COURT FILE NO.: 17-120

DATE: 2018/02/02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer Arendina Kathleen Steenwyk

– and –

Mike Pavlovic

Gordon Campbell, counsel for the Applicant

Aristoteli Lebedev, counsel for the Respondent

HEARD: Cornwall, January 15, 16, 2018

JUDGMENT

Desormeau, j.

ISSUES

[1] The Respondent Father, Mr. Mike Pavlovic is the moving party on the Motion to Change the Final Order of Justice McNamara, dated July 16, 2013. While he advances additional or alternative relief, the central issue is access to the child: Nicholas Brian Hill Pavlovic, born January 13, 2012.

[2] The Applicant Mother, Ms. Steenwyk relies on the terms of the Final Order with regard to access. She also seeks a variation, but regarding child support from Mr. Pavlovic, and equal contribution toward the child’s special and extraordinary expenses.

[3] To be determined is whether either party has met the threshold test for a material change in circumstances on the issues, and if so, based on their evidence, determine the appropriate disposition.

OVERVIEW

[4] The parties were together from 2010 until August 2012. Nicholas is their only child. When Nicholas was born, the parties resided together in Orillia, Ontario. However, when the Final Order was signed, Ms. Steenwyk was residing in the Cardinal, Ontario, and Mr. Pavlovic resided in Toronto, Ontario.

[5] On July 16, 2013, Justice McNamara signed the Final Order regarding Nicholas, on consent of both parties, who were self-represented. Given that there is a dispute regarding the proper interpretation of the Order, I find it is appropriate to reproduce the eight clauses in this judgment:

1. The child: Nicholas Brian Hill Vlado Pavlovic, born January 13, 2012, shall reside with the Respondent, Mike Pavlovic, for 12 days a month and with the Applicant, Jennifer Arendina Kathleen Steenwyk for 18 days a month. The dates may vary given circumstances in the parties’ lives.

2. The Applicant shall drop off the child at the residence of the Respondent and will be picking the child up at the residence of Arlene Repar in Trenton, Ontario.

3. The child shall spend the month of July with the Respondent, and the month of August with the Applicant.

4. The Applicant shall be able to apply to collect the Child Tax Benefit for the child.

5. No child support shall be paid by either party.

6. The Respondent shall have input in all major decisions in school, daycare, sports activities and hobbies. The Applicant shall have full medical responsibility and decisions regarding the child.

7. When the child commences attendance at school, his school shall be located in the district that the Applicant resides. At that time, his main place of residence shall be with the Applicant.

8. The child shall spend all school holidays with the Respondent, including, but not limited to: March Break, Easter, one week at Christmas and the month of July.

[6] From the Father’s perspective, all eight clauses of the Final Order are inter-related. According to that Order, Nicholas should be with him 12 days per month, plus all school holidays, etc.

[7] Ms. Steenwyk’s position is the Final Order has two parts, the first six clauses contemplate before Nicholas started school, and the last two clauses deal with when Nicholas commences school.

THE LAW

ISSUE 1: ACCESS

[8] The parties were never married, as such, this Final Order falls under the auspices of the Family Law Act (“F.L.A.”).

[9] Section 37 of the F.L.A. deals with variation proceedings. Section 37 states:

37 (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3).

Limitation on applications for variation

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court. R.S.O. 1990, c. F.3, s. 37 (3).

[10] Section 29 of the Children’s Law Reform Act (“C.L.R.A.”) states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[11] The decision of Supreme Court of Canada decision of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), is applied in requests to vary custody or access orders.

[12] On any application to vary a final custody order, I must accept the Final Order was correct at the time it was made.

[13] The onus is on the person seeking to change an order to establish that the circumstances have changed since the making of the prior order, to such an extent that the existing childcare arrangements are no longer in the best interests of the child: Gordon v. Goertz, supra.

[14] In Gordon v. Goertz, supra, at paragraph 49, McLauchlin J. stated the following:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

[15] To summarize, in Gordon v. Goertz, supra, at para. 13, McLachlin J. held that the trial judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child, (2) which materially affects the child, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. If the applicant is unable to meet this threshold requirement [of material change], the inquiry can go no further: Litman v. Sherman, 2008 ONCA 485, 2008 CarswellOnt 3542, at para. 26.

