NEWMARKET COURT FILE NO.: FC-17-053658-00 DATE: 20181030 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Sarah Sweeney, Applicant -and- Christopher John Sweeney, Respondent
BEFORE: The Honourable Madam Justice M.E. Vallee
COUNSEL: Jared Persaud, for the Applicant Valerie Brown, for the Respondent
HEARD: October 24, 2018
Endorsement
Background
[1] The parties began cohabiting in December, 2002. They were married in April, 2005 and separated in September, 2016. They have one child, Quinn, who is seven.
[2] There are two motions. The mother brings a motion for spousal support requesting $2,651 per month. The father brings a motion for a final order for joint custody, to which the mother agrees. He also requests increased parenting time and to have Quinn for Christmas Eve and part of Christmas morning this year.
Issues
[3] What amount of spousal (and child) support is appropriate in the circumstances?
[4] Should the child have expanded access to her father?
[5] Should the child have Christmas access to her father?
What amount of spousal (and child) support is appropriate in the circumstances?
The Mother’s Position
[6] The mother states that prior to Quinn’s birth, she was a financial services manager at Manulife. When Quinn was born, the parties agreed that she would leave her employment to stay at home. She has been out of the workforce for seven years with the exception of a few limited duration part-time jobs. She has not been employed since separation, over two years ago. She states that her position with Manulife has become obsolete.
[7] The matrimonial home was listed for sale shortly after separation. The mother states that it required repairs and preparation for viewing. This work was her responsibility because the father had moved out. She cleaned the house and readied it for sale. It was listed on July 6, 2017 and was sold in February 2018. The parties agree that they each received $200,000 from the sale of the home.
[8] The mother states that she submitted her resume and a cover letter to the various locations between January 11, 2016 and September 2, 2016. (It is not clear whether there were job opportunities at those locations. The date range seems to predate the date of separation.) She also submitted a resume and a cover letter to another location on January 8, 2018. She states that she received little to no response to her efforts.
[9] The mother believes that she needs further education in order to maximize her employability and her earnings capacity. Currently, she has a degree in philosophy. This degree and her work experience do not qualify her for a job that would provide her with a reasonable standard of living. She proposes to complete a Certified Professional Accountant (CPA) designation within three years. She seeks spousal support to enable her to study and obtain the designation. According to the SSAG, based on the father’s annual income of $96,093 and imputing no income to herself, she requests high range spousal support of $2,651 per month. The table amount for child support in this calculation is $880.
[10] The mother states that she does not want support indefinitely. She requires support while she completes the program. Currently she receives $911 in child support and $1,200 in spousal support, based upon a recent increase to the father’s income to $100,097. In the event that she is awarded spousal support, she agrees that there should be a review within one year to determine whether she is succeeding in the program and is on track to obtain the CPA designation.
The Father’s Position
[11] The father agrees that the mother is entitled to spousal support. He states that he has paid spousal support voluntarily for over two years. He has done this without the benefit of a court order which would have permitted him to obtain a tax deduction. Initially, the support that he paid related to the carrying costs of the matrimonial home.
[12] He states that the mother has made only one job application since separation. The application does not seem to be connected with financial work.
[13] The mother has not provided any evidence that she has been accepted to the CPA program or the cost of the program. She just printed a document from a website that sets out the preparatory courses required. This document states,
It can take up to three years to complete all 14 preparatory courses. It is possible to complete the preparatory courses within one year however that is dependent upon how many of the 14 preparatory courses the student is required to complete. Please refer to your transcript evaluation for more details. On average, students should spend approximately 15 to 20 hours of additional study time each week to be successful in the preparatory courses.
[14] The mother states that she began the courses in the summer; however, she has not provided any details with respect to how many courses she is taking or how many hours she is studying. She has already indicated that she is deferring her exams because of stress related to the litigation.
The Father’s Position
[15] The father states that Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.), para 40, is instructive with respect to the test that the court should apply in determining whether unemployment or underemployment is required by virtue of the party’s reasonable education needs. The burden of proof is upon the spouse pursuing education. The following questions should be considered:
(a) How many courses must be taken and when? (b) How much time must be devoted in and out of the classroom to ensure continuation in the program? (c) Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? (d) If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? (e) Can the spouse take cooperative courses as part of the program and earn some income in that way?
[16] The father states that this information has not been provided. Furthermore, the questions of whether the mother was unable to find a job based on her previous experience and whether the further education will land her in a better spot have not been addressed by the evidence provided.
[17] The father states that the mother’s preparing the house for sale is not a valid reason to be unemployed for eight months. The house was only seven years old. The mother seems to have made no effort to find jobs using her previous credentials. She could have pursued courses to update herself on office technology. There is no evidence to show what salary she might expect to earn with a CPA designation.
[18] The father states that the mother wants to do the CPA program part time but notionally based on full-time hours because she states that no income should be attributed to her to her while she is studying. The father states that the full-time program is one year whereas the part-time program is three years.
