Machias v. Boston, 2016 ONSC 6875

CITATION: Machias v. Boston, 2016 ONSC 6875

COURT FILE NO.: FS-08-342306

DATE: 20161104

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

VICKY MACHIAS

Ms Machias, self-represented

Applicant

and -

JASON BOSTON

Mr Boston, self-represented

Respondent

DECISION

D.L. Corbett J.:

[1] The parties were in protracted legal proceedings from September 2008 to a 7 day trial concluded before Penny J. in February 2012. Judgment was released on May 17, 2012, followed by a brief addendum to the judgment on June 25, 2012. There were difficulties settling the form of the trial judgment, which was issued on July 12, 2013. There have been problems between the parties ever since, culminating in the motion and cross-motion before me.

Issues on this Motion

[2] In her motion, Ms Machias seeks to enforce the judgment of Penny J. and seeks additional orders to better implement the judgment in future. In particular, Ms Macchias seeks an order for payment of s.7 expenses, back to the date of judgment and into the future. She seeks an order for support arrears calculated on the basis of Mr Boston’s income from year to year since the judgment. She seeks an order to establish a procedure for settling the access schedule to avoid conflict about that issue in future.

[3] In his cross-motion, Mr Boston seeks a finding that the parties’ son, Ari, spends more than 40% of the time with him and that therefore there ought to be a s.9 offset for child support. On this basis he seeks an order for payment of support arrears of about $40,000 reflecting overpaid support since the time of the judgment. Mr Boston has concerns about the claimed s.7 expenses but acknowledges that he should be contributing something to them, both historically and into the future. He has difficulties with the process that has been used to settle access schedules, but agrees with the principle that there ought to be an access schedule. In his response to Ms Machias’ motion he also sought a variation in custody and access to provide for joint custody and to modify the access schedule to approximate a 50/50 split of time between Mr Boston and Ms Machias.

[4] During oral argument it become clear that Mr Boston takes the position that he simply cannot afford the support being asked of him. Mr Boston does not have any other dependents and when pressed as to why he should not pay the same Guideline support payable by any parent in his position advised that he has a substantial debt load, primarily as a result of the very substantial legal costs he incurred in these proceedings. He advised that these legal bills had been charged to credit cards and that he now faces a credit card debt balance of around $100,000 to $120,000.

[5] Mr Boston’s motion materials were not framed on the basis that he faced undue hardship in paying his child support obligations. We discussed this issue during oral argument and I framed the problem for Mr Boston as follows. The court decides the issues that are brought before it by the parties. The issue of undue hardship had not been raised and as a result there is not an evidentiary record before the court that would enable the court to decide that question. Further, no doubt the legal proceedings have also had a financial impact on Ms Machias, and in the absence of notice that undue hardship was part of the motion, she had not assembled the evidence she would need to respond to that issue.

[6] One possibility, is that the court decides the issues raised on this motion and that Mr Boston brings another motion, at some time in the future, to address the undue hardship issue. This is not, however, a satisfactory approach. The parties are expected to raise all aspects of the child support issues when the matter is brought to court so that the court can decide the issue and the parties are not put to further time and expense with another motion.

[7] Another possibility is to decide the motion on the basis of the materials before me. In this event the issue of undue hardship will not have been raised, and Mr Boston will likely be foreclosed from raising it again in future unless there is a material change of circumstances after the date of this decision. This could lead to some unfairness to Mr Boston – effectively being precluded from raising an issue that is important to him. However, that would be a consequence of decisions he has made in this litigation. These kinds of procedural issues are difficult because they place substantive fairness (to Mr Boston) against procedural fairness (to Ms Machias). This motion has been pending for many months, and it would be unfair to Ms Machias to have the motion repositioned at the last moment or delayed materially into the future.

[8] Some of the issues before me do not require consideration of the undue hardship issue.