[16] “Material change” means a change, such that, if known at the time, would likely have resulted in different terms in the order. If the issue which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. The change itself could not have been foreseen or reasonably contemplated by the judge who made the initial order. The onus of proof lies on the applicant, and the standard of proof is “on the balance of probabilities”: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670; G.(L.) v. (B.)(G.) (1995) 1995 65 (SCC), 15 R.F.L. (4th) 201 (S.C.C.); Gordon v. Goertz, supra, at para. 13.

[17] Even if both parties are requesting a variation to the final order, a material change in circumstances needs to be established.

[18] The second stage of the analysis involves an assessment of the best interests of the child. The Supreme Court of Canada has held that these interests must be ascertained from the perspective of the child rather than from the parents' perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: Favero v. Favero, 2013 ONSC 4216, at para. 40.

[19] As set out in Bubis v. Jones, 2000 22571 (ON SC), 2000 CarswellOnt 1243, the fresh inquiry necessitates adherence to section the provisions of section 24 of the C.L.R.A., which sets out the best interest of a child test:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[20] I have reviewed Miglin v. Miglin, where the Supreme Court of Canada identifies that deference should be given to the parties’ earlier agreement, and those agreements should not be lightly overturned. In Miglin, however, I note that both parties had received Independent Legal Advice, participated for fifteen months in negotiating the comprehensive 32 page agreement, which was described by the Court as a “sophisticated legal document”: Miglin v. Miglin, 2003 SCC 24. In the case at bar, the parties agreed to an eight clause Final Order which, absent of any legal advice, was meant to determine access for the remainder of the child’s life.

[21] I am mindful that the court needs to be persuaded regarding both the intervention, and the degree of intervention which are warranted. Though it is usually advisable to defer to the wishes of the parties in affording the agreement great weight, this is tempered by the Court stating in Miglin that the vicissitudes of life mean that, in some circumstances, parties may find themselves in circumstances not contemplated: Miglin v. Miglin, supra, at para. 87.

ANALYSIS REGARDING ACCESS

[22] This is Mr. Pavlovic’s motion to vary access. The onus is on him to demonstrate the following:

1. A change in the condition, means, needs or circumstances of the child,

2. Which materially affects the child, and

3. Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[23] Based on the following, I find that Mr. Pavlovic has met his onus in demonstrating a material change in circumstances affecting the child.

[24] From the time the Final Order was made, until September, 2016, Nicholas spent significant time with his father. The Order provides for Nicholas being with his father approximately 40% of the time.

[25] In her Response to Motion to Change, Ms. Steenwyk states “[t]he only material change of circumstances within this time has been Nicholas’ commencement at school in the local district where I reside, which has out of necessity reduced the Respondent Father’s time and access with Nicholas. However, this reduction of time and access was always contemplated by both parties, and the 2013 Order to which we both consented and agreed”.

[26] I accept that Ms. Steenwyk, who drafted the terms which became the Order, turned her mind to what would happen when Nicholas commenced school. Conversely, after I am not persuaded that Mr. Pavlovic had the same appreciation regarding the Order.

[27] Once Nicholas commenced school in September 2016, he had four days of access with his father out of 104 days. While I am unable to determine if there was any actual withholding of access, the reality is that this is a significant period of time for a child not to see his father, particularly given the prior routine of almost shared time with him. This is a material change in circumstances which affects the child, and it is not in his best interest that such a restrictive access schedule continues. I am satisfied that in signing the Final Order, Justice McNamara could not have reasonably contemplated the Mother’s interpretation of the Order and the radical reduction of access time which ensued, or that Nicholas would not see his father annually from August until the Christmas holidays.

