Court File and Parties
COURT FILE NO.: FS-13-386945 DATE: 20160919 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Larisa Nancy Sprott, Applicant AND: Neal Cabot Ohm, Respondent
BEFORE: Kiteley J.
COUNSEL: Harold Niman and Jessica Brown, for the Applicant Katherine Robinson, for the Respondent
HEARD: September 1, 2016
Endorsement
Background
1This is a motion by the Respondent on parenting issues and a motion by the Applicant on child support issues.
2The parties married on October 20, 2011 and Vivienne was born September 21, 2012. The parties separated in March 2013, the Applicant launched the Application on May 24, 2013 and the Respondent filed an Answer in July, 2013. Crosby (Beau) was born on October 21, 2013 and in November 2013 the parties reconciled, separating again on June 15, 2015. In March 2016, the Applicant amended her Application to include the events since 2013 and the Respondent amended his Answer.
3At the conclusion of the case conference on April 15, 2016, Stevenson J. made an endorsement in which she indicated that long motions would be heard on issues of time-sharing and child support. She directed the parties to exchange Requests for Information and she scheduled a settlement conference for July 13, 2016.
4The parties through counsel attempted to reach agreement with respect to the parenting schedule. In the absence of agreement, the Respondent launched his motion in which he asked for an order that dealt with both summer 2016 and thereafter, including an order that he be permitted to travel to New York with the children. The Applicant had brought a motion in which she proposed a different parenting schedule over the summer. I heard that motion on June 9, 2016 and released an endorsement dated June 10. The long motion had been scheduled for September 1, 2016 and for that reason, I dealt only with the period between June 9 and the end of August.
5Based on the correspondence between counsel (before and after the Applicant retained her current counsel) there were many challenges associated with implementing the schedule I established in that endorsement. The settlement conference was cancelled. In mid-August, each party served a notice of motion and, including the affidavits that were before me in June, I have 14 affidavits, two forms 35.1, two financial statements, and a factum and book of authorities from each counsel.
Preliminary Issues
6At the outset, I pointed out to counsel that in the Respondent’s motion he asked for a parenting schedule that included the summer of 2017 but that I would not deal with another summer at this time. I appreciate that this is the second contested round of motions in less than 3 months and both parents do not want to continue to establish a parenting schedule by extensive and expensive correspondence between counsel or by even more expensive court proceedings rather than by consensus. Based on the record before me, since the renewal of proceedings in March 2016, the parties have been focused on motions and not on settlement. Indeed they cancelled the settlement conference scheduled by Stevenson J. In this endorsement I intend to create a framework for long enough to give the parents the opportunity to negotiate an outcome that they consider is in the best interests of the children. I urge both parents to read the article included in the factum for the Applicant on the subject of shared parenting and exchange other literature so that both will be fully informed as to the needs of the children.
7In the material, counsel had referred to the need for questioning. I asked counsel to clarify whether either or both sought an order that would apply only until questioning and the orders would be revisited after that had taken place. After conferring, Mr. Niman took the position that the order I make ought to be a “temporary without prejudice order” and, after questioning with respect to affidavits filed in the motion (and not at large in the case), the parties could return to make further submissions. Ms. Robinson did not agree. I ruled that I would decide at the conclusion of submissions whether there would be questioning in the context of the motion (in which case the orders made would be temporary without prejudice) or in the context of the case.
8Having heard all of the submissions I conclude that the parties are not permitted to conduct questioning in the context of the motions. At the case conference on April 15, 2016, Stevenson J. permitted questioning in the case and the parties remain entitled to take that step. But it is not in the best interests of the children to prolong the interim proceedings by making a temporary without prejudice order that might or might not be amended after questioning. In making those submissions, counsel reported that they had agreed that questioning would be limited to 6 hours each.
9I also pointed out to counsel that in her notice of motion the Applicant sought an order that the Respondent make the child support payments through the Director, Family Responsibility Office and accordingly she asked for a Support Deduction Order. As counsel are aware, when I make an order for child support, I am required to make a Support Deduction Order. However, the Respondent is working and is remunerated in NYC and the parties might want to avoid the administrative challenges of using the FRO for a cross-border payor. Counsel later advised that they had agreed that the Applicant would withdraw from FRO on receipt of post-dated cheques for whatever amount of support I ordered.
10At the conclusion of submissions at 5:00 p.m. on September 1, 2016, I advised the parties and their counsel that I would reserve my decision and that I did not expect to release a decision before the weekend of September 9 and 10 which was the next weekend on which the parents agreed the Respondent would see the children. I indicated that the parties would be required to agree on the arrangements.
Respondent’s motion with respect to the parenting schedule
A. Background
11The parties agree that the Respondent will see the children on alternating weekends but they do not agree on the duration of the weekend. Much of the difference between them lies in the number of consecutive overnights that the children spend with their father.
12The Respondent’s position is that on alternate weekends commencing Thursday September 8, he would pick the children up at school on Thursday and return them to school on Tuesday morning for 5 consecutive overnights. Commencing in January it would increase to 6 consecutive overnights and in March increase to 7 consecutive overnights to achieve a 50/50 split in alternate weeks. In his view, the extended periods of overnights during the summer worked well and the children benefitted from the longer duration with their father. He intends to spend the alternate weekends with the children in Toronto but he wants to be able to take them away from Toronto for parenting time other than the regular alternate weekends. He also asks for an order with respect to holidays.
