, among other things, an order that she could enroll Scarlet in Branksome Hall for the 2016/2017 school year and seeking temporary sole custody of Scarlet. Apparently Tom was opposed to Scarlet’s re-registration at Branksome Hall and Marie was concerned that without the order Scarlet would lose her position in Grade 9 at Branksome Hall. On April 26, 2016 Justice Kruzick on consent ordered that Scarlet could be enrolled in Branksome Hall to hold her spot for the 2016/2017 academic year subject to the result of the pending long motion.

[19] On June 10, 2016 Tom brought his motion seeking an order that Scarlet be ordered to live in the United Kingdom with Tom and be ordered to attend Dean Close School in Cheltenham, England for the 2016/2017 academic year.

Analysis

[20] Tom frames the motion as a mobility case relying on Gordon v. Goertz, [1996] 2 S.C.R. 27. While strictly not a mobility case, as Tom moved to the United Kingdom over 6 months ago with Scarlet remaining in Toronto, the principles set out in Gordon v. Goertz (see paras. 49-50) apply to the issues of custody (see Bjornson v. Creighton, 2002 CarswellOnt 3866 (Ont. C.A.) at para. 18). The court is also to consider the factors set out in s. 24 of the Children’s Law Reform Act. Ultimately, the only real issue is what is in the best interests of Scarlet.

[21] Considering what is in Scarlet’s best interests and the factors set out in s. 24 of the Children’s Law Reform Act and the principles from Gordon v. Goertz I am not prepared to make the order sought by Tom. Without compelling evidence why this should be done I am not prepared to uproot an adolescent, on what possibly could be an interim basis only, from what has been her home and her school for the past four years.

[22] Scarlet currently resides in Toronto. There is nothing to suggest that it is inappropriate for her to continue to do so. There is nothing to suggest that Marie is an inappropriate custodial parent. She has been the primary caregiver. This too is a consideration. Tom has had generous access to Scarlet following his move to the United Kingdom. The limits upon his access are imposed by his work and the obvious geographical situation. It is no answer to say that if Scarlet was ordered to move to the United Kingdom that Marie could have generous access to her there. While there is a desire to maximize contact between a child and both parents, ordering her to the United Kingdom on an interim basis would not solve this and is not in her best interests. Tom argues that Dean Close is a better school than Branksome Hall and it is in Scarlet’s best interests to attend it. On the evidence before me I cannot make that finding. Nor do I believe it to be a relevant consideration in the circumstances of this case.

[23] What has made this decision more problematic, than perhaps it ought to have been, is that Scarlet’s views are unknown. Marie in her affidavit material suggests that Scarlet was extremely upset about the prospect of moving before the separation but was ultimately convinced by her and Tom to go along with the move. Marie suggests that post-separation Scarlet was extremely excited about returning to Branksome Hall for Grade 9. She alleges that when told of her re-enrollment Scarlet cheered and jumped up and down. Tom says that Scarlet pre-separation was happy overall to make the move back to the United Kingdom. He makes no suggestion in his affidavit material as to what he thinks her views are now post-separation.

[24] While not determinative and while perhaps unfair to have a teenager in effect be asked to make a choice between two loving parents, Scarlet’s views are a factor, are important, and certainly ought to be able to be obtained in a manner that creates minimal stress on Scarlet.

[25] I am satisfied however, even without having Scarlet’s views known, that the disruption to her in removing her from the school, friends and community she has come to known since January, 2012, is not in her current best interests. It is not enough to suggest that the proximity of three cousins in London, her paternal grandparents in London, her maternal grandparents in Ireland and some friends in the United Kingdom, is the same as attending school with the same friends and classmates one has had for four years in Toronto. Tom states that the Cotswolds is a “close commute to London”. He does not actually say what this means in real practical terms for Scarlet and how she would go about commuting from the Cotswolds to London as a 14-year old to perhaps see her cousins, her paternal grandparents and any friends who may live there. This is similar to his plans for Scarlet if she was to live with him and attend Dean Close School. Other than references in his cross-examination to carpooling, he does not appear to have a real and practical plan for Scarlet if she was to be ordered to move to the United Kingdom.

[26] This issue of where Scarlet should ultimately reside is one best left for trial. The status quo of her currently residing in Toronto should remain. This is in her best interests. Perhaps at trial the views of Scarlet can be introduced into evidence in some fashion. At trial a judge will have a better ability to investigate the positions of the parties and to determine custody.

