Court File and Parties
Citation: Shaw v. Shaw, 2017 ONSC 7505 Kingston Court File No.: 360/17 Date: 2017-12-14 Superior Court of Justice – Ontario
Re: Phoebe Rebecca Shaw, Applicant And: Karl Richard Shaw, Respondent
Before: Madam Justice Cheryl Robertson
Counsel: Phoebe Rebecca Shaw, Self-Represented Karl Richard Shaw, Self-Represented
Heard: November 3, 2017
Endorsement
[1] The Applicant mother, Phoebe Rebecca Shaw brought an application under the Interjurisdictional Support Orders Act, 2002, seeking the establishment of an order for current child support including medical support and retroactive child support. She resides in Pennsylvania where she enjoys sole custody of the parties’ son, Cyrus, born February 18, 2011. Her application was supported by a notarized document entitled “General Testimony”. Her material was weak and sparse. She failed to provide important payment history or particulars of the separation agreement between the parents setting forth child support arrangements.
[2] The Respondent father, Karl Richard Shaw, in his Answer appended a final separation agreement dated November 29, 2012 between the parties. It outlined his obligation to pay child support of $300 per month on his then income of $53,000. The agreement noted that the amount was less than the table amount, under the Child Support Guidelines which would have been $479 per month to account for the high cost of travel for access starting on December 1, 2012.
[3] The agreement also provided for the production of a tax return and Notice of Assessment from the Canada Revenue Agency each year.
[4] Mr. Shaw made the required payments. Commencing May 1, 2015, he increased the amount to $555 per month.
[5] From June 1, 2015 until May 1, 2016, he increased the sum to $682 per month. At the time of the hearing, the Respondent was paying $731 per month based on his 2015 annual income of $79,859 for support purposes. On the basis of that income his child support obligation for one child is $723 per month. From June 1, 2016 until December 1, 2016 he paid $732 per month. He argued that he did not owe any child support arrears. The Respondent was prepared to share the s. 7 special and extraordinary expenses by paying 60% of those costs.
[6] The Applicant mother is now a teacher employed in the State of Pennsylvania and her income in Canadian dollars is about $55,000.
[7] The matter went before Justice D. Swartz by way of written hearing on August 29, 2017. Rather than dismiss the application for want of details, or even award costs, she endorsed that the Applicant mother could file further evidence to respond to the Respondent’s materials. In particular she required the mother to acknowledge or dispute the existence of the separation agreement which she had not mentioned in her material. Justice Swartz also endorsed that the parties could choose to schedule a telephone conference before a judge to attempt to resolve the matter.
[8] The matter came before me by way of that telephone conference on November 3, 2017. The resolution reached between the parties at that conference is the substance of the order today.
[9] The primary objective of the Ontario Family Rules is to enable the Court to deal with cases justly. That includes ensuring that the procedure is fair to all parties, saving expense and time and dealing with the case in ways that are appropriate to its importance and complexity and finally to give appropriate Court resources to the case while taking account of the need to give resources to other cases. Rule 2(5) requires the Court to promote this objective by active case management including helping the parties to settle all or part of the case, dealing with as many aspects of the case as possible on the same occasion and where appropriate, dealing with the case without parties and their lawyers needing to come to Court on the basis of written documents or by holding a telephone or video conference.
[10] By both parties’ account, their child Cyrus has a good life. They have been able to work out long distance parenting issues and to cooperatively increase child support although not to the satisfaction of Miss Shaw.
[11] The Child Support Guidelines are more than a price list. These parents, with the assistance from the mother’s then counsel Carolyn Sowerby, agreed that the child would reside with the Applicant mother in Pennsylvania. When the access arrangements were put in place, the child was a baby. As children get older, their needs change and so do the access arrangements most often. The father became frustrated with some travel details and in consequence, withheld some post-dated cheques although eventually paid in full.
[12] The mother was also frustrated. Since the agreement was entered into, she returned to work as a teacher on a full-time basis and essentially had the full-time obligation of balancing her work obligations and the primary parental responsibilities for Cyrus. The agreement had specifically identified that the Respondent father would pay less than the guideline tables bearing in mind the cost of travel for access. The agreement planned for s. 7 expense notification and also had a dispute resolution section.
[13] While the mother did agree to the telephone conference, it was clear that she was frustrated by having to take a day off work to participate. In my view she failed to appreciate her risk in filing inadequate material that failed to disclose the history. On the basis of her initial material, the application could have been dismissed. I do not find she did so with any malice but it did mislead the court.
[14] The Respondent father easily conceded his willingness to pay the full guideline amount and forfeit his right to a substantial reduction from the guideline tables that he had previously negotiated. Since the time of the agreement, the mother’s income had increased by $50,000. The father’s income had increased by about $30,000. Clearly, it was time for these parents to review not only their ability to share expenses but also the needs of their child. The father wanted to change the travel arrangements for the child and both parties agreed it was a source of conflict. In my view the agreement clearly envisaged the sharing of the travel burdens. The child must participate in 100% of the travel arrangements for each visit although the driving may be shared by the parties.
[15] After discussion, they reached a resolution.
[16] Sometimes, the Court finds reasonable parents who want only the best for their child. This is one of those cases. I urge them both to keep their lines of communication open and remain focused on helping Cyrus.
[17] Both parties agreed to the endorsement. Although the issue of access was not properly before the Court, both parties were prepared to resolve the outstanding issues between them by way of final order. This avoided a variation motion on access, delay or the requirement of the mother to file further and better evidence as envisaged in the order of Justice Swartz. Accordingly, on consent of the parties, an order is to be issued.
[18] This Court orders that on consent, after a conference whereby the Applicant attended by telephone and the Respondent attended in person:
The Applicant, Phoebe Rebecca Shaw, and the Respondent, Karl Richard Shaw, shall exchange their tax returns and Notice of Assessment by June 1 of each year for so long as the child is entitled to support.
The Respondent, Karl Richard Shaw, shall pay 60% of the S. 7 expenses and full table amount of child support for the child Cyrus Richard Shaw (DOB February 18, 2011). For purposes of child support, the Court finds the income of the Respondent, Karl Richard Shaw is $79,859 and the income of the Applicant is $55,000 CAN.
The Respondent, Karl Richard Shaw, shall pay to the Applicant, Phoebe Rebecca Shaw, $1,000 of arrears payable at $100 per month.
There shall be at least 12 visits per year, 8 with shared driving and 2 each with sole driving.
Since the parties reconfirmed paragraph 5.6 of their separation agreement, the Respondent father, Karl Richard Shaw, shall send 12 post dated cheques to the Applicant mother, Phoebe Rebecca Shaw, for child support for the child Cyrus Richard Shaw.
Madam Justice Cheryl Robertson
Released: December 14, 2017