13The position of the Applicant is that the children are too young to have more than 3 nights regularly away from her as primary parent; that the children have not done well over the summer with the extended periods; that she continues to support overnights but more incrementally than that proposed by the Respondent; that the status quo prior to the June 10 order consisted of Friday night and Saturday night and increasing that to Sunday night overnight as she proposes was an appropriate increase at this time with 4 consecutive overnights for the 2016 American Thanksgiving and for the children’s fall break in 2016 as well as five consecutive overnights from December 21, 2016 at 9:00 a.m. until December 26, at 9:00 a.m. and 5 consecutive overnights during the spring break in 2017. In other words, she takes the position that the “status quo” that existed before the June 10 order resume with an additional Sunday night.
14At paragraphs 13 to 17 of the June 10 endorsement, I outlined the factors that I took into consideration namely as follows:
First, the Respondent has always been actively engaged and present as a father. He may have lived and worked in New York City but they had a commuting relationship. The children have an important relationship with their father. He has acquiesced in the alternate weekends for almost 10 months while he tried to achieve an expansion through negotiations. From that I infer that he did listen to and understand the perspective of the Applicant as to the best interests of the children.
Second a parenting schedule should be established that reduces the number and frequency of transitions both to reduce the events of change in their lives and to reduce the opportunities for the parents to have conflict. Having said that, as the overnights incrementally increase, the children must have an opportunity to touch base with their mother.
Third, increasing the overnights during the summer means that the change can be accommodated when return to school is not happening. Based on her evidence as to her work, I infer that on the return times in this transition period, the applicant can arrange her schedule to be at home to greet the children.
Fourth, the children are used to multiple adult caregivers. The Applicant has employed a morning nanny who gets the children ready and takes them to school and an afternoon nanny who bring them home and gets dinner ready. There are four key adults in their lives; mom, dad, two nannies. If all four of those adults accept that the increasing time the children spend with their father is a given and support the children accordingly, the risk of the children being unduly impacted is significantly reduced.
In the end I concluded that the rate of incremental increase proposed by the Applicant was too slow and the rate of incremental increase proposed by the Respondent was too fast.
15In the endorsement dated June 10 I established a scheduled that included the following: two immediate consecutive weekends from Friday to Monday; four weekends of four consecutive nights and in the last week of August, five consecutive nights. I made an order that the visits would be in Canada with the exception of the last one which would be in New York City provided that the Respondent give an itinerary to the Applicant at least 20 days before it started. I also made an order that during all of the periods mentioned, the Respondent was required to arrange telephone or Skype communication between the Applicant and the children once each day.
B. Analysis
16Since the hearing on June 9, counsel have delivered 6 affidavits from the parties as well as from others. Counsel had the opportunity to make more comprehensive submissions than were possible in June.
17In the June endorsement at paragraph 9 I observed that the “reality may be that the Applicant is the primary parent”. Now that I have had these submissions, it is clear that she has been and is the primary parent.
18This family is unique in that, since the children were born, the Applicant has been residing in Toronto while the Respondent worked and lived in New York City. The parties differ about the frequency of his commute to Toronto with the Respondent saying it was most weekends while the Applicant insists that it was on average 2 or maybe 3 weekends out of 4. The Respondent takes the position that when he did come, it was usually Thursday to Monday while the Applicant asserts that it was usually Friday to Monday morning before the children awoke. Both of them refer to air travel itineraries and tickets.
19Based on my review, it was not most weekends nor was it routinely from Thursday to Monday. But it was frequent and demonstrates the conclusion I reached in the June 10 endorsement that the Respondent has been actively engaged and present as a father and the children have an important relationship with their father. The fact is that the parents and then the children became accustomed to that routine. I do accept the evidence of the Applicant that at no time prior to the separation in June 2015 was the father the only caregiver overnight. In August 2015 the Respondent acquired accommodation and since then has not missed any opportunity that he had to have the children in his care.
20In this motion, the challenge is to fashion a parenting schedule that reflects the uniqueness of their pre-separation family relationships and that responds to the needs of the children.
21Each parent has given extensive, mostly negative, evidence about the other. Counsel for the Respondent indicated that her client “is not suggesting that the Applicant is not a good mother” from which I infer that he agrees that she is a good mother and, excepting the conflict over the parenting schedule, he at least in general, agrees with the parenting decisions she has been making. However in the next breath, he makes damaging statements such as that the Applicant “off loads the children” on others including the morning and evening nanny. And his and Ms. Quail’s evidence are both critical and disparaging. It would be difficult for the Applicant to have a civil parenting relationship with the Respondent when he says such things.
22For reasons indicated in her evidence, the Applicant has no trust in the Respondent and no confidence in his parenting skills. The Applicant’s diminishment of his role as a parent likely makes it difficult for him to have a civil parenting relationship with her.
23Each parent has different perspectives on how the children have responded to the schedule I established for the summer in the June 10 endorsement. The Respondent takes the position that the children are comfortable with the additional time and enjoy every minute they spend with their father. He has not observed any of the stress and anxiety described by the Applicant. The Applicant gives many examples of how each child is manifesting her concern that the 4 nights and then a 5th night have been too much for them.
24On this record, it is a challenge to conclude which of the differing perspectives on how the children have responded to the enlarged summer schedule is more accurate. I observe however, that not infrequently children will demonstrate stress and anxiety with one parent and not with the other parent.
