Court File and Parties

COURT FILE NO.: FS-17-21548 DATE: 20180802 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Alsia WEIR, Applicant AND: Ryan Felix (a.k.a. Matthew Ryan Felix), Respondent

BEFORE: C. Horkins J.

COUNSEL: Shelley Quinn and Emily Kostandoff, for the Applicant Fernando Pietramala, for the Respondent

HEARD at Toronto: July 19, 2018

Endorsement

Background

[1] The parties’ motions were heard on July 19, 2018. This endorsement deals with both motions.

[2] The parties are not married. Since 2003, they have lived together with periods of separation. The date of separation is disputed. The applicant Alsia Weir (the “mother”) states that they separated in December 2016 and continued to live in the same home until the respondent, Ryan Felix, (the “father”) was evicted from the home on November 22, 2017.

[3] The parties have two children: Reanne 13 years old and Renard 4 years old.

[4] In 2009, the father returned to Grenada and the mother was unable to reach him for about 3 years. During his absence, the mother obtained an order giving her sole custody of Reanne.

[5] The father returned to Canada in 2011 and in 2012, the parties resumed cohabitation.

[6] In 2012, the mother bought a home that is registered in her name only. The parties lived in the home until separation. There is a dispute about what interest, if any, the father has in the home. He claims that he has made various contributions to the cost and upkeep of the home and therefore has a trust claim. The mother disputes this claim.

[7] When the mother was pregnant with their second child, the father left the home for about 4 months. The mother did not know where he was. The father returned before Renard was born on April 28, 2014.

[8] In October 2016, the mother learned that the father was bringing his three adult children from Grenada to Canada to live. These are children from another relationship. The mother agreed to allow the father and his family to live in the basement of her home because of the tight timeline of their expected arrival. The father and his three adult children lived in the basement of the home until they were evicted on November 22, 2017.

[9] The mother commenced this application on May 9, 2017. In a final order dated June 28, 2017, Moore J. noted the father in default and directed that the application proceed to an uncontested trial.

[10] The uncontested trial proceeded and on September 27, 2017, Faieta J. issued a final order. That order gave the mother sole custody of Renard with “reasonable access with reasonable notice” to the father. Income of $34,944 was imputed to the father and he was ordered to pay child support of $507 a month to be enforced by the Family Responsibility Office (“FRO”). Lastly, the court found that the home was not a matrimonial home and that the father had no legal entitlement to the home “in law or equity”.

[11] On October 20, 2017, Faieta J. issued a second final order issuing a writ of possession in favour of the mother and ordering the father to vacate the home by October 31, 2018.

[12] When the father learned about the three final orders, he brought a motion to set the orders aside. On February 9, 2018, Kristjanson J. granted this relief and all three final orders were set aside. The September 27, 2017 order required the father to pay child support. Since the entire order was set aside, this left the mother without a child support order.

[13] The Kristjanson order has not been issued and entered. Eventually, the father sent a copy of the reasons to FRO and upon receipt, FRO stopped deducting child support from the father.

[14] Even though the October 20, 2017 order has been set aside, the father does not dispute the mother’s possession of the home. He does, however, continue to assert his trust interest in this property.

The Motions

[15] The parties seek the following relief, some of which is on consent:

The Mother’s Motion

• An interim order for child support for two children retroactive to May 9, 2017 (date the application was issued), to be based on the father’s 2017 income of $75,982.41 ($1,153/month).
• An interim order that the father contribute his proportionate share (45.2%) to the daycare expense for the second child.
• An order directing the father to remove his belongings from the home failing which they will be considered abandoned

The Father’s Motion

• An order dismissing the application because the mother has not paid the costs that Kristjanson J. ordered. Alternatively, or in addition, a costs order against the mother for failure to pay the costs.
• An order appointing the Office of the Children’s lawyer to assist with access between the father and the eldest child. During the hearing of the motions this item was settled. The parties agreed to an order requesting the OCL to provide a Voice of the Child Report. The order was signed at the hearing.
• An order for increased access for the second child. This item was settled during the hearing of the motion and is reflected in the orders made below.
• The father withdrew his motion seeking an order that he not pay child support for the oldest child.
• An order under s. 10 of the Child Support Guidelines (Ontario) that the father pay an amount for child support that is less than the Guideline amount, because he otherwise would suffer undue hardship. Further, the father requests that child support be based on his expected 2018 income $64,000, not his 2017 income of $75,982.41 and should commence after he was evicted from the home on November 22, 2017.
• An order fixing what the father has paid to date for child support and fixing his child support arrears.
• The request in para. 15 of the father’s notice of motion for disclosure is withdrawn.
• An order that the mother shall deliver the original 2016 Official Receipt for Childcare Expenses to the father for his use in filing his 2017 income tax return. This relief is granted on consent.