[9] Although I am loath to see this matter delayed further, the amounts in issue in the short term are not particularly material, and I conclude that according Mr Boston further time to present his undue hardship issue would tend to foster a more durable resolution of all issues. Therefore I will decide now those issues that do not depend on the undue hardship issue, and I will give directions for the balance of the motion to return before me to address Mr Boston’s undue hardship argument on the merits.

Issue #1 – Variation in Custody and Access

[10] This issue is raised in Mr Boston’s response to Ms Machias’ motion to change. However it is not really addressed in the evidence, largely, I think, because Mr Boston has emphasized his analysis of the s.9 issue: the time spent by Ari with each parent under the current access schedule.

[11] As I explained during oral argument, Penny J. has decided the custody and access issues on a final basis. That order stands and will not be changed unless one of the parties can show a material change in circumstances. In the evidence before me there is no such material change, and not a shred of evidence to suggest that the situation is any different today than it was at the time of trial. The high conflict nature of this litigation is, rather, emphasized in the motion materials, where the parties seem to have disagreements over matters that are really immaterial. The conclusion I reach is that the parties are not easily able to resolve conflicts between them – whether those conflicts are large or small. I want to be clear that I do not lay blame on one side or the other for this situation – I do not know nearly enough to make such a determination. What I do find, however, is that in respect to custody, there has been no material change of circumstances demonstrated in the evidence before me, and the record reflects a need for an order for sole custody.

[12] In respect to access, Penny J. provided a schedule for access that accords Ari significant time with each parent. There is no evidence before me that this schedule is not in Ari’s best interests or that anything material has changed that would affect the schedule since the time of Penny J.’s judgment. Indeed, Mr Boston’s concern with the schedule seems to be focused on achieving a state of affairs that would entitle him to a s.9 offset in child support – not a proper basis for varying an access order.

[13] Mr Boston’s request to vary the custody and access provisions in the judgment of Penny J. is dismissed.

Issue #2 – Section 9 Offset

[14] Penny J. ordered full Guideline support in the context of the current access schedule. Different computations may be used to count the time that Ari spends with each parent under this access schedule. I need not venture into that area: the issue of principle has already been decided by Penny J.: on the basis of the current access schedule, Penny J. ordered full Guideline support, and it is on that basis that support shall be paid in future unless and until there is a variation made because of a material change in circumstances. The access schedule has not changed materially since the judgment of Penny J. and so there is no basis for a change in the principles on which child support is calculated.

[15] Mr Boston should understand that this situation will not change if there are minor changes in access – whether those minor changes put Ari’s time with his father slightly above 40% at some time. I emphasize this point because it seems, from the evidence, that Mr Boston has been actively encouraging Ari to spend more time with him, and that one of the prime reasons he has done this is to try to get his time with Ari above 40% so that he may reduce or eliminate his child support payments. This must stop immediately. Ari should be made to feel, by both parents, that the adult issues of financial obligations have nothing to do with his relationship with his parents.

[16] I find there is no material change of circumstances warranting a s.9 offset for child support.

Issue #3 – Settling the Access Calendar

(a) To the end of 2017

[17] Ms Machias has provided a proposed calendar through to the end of 2017. Mr Boston has no objection to the calendar up to Labour Day 2017. Order to go that access shall take place in accordance with this proposed calendar up to and including Labour Day, 2017.

[18] Mr Boston explained his difficulty with the schedule for the first “regular” weekend in September 2017. While I understand Ms Machias’ explanation for the way she has divided the weekends, it appears to me that she has some additional time with Ari during the summer vacation and that it would be more equitable if, when the “regular” schedule resumed, this year, Ari would spend the first weekend with Mr Boston. Order to go that the “regular” schedule shall resume the week after Labour Day, 2017, with a weekend on which Ari is with his father. Ms Machias shall adjust the schedule accordingly and shall provide a revised schedule to Mr Boston by November 18, 2016. If Mr Boston has any objections to the revised schedule, he shall set them out in writing to Ms Machias by November 25, 2016. Ms Machias shall set out her response to these objections, in writing, by November 30, 2016.