25Both parties refer to statements which each says Vivienne has made. I will not quote them but they are collected at paragraph 46 of Mr. Niman’s factum. The Respondent and his girlfriend blame the Applicant. The Applicant does not blame the Respondent but does see such statements as indicative of the stress that at least Vivienne feels. Vivienne will be 4 years old next week. From time to time we receive evidence of this nature: sometimes the mother is the source of such statements; sometimes it is the father; sometimes it is adults that a child overhears; and sometimes the child makes it up. Whatever the source of such statements, I accept the perspective of the Applicant as to how the children have responded to the enlarged summer schedule and in particular that what Vivienne is saying demonstrates a high degree of anxiety. The statements that each parent is hearing ought to be a wake up call to the parents that they have to find common ground in parenting their children.
26In the meantime, the court is required to make orders in the best interests of the children that focus on them and not on the parents.
27The factors that I take into consideration are as follows:
(a) Vivienne will be 4 on September 21 and Crosby will be 3 on October 21. The article at footnote 3 provides context for the needs of children at these ages.
(b) In his affidavit in support of his request in June to take the children to New York, he repeatedly confirmed that he would take the children to his home in New York with which, as I observed in paragraph 22 of the June 10 endorsement, the children were familiar. Instead, he took them to the residence of his girlfriend. He defends that step on a variety of grounds, none of which is persuasive. The Respondent says that he tried to reach out to the Applicant to have her meet with his girlfriend in advance but the Applicant refused. I need not make a finding as to how each parent acted on at least two occasions referred to in the affidavits. I do however reach two conclusions. The first is that he represented to the court that he would take the children to a specific location, I accepted that representation and he did otherwise which leads me to question the reliability of his evidence and to question his judgment in introducing his girlfriend to the children so early in the litigation. The second is that by introducing her as he did, he created opportunities for her to become not only adverse, but as her affidavit demonstrates, strenuously adverse. That too leads me to question his judgment in relation to the best interests of the children.
(c) Pursuant to s. 16(10) of the Divorce Act, the court “shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. The maximum contact principle is a principle, not a rule. It is one of the many factors that the court must consider in the context of the particular children and their ages and stages. At paragraph 15 of the June endorsement I said that increasing the overnights during the summer meant that the change could be accommodated when return to school happened. But I did not say that a continuation of the summer schedule, let alone an increase, was inevitable. While the Respondent attempts to rationalize why his proposed schedule of reaching 50/50 by March 2017 is in their best interests, I infer from his evidence that his proposal is designed to give him equal time, whether or not it meets the needs of the children who will then be 4.5 and 3.5 years old children.
(d) The evidence of both parents is that before the hearing in June, 2016, the Respondent had the children on alternate weekends from Friday to Sunday. I agree that that does not constitute a “status quo” because of the evidence of both of them that he continuously tried to extend it but the Applicant refused to do so except on specific occasions when, for example, she was out of town. That is not a “status quo” that is relevant to this motion.
(e) The schedule I set for the summer is also not a “status quo”, particularly now that both children are in school all day.
(f) Prior to and since the separation in June 2015, the Respondent has consistently been an engaged and involved parent with whom the children have important relationships.
(g) The Applicant has again proposed a parenting schedule that includes fewer overnights than requested and continues to be more incremental. The Respondent criticizes her for resisting his relationship with the children. The Applicant has summarized the signs of anxiety that she perceives with the children including the statements summarized at paragraph 46 of Mr. Niman’s factum that reflect the statements that Vivienne has made. She describes other reactions by the children in paragraphs 64 and 65 of her August 24 affidavit, some of which are corroborated by other evidence. While the Respondent denies that the children have such anxieties let alone manifest that behaviour, I cannot disregard the evidence and indeed, for purposes of this motion, I accept it, partly because they both report statements made by Vivienne which are of considerable concern. The Applicant has been and is the primary parent and as such, she probably has better insights into the needs of the children.
28I accept the submissions of the Applicant that, in respect to this temporary order, the regular parenting schedule should be based on alternate 3 night weekends, from Friday after school to Monday at school with 4 night weekends reserved for special occasions.
29In his notice of motion, the Respondent asks that I make an order with respect to American Thanksgiving, the children’s fall school break, winter break and March break. As indicated above, he asks that I include the summer of 2017 but I decline to do so in this motion for a temporary order.
30In his notice of motion, the Respondent asks that the children spend PD days with the parent in accordance with the regular parenting schedule. Neither has indicated dates when the school has PD days on a Monday or a Friday that falls on the Respondent’s weekends. The draft order on behalf of the Applicant is silent. Probably because of time constraints, neither counsel made submissions. It is my expectation that if that occurs, the transition to their father will accommodate those days. If the PD day is a Friday, he will pick them up on Thursday after school and return them on Monday at school. If the PD day is a Monday, he will pick them up on Friday after school and return them on Tuesday at school.