[16] The father’s first request is that the mother’s application be dismissed because she has not paid the costs that Kristjanson J. ordered. Alternatively, or in addition, he asks that a costs order be made against the mother for failure to pay the costs. This relief is refused as explained below.

Child Support / Daycare Expenses

[17] Determining what order should be made for child support and daycare expenses requires the court to consider the following issues:

(i) Has the father proven on a balance of probabilities that he would suffer an undue hardship if ordered to pay child support according to the Guidelines? (ii) What is the father’s income for the purpose of deciding child support and his proportionate contribution to daycare expense? (iii) Should retroactive child support be ordered and, if yes, what is the effective date?

Undue Hardship Claim / Father’s Income

[18] When Faieta J. issued the final order, the mother did not have the father’s income information. As a result, an income was imputed at $34,944 and the father was ordered to pay Guideline child support of $507 a month for two children. In fact, the father’s 2017 income was more than double the imputed amount.

[19] The father has now produced his 2017 T4 and this confirms that his 2017 income was $75,982.41. He has not filed a 2017 income tax return. In his affidavit, he states that he earned $78,046.42 in 2016.

[20] Guideline child support for two children using an income of $75,982.41 is $1,153 a month.

[21] The mother’s 2017 income was $92,057. Using the parties’ 2017 income, the proportionate sharing of the daycare expense is 54.8% for mother and 45.2% for father.

[22] The father states that child support should be set at an amount that is less than the Guideline amount because he would otherwise suffer undue hardship. He does not provide an amount.

[23] Section 10 of the Ontario Child Support Guidelines, O. Reg. 391/97 deals with undue hardship claims and sets out a two-step test. The burden rests on the party seeking the relief to satisfy the test.

[24] Section 10(1) states that on the application of a party, the “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 parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.”

[25] Section 10(2) lists “circumstances that may cause a parent, spouse or child to suffer undue hardship”. The list includes the following:

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (c) the parent or 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; (e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education; (f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

[26] If the father proves that a condition exists that may cause him to suffer undue hardship, this alone does not entitle him to relief. The court must then consider part two of the test, set out in s.10 (3). Part two requires the father to show that his standard of living is lower than the mother’s. The standard of living test in s. 10(4) is applied.

[27] Proving undue hardship involves meeting a high standard. The hardship must be exceptional, excessive and disproportionate. (See Morrone v. Morrone, [2007] O.J. No. 5341; Balmeo v. Balmeo, 2014 ONSC 3173).

[28] The father has not met the first part of the test and therefore it is not necessary to consider the second part of the test. The undue hardship claim is rejected and my reasons follow.

[29] The father states that an order requiring him to pay Guideline child support will cause undue hardship because he has three adult children and he is responsible for their “welfare in Canada”. The only evidence about this responsibility is in the father’s affidavit.

[30] According to his affidavit, the father sponsored his adult children and they “immigrated to Canada” from Grenada in November 2016. As their sponsor, he states that he is “responsible for their welfare”. They arrived in Canada as permanent residents. They are allowed to work, but according to the father they cannot apply for welfare or public assistance. His son Romel is 27 years old. His daughter Reea is 23 years old and daughter Reeba is 22 years old.

[31] The father states that the adult children “depended and continue to depend financially” on him. This is a bald statement without proof. The adult children are all capable of working. The father did not produce any evidence to suggest otherwise. While he argues that he is legally responsible for them as their sponsor, he did not produce a copy of the sponsorship agreement or any other documentation to show that this obligation exists and the duration and nature of his obligation.

[32] According to the father, the adult children arrived in Canada in November 2016. They have had ample time to find employment and assume responsibility for their own financial needs. It is not known if the adult children worked in Granada and whether they brought any money with them to Canada.

[33] Romel “recently secured a temporary job” with temporary hours as a construction worker. His hours and salary are not revealed. If this was his first job, there is no evidence to explain why he could not have worked sooner.