[28] In turning my mind to assess what is in Nicholas’ best interest, from his perspective, I have deliberated on section 24(2) C.L.R.A. and the following evidence:

1. Both parties acquiesced to the other moving further away from where they initially resided when the Final Order was made. I recognize that the parties currently reside 462 kilometers apart, which leads to an almost ten-hour round trip in the car for Nicholas in order to effectuate access with his father;

2. Nicholas has a loving relationship with both parents, as well as with the maternal and paternal extended families. He also has a strong bond with both parents’ partners: Evan Schmidt and Diana Leandro. Nicholas has a half-brother: Michael, who resides with the Father, and who Nicholas loves;

3. Both parents present with having family supports, stable family units, and appropriate plans to help them care for Nicholas;

4. Mr. Pavlovic recognizes that it is Nicholas’ best interest to continue to reside primarily with his Mother;

5. Until Nicholas commenced school in September, 2016, the evidence shows a history of the parents being able to cooperate and make concessions in Nicholas’ best interest;

6. Nicholas initially struggled adjusting to his new school routine. This is confirmed in his report card from Junior Kindergarten. To mitigate this concern, the report card goes on to state that he has made significant improvements, and the support from home has definitely had a positive influence;

7. Ms. Steenwyk suggests Mr. Pavlovic has put his own interests ahead of the child’s by insisting that Nicholas miss school so he could exercise “what he believes to be his full access entitlement under the 2013 Order”;

8. Both parents report concerns about changes in the child’s demeanor since September, 2016. Mr. Pavlovic describes Nicholas as being emotional, and being a terrorizer at school. Ms. Steenwyk indicates it is disruptive to Nicholas’ routine when he is away for a few days, and when the exchanges take place at 6:00 p.m. on Sundays. It takes two weeks for him to get back to manners and a normal routine. She suggests that a return time of 4:00 p.m. or 4:30 p.m., at Amy Bontius’ home, or a place agreed upon in Trenton, would be better for Nicholas;

9. Although the Father raises parenting concerns regarding the Mother, such as immunizations, potential alienation, and educational delays, he is not seeking a change in the child’s primary place of residence. He however requests sharing of information regarding the child;

10. Mr. Pavlovic suggests it is appropriate for he and Nicholas to have access every long week-end, which would be every three to five weeks, to coincide with statutory holidays, long week-ends, and week-ends where there are Professional Development days on either the Friday or Monday. He also requests six weeks in the summer, March Break, and most of the Christmas holidays;

11. Ms. Steenwyk believes that access every three weeks will disrupt the child’s routine, and will adversely affect his best interest. It is more important for Nicholas to have a strong routine and stable habits. As such, the Father should have generous and extended periods of access once per month, most holidays, and a full month in the summer. This proposal is least disruptive to Nicholas. She suggests that Nicholas would benefit greater from remaining in his community than seeing his father;

12. More frequent access with Mr. Pavlovic during the school year would also continue to frustrate Nicholas’ ability to participate in regularly scheduled sports and other extra-curricular events such as soccer. However, Ms. Steenwyk has provided no evidence of Nicholas being enrolled in such activities;

13. Ms. Steenwyk is concerned about hazardous winter driving conditions and road safety. Mr. Pavlovic believes that if Ms. Steenwyk has the ability to unilaterally cancel access due to the weather conditions, then his access will not be prioritized;

14. Mr. Pavlovic’s evidence is that there have been significant restrictions in telephone access to Nicholas since August, 2016. He requests daily telephone or electronic communication with Nicholas. Ms. Steenwyk’s work schedule does not permit her to maintain Nicholas’ routine, spend quality time with him after work, and allow for daily telephone access with his father. She is however prepared to agree to telephone access on Tuesdays and Fridays when she finishes work early, for up to thirty minutes;

15. Regarding holiday time, both parties appear to agree to rotate Christmas. However, Mr. Pavlovic’s position is that any time given to the Mother at Christmas should be added to the six weeks of summer access he submits he should have with the child. Ms. Steenwyk disagrees with both these suggests, and suggests that deference needs be given to the terms of the Final Order. She plans to go camping with Nicholas during her summer time with him, and wants the last two weeks in August to ensure Nicholas is back in a school routine; and

16. As there is no children’s lawyer appointed, I have no evidence of Nicholas’ views or preferences.

[29] While Ms. Steenwyk advances the importance of Nicholas preserving the bond with his family and friends, she states in her response that she is not convinced that it is worth disrupting the stable and settled environment and routines he has established with his local caregivers “just so he can spend marginally more time with other relatives, friends and family in the greater Toronto Area”. I am concerned that Ms. Steenwyk appears to put greater importance on Nicholas’ home base, and being involved in the community, than the relationship between him and his father.