31The evidence with respect to the winter school break does not allow me to make a decision. In his notice of motion, the Respondent asks that the 2 week winter school holiday should be divided between them such that in this year, the children shall be in his care from the last day of school to the mid-point weekend on Sunday at 9:00 a.m. and in the Applicant’s care from the mid-point weekend to return to school. In her draft order, the Applicant has proposed that in 2016, he have the children for 5 consecutive overnights from December 21, 2016 at 9:00 a.m. until December 26, 2016 at 9:00 a.m. Exhibit H to the affidavit of the Respondent sworn August 16 is a letter from his lawyer to the Applicant’s lawyer confirming a series of weekends in the period September 2015 to January 2016 including that the children would be with him December 18 – 21 and January 8 – 10. In that letter, his lawyer indicated her understanding that the parties had agreed that the children would be with the Applicant and her family “over the Christmas holidays this year, and that next year (2016), the children will spend the holidays with Mr. Ohm and his family.” At paragraph 52 of his affidavit, the Respondent indicated that in a letter dated October 13, 2015, counsel for the Applicant confirmed the schedule that the parties had agreed as to when the children would be in his care. At paragraph 53, he stated that the letter dated October 13, 2015 was “consistent with the arrangements which were followed in 2015, such that the children were in Larisa’s care for 18 days over Christmas, and based on this, the children would be in my care for Christmas 2016”.
32The letter dated October 13 is not attached to any affidavit and the Applicant did not specifically respond to that evidence. Her draft order provides for five consecutive overnights from December 21 to December 26.
33It is not clear what the parents agreed to in 2015 with respect to what might be an 18 day school break in 2016 except that the children would be with their father for December 25. In her draft order, the Applicant takes the position that the children should be with their father for five consecutive overnights from December 21, 2016 at 9:00am until December 26, 2016 at 9:00am. I did not appreciate the lack of clarity in the evidence until after submissions were concluded and I will create an opportunity for counsel to clarify.
34The March school break is problematic. It appears to be a 2 week break at their current school. In his notice of motion, consistent with his request that by that time the children divide their time equally with each parent, the Respondent asks that the 2 week break be equally divided. In her draft order, the Applicant takes the position that the children should be with their father for 5 consecutive overnights from Friday after school until Wednesday at 12:00pm although in her affidavit she left open the possibility that it might be longer. I have not accepted the Respondent’s 50/50 submission and I have accepted her evidence with respect to the anxiety that the children, particularly Vivienne, is demonstrating. I will not make an order consistent with his request.
35In his notice of motion, the Respondent took the position that the children should spend their birthdays in accordance with the regular parenting schedule, except that the other parent should have a visit for a few hours. Neither counsel had time to make submissions on this issue. The draft order on behalf of the Applicant does not mention birthdays. Since the birthdays are imminent, I expect that the parents will be able to incorporate appropriate arrangements for both parents for both birthdays.
36In an attempt to avoid the conflict that arose after the release of the June 10 endorsement, counsel should immediately prepare a draft order that includes specific dates for all of the parenting time referred to below and forward it to my attention. As I understand it, the parties were unable to quickly agree on the implementation of the June 10 order and I expect that not to recur.
37The Applicant continues to refer to the Respondent’s inability to control his temper as a factor in establishing a parenting schedule. As I indicated at paragraph 21 of the June 10 endorsement I made no findings except to observe that the last circumstance in which the Applicant alleges it occurred was prior to the separation. It is clear from the cell phone episode and the text messages that followed (as indicated in Exhibits G and H of the Applicant’s affidavit sworn August 24, 2016) that he was very angry with her and reacted physically and inappropriately. But on the record before me, I am not prepared to make any findings that whatever anger issues he has should impact on the parenting schedule.
Therapist for the children
A. Background
38The Applicant’s original notice of motion was dated August 16. On August 23, 2016 she amended her notice of motion to seek an order that she be permitted to engage a child therapist and that the Respondent be required to pay 50% of the cost. The evidence in support of the request is found in her August 24 affidavit.
39In his August 25 affidavit the Respondent states that he has no objection to the children attending counseling but he does not consider that there any issues concerning the children that would necessitate that counseling interfere with the natural progressions to the parenting schedule. He said as well:
In addition, I consider that it would be more important for Larisa to engage in separation counseling, so that we can focus on developing healthy co-parenting strategies. Further, it is disingenuous for Larisa to raise this issue on the eve of the long motion for the very first time, when I have long pleaded with the Applicant to pursue counseling, work with a parenting coordinator, or resolve issues outside of Court to keep the focus on the children, to no avail.
B. Analysis
40I will not make that order for these reasons. First, the purpose is not clear in that on the one hand it is suggested because of the stress demonstrated by the children but on the other hand it is to determine the children’s wishes as to extending the parenting schedule. I doubt that children aged 4 and 3 have “wishes” as to when they see their parents on which a court should rely. Second, there is no order for custody at this time and I see no reason to authorize one parent over another to make such an important decision at this stage when it is contested.
41In her submissions, Ms. Robinson noted that the parents might agree as to a therapist. If the parents can (a) agree that it would be beneficial to the children; (b) agree to select a therapist; and (c) agree as to sharing the cost; then therapy will happen. But I dismiss the request for an order permitting the Applicant to take those steps unilaterally.
42The evidence of the Respondent contains two different messages: the first is that the Applicant should get counseling, which suggests that these parenting conflicts are all her fault; and the second is that there should be some counseling or parenting co-ordinator or mediator who would assist both parents. I disagree with the former but to the extent that it is the latter, I strongly encourage the parents to immediately become involved in parenting counseling or other intervention designed to assist them in identifying how the conflict between them is likely negatively impacting the children and what they can do, in the best interests of their children, to stop the conflict.