[34] The father states that his daughters attend school full time at a local community college. One is studying massage therapy and the other social work. Aside from the fact they are in school, nothing further is known. While the decision to attend school will likely benefit the daughters, this was a decision that the father now seeks to rely on, to the detriment of the younger children in question.

[35] During submissions, father’s counsel advised the court that the daughters had obtained student loans. The amount is unknown. It is not known when the daughters started College or how long the programs will last. The father’s affidavit does not address the daughters’ ability to work in any way. Many students work while attending school. Others work until they can afford to attend school.

[36] In his May 16, 2018 financial statement, the father records that he pays $400 a month to provide Romel with temporary shelter in a friend’s house, $400 a month to provide the daughters with temporary shelter in another friend’s home and $500 rent for one person (presumably himself) at a different location. In addition, the father’s financial statement records that he pays $600 a month for groceries and $680 a month for meals in restaurants that includes the adult children. There is no documentation to support any of these expenses. Further, there is no reason why the adult children cannot work and cover their own expenses, without help from their father.

[37] In summary, the father has failed to demonstrate that he would suffer undue hardship if required to pay Guideline child support.

[38] I now turn to the father’s income and his request that his expected 2018 income be used to set Guideline child support, rather than his 2017 line 150 income. In support of this request, the father produced a letter from his employer, Avenue Building Corporation. This letter states that as of June 30, 2017, the father has earned $31,339. For the same six month period in 2017 he earned $37,136. The employer states that she is “unable to confirm [the father’s] earnings for the balance of 2018”. If the balance of 2018 is the same as the first half of the year, the employer states that the father will earn approximately $64,000. Relying on this letter, that the father asks the court to use $64,000 to set child support.

[39] The father’s request is refused. Section 15 of the Child Support Guidelines states that income for the purpose of child support is determined by the court in accordance with ss. 16 to 20. In this case, s. 16 is relevant and it states “annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III”.

[40] At best, the employer’s letter is a guess as to what the father will earn in 2018. He could earn more in the fall and exceed his 2017 earnings. The years 2016 and 2017 show that his yearly income has been greater than $64,000. It is premature to suggest that his income will drop in 2018 and given his expertise as a carpenter, I question why his income would drop.

[41] In conclusion, the father owes child support of $1,153 for two children based on his 2017 income of $75,982.41.

Daycare Expenses

[42] The youngest child, Renard, attends a daycare that costs $37.50 a day. In 2017, the mother paid $9,786.52. In 2018 through to the end of July, she has paid $5,662.50. The exact amount varies slightly each month.

[43] The mother states that in May 2015, when Renard was about to start daycare, she opened a joint account with the father so they could contribute equal amounts to pay for the daycare. By March 2017, the father had stopped making his contribution. He started to use the money in the joint account for his personal expenses. By June or July 2017, the mother closed the account because the father was depleting the daycare funds for his personal use, making it difficult for the mother to pay for daycare. The father does not respond to this evidence in his affidavits, except to say generally that he was contributing to the household expenses before eviction. He does not dispute the need for daycare.

[44] In the father’s December 8, 2017 financial statement, he lists monthly daycare costs of $960 and his share at $480. This monthly amount is more than what the mother pays for daycare. The father offers no evidence to support the $960 or any evidence that he has been contributing to daycare. According to his May 16, 2018 financial statement, he is not making a contribution to the daycare expense.

[45] The father must pay his proportionate share of the daycare expense. Based on his 2017 income, his share of the expense is 45.2%.

Retroactive Child Support, Daycare and Arrears

[46] The mother seeks a child support order, retroactive to the commencement of her application on May 9, 2017. The father argues that child support should commence December 1, 2017 (following his eviction from the home). He claims that he was contributing to the household expenses before his eviction.

[47] The September 27, 2017 order of Faieta J. ordered $507 in monthly child support for the two children retroactive to May 9, 2017. The entire order was set aside and yet the father continued paying $507 a month because the order was not issued and he delayed in providing FRO with the reasons of Kristjanson J.

[48] The child support portion of the Faieta order should not have been set aside, because the father clearly had a continuing obligation to pay child support when Kristjanson J. issued her order.

[49] The father asks the court to calculate what he has paid to date for child support. FRO has been collecting child support. The court relies on their statement of payment and arrears to determine what has been paid. The arrears and what is owed are addressed below.

[50] A May 9, 2018 statement of arrears from FRO records arrears of $4,056. The mother received a payment of $1,003.02 on May 17, 2018 and has received no further payments of child support.