[30] I am not persuaded that access once per month, as suggested by Ms. Steenwyk, is sufficient to continue to nurture the bond Nicholas has with his father.

[31] Ms. Steenwyk advances that the frequency of access exchanges would destabilise the child, especially given the distance between the residences of both parties (see Lauzon v. James, 2011 ONCJ 488, at para 11). Ms. Steenwyk however has not provided sufficient evidence to persuade me regarding this argument.

[32] I am mindful that Mr. Pavlovic used to have Nicholas approximately 40% of the time. He is now requesting to have him approximately 25% of the time.

[33] It has been recognized in Gordon v. Goertz, supra, that the child should have maximum contact with both parents if it is consistent with the child’s best interest. However, maximum contact with both parents may not be possible in every case: Gordon v. Goertz, supra, at para. 142.

[34] Nicholas has a loving relationship with both parents. While he will continue to reside primarily with his Mother, it is equally important that Nicholas spend quality time with his father regularly. Access is after all the right of the child.

[35] I recognize that the Final Order provides that Nicholas spends only July with his father. While I note the direction set out in Miglin about giving deference to prior agreements, I am mindful that the parties now find themselves, particularly Mr. Pavlovic, in circumstances involving a significant reduction of access with Nicholas, which was not contemplated. Moreover, having found that there has been a material change in circumstances, the second stage of the analysis involves an assessment of best interests of the child, from the perspective of the child, not the parents’ preferences.

[36] After weighing all of the above principles, and given consideration to both parents evidence, I find it is in Nicholas’ best interest to have access with his father as frequently as practicable while maintaining his primary residence with his Mother. This primary residence will permit Nicholas to form meaning connections with his maternal family and his community.

[37] This frequent access schedule will help maintain Nicholas’ bond with his father and the paternal side of his family, which would otherwise be diminished due to his attendance at school.

[38] Due to the distance between the parties, and the already significant reduction in access time, I find that Nicholas would benefit from more time with his father during the summer than what the Final Order provided. I find it is in Nicholas’ best interest that his access with his father to coincide with long week-ends, holidays, one week at Christmas and five weeks in the summer, as specifically detailed in the disposition section below.

ISSUE 2: CHILD SUPPORT

[39] Subsection 37 (2.1) F.L.A. sets out that the first test to meet in order to vary an order for support is the court needs to be satisfied there has been a material change in circumstances within the meaning of the Child Support Guidelines (“Guidelines”) or that evidence not available on the previous hearing has become available.

[40] The powers of the court on an application to change a child support order or adjust outstanding arrears of child support under subsection 37(2.1) F.L.A. are broad. The court can change the terms of the order, either prospectively or retroactively, and it can also suspend or discharge the order, either in whole or in part, either on a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest either entirely or in part, or to reduce the amount of arrears payable: Cole v. Freiwald, 2011 ONCJ 395, at para. 86.

[41] A number of considerations apply when a party requests child support, or upward adjustments of child support, on a retroactive basis. The Supreme Court of Canada comprehensively addressed how retroactive child support claims should be handled in S.(D.B.) v. G. (S.R.), 2006 SCC 37, [2006] S.C.J. No. 37, Cole v. Freiwald, supra, at para. 81.

[42] In determining whether there has been a material change of circumstances, the Court must determine if the parties’ respective financial positions have changed since the date of the agreement. Charron v. Carrière, 2016 ONSC 4719, at para. 36.

[43] To ascertain whether a change in circumstances has occurred, a court must consider whether the change advanced was "material" — meaning a change that, "if known at the time, would likely have resulted in different terms" — and a change with some degree of continuity, and not merely a temporary set of circumstances: L.M.P. v. L.S., 2011 SCC 64, at paras. 32 and 35.

[44] Section 14 of the Guidelines states that a material change in the payor’s income or means would be grounds for a variation of child support:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the [Family Law] Act [“Act”] and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

16. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14; O. Reg. 446/01, s. 3.