(b) In future

[19] Ms Machias shall prepare a draft schedule annually and shall provide this schedule to Mr Boston by May 15 each year. The proposed schedule shall run from the day after Labour Day of that year through to the end of Labour Day the following year. If Mr Boston has any objections to the schedule proposed by Ms Machias, he shall raise those objections with her, in writing, by May 31. Ms Machias shall respond to any objections by June 15. If the parties are unable to agree to proposed changes then (a) it shall be for Mr Boston to initiate litigation respecting the schedule, (i) by arranging a case conference on the issue; and (ii) subject to the discretion of the case conference judge, bringing a motion to challenge the schedule proposed by Ms Machias. Pending determination of any motion brought by Mr Boston, the schedule proposed by Ms Machias shall govern.

[20] Both parties indicated that they were not anxious to have processes in place that would see them having to return to court repeatedly. I wholeheartedly agree. However, there must be some way to have issues decided if the parties are unable to agree. Based on the history of this case, I see no reason to hope that mediation would be productive.

Issue #4 – s.7 Expenses

[21] The disagreements over s.7 expenses are numerous and generally minor. At the heart of the dispute lies Mr Boston’s feeling that he really cannot afford to pay what he is being called on to pay, and thus any additional expenses need to be restricted only to those that are absolutely necessary, and even then, should be provided on the least expensive basis possible. In this section I deal with the general principles that govern s.7 expenses and then decide these issues assuming that Mr Boston is not entitled to be relieved of his child support obligations by reason of undue hardship.

[22] I am persuaded that the order of Penny J. should be amended to reduce the potential for extended conflict over s.7 expenses in future. For example, Mr Boston argues that a swimming expense (that varies between $90 and $180 per year) should be considered part of Guideline support) and a gym membership expense of $500 per year could be reduced by Ari going to a “no frills” gym that would cost only $125 per year. The first issue has a financial impact of between $45 and $90 for Mr Boston each year. The second issue – a total annual cost to Mr Boston of $250 per year, is really worth $187.50 per year to him (the difference between the gym at which Ari is currently enrolled and the gym proposed by Mr Boston).

(a) Budget for s.7 Expenses

[23] The overall s.7 budget ($1320) is very reasonable, given the family’s income (an aggregate of between $180,000 and $200,000 per year). Ms Machias, as the parent with custody, shall be entitled to decide how to spend the s.7 money without consulting with or obtaining approval from Mr Boston, so long as she is not seeking more than $55 per month from Mr Boston for these s.7 expenses. Ms Machias shall be required to account for these s.7 expenses annually. She shall do so based on the calendar year – that is, by May 15^th^ each year she shall provide an accounting for s.7 expenses incurred in the prior calendar year. If Mr Boston’s share of the expenses for the prior calendar year is less than the amount he is required to prepay for that year, then Ms Machias shall reimburse Mr Boston for his overpayment. This reimbursement shall be provided at the same time as the statement of s.7 expenses provided for the prior calendar year.

[24] If Mr Boston disagrees with the accounting for s.7 expenses, he shall set out his objections in writing by May 30. Ms Machias shall respond to these objections by June 15. If the parties are still unable to agree then it will be for Mr Boston to initiate litigation respecting these expenses, (i) by arranging a case conference on the issue; and (ii) subject to the discretion of the case conference judge, bringing a motion to s.7 expenses for the prior year. Pending determination of any motion brought by Mr Boston, the s.7 expenses claimed by Ms Machias shall govern.

(b) Current Budget for s.7 Expenses

[25] Ms Machias requests a monthly contribution of $55 from Mr Boston. Mr Boston proposes a monthly budget of $42. I consider the overall s.7 expenses to be reasonable and order that Mr Boston pay $55 per month towards s.7 expenses, subject to one caveat. This amount shall be paid monthly as child support and shall be collected by the Family responsibility Office.