[27] Until trial Marie will have custody of Scarlet. Marie will consult with Tom on any major issues concerning Scarlet but ultimately will have the final decision-making authority. Tom will have full access to all information concerning Scarlet’s health and schooling in accordance with s. 20(5) of the Children’s Law Reform Act.

Support

[28] Marie is entitled to child support. The parties for the purposes of the motion are prepared to accept that Tom’s income for 2016 when converted from British pounds is $170,000.00. The parties are in agreement that the amount of monthly child support is $1,411.00 based on this income. It is more appropriate to use his 2016 income, which is known, rather than his 2015 income for the purposes of child support for 2016. Equally, I believe it appropriate to use Marie’s 2016 anticipated income for any calculations on an interim basis. Her 2016 anticipated income is $60,000.00.

[29] Marie claims retroactive child support from the date of separation. However, her motion only claims temporary monthly child support from April 1, 2016 forward. I order that Tom is to pay $1,411.00 from April 1, 2016 forward for child support on an interim basis until trial.

[30] Interim spousal support motions are not intended to involve a detailed examination of the merits of the case. They are summary in nature, to do rough justice between the parties until trial where a more detailed and in-depth examination can be undertaken. However, a prima facie entitlement to interim support must be established in accordance with s. 15.2 of the Divorce Act. I am satisfied that a prima facie case has been made out. Marie currently has need and Tom agreed that there is no issue as to need on an interim basis. Marie should not have to utilize her capital in place of proper support. Spousal support should also be paid on an interim go forward basis from April 1, 2016. If this matter goes to trial there can be a more detailed analysis of the state of accounts as between the parties including, their actual incomes, any claims for retroactive child and spousal support, and Tom’s various payments.

[31] Spousal support payments, I am advised by both counsel, are not deductible for Tom in the United Kingdom. As a result, any actual support payments to Marie should take this into account and be reduced accordingly and a “net” amount paid to her. The parties have provided me with SSAG calculations using the incomes of $170,000.00 and $60,000.00, which I have found to be the appropriate figures to use. The resulting net figures are somewhat different but close, ranging on a mid to high range, from $1,342.00 to $1,859.00. In the circumstances here considering the length of the marriage and the current income disparity I believe that $1,500.00 per month is an appropriate amount to be paid from April 1, 2016 onwards. This amount is to be non-taxable to Marie as it is a net payment from Tom.

[32] Marie also claims s. 7 expenses for Scarlet’s tuition at Branksome Hall, and other related school expenses including books and uniform, softball expenses and the cost of Scarlet’s book club. All of these are appropriate expenses. The parties are to work out the percentage that is payable by Tom and the actual amount payable, using the income figures of $170,000.00, $60,000.00 plus the net spousal support of $1,500.00, and to arrive at a monthly figure for Tom to pay based upon the expenses and the percentage. If the parties are unable to do so a 9:00 a.m. teleconference can be arranged with me through the Family Law office.

[33] Tom argued that somehow the s. 7 expense payments for Scarlet should be reduced because of the high cost he will incur in exercising access with her. The undue hardship provisions of the Federal Child Support Guidelines make reference to sections 3 to 5, 8 and 9 but not s. 7. Even if it did I would not be inclined to do so based upon Tom’s high employment income and the fact that he too wants Scarlet to get the best education possible. He was satisfied with her attending Branksome Hall when the family was together. He was prepared to pay the costs associated with the Dean Close School in England if Scarlet was to live with him in Cheltenham. His costs associated with access should not cut into the s. 7 expenses.

Costs

[34] Marie was successful on what was the main focus of the motion, namely where Scarlet is to reside. There was somewhat divided success on the support issues. Some of the items were ultimately not in dispute, especially as the parties progressed through their arguments before me.

[35] I am unaware of what offers may have been made but the parties should attempt to reach an agreement on costs. If unable to do so Marie is to file brief written submissions, not to exceed two typed double-spaced pages, together with a costs outline and any necessary documents such as offers to settle on or before September 7, 2016. Any reply submissions from Tom, subject to the same directions are to be filed within two weeks of service of Marie’s submissions. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective costs submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.

HOOD J.

Released: August 23, 2016