[45] Section 33 F.L.A. states the following:

33 (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

Purposes of order for support of child

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

…

Application of child support guidelines

(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines.

Exception: special provisions

(12) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,

(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions. 1997, c. 20, s. 3 (4).

[46] The core principles that apply to child support include: child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent: in in S.(D.B.) v. G. (S.R.), supra, at para. 38.

[47] The purpose of the Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency: Obodoechina v. Ayetor, 2013 ONCJ 738 (Ont. C.J.): Charron v. Carrière, supra, at para. 52.

[48] Section 3 of the Guidelines sets out the presumptive rule:

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).

[49] Though Ms. Steenwyk did not in her Response plead that income be imputed, she makes the argument that guideline support is payable by Mr. Pavlovic despite his assertion that he has zero income. In allowing this argument to be advanced, I have relied on Gogas v. Gogas, which states:

Subsection 19(1)(a) of the Guidelines gives the court jurisdiction to impute income as it considers appropriate in the circumstances, which courts routinely do once a finding is made that the requirements of that section are met. This imputation is often necessary to meet the obligations of both the Guidelines and to create spousal support orders that meet the objectives of the Divorce Act, the starting point for which is now commonly accepted to be a calculation of income based on the provisions of section 15 to 19 of the Guidelines. If courts restricted themselves to applying section 19(1)(a) of the Guidelines only where a specific request was made in the pleading for income imputation, unfair and unreasonable orders could result: Gogas v. Gogas, 2011 ONSC 4571, at para. 15.

[50] The leading case on imputation of income is Drygala v. Pauli, (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). At paragraph 23 of Drygala, the Court of Appeal set out a three-part test to determine whether income should be imputed:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[51] The Ontario Court of Appeal set out the following principles in Drygala:

1. There is no need to find a specific intent to evade child support obligations before income can be imputed (at para. 25);

2. "Intentionally" means a voluntary act. The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income (at para. 28);

3. There is no requirement of bad faith for income to be imputed (at para. 29);

4. A court cannot arbitrarily impute an amount of income. There must be some factual basis in the evidence for the amount imputed. If the parent does not provide evidence on types of jobs available, hourly rates, and available hours of employment, a court may impute a percentage of what the person had been earning (at paras. 44 and 46);

5. A parent who changed jobs to increase career satisfaction is not intentionally underemployed;

6. The Guidelines depend on full disclosure to determine support. A payor who fails to make full disclosure cannot complain if a court draws an adverse inference against him or her on the basis of the available facts;

7. Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning (at paras. 31 and 32);

8. There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations (at paras. 38 and 39);

9. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are: age, education, experience, skills, health, availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations, and the hourly rate one could reasonably be expected to obtain (at para. 45);

10. The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion (at para. 53); and

11. The court has the discretion to award retroactive child support that is fit and just in the circumstances (at para. 54).

[52] The second step of the Drygala test is generally treated as an overall test of reasonableness: Pey v. Pey, 2016 ONSC 1909, at para. 88. Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position he is taking: Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344 (Ont. S.C.J.); Charron v. Carrière, supra, at para. 66.

[53] The Court must have a rational and solid evidentiary basis to justify an imputation. The onus is on the person requesting an imputation of income to establish this evidentiary basis: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.); Charron v. Carrière, supra, at para 64; Sullivan v. Sullivan, 2014 ONSC 390, at para. 21.

[54] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children. L.(N.) v. P.(B), 2000 22516 (ON SC), [2000] O.J. No. 2574, 2000 CarswellOnt 2487 (Ont. C.J.); Corcios v. Burgos, supra, at para. 40.

[55] Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Thompson v. Thompson, supra, at para 96; Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.), Corcios v. Burgos, supra, at para. 40. The court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation: Cole v. Freiwald, supra, at para. 122.

[56] Though Mr. Pavlovic consents to an order on child support, he argues it should be reduced pursuant to subsection 10(2)(b) of the Guidelines. Section 10 of the Guidelines states the following:

Undue hardship

10. (1) On the application of either spouse or an applicant under section 33 of the Act, 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 parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. O. Reg. 391/97, s. 10 (1).

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(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;

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so. O. Reg. 391/97, s. 10 (6).