[19] The father’s income has recently increased to $100,097. The father states that the mother has not met the onus of proving that she cannot be employed while she is studying. He requests that $30,000 per year, less than minimum wage, be imputed to her. The SSAG calculation using these incomes results in child support of $911 and mid-range spousal support of $1,199. He is already paying $1,200 per month in spousal support which is more than mid-range. This is appropriate.
Analysis
[20] The mother’s counsel stated that he had provided to the father’s counsel details with respect to the CPA program. The father’s counsel denied that this had been provided. In any event, the only evidence before the court on this subject is as set out above. In order for this court to find that the mother’s unemployment is required while she is pursuing the CPA program, the court requires specific details with respect to the number of courses that she is taking, the hours that she is studying and any other factors that would excuse her from pursuing part-time work. In the absence of this evidence, I find that is appropriate to impute income to the mother of the $30,000 per year which is less than minimum wage.
[21] As noted above, the child support payable is $911 per month. Mid-range spousal support results in the father’s having 50.6% of net disposable income and the mother’s having 49.4%. Accordingly, I find that mid-range spousal support of $1,200 is appropriate in the circumstances. The mother suggested that support be reviewed in a year. I find this to be appropriate as well.
Should the child have expanded access to her father?
The Father’s Position
[22] The father requests that the parties have equal parenting time. He proposes that Quinn reside with the mother each Monday until Wednesday to school. She would then reside with the father each Wednesday after school until Friday to school. The parties would then alternate weekends from Friday after school to Monday to school. He states that this plan is just one more night a week with each parent in contrast to the current arrangement. He states that the current arrangement was put in place because there was some question as to where the mother would live after the matrimonial home was sold. She is now living in Pickering. He lives in Toronto. He states that with the current arrangement, he drives Quinn to school which takes about 30 minutes, no more onerous than a bus ride. The mother has not identified any care or safety issues. Previously, she was concerned about Quinn’s baths and whether homework was being done. Those concerns have now been addressed. There is no reason why Quinn ought not to spend equal time with her parents. This parenting plan is not financially motivated. It will have no effect on the amount of support that he is currently paying.
[23] The father states that he did have Quinn for Christmas Eve last year and part of Christmas morning. He is requesting the same time again this year. His reason for doing this is that it will be his new baby’s first Christmas. Quinn’s having a memory of spending the new baby’s first Christmas with him will be positive.
The Mother’s Position
[24] The mother states that earlier this summer, there was a variation to the access schedule. Continuing to change things is not in the child’s best interests. The parties have had some difficulty communicating which suggests that equal parenting time could be difficult. Since the spring, the parties have been communicating on Our Family Wizard. So far, the communications have been going well.
Analysis
[25] The earlier change in access to which the mother refers occurred five months ago. The mother relies on difficulty in communication and provides evidence of this; however, she also concedes that since the parties began using Our Family Wizard in the spring, the situation has improved. I do not accept the mother’s position that communication needs to be even better before equal parenting time ought to be considered. I see no evidence that would suggest that it is not in Quinn’s best interest to have equal parenting time with her father. As noted above, the increase in parenting time will have no effect on the support that the father is required to pay. I find that the father’s request for equal parenting time is appropriate.
[26] With respect to the father’s request for Christmas access, even though this will be his second year in a row, there is no evidence that the mother is opposed. Accordingly, the father shall have Christmas access as requested.
Joint Custody
[27] The parties agree that there should be a final order for joint custody. The parties agreed to certain parenting guidelines. They request that the parenting guidelines be incorporated into the final order for joint custody. An order shall issue on consent in this regard.
[28] Counsel stated that they would prepare a domestic agreement regarding the support paid by the father. It may be submitted by 14B and directed to the trial coordinator in Barrie.
Costs
[29] The father made two Rule 18 offers to settle, both dated October 16, 2018. The first was with respect to the increased access which this court has ordered. The second was with respect to support. He offered to pay child support in the amount of $911 per month which is the table amount on his income of $100,097. He offered to have an income of $20,000 imputed to the mother for the purposes of support, which is less than what I have determined to be appropriate. He offered to pay the mother spousal support in the amount of $1,280 per month, which is more than the midrange amount of $1,200 which I have determined is appropriate (and which is the amount that the father recently began to pay). Accordingly, the father has been more successful in these motions than the terms of his offers. The successful party is presumptively entitled to costs.
[30] The father’s counsel provided a bill of costs. I find that the rates charged for counsel as well as her clerk are reasonable. The amount requested for full recovery is $9,675 plus HST. I note that the amount requested by the mother for full recovery is $10,113.50 inclusive of HST. The amounts requested by both counsel are very close. Therefore, I find that the amount requested by the father’s counsel is fair, reasonable and proportionate. Accordingly, the mother shall pay to the father $9,675 plus HST for the costs of this motion.
VALLEE, J. Released: October 30, 2018