Respondent’s motion for a s. 30 assessment
A. Background
43The Respondent has asked for an order for a s. 30 assessment which is opposed by the Applicant. His evidence at paragraph 71 of his August 16 affidavit is as follows:
There are very significant issues to be determined regarding the parenting arrangements, including the custody and access issues pertaining to the children. Based on the competing positions advanced by Larisa and I, especially regarding custody, and the many spurious claims which have been advanced, it would be beneficial to this Court to have external evidence available to assist in making the decision regarding the parenting issues.
44The Applicant advocated for a therapist and so she opposed such an order. In his submissions, Mr. Niman said that his client was not “vigorously opposed” to a s. 30 assessment although he resisted my suggestion of a referral to the Office of Children’s Lawyer. In paragraph 12 of his August 25 affidavit, the Respondent expanded on the request for a s. 30 order.
B. Analysis
45Pursuant to s. 30 of the Children’s Law Reform Act, the court may appoint a person who has technical or professional skill to assess and report to the court on the needs of the children and the ability and willingness of the parties or any of them to satisfy the needs of the children. Pursuant to s. 30(4), the court shall not appoint a person unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.
46In his material in support of this request, the Respondent has not identified a person nor provided a curriculum vitae nor a consent. As a result, I can make an order for an assessment but I cannot make an order appointing a specific person to prepare it. I will consider the merits of the request and deal with that procedural issue separately.
47I will not review the many references to authorities by counsel, excepting only to point out my familiarity with the legal principles that are applicable. In my view, a s. 30 assessment is required for these reasons.
48First, as indicated in paragraphs 21 and 22 above, the relationship between the parents is so unhealthy, indeed toxic, that it appears that one or both may not be able to identify the long term best interests of the children and act on their best interests. The children are now almost 4 and almost 3 and have limited, if any, capacity to contribute to either wishes and preferences or the capacity of their parents to meet their needs. While the parents have demonstrated the ability to marshal the affidavits of many others, that evidence at least in affidavit form, may not be objective. The trial judge will require professional and objective input before making the decisions that will be required for a permanent order as to parenting.
49Second, as demonstrated by two motions within 3 months, without court intervention, the parents have been unable to make any significant decisions about the children’s needs vis-à-vis the parenting schedule that would be in their best interests.
50Third, the parents have vastly different perspectives on the needs of the children and on their respective capacities to respond to those needs. The Applicant insists that the children are manifesting behaviour that suggests that they are not thriving in the expanded access that occurred over the summer which she says informs her resistance to continuing or expanding it. The Respondent denies that they exhibit such behavior and insists that they have done well with the summer schedule. The trial judge needs the benefit of professional input to assist in the determination of the best interests of the children and to consider whether the temporary order dated June 10 and this temporary order have worked in favour of their best interests.
51Fourth, the parents have the financial resources to pay for an assessment.
52Fifth, the length of time the assessment will take is dependent on (a) the availability of the assessor who is required to confirm in writing that it will be done within a certain period; and (b) the co-operation of each parent and of the collaterals that the parents present. If the parents collaborate to make a list of those collaterals on which they agree (such as teachers) and agree to restrict additional collaterals to a manageable number (such as 3 or 4 each), then the time occupied by the assessor in interviewing collaterals and then gaining feedback from the parties will be reduced. If the process takes 3 – 4 months, it will be an investment in the best interests of the children. The application was only resurrected in March of this year.
53For all of those reasons, I conclude that an assessment is in the best interests of the children. I will give directions as to how the parties are to comply with s. 30(4).
54Pursuant to s. 30(12), the court has jurisdiction to make an order as to payment. Given the overall means and circumstances of the parties, each party should be equally financially responsible.
Applicant’s motion for temporary child support
A. Background
55The Applicant takes the position that the Respondent’s income is $325,553 and that he should be required to pay $4,013 per month in child support. She asks for an order for retroactive child support from the date of separation in June 2015 that totals $49,868 which gives him credit for the occasional payments of $1000 that he has made. She asserts that her income is $151,522 and takes the position that the ratio for s. 7 expenses should be 70/30. She asks for an order that the Respondent be required to pay 70% of the s. 7 expenses which include but are not limited to nanny expenses, health insurance and extracurricular activities. Her parents pay the tuition for both children at their current private school but the Applicant asks that school fees other than tuition be a s. 7 expense that the Respondent would be required to pay 70%. She has calculated the outstanding retroactive s. 7 expenses since the date of separation at $19,149.
56The Respondent takes the position that his income should be based on the average of the three preceding years or $183,979 CAD. He also asserts an undue hardship claim, namely that significant expenses should be deducted pursuant to s. 10(2)(b) as expenses he incurs in relation to exercising access to the children; and pursuant to s. 10(2)(d) that he has a legal duty to support his 8 year old child who resides in Texas with her mother. In her submissions, Ms. Robinson took the position that he should pay $1000 per month in child support. In addition, Ms. Robinson submitted that the Applicant’s income should be a reflection of her actual income and her standard of living. The Respondent challenges the s.7 claims and opposes a retroactive order.
57The issues which separate the parties are fundamentally these: (a) the amount of his income; (b) whether the amount of child support he pays should be significantly reduced on account of undue hardship; and (c) her income for purposes of the s. 7 ratio. The parties have provided a mountain of information and documents and each counsel relies on many authorities. The analysis will be more in depth should a trial be required. In the meantime, I intend to touch on the key points.