[57] The courts have seen fit to fashion relief in mobility cases that recognize that relocation necessarily disrupts the frequency of access to the access parent in a manner that requires that some king of economic adjustment be made: Morrone v. Morrone, [2007] O.J. No. 5341, at para. 47. The court in Morrone, supra, goes on to review a case where the court reduced child support payable under the Guidelines to compensate for the increased costs in exercising access to a child. See Morrone v. Morrone, supra, at para. 48. However, some cases merely have the parties meet half-way to share the cost of transportation.

[58] Section 7 of the Guidelines addresses Special and Extraordinary expenses (“section 7”):

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the [Family Law] Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2.

Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

[59] The Guidelines state that the child’s special and extraordinary expenses are to be shared by the parents in proportion to their respective incomes.

ANALYSIS ON CHILD SUPPORT

[60] In her Response dated May 23, 2017, Ms. Steenwyk claims child support for Nicholas. While the Final order indicates that “no child support shall be paid by either party”, it is her position that child support should be payable, as of August 1, 2017. It is her onus to demonstrate that there has been a material change in circumstance.

[61] The Final Order provides that Nicholas is in her primary care once he commences school. This occurred in September, 2016. From that time onward, the parties were no longer sharing time with Nicholas. From Ms. Steenwyk’s perspective, this constitutes a material change in circumstances, and therefore Mr. Pavlovic should now pay child support.

[62] Ms. Steenwyk’s Response states “I was also at [the time the Final Order was made] a very new mother, and failed to appreciate the total cost involved in caring for Nicholas”. In reference to Nicholas being primarily in her care as set out in the Final Order, she indicates: “I am now responsible for the majority of the costs and expenses associated with Nicholas’ upbringing. I seem to have overlooked this aspect of the arrangement when I agreed to the ‘no child support’ provision under the Order”.

[63] Ms. Steenwyk’s evidence is that she did not seek child support at the time of the Final Order because she felt the Child Tax Benefits provided sufficient money to permit her do it on her own.

[64] She advances that under the new access terms of the Final Order, Nicholas is with her over 60% of the time, and therefore Mr. Pavlovic is “therefore obliged to pay child support under the Federal Child Support Guidelines”.

[65] I must point out that the applicable Guidelines are the Ontario Child Support Guidelines, not the Federal Child Support Guidelines as the parties were never married.

[66] Based on the totality of the evidence, I find that Ms. Steenwyk has met her onus in demonstrating a material change in circumstances since September, 2016, when the shared access regime terminated and Nicholas began to reside full time with her.

[67] Though Mr. Pavlovic consents to pay child support, he advances that the quantum should be reduced pursuant to subsection 10(2)(b) of the Guidelines. He is prepared to pay $173.00 per month, commencing January 1, 2018, to account for the increased cost of access.

[68] I start by reviewing the parties’ financial disclosure and the evidence available to assess imputing income and/or reduction of support payable.

[69] Mr. Pavolvic’s evidence is the following:

1. His Financial Statement dated June 19, 2017 sets out his income as $28,677.00 annually, based on OSAP and family gifts. He has a 2010 Mercedes Benz worth $18,000.00. His only debts are a car loan of $15,084.00 and an OSAP loan of $56,000. His partner’s income is $1,280.00 per month on Employment Insurance while on maternity leave, or $15,360.00 annually, all of which is contributed toward household expenses;

2. His affidavit dated December 27, 2017, confirms his financial statement of June 19, 2017 has not materially changed other than his new child, and his student loans now total $72,903.00;

3. He has been unemployed since 2012;

4. He has been enrolled in post-secondary education since fall 2013. He has completed a Social Work diploma through Seneca College;

5. His 2014, 2015 and 2016 Notices of Assessment all indicate he has zero income;

6. His 2016-2017 Academic year for grants and student loans is $19,684.00; 2015-2016 is $18,645.00; 2014-2015 is $18,296.00; and 2013-2014 is $16,334.00; and

7. Once he is finished his studies, he expects to earn $29,890.00 as a Social and Community Services worker. However, due to a faculty strike, he has had to delay his education, and will be returning to school in September, 2018.

