CITATION: P.B. v C.A.O., 2016 ONSC 7729
COURT FILE NO.: FC-13-1417
DATE: 2016/12/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.B., Applicant
AND
C.A.O., Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: Self-Represented , for the Applicant
C. Meyers Counsel, for the Respondent
HEARD: November 10, 2016
ENDORSEMENT
[1] The Respondent moves for an order that she should not be required to pay child support on the grounds that to do so would cause undue hardship. She further seeks direction from the Court with respect to the type of therapy she should take that would be considered favorably in a future request for unsupervised access.
[2] The Applicant brings a cross-motion seeking an order for interim child support, retroactive child support and a series of orders relating to the Respondent’s need to follow DBT therapy as outlined in a recent assessment performed in child protection proceedings involving the Respondent’s other child.
[3] These motions are before me in my capacity as Case Management Judge.
Evidentiary Background
[4] The relevant background to these proceedings has been summarized by me in my previous Endorsements dated November 3, 2015 and July 20, 2016.
[5] For the purposes of these motions, the relevant new evidence of the Respondent is as follows:
(a) since June 2016, the Respondent has been visiting with C.B.A. twice a week. The visits are either supervised by the Supervised Access Centre or by a private access supervisor at a cost of roughly $379.00 per month;
(b) the Respondent is pregnant and expects to deliver her child in January 2017. She is not in a relationship with the father of the child;
(c) the Respondent is currently working at a diner earning $1,364.22 per month. When she goes on maternity leave in January 2017, she will be receiving employment insurance along with the Child Tax Benefit;
(d) her monthly expenses are minimal and she visits the Foodbank once per month. She gets some of her meals paid for at work;
(e) she currently owes $1,560 to her Trustee in Bankruptcy;
(f) she claims to be unable to pay child support and feels it is more important for her to pay her access supervisors to maintain her relationship with C.B.A.;
(g) her DivorceMate calculations show that the Father’s Household Income Ratio is five times greater than hers;
(h) she has been unable to get access to DBT therapy, Dr. Woods states that the essentials of DBT and trauma-work would essentially be covered by her participation in the Life After Trauma Group and the Emotion Regulation Program together with some ongoing refresher sessions.
[6] From the Applicant’s perspective, the relevant new evidence is as follows:
(a) access continues to be a positive experience for C.B.A.;
(b) the fixed access schedule has reduced the conflict between the parties;
(c) the parties are communicating more effectively through Our Family Wizard;
(d) C.B.A. was assessed by a pediatric psychologist and will be diagnosed with a language delay/disorder which will require speech therapy;
(e) the Applicant is proposing to have individuals from his Community Pentecostal church supervise access to allow the Respondent to use those funds for private DBT therapy;
(f) the Applicant remains insistent that the Respondent must follow through with DBT therapy as recommended by Dr. Woods in his February 26, 2016 assessment. He is of the view that the alternate forms of counselling/therapy proposed by the Respondent are inadequate;
(g) with respect to access, the Applicant states that there has been no material change in circumstance which would allow for a change to the current access provisions;
(h) with regards to child support, the Applicant states that the Respondent should have paid child support for the months where she did not have supervision costs. He also feels that as a qualified dental assistant, the Respondent she is under-employed;
(i) the Applicant describes his ongoing financial difficulties and how he is struggling as the main breadwinner in his family.
Position of the Parties
[7] The Respondent filed a Factum which summarizes the relevant evidence and the applicable law relating to undue hardship applications. She relies on the comparison between household standards of living in support of her position that she is unable to pay child support. Any child support order would cause her undue hardship.
[8] The Respondent has also provided the updated letter from Dr. Woods together with a request that the Court provide guidance as to what the Court would expect the Respondent to do in order to allow her to have unsupervised access.
[9] The Applicant’s Factum mirrors the various orders sought in his Cross-Motion. He relies on jurisprudence relating to the imputation of income to the Respondent and the need for consideration to be given to the financial circumstances of both households when assessing an application for undue hardship.
Analysis
[10] I have given much consideration to the positions advanced by the parties. I am persuaded by the Applicant’s candid evidence that access between the Respondent and C.B.A. is positive. I am of the view that it is strongly in C.B.A.’s best interest that safe access with the Respondent be maintained and also encouraged.
[11] It is apparent that the Respondent is working hard to manage many aspects of her life. She is pregnant, working in a diner, solely responsible for J.’s care and trying to maximize her opportunities to spend time with C.B.A.. Access for the Respondent in Orleans is not easy but she seems to be making the best of it. Further, she seems to be trying to manage a civilized relationship with the Applicant while seeking some form of counselling or therapy to address her challenges although the cost of DBT therapy is clearly cost prohibitive while she pays for supervised access.
[12] These circumstances make it very difficult for the Respondent to attain a level stability in her day-to-day life. Her financial condition continues to be in flux and this will increase in January 2017 when she will have a new born child and be in receipt of employment insurance. There is no financial stability in sight and the demands of a new born child will present further demands on her both financially and emotionally.
[13] As for the Applicant, he appears to be succeeding in caring for C.B.A.’s needs while doing so without any financial contributions from the Respondent. He and his spouse are caring for four children and I accept that they also have financial challenges living on one income. He is acting appropriately in encouraging the relationship between C.B.A. and the Respondent while being very guarded due to past events.
[14] I certainly agree with the Applicant that there has been no change in circumstance which would warrant a change to the current access arrangement. I support the Applicant’s efforts to find volunteer access supervisors and given their role of supervision in a public place, I would hope that the Respondent will strongly consider it. The Applicant is being creative in trying to facilitate safe access and limit costs.
[15] When considering the appropriateness of making an order for the payment of child support and a potential finding of undue hardship, the evidentiary record leads the Court to conclude that the Applicant’s request that the Respondent pay child support continues to be premature. This is confirmed by the Applicant’s request to only deal with child support arrears at this time and delay the payment of child support until after the Respondent has followed the DBT therapy.
[16] The reality is that the necessary evidentiary foundation to assess the amount of child support that is payable, in light of the Respondent’s financial circumstances which continue to be in flux, is not present at this time. There is uncertainty as to where the Respondent’s finances and her mental health will be during the next few months to come to a conclusion that will not simply require the parties to re-attend before me to adjust the child support depending on the Respondent’s changing financial circumstances.
[17] I am influenced by Rule 2 of the Family Law Rules, O. Reg. 114/99 (the “FLR”) and the need to assess the current circumstances to arrive at a just result. The Court maintains that the priority is for C.B.A. to benefit from positive and safe access with the Respondent. This can only be done if a proper level of supervision is maintained while the Mother works to address the concerns with her mental health.
[18] Further, the Court is unable to make the various orders requested by the Father, many of which depend on how things will evolve over the next few months, in ongoing circumstances of change.
[19] The Court concludes that the status quo should remain and that a proper assessment of child support and undue hardship cannot be done at this time. The Applicant will maintain his right to renew the request on either an interim basis or later at trial. The Respondent’s obligation to provide financial support for C.B.A. does not change and it should be assessed at the appropriate time on a more solid evidentiary basis.
[20] The Court has also considered the direction sought of the Court with respect to the type of counselling/therapy that would be considered favorably.
[21] The Court notes that a recommendation for the Respondent to follow DBT therapy was made in the assessment prepared for the child protection proceedings of the Respondent’s other child. That assessment was dated February 26, 2016. It was not presented as a pre-condition to unsupervised access and it does not mean that this is the only form of therapy which would allow the Court to conclude that unsupervised access is appropriate. The matter will have to be considered on the totality of the evidence presented which may include opinions from professionals and possibly non-professionals on the progress made by the Respondent and the extent to unsupervised access can be considered safe and in C.B.A.’s best interests.
[22] Beyond those comments, I am of the view that it would be inappropriate for me to anticipate how I would assess the issue. As case management judge, I may well have to adjudicate on this matter and I am unable to determine at this point what type of evidence would be required to conclude that unsupervised access is appropriate.
[23] Finally, the Applicant is seeking the disclosure of certain records about the Respondent’s involvement with the Children’s Aid Society. I am of the view that it would be premature to seek the disclosure of the Respondent’s CAS records as supervised access is not being contemplated at the present time. When a request for unsupervised access is made, there is merit to the idea that it should be done in complete openness for the Applicant to properly assess the safety issues however the adjudication of this issue will have to be made at that time based on all the available information. The Applicant may renew his request for CAS disclosure when unsupervised access becomes an issue.
Costs
[24] In my ongoing capacity as Case Management Judge, I am of the view that both parties benefitted from these motion and I therefore exercise my discretion to order that both parties shall be responsible for their own costs of these motions.
Justice Marc R. Labrosse
Date: December 8, 2016
CITATION: P.B. v C.A.O., 2016 ONSC 7729
COURT FILE NO.: FC-13-1417
DATE: 2016/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: P.B., Applicant
AND
C.A.O., Respondent
BEFORE: Justice Marc R. Labrosse
COUNSEL: Self-Represented , for the Applicant
C. Meyers Counsel, for the Respondent
HEARD: November 10, 2016
ENDORSEMENT
Justice Marc R. Labrosse
Released: December 8, 2016