[51] On an interim basis, I have decided to order the father to pay child support and his share of the s. 7 daycare expense, retroactive to December 1, 2017 (following the father’s eviction from the home). Since there is a dispute about what if any expenses the father paid for the family before his eviction, this is an obvious retroactive date for the new child support order.

[52] The issue of what the father owes for child support and daycare prior to December 1, 2017 should be decided either on consent or at a trial.

[53] In order to implement the retroactive portion of my child support and daycare orders, FRO will have to provide the father with a credit for the $507/ month child support that he paid from December 1 2017 to date. No credit is to be given to the father for any child support paid prior to December 1, 2017. That credit, if any, shall be decided at trial.

[54] The total daycare expense in the eight months from December 1, 2017 to the end of July 2018 is $6,450. The father’s proportionate share is 45.2% or $2,915.40. The father has not paid any part of the daycare expense in this eight month period.

The Unpaid Cost Order

[55] Kristjanson J. ordered costs against both parties and offset what the father owed the mother against costs that she was ordered to pay. As a result, the mother was ordered to pay the father costs of $4,500, payable in 30 days. The mother has only paid $500.

[56] The father argues that the mother’s application should be dismissed or alternatively she should be penalized with a further cost order for failure to pay the full amount.

[57] The mother states that she cannot afford to pay the costs because she has not received any child support since May and the father has never paid his share of the daycare. She asks that the costs be paid by giving the father a $4,000 credit against his child support arrears. The father does not want costs to be paid in this manner. He insists that he needs the money to pay his lawyer and would suffer financial hardship if the $4,000 was applied to his arrears. In my view, if the father suffers financial hardship, it is because he has chosen to support his adult children.

[58] I appreciate the importance of a cost order and complying with such an order when it is made. That said, the court has the discretion to consider the mother’s request. As stated in Family Law Rule 2(2) “[t]he primary objective of these rules is to enable the court to deal with cases justly.”

[59] The father has been paying child support based on an imputed income of $34,994 that is far less than what he earns. The mother has not received any child support since May 2018 and the father has not paid his share of the daycare. It would be unfair to the mother and not in the best interests of the children to refuse the mother’s request.

[60] The arrears that the father owes from December 1, 2017 to the end of July 2018 will exceed the $4,000 in costs that the mother owes. Under the old child support order of $507 the father would have paid $4,144. He probably paid less in this eight month period because he stopped paying child support in May 2018. The order I am making requires the father to pay $1,153 a month. During the 8 month period child support under the new order totals $9,224. The daycare expense for the same 8 months totals $6,450. The father owes 42.5% of this expense which totals $2,915.40.

[61] I order that the $4,000 in costs shall be satisfied by giving the father a $4,000 credit against the daycare and child support arrears that he owes commencing December 1, 2017. The credit is first applied to the daycare arrears of $2,915.40 leaving a credit of $1,084.60 to be applied against Guideline child support arrears. To be clear, the $1,084.60 shall only be applied to offset arrears of Guideline child support payable from December 1, 2017 onwards.

Removal of Father’s Belongings from Home

[62] This issue was settled in part during the motion. The father has agreed to remove his car, motorcycle and moped by September 1, 2018. There is a partial agreement dealing with the father’s household contents.

[63] The mother has produced a list of household contents that she states belongs to the father. With the exception of the two piece leather couch, the father agrees with her list but states that there may be additional items belonging to him that are not on the list.

[64] I make the following orders. The father shall remove his car (2007 BMW), motorcycle and moped (“vehicles”) from the home by September 1, 2018. If the father fails to remove any of these vehicles by September 1, 2018, the mother can consider the vehicle not removed as abandoned and dispose of the vehicle(s) as she sees fit.

[65] The father shall provide the applicant with a list of the household contents that he says belongs to him. That list will include the items already agreed upon and anything else that he states belongs to him. The father shall provide this list to the mother by August 17, 2018. No later than August 31, 2018, the mother shall advise the father in writing if she agrees with his list. If there are any items on the list that she says do not belong to the father, she will inform the father in writing and list the disputed items.

[66] No later than November 1, 2018, the father shall remove all of the household contents that the parties agree belong to him.

Father’s Access

[67] On consent, at the conclusion of the motions, I issued an order requesting that the OCL prepare a Voice of the Child report addressing father’s access to Reanne and her refusal to date to see her father.

