COURT FILE NO.: 93-2015
DATE: 2016/01/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christian Périard
AND
Josée Turpin
BEFORE: The Honourable Justice M.Z. Charbonneau
COUNSEL: Marc Gauthier for the Applicant
Josée Turpin, self-represented
HEARD: January 8th, 2016
ENDORSEMENT
[1] The applicant, Christian Périard, initiated a motion to change the final order of Justice Warkentin dated September 26, 2012. He claimed a change to the custody and access regime of the child Alexia Turpin-Périard born April 25, 2006. More specifically the applicant seeks joint custody and accrued access.
[2] The respondent was served with the motion on May 15, 2015. On June 12, 2015 she served an answer and a counter-motion seeking additional child support and various other reliefs. At that time the respondent was represented by counsel Stéphane A. MonPremier. The orders claimed by the respondent are as follows:
Order Sought by Respondent Mother
- The Mother seeks the following Order from this Honourable Court:
a) The Applicant father’s motion to vary shall be dismissed with costs, as a result of:
i) his failure to obey an Order (subsection 1 (8)b)c) of the Family Law Rules): and,
ii) his failure to meet the material change in circumstances threshold set out in section 29 of the Children Law Reform Act.
b) The Applicant father shall refrain from using profanity, or vulgar language when speaking with, or communicating with the Respondent mother. He shall refrain from speaking to the Mother, or about the Mother in a demeaning, or denigrating manner. The Father’s communications with the Mother shall remain polite and respectful, at all times;
c) The Respondent mother shall be able to obtain all and any government (municipal, provincial or federal) issued documents, including but not limited to the child’s passport, health card, social insurance card, without the Applicant father’s consent, or signature. She shall, however, inform him of her intent to obtain such documents;
d) The Respondent mother shall be able to travel with the Alexia without the Applicant father’s written consent, or authorization. She shall, however provide the Applicant father with her travel dates, and address where the child will be staying and a contact number where the child may be reached. In addition, the Respondent mother shall offer make up visits to the Applicant father in the event that her travel plans interfere with his access schedule;
e) The Applicant father shall pay child support arrears in the amount of $13,113 (as of June 30th, 2015) plus interest, within the next thirty (30 days);
f) Commencing July 1st, 2015, the Applicant shall pay ongoing child support in the amount of $782 per month in accordance with his 2014 income of $87,680.00 and the Child Support Guidelines;
g) The Applicant father shall provide his income tax return, and his notice of assessment by June 1st of each year. Failure to do so will result in costs against the Father, on a complete recovery basis;
h) The Applicant father’s child support obligation shall be re-adjusted yearly, retroactive to January 1st, based on the income set out in his previous year’s notice of assessment;
i) The Applicant father shall pay his pro-rata share of the child’s section 7 expenses, including but not limited to, daycare expenses, gymnastics, extra-curricular sports, extra-curricular activities, dental, prescription drugs, eye wear, eye exams, and post-secondary expenses. Any expense in excess of $100 shall be discussed between the parties, prior to being incurred. Extracurricular sports, or activities, shall be limited to one (1) per season, or a total of four (4) per year. The Father’s total share of the child’s extra-curricular activities shall be limited to $1,500 per year. The Applicant father’s pro-rata share of the said expenses shall be paid within ten| (10) days from being provide with a reasonable proof of payment. Such proof includes, without being limited to, confirmation of payment received from the Respondent mother, or from the service provider. Such proof may be in e-mail form;
j) The Applicant father shall pay solicitor client costs; &,
k) Such further order as this Honourable Court may deem just.
[3] A case conference was held on August 27, 2015. At the conference counsel indicated to the Judge that settlement possibilities were good. The matter was adjourned to September 17, 2015 to allow further negotiations and for counsel to then return and advise the court. If the matter had not settled it was agreed that a date for a settlement conference would be set. No one appeared on September 17, 2015 and the matter was left to be further addressed at a date to be fixed by the parties.
[4] On November 28, 2015 the respondent served a notice that she would be now representing herself. On that date she also served a notice of motion returnable January 8th, 2016. In that motion she claimed child support arrears and their immediate payment, immediate adjustment of ongoing child support to $782.00 per month and arrears of extraordinary expenses. She also claimed supervised access and a restraining order. Various other reliefs were also sought including disclosure of documents, and leave to travel outside of Canada with the child.
[5] When this motion came for hearing on January 8th, 2016, I was not aware of the details of the previous steps in the proceedings until Mr. Gauthier indicated that this had originally been instituted by his client by way of motion to change the custody regime which had yet to be heard. He further indicated his client was not disputing some of the financial relief claimed by the respondent. Namely the Applicant admits that the child support should be varied retroactively to September 1st 2012 to take into account his actual salary in 2012, 2013, 2014 and 2015 which have been respectively $48,385.00, $76,626.00, $87,680.00 and $71,000.00. Based on that income he admits arrears of $14,256.00 which is only slightly less than the respondent’s claim. The difference on the amount of annual salary for 2015 will be easily documented at the next conference. The applicant however maintains that it is in the best interest of the child that he be able to have generous access to her. Some of the evidence he puts forward raises real concerns as to whether it is in the best interest of the child to continue the custody and access regime provided by the existing order. It is also unlikely that this issue can be adjudicated by way of a simple motion to change on a paper record. The motion judge when he or she hears the main motion to change, may very well decide to order a trial on the issues of custody and access.
[6] It is imperative that a settlement conference be held before the main motion to change can be effectively heard and decided.
[7] As a result there will be a temporary order fixing the child support at $782 per month effective January 1st, 2016. The applicant will also have to start paying $300.00 per month on account of the arrears, also as of January 1, 2016. This is a temporary without prejudice order. Mr. Gauthier will prepare the draft order in accordance with these reasons.
[8] In view of the position taken by the applicant all child support, extraordinary expenses and arrears issues are more than likely to be resolved with a final order at the settlement conference. The parties will both communicate with the trial coordinator and fix a settlement conference at the earliest available date and in any event no later than 6 weeks from now.
[9] In all the circumstances there will be no costs of this motion.
Charbonneau, M.Z.
Date: January 28, 2016
COURT FILE NO.: 93-2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Christian Périard
AND
Josée Turpin
BEFORE: The Honourable Justice M.Z. Charbonneau
COUNSEL: Marc Gauthier for the Applicant
Josée Turpin, self-represented
ENDORSEMENT
Charbonneau, J.
Released: January 28, 2016