B. Analysis: income of the Respondent
58The Respondent runs a commercial real estate company in New York City. He has provided his tax returns filed in the United States and the parties accept that the following information taken from the returns is accurate:
| Year | Gross income | Business expenses | Net income (USD) | Net income (CAD) |
|---|---|---|---|---|
| 2015 | $344,095 | $ 92,216 | $251,879 | $324,923 |
| 2014 | $155,774 | $ 87,245 | $ 68,529 | $ 88,402 |
| 2013 | $209,976 | $102,948 | $107,028 | $138,066 |
| 2012 | $128,575 | $ 62,953 | $ 65,622 | $ 84,652 |
59Pursuant to s. 16 of the Federal Child Support Guidelines, the spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency. The Respondent does not file a T1 General but counsel agree that the numbers in the column headed “Net income CAD” are the equivalent and, for purposes of this motion, should be treated as his “line 150 income”.
60Relying on s. 17 of the Federal Child Support Guidelines, counsel for the Respondent takes the position that his income for purposes of this motion is $142,478 USD or $183,797 CAD which is the average of his net income in 2015, 2014 and 2013.
61I disagree with that submission. Simply because there is variability in income does not mean that the court should depart from the line 150 income. The burden is on the payor spouse to establish that the line 150 income “would not be the fairest determination of that income”. The Respondent provided a form 13 financial statement sworn August 23, 2016 in which he indicated that “last year” his gross income from all sources was $251,879 USD, the number that appears above. On page 3 of the form 13 where he is required to reflect his current income, he listed self-employment income in the monthly amount of $20,929 USD and he added this note: “Based on 2015 Company Profit & Loss Calculation – subject to confirmation/adjustment for 2016”. I accept that he inserted that qualification however a full 8 months into the calendar year, he is indicating that his current income is the same as last year. If it were markedly lower than the previous year, he would have adjusted not only his income but also his expenses. I am satisfied that his line 150 income from 2015 along with his affidavit that reflects the same amount is available to him means that his net income equivalent to line 150 is the fairest determination of his income and therefore s. 17 does not apply.
62In passing I note that counsel for the Applicant is accepting the deduction of significant business expenses for purpose of this motion. Based on the categories of expenses, I expect that some would be added back into his income for purposes of his child support obligation. Furthermore, I observe that in his form 13 he has deducted business expenses that might amount to double counting. I leave that to questioning and further production. It does reinforce my conclusion that the net income is indeed the fairest income.
C. Analysis: undue hardship claim
63From his income, the Respondent then deducts $115,100 on account of his expenses in relation to exercising access to the children in Toronto and the payments with respect to his child in Texas which he calculates as follows:
| Expense | Annual Amount CAD |
|---|---|
| Flights to/from Toronto | $14,000 |
| Accommodation in Toronto (rent) | $39,600 |
| Accommodation in Toronto (utilities) | $ 2,000 |
| Transportation in Toronto | $ 9,250 |
| TOTAL EXPENSES INCURRED TO SEE CHILDREN IN TORONTO | $64,850 |
| Flights to/from Texas/Minnesota | $18,000 |
| Accommodation in Texas | $13,000 |
| Support paid for child in Texas | $11,500 |
| Extra expenses for child in Texas | $ 7,750 |
| TOTAL EXPENSES INCURRED TO SEE CHILD IN U.S. | $50,250 |
| TOTAL OF ALL CHILD RELATED EXPENSES | $115,100 |
64His counsel argues that when the standard of living analysis is done pursuant to s. 10(3) and (4) of the Federal Child Support Guidelines, the Applicant is far better off than he is which is a factor that ought also to be taken into account.
65As a result of that analysis, the Respondent takes the position that his child support obligation is $1000 per month.
66The Applicant takes the position that the Respondent is incurring excessive costs in Toronto (including a rental apartment in Harbourfront and a vehicle that he uses only when he is in Toronto) and that when looked at more carefully, his expenses are considerably less and do not qualify as “unusually high” as required by s. 10(2)(b). Her counsel also insists that the only expenditure that ought to be attributed to his other child is the support amount which is annually $11,500 CAD. She resists the comparison of standards of living as not relevant and not properly documented in any event.
67Both counsel referred to a variety of authorities in attempting to support their respective positions. I have the following observations. First, many of the authorities derive from trials where the judge had the opportunity to hear the evidence, review the documentation, possibly consider the evidence of professionals, make findings of credibility and arrive at decisions that will impact a permanent order for child support. On this motion for temporary child support, I have a proliferation of affidavits, sworn financial statements, and the tax returns mentioned above. In addition I have the Respondent’s calculations as to his undue hardship claim and the Applicant’s fastidious analysis of those calculations that yield vastly different numbers. The Applicant asserts that the Respondent’s calculations are too high by at least $60,000. I agree with Mr. Niman that in this area in particular, there are significant credibility issues.
68Second, each party is taking an extreme position on the issues of the calculation of “undue hardship” claim and as a result, I accept neither submission.
69Third, there is no question that the Respondent has been and continues to incur expenses in relation to seeing the children in Toronto and, given the historical commuting relationship, such expenses are reasonable. There is no question that the Respondent is required by court order to pay $11,500 annually for child support but the amount of additional expenditures which he says totals $38,750 is questionable.
70On this motion for temporary child support, I make the following findings:
(a) For purposes of this motion, the Respondent’s “line 150” income in 2016 is $324,923 CAD.