[68] The father has had access to Renard on Thursdays from 5 p.m. to 7 p.m. This is progressing well. The parties have agreed to increase access to include alternate Sundays. Commencing Sunday July 29, 2018, the father shall have access to Renard from 9 a.m. to 6 p.m. on alternate Sundays. The pickup and drop off for all access shall be at Tim Hortons at Birchmount and Danforth. The father is aware that if he is late for the pick up on Sunday morning that he may forfeit access because the mother must leave by 9 a.m. to attend church.

Conclusion

[69] In summary, I make the following orders:

1. The respondent’s motion to dismiss the applicant’s application is dismissed.
2. The respondent’s motion to reduce child support under s. 10 of the Child Support Guidelines is dismissed.
3. Effective December 1, 2017, the respondent shall pay the applicant interim child support for Reanne Alexia Felix born October 14, 2004 and Renard Jordan Felix born April 28, 2014. Guideline child support for two children shall be based on the respondent’s 2017 income of $75,982.41 which is $1,153 a month.
4. The respondent shall be given a credit for the Guideline child support that he has paid for the period commencing December 1, 2017 to the date of this order. This credit shall be calculated by the Family Responsibility Office.
5. The Court requests that the Family Responsibility Office provide the parties with a calculation of what child support the respondent paid for the months prior to December 1, 2017.
6. Commencing December 1, 2017, the respondent shall pay his proportionate share of the daycare expense for Renard. Based on his 2017 income, his share of the expense is 45.2%.
7. The daycare expense for December 1, 2017 through July 2018 totals $6,450. The father’s proportionate share is 45.2% or $2,915.40.
8. Commencing August 1, 2018 the respondent shall continue to pay his proportionate share of the daycare expense for Renard fixed at 45.2%
9. I order that the $4,000 in costs that the applicant owes the respondent shall be satisfied by giving the respondent a $4,000 credit against the daycare and child support arrears that he owes commencing December 1, 2017. The credit is first applied to the respondent’s daycare arrears of $2,915.40 leaving a credit of $1,084.60 to be applied against Guideline child support arrears. The $1,084.60 shall only be applied to offset arrears of Guideline child support payable from December 1, 2017 onwards.
10. The issue of what the respondent owes for child support and daycare prior to December 1, 2017 shall be decided either on consent or at trial.
11. When the Family Responsibility Office has applied the $4000 credit as directed, the Family Responsibility Office shall provide the parties with a calculation of arrears of child support still owed.
12. The parties shall exchange their income tax returns and Notices of Assessment by June 1 each year for the purpose of fixing Guideline child support and the proportionate sharing of the daycare expense and any other s. 7 expenses that are agreed upon or ordered by the court to be paid.
13. The applicant shall provide the respondent with the original Official Receipt for Childcare Expenses to be used when filing his 2017 income tax return.
14. The respondent shall remove his car (2007 BMW), motorcycle and moped ("vehicles") from the home by September 1, 2018. If the respondent fails to remove any of these vehicles by September 1, 2018, the applicant can consider the vehicle not removed as abandoned and dispose of the vehicle(s) as she sees fit.
15. The respondent shall provide the applicant with a list of the household contents that he says belongs to him. The list will include the items already agreed upon and anything else that the respondent states belongs to him. The respondent shall provide this list to the applicant by August 17, 2018.
16. No later than August 31, 2018, the applicant shall advise the respondent in writing if she agrees with his list. If there are any items on the list that she says do not belong to the respondent, she will inform the respondent in writing and list the disputed items.
17. The household items belonging to the respondent (as agreed upon) shall be removed from the home by the respondent no later than October 31, 2018. If the respondent does not remove the items before this deadline, the items shall be considered abandoned and the applicant is free to dispose of such items as she sees fit.
18. The respondent shall have access to Renard on Thursdays from 5 p.m. to 7 p.m. and on alternate Sundays from 9 a.m. to 6 p.m. Sunday access shall commence on Sunday, July 29, 2018. The pickup and drop off for all access shall be at Tim Hortons at Birchmount Rd and Danforth Ave.
19. If the parties cannot agree on the costs of the motions, they shall agree on a timetable, exchange brief written cost submissions according to the timetable and file the submissions with the court by September 17, 2018.
20. A Support Deduction Order is issued.

C. Horkins J. Date: August 2, 2018