[70] Ms. Steenwyk’s evidence is the following:

1. Her 2016 employment income is $24,336.00 per year;

2. In her financial statement, she makes no allot for vacations, she pays $30.00 per month for clothing, $40.00 for school fees and supplies, and $80.00 per month for the child’s clothing. Her only debt is with Roger’s mobile;

3. In 2014, she earned $7,792.00; in 2015, she earned $19,854.00; and in 2016 she earned $20,308.00; and

4. She works at Freedom Wireless in Cornwall.

[71] In order to meet the financial obligations he has to Nicholas, Mr. Pavlovic must earn what he is capable of earning. There is a duty on all healthy parents to seek employment.

[72] Mr. Pavlovic’s evidence is that only had dead end jobs from when he was approximately 17 years of age to 22 years of age. He now has completed a two-year diploma for Social Work. His only source of income is from student loans (OSAP), and he now owes $72,903.00. While he admits to have purchased one of his prior vehicles in cash, the money came from his student loans. In order to pay for school thereafter, he and his girlfriend pooled their money.

[73] Mr. Pavlovic suggests that due to an injury and recent surgery on his hand, he has been advised by his doctor that he cannot strain his hand for six months. In support of same, he has produced an undated medical note which indicates that he must keep his hand elevated. The medical note does not state that he cannot strain his hand, or that he cannot work.

[74] While he advances that he has a second child he needs to provide for, I reject this argument as he has an obligation to his first family first, as set out in Fisher v. Fisher, 2009 ABQB 85 (Alta. Q.B.).

[75] In order to properly determine what, if any, income should be imputed to Mr. Pavlovic, I have considered the above evidence, his age, education, experience, his health, as well the number of hours he can work in light of his other obligations, the hourly rate he can expect to work, and the three part Drygala test.

[76] I find that Mr. Pavlovic is intentionally unemployed as he is not working, therefore not earning what he is capable of earning in order to help contribute toward Nicholas’ support. His unemployment is not required by virtue of his reasonable educational needs. He has already completed one post-secondary degree. Mr. Pavlovic has chosen to defer this year’s education due to a faculty strike. He will not be resuming school until September, 2018. Despite this, he has provided no evidence of attempts to secure any employment during this one year hiatus. Further, while his evidence is that he expects to earn $29,890.00 as a Social and Community Services worker, this is marginally above current minimum wage. I find there is reason to believe that he can earn this amount without any further education. As such, despite his intentions to return to school in September, 2018, I find it is appropriate to impute income to him.

[77] Ms. Steenwyk suggests that Ms. Pavlovic could be earning between $30,000.00 and $45,000.00 per annum. She has not presented any employment opportunities available to Ms. Pavlovic, or evidence of wages payable. However, she advances that Mr. Pavlovic is able-bodied, he is in his 20’s, and he has a post-secondary education. There is no reason for him not to be able to earn minimum wage.

[78] I accept these arguments, and I find, on a balance, it is appropriate to impute income to Mr. Pavlovic based on minimum wage, or $29,120.00 per annum. Child support based on this income would be $248.00 per month.

[79] Mr. Pavlovic’s argument to pay a reduced amount of child support is predicated on the Final Order. He indicates that Ms. Steenwyk is the one who moved away from where the parties resided together as a couple. While he acquiesced, a term of the Order was that Ms. Steenwyk would be responsible for a greater share of the driving. He is now meeting her halfway for exchanges, which costs him approximately $60.00, return, for a tank of gas. This is $120.00 per visit.

[80] He also suggests that the quantum of child support and section 7 expenses should be offset by Ms. Steenwyk receiving the Child Tax Credits despite having essentially shared custody until September, 2016.

[81] Though I cannot put myself back in the parties’ shoes when they agreed to the transportation part of the order, the reality is that the Final Order places a greater burden on Ms. Steenwyk’s shoulders. She agreed to transport the child to the Father one way, and meet halfway for the return. Her evidence is that due to the Father’s unreliability, she actual transported the child both ways for years. However, the parties now agree that exchanges will take place in Trenton, requiring them both to drive approximately halfway.

[82] Meeting halfway reduces Ms. Steenwyk’s transportation costs, but increases Mr. Pavlovic’s. Given that the parties