(b) The amount payable if the Federal Child Support Guidelines are applied is $4,013 per month. Pursuant to s. 4 of the Federal Child Support Guidelines, the burden is on the Respondent to establish that the table amount is inappropriate where the income exceeds $150,000 and he has not met that burden. I see no reason to depart from the Guideline amount.
(c) The Respondent does incur significant costs in order to regularly see the children. The Applicant does not quarrel with rent and transportation but says they are excessive. I accept his evidence that he rented an apartment as quickly as he could and that he needs to maintain a vehicle in Toronto. I do not accept that his flights to and from Toronto are $14,000 because with a regular parenting schedule, fares at discounts are available. Of the $64,850 listed above, I accept 100% of rent, utilities, transportation and 50% of the flights for a total of $57,850. The evidence as to his payments other than support for his 8 year old daughter is not comprehensive nor cogent. On this record, I cannot make a finding that all are being incurred. I accept 100% of the court ordered support and 50% of the flights, accommodation and the extra expenses, leaving a total of $30,875. The total of all those costs is $88,725.
(d) The submission made on behalf of the Respondent is summarized at paragraph 27 of the factum, namely that, following determination of the Respondent’s income, both section 4 and section 10 can be applied to determine a fair and appropriate amount of support that allows for consideration of the means and needs of each of the parties and the children and the comparable standards of living, after considering the costs incurred by the Respondent in order to support and maintain a relationship with his three children. I do not agree that that is a correct statement of the law. Sections 4 and s. 10 of the Federal Child Support Guidelines contain a threshold that the Respondent must meet. I have already found that he did not meet the threshold in s. 4. With respect to s. 10, the burden on the Respondent is to establish that the expenditures are both a hardship and an undue hardship. The difference between “hardship” and “undue hardship” will depend on the circumstances of the case. [Reid v. Nelson, [2002] O.J. No. 2745] “Undue” suggests excessive, extreme, improper, unreasonable and unjustified. It must be more than awkward and inconvenient and is a tough threshold to meet. [Swift v. Swift, [1998] O.J. No. 501] “Hardship” must be exceptional, excessive and disproportionate and the payor must present cogent evidence of the hardship. [Morrone v. Morrone, [2007] O.J. No. 5341] The total expenses that I have accepted is $88,725 which represents approximately 27% of his “Line 150 income”. That percentage does not demonstrate undue hardship. I do not have cogent evidence that being required to pay all of those expenses would be an undue hardship.
(e) On the basis of these conclusions, the comparative standards of living analysis is not required. The fact that the Applicant has a wealthy family and has a greater net worth than he does is not relevant to whether the Guideline amount is to be paid.
71Mr. Niman pointed out that the Respondent had not included an undue hardship claim in his Answer. I have assumed that it will be properly pleaded in due course if he intends to rely on it.
Applicant’s claim for s. 7 expenses
A. Background
72The maternal grandparents pay for the private school tuition for both children. The s. 7 expenses claimed by the Applicant are as follows:
(a) $23,599 for the afternoon nanny; (b) $787 for the expenses at school including parent association fees, child care fees, text book fees, and field trips; (c) $1,492 for Vivienne’s extra-curricular activities; (d) $1,404 for the children’s medical and dental insurance.
B. Analysis
73I have found his income to be $324,923 and I accept her submission that her income for purposes of this analysis is $151,522. On that basis the s.7 expenses should be on the ratio of 70/30.
74The Respondent does not challenge that the expense for the nanny is a s. 7 expense but he does resist contributing to the others.
75In order to find that the other three are s. 7 expenses, the court must take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and in relation to the family’s spending pattern prior to the separation. I do not accept that medical insurance for children living in Ontario is a s.7 expense. Absent special dental issues, I do not accept that dental insurance for children of this age is a s.7 expense. As for (b) and (c), I have no evidence that would allow me to decide reasonableness in relation to the means of the spouses and the spending pattern prior to the separation. I am not satisfied that any of those qualify as s. 7 expenses.
76Even though the nanny is accepted as a s.7 expense because the Applicant works full-time, the evidence does not yield the after tax calculation. Absent that information, I am reluctant to order that the Respondent pay the full 70% when the net amount payable by the Applicant may be considerably less. I encourage the parties to negotiate the amount that the Respondent should be required to pay but I will not make an order on this interim motion.
Applicant’s claim for an order retroactive to June 15, 2015
A. Background
77The Applicant asks for retroactive child support commencing in June 2015 in the amount of $49,868 which reflects the table amount of $4013 less credits for his occasional payments of $1000. She also claims retroactive s. 7 expenses in the amount of $19,149.
78The Respondent is opposed to any retroactive payment.
B. Analysis
79In general, an order for support is made as of the date requested in the notice of motion. In this case, the parties have focused on the parenting issues and it appears that little attention has been given to the child support issues. The Respondent has not paid appropriate child support. However, if I make an order requiring him to pay almost $70,000 in retroactive payments, the battleground will move to enforcement, failing which counsel for the Applicant will bring a motion to strike his Answer for breach of orders. The Applicant says that she has funded all these expenses since separation by borrowing from her parents and using assets. I do not condone his failure to pay appropriate child support but the Respondent has a questionable ability to make a retroactive payment. The priority should be to ensure that the monthly payments are made in a timely way. The issue of retroactive payments should await disclosure and perhaps questioning on reasonableness of the most significant expense that was a morning and an evening nanny for the year after separation.