[26] This finding presumes that Mr Boston’s child support obligations should not be reduced by reason of undue hardship. It is subject to revision after I have considered Mr Boston’s argument on undue hardship, in accordance with the directions for this issue set out below.

(c) Increasing the Budget for s.7 Expenses

[27] Ms Machias may seek to increase the budget for s.7 expenses in three ways:

(a) A “cost of living increase” to cover incremental increase of s.7 expenses;

(b) A change to the expenses being incurred;

[28] If Ms Machias seeks to increase s.7 expenses for any reason, she shall give Mr Boston as much written notice of her request as she reasonably can, given all the circumstances.

[29] For a planned expense (whether a “cost of living” increase or any other planned expense), Ms Machias’ proposal shall include the amount of the requested increase, the effective date of the proposed increase, the reason(s) for the proposed increase, and sufficient information to enable Mr Boston to assess the request. Mr Boston shall respond to Ms Machias’ request in writing within twenty-one days of Ms Machias’ request. Ms Machias may reply in writing within fourteen days of Mr Boston’s response. If the parties cannot agree on the proposed increase then it will be for Ms Machias to initiate litigation respecting these expenses, (i) by arranging a case conference on the issue; and (ii) subject to the discretion of the case conference judge, bringing a motion to increase annual s.7 expenses. Pending determination of any motion brought by Ms Machias, the s.7 expenses shall continue to be paid at the current rate, without increase.

[30] If Ms Machias seeks contribution from Mr Boston of an unexpected s.7 expense then she shall advise Mr Boston in writing as soon as she reasonably can of her request. Mr Boston shall respond in writing to this request within seven days. If the parties cannot agree then Ms Machias may arrange an emergency case conference on this issue, to obtain directions from the court as to how to proceed.

Issue #5 – Arrears of Guideline and s.7 Expenses

[31] Child support is payable by Mr Boston each year based on his line 150 income from his previous year’s tax return. That is the principle that applies generally to all persons liable to pay Guideline child support.

[32] Mr Boston notes that he and Ms Machias earn roughly the same income, and also notes that she may now earn somewhat more than he does. As I advised him during oral argument, Ms Machias’ income is not relevant to his Guideline child support obligations under the order of Penny J. After the payment of child support, Ms Machias will have more net income in her household than he has in his for the simple reason that she bears the financial brunt of Avi’s expenses. The child support Guidelines recognize this principle.

[33] I am satisfied that Ms Machias has calculated support arrears correctly in her materials. Only two issues remain for decision. First, I must decide the question of whether Mr Boston should be relieved of some of his child support obligations because of undue hardship, and second I must decide what terms ought to be imposed for payment of arrears of Guideline support and s.7 arrears. I will do this after I have considered the evidence and heard the arguments concerning undue hardship.

Issue #6 – Undue Hardship and Payment Terms

[34] Mr Boston shall serve and file any evidence on which he relies on the issue of undue hardship by November 25, 2016. Ms Machias shall serve and file any responding materials on this issue by December 12, 2016. The parties shall serve and file factums on this issue by December 16, 2016. The parties shall argue the issue of undue hardship and payment terms before me at 9 am, December 22, 2016. They shall each have no more than 25 minutes to present their arguments.

Draft Order and Costs

[35] Ms Machias shall prepare a draft order reflecting this decision and provide it to Mr Boston by November 25, 2016. Mr Boston shall provide any comments on the draft order to Ms Machias by December 12, 2016. Ms Machias may reply to Mr Boston’s comments by December 16, 2016. If the parties have not agreed on the form of the order then they shall address this issue with me on December 22, 2016.

[36] Costs are reserved to me after decision on the issue of undue hardship. If either party seeks costs s/he should provide a draft bill of costs to the other side and bring it to the hearing on December 22, 2016.

D.L. Corbett J.

Released: November 4, 2016