COURT FILE NO.: FS-13-13310 DATE: 2017/03/28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Temitope Johnson Applicant
Ruza Ljumovic, for the Applicant
- and -
Olusegun Johnson Respondent
Self-represented
HEARD: February 21 and 22, 2017 at Windsor
REASONS FOR JUDGMENT
RADY J.
Introduction
[1] The parties were married in Nigeria on May 18, 2005. They came to Ontario as landed immigrants in August 2006. They became Canadian citizens in 2010. They have three children aged nine, eight and seven. They separated on July 16, 2012. These family law proceedings followed.
The Claim
[2] Ms. Johnson has requested for sole custody of the children with specified access to their father; table child support including a retroactive adjustment; payment of the resulting arrears; and equalization of net family property. Ms. Johnson also wishes to obtain passports for the children so they can travel.
[3] Mr. Johnson wants joint custody with liberal access. He is willing to pay child support but would like to pay less than table support because of hardship. He is willing to make a contribution to arrears but cannot afford much. He is prepared to make the equalization payment sought. He opposes any order regarding the children’s passports because he is afraid Ms. Johnson will take their children to Nigeria.
The Evidence
[4] Ms. Johnson is completing her training in nursing at St. Clair College and will be seeking employment later this spring.
[5] Ms. Johnson testified that she has always been primary caregiver for the children. She wants their father to have a close relationship with them with generous time together. However, she does not believe that joint custody is workable given their inability to effectively communicate and cooperate. His access has been irregular to date and when it does happen, it is often last minute and without notice. Consequently, it has also been very disruptive to the children’s schedule.
[6] She denies attempting to kidnap the children she denies that she wrote the note, marked as Exhibit 1, suggesting she was taking the children to Nigeria. She could offer no explanation for the airline luggage tag bearing one of the children’s names. In fairness, the tag is undated and bears no indication of destination.
[7] She testified that Mr. Johnson has not paid table child support for several years. He has paid less than his obligation under the Guidelines and has accumulated arrears.
[8] She seeks a modest amount to equalize family property. She denied taking their household possessions when she left the matrimonial home. She testified that she went to Hiatus House, a local women’s shelter, because of domestic abuse. She now lives with the children in her own rental accommodation.
[9] Mr. Johnson is an engineer, having completed his education at St. Clair College. He works at U.S. Steel Canada as a power engineer in Nanticoke, which is approximately 275 kilometers from Windsor. He works shifts and has time off mid-week and on alternating weekends. He shares rental accommodation in Simcoe and maintains a home in Windsor for the times he is with the children.
[10] He testified that he has always been involved in the children’s lives and believes that an order for joint custody is important to recognize his contribution to their upbringing and wellbeing. He believes Ms. Johnson thwarts his access and makes it difficult to arrange on a regular basis.
[11] As noted, Mr. Johnson would like to pay less than table child support because of the hardship created by the fact that he works a considerable distance away from his children. He says he is required to maintain two residences and incur significant transportation costs as a result.
[12] He believes that he should receive credit for the fact that Ms. Johnson took their joint possessions when she left the matrimonial home. He says he also buys items for the children, which ought to be taken into account. As noted, he recognizes that some arrears are owing but cannot afford what is sought. He submits that the arrears should be less than that calculated by the applicant because his support obligation should be calculated at the lesser rate by reason of hardship. He is also prepared to pay the equalization requested.
The Law
[13] The parties did not provide me with any case authority in support of their respective positions. It is helpful, however, to set out the following well settled principles.
Joint Custody
[14] The seminal case on this topic is Kaplanis v. Kaplanis (2005), 194 O.A.C. 106 (Ont. C.A.). At para. 11 the court states:
The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary. [Emphasis added.]
Undue Hardship
[15] The court may deviate from the table guidelines when there is a proven claim of undue hardship. This is governed by s. 10 of the Federal Child Support Guidelines, SOR/97-175, which states:
10 (1) Undue Hardship On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
10(2) Circumstances that may cause undue hardship (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (b) the spouse has unusually high expenses in relation to exercising access to a child; (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
10(3) Standards of living must be considered Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
10(4) Standards of living test In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
10(5) Reasonable time Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
10(6) Reasons Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
[16] Essentially, in order for the court to make a finding of undue hardship, Mr. Johnson must establish that he falls under one of the requisite categories under s. 10(2). He must demonstrate that such a finding would not result in him having a higher standard of living than the children’s other household pursuant to s. 10(3).
[17] In Swift v. Swift (1998), 77 A.C.W.S. (3d) 366 (Ont. Gen. Div.), at para. 5, the court confirmed that “undue hardship is a tough threshold to meet. Payment of child support is often seen as a financial hardship by the payor and the new family. It generally consumes a large portion of much needed cash or discretionary income. The payment of the guideline amount will rarely be a hardship that is undue in the legal sense.”
[18] More recently, the Supreme Court of Canada in S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 129 stated that “it will generally be easier to show that a retroactive award causes undue hardship than to show that a prospective one does. Further, the categories of undue hardship listed in the Guidelines are not closed: see s. 10(2)”.
Arrears
[19] The leading case is S. (D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. The court determined that a claim for arrears of child support cannot extend further than three years. At paras. 123-125 the court stated:
…it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.
Analysis & Disposition
Custody
[20] While I recognize and commend Mr. Johnson’s desire to be a part of his children’s lives and to be involved in decision making affecting them, it is quite clear to me that he and Ms. Johnson do not cooperate sufficiently and communicate effectively such that joint custody would be workable. Indeed, it would likely complicate and delay the ability to make decisions that affect the children’s daily lives, subject to what is ordered below. The children have lived with Ms. Johnson for all of their lives and I am satisfied she has always been their primary caregiver. Mr. Johnson has been absent for periods of time weekly given the reality of his employment schedule. As a result, a custody order in favour of Ms. Johnson is necessary.
[21] Mr. Johnson is to have liberal access – if his work schedule permits, on alternating weekends from Friday after school until Sunday at 7 p.m.; or from Thursday after school if Friday is a school PD day; or 7 p.m. on Monday if it is a holiday or a school PD day. I am not persuaded that mid-week access is workable because Mr. Johnson’s days off during the week vary. In addition, the distance he must travel makes mid-week access difficult, if not impossible. In my view, a steady and predictable routine is in the children’s best interests. It will bring stability and certainty to the children and to their parents.
[22] In the event that his work schedule does not permit the foregoing, he shall have access from Saturday at 9 a.m. until Sunday at 7 p.m. (or Monday at 7 p.m. if it is a holiday).
[23] I see no reason why Mr. Johnson should be obliged to give notice that he intends to have access, if the schedule is set out and observed as I have ordered. Rather, he shall give Ms. Johnson 48 hours’ notice if he does not intend to exercise access.
[24] In addition, he shall have access as follows:
(i) irrespective of the regular access schedule: (a) on Thanksgiving Day from 10 a.m. to 6p.m. the children always shall be with the respondent in odd-numbered years, and with the applicant in even-numbered years; (b) the children shall always be with the applicant on Mother’s Day from 10 a.m. to 6 p.m., and with the respondent on Father’s Day from 10 a.m. to 6 p.m.; (c) for the Easter weekend starting 2017, the children shall be with the applicant for the Friday and Saturday and with the respondent on Sunday and Monday, in odd-numbered years; and with the reverse in even-numbered years; (d) for March break, the children will be with the applicant in even-numbered years and the respondent in odd-numbered years;
(ii) for Christmas, irrespective of the regular schedule: (a) effective 2017, during the period of 4 p.m. December 23 to 6 p.m. December 27, the children shall be with the applicant from 4 p.m. December 23 to 2 p.m. December 25, and with the respondent for the balance of that period; in even-numbered years, starting in 2018, the above Christmas schedule shall be reversed; (b) regular access shall be suspended during the school Christmas break, and the children shall spend equal time with the applicant and respondent, as agreed, subject to the provisions of subparagraph (a);
(iii) the respondent shall have vacation with the children for four weeks during the children’s school summer vacation; (a) the respondent shall advise the applicant in writing no later than May 1st of each year as to his choice of vacation weeks; (b) if there is a conflict, then the respondent’s vacation schedule has priority in even-numbered years, and the applicant’s vacation schedule has priority in odd-numbered years.
(iv) the children’s principal place of residence shall not be changed from Windsor, Ontario, except as agreed in writing by the parties, or pursuant to a court order.
(v) both parties have the right to attend any extracurricular or school related event in which the children are involved.
(vi) the applicant shall advise the respondent prior to making any major decisions affecting the child’s health, education or welfare; if the parties are unable to agree, after reasonable consultation and discussion, then the applicant may make the final decision.
(vii) the respondent shall have reasonable telephone access to the children including Skype, and electronic communication with the children as appropriate for the children’s age.
[25] While I believe that Ms. Johnson may have contemplated taking the children to Nigeria at one time (where the parties have family), I am not persuaded she intended to then or will in future take them there permanently. Ms. Johnson has roots here and she has good employment prospects. Accordingly, I see no reason why she should not be able to obtain passports for the children.
Support
[26] There is an insufficient evidentiary basis to depart from table support. Whether Ms. Johnson took household contents (or not) is immaterial. It is always important to remember that child support belongs to the children. The Court’s discretion respecting quantum is limited.
[27] I recognize that Mr. Johnson must travel a long way to see his children and he maintains two residences. However, he did so when the family was intact. In other words, the arrangement was not made necessary by changed family circumstances arising from the separation.
[28] One must question as well whether it is necessary to maintain the home in Windsor and whether some more economical accommodation could be secured to lessen the financial burden.
[29] In any event, Mr. Johnson has not satisfied me on a balance of probabilities that he should be ordered to pay less than table support on the basis of hardship. Accordingly, he shall pay $1,477.00 per month for the three children based on income of $76,882.88 per year (as set out in Exhibit 3).
[30] In addition to the foregoing, Mr. Johnson will maintain the children and Ms. Johnson (for so long as she is eligible under the terms of the policy) on the extended health benefits available through his employment.
[31] He will name his three children as beneficiaries of any life insurance policy he has so long as he is obliged to pay child support.
[32] For as long as child support is payable by him, Mr. Johnson shall provide updated income disclosure to Ms. Johnson within 30 days of the anniversary of this order.
Arrears
[33] Arrears have accumulated while Mr. Johnson has paid less than table support. Ms. Johnson calculates the arrears to be $50,877.61 as of February 1, 2017. The application was commenced on May 31, 2013. Ms. Johnson sought retroactive support to July 31, 2012.
[34] I am satisfied that an order for the payment of arrears in that range would create a significant hardship for Ms. Johnson.
[35] Accordingly, arrears are fixed at $30,000.00 to be paid at the rate of $500.00 monthly until they are retired.
Equalization
[36] Mr. Johnson shall pay Ms. Johnson the sum of $10,553.89 as equalization of net family property, as he has agreed.
Spousal Support
[37] None is claimed and none is ordered.
Costs
[38] If the parties wish, I will receive brief written submissions on costs (no more than three pages) within 30 days.
“Justice H. A. Rady”
Justice H.A. Rady