Costs
80In the June 10 endorsement I reserved the costs of that hearing to be dealt with at this time. I do not know whether offers were exchanged and if so, whether they will have any impact on costs. Each party achieved some success and neither party was completely successful. I encourage the parties to agree as to the costs, failing which counsel will make written submissions.
ORDER TO GO AS FOLLOWS:
81On a temporary basis, commencing Friday September 23, 2016, and every other weekend thereafter, the Respondent shall have parenting time with the children in Toronto from Friday after school until Monday morning drop-off at school provided that on those alternate weekends :
(a) if the children do not have school on the Friday due to PD day or other school related reason, then he will pick them up on Thursday after school and return them Monday morning at school; and
(b) if the children do not have school on the Monday due to PD day or other school related reason, including Family Day February 2017, then he will pick them up on Friday after school and return them Tuesday morning at school.
82On a temporary basis, the Respondent shall have additional parenting time with the children as follows:
(a) On the American Thanksgiving weekend, for four consecutive nights from Thursday after school to Monday drop-off at school;
(b) During the children’s fall break in 2016, for four consecutive nights from Thursday at 6:00pm at the Applicant’s residence until Monday drop-off at school;
(d) During the children’s spring break in 2017, for five consecutive nights provided that if the parents do not agree by September 30 as to which nights, then he shall select his dates.
83If by September 30, 2016 that parties have not agreed as to the children’s winter school break, then by October 7, 2016, counsel for the Respondent shall make submissions in writing not exceeding 2 pages and by October 14, 2016, counsel for the Applicant shall make submissions in writing not exceeding 2 pages and I will make the decision on the basis of those submissions.
84On a temporary basis, the Respondent may telephone, Skype, and/or communicate with the children on a daily basis from Monday to Friday between 5:30pm and 6:30pm. The children may Skype and/or communicate with either party as often as they wish. If access to Wifi is not available, the children may communicate with either party by telephone. Both parents shall facilitate the children communicating with the other parent as necessary.
85On a temporary basis, if either parent cannot care for the children for a period of more than 24 hours, or if either parent is away overnight, that parent shall notify the other parent and give the notified parent the opportunity to care for the children. If the notified parent is unable to provide care for the children, the other parent will make childcare arrangements at his or her own expense.
86On a temporary basis, excepting only the regular alternate weekends referred to in paragraph 81 above which shall occur in Ontario, either party may travel with the children within Canada, the United States and Mexico, upon providing a detailed travel itinerary at least 20 days in advance. The travelling parent shall include flight numbers and times, details of accommodations for the duration of the trip, and a contact number where the children can be reached during the trip. Within 10 days of receipt of the itinerary, the non-travelling parent shall sign the travel consent, failing which the travelling parent may bring an urgent motion on short notice before me if available.
87On a temporary basis, neither the Applicant nor the Respondent shall permit the children to travel with a third person.
88On a temporary basis, the parties shall attend all pick up and drop offs personally, unless otherwise agreed to by the parties in advance.
89On a final basis, pursuant to the Children’s Law Reform Act, the Applicant and the Respondent shall both be entitled to communicate directly and be given information pertaining to the children from the children’s teachers, child care providers, doctors, dentists, other health care providers, and any other professionals involved with the children.
90The Applicant’s motion for a temporary order authorizing her to engage a child therapist is dismissed.
91On a final basis:
(a) by September 30, 2016, the Applicant and Respondent shall agree on the s.30 assessor and obtain a written consent in accordance with s. 30(4) and submit the approved consent order to my attention;
(b) if by September 30, 2016, the Applicant and Respondent do not comply with paragraph 91(a) then by that date, counsel for the parties shall send to my attention a 14B motion attached to which are the resumes and consents of no more than four possible assessors (two from each parent) and I will make an order (i) appointing one of them and (ii) directing that each pay 50% of the amount(s) required by the assessor within 5 business days of request by the assessor.
92On a temporary basis, commencing September 1, 2016, the Respondent shall pay to the Applicant support for the children Vivienne Cabot Sprott Ohm, born September 21, 2012 and Crosby Cabot Sprott Ohm born October 21, 2013 the sum of $4,013 per month based on an income for 2016 in the amount of $324,923.
93On a temporary basis, the motion by the Applicant for ongoing s. 7 expenses is dismissed.
94The Applicant’s motion for retroactive table support and s. 7 expenses is adjourned to be heard at trial.
95On a temporary basis, contemporaneously with the Applicant withdrawing from the Family Responsibility Office, the Respondent shall provide to the Applicant cheques dated the first of each month starting in September 2016 and to and including June 2017 in the amount of $4,013.
96If by October 3, 2016, the parties have not agreed as to costs of these motions then counsel shall make submissions not exceeding 5 pages plus costs outline and offers to settle on the following schedule:
(a) by the Respondent October 12, 2016 (b) by the Applicant October 26, 2016 (c) by the Respondent, if any November 9, 2016 (d) by the Applicant, if any November 18, 2016.
97Counsel shall immediately schedule a settlement conference before me or Justice Stevenson (whichever is available) no later than December 15, 2016 provided that the parties agree to a schedule for disclosure and questioning that is completed in advance of that settlement conference.
98Counsel for the parties may forward an approved draft order to my attention for signing.
Kiteley J. Date: September 19, 2016
Cited Cases and Legislation
Legislation:
- Children's Law Reform Act, R.S.O. 1990, c. C.12
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
- Federal Child Support Guidelines, SOR/97-175
Case Law: