Terryberry v. Terryberry

CITATION: 2017 ONSC 6596

COURT FILE NO.: 27/17

DATE: 2017-11-03

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Debra Terryberry, Applicant

AND: Curtis Terryberry, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Faye Ann Guilbeault for Applicant; Respondent in person

HEARD: November 2, 2017 at St Catharines

ENDORSEMENT

[1] This is my decision on a motion and cross-motion in a divorce proceeding.

[2] The parties separated in 2015 after 21 years of marriage. They have two sons, one aged 17 and the other aged 13. The older son lives with his mother, the Applicant. On May 25, 2016 the parties executed a memorandum of understanding after they consulted their lawyers. In the memorandum they agreed:

a. They would have joint custody of both children;

b. The younger son would live with his father, the Respondent, on Wednesdays and Thursdays and also on alternate weekend from Friday after school to Sunday evening. He would live with his mother the rest of the time.

c. The Respondent would pay child support of $675 a month based on his income of $59,786, her income of $37, 878 and taking into account “shared custody of [the younger child].

[3] On January 13, 2017 the Applicant filed for divorce, custody of the children and child support. On February 22, 2017 the Respondent filed his answer. He claims a divorce, custody of the children and child support. A case conference and a settlement conference have been held. Recently the Children’s Lawyer agreed to participate.

[4] The Respondent now moves for an order varying child support to $593 a month based on the fact that the younger son resides with him 50% of the time. I do not know just when from the materials, but at some point the Respondent unilaterally decided that the younger son would stay with him on alternate weekends until Monday morning, not Sunday evening.

[5] The Applicant takes the position that this is not an inconsequential change because the child has ADD and needs to be settled for school on Sunday nights. She is moving for an order requiring the parties to observe the terms of the memorandum of understanding until the Application is disposed of.

[6] I agree with the Applicant’s position on both points. It may have been some time since the child’s schedule was changed, but the Respondent had no business establishing a new status quo unilaterally. There was no pressing need for the change. The best the Respondent can come up with is, “The boy likes spending equal time with both parents.” That is not enough to displace a regime that was established by a negotiated settlement.

[7] There is no justification for a change in child support. The negotiated arrangement is generous to the Respondent whether child goes home to his mother on Sunday night or Monday morning.

[8] The Applicant’s motion is granted. The Respondent’s motion is dismissed. I make the following temporary order:

a. Cooper Terryberry shall reside with the Respondent on Wednesdays and Thursdays every week, and in alternate weeks from Friday after school until Sunday at 6 pm.

b. The Respondent shall continue to pay $675 a month child support for both children based on his income of $59,786 and the Applicant’s income of $37,878, determined under s.9 of the Child Support Guidelines.

c. The Respondent shall pay arrears of child support owing under the memorandum of understanding dated May 25, 2016 within 30 days.

d. The Respondent shall disclose his income tax returns and supporting receipts and T4 forms and other similar forms within 30 days.

e. The parties may make written submissions to costs within 15 days.

J.A. Ramsay J.

Date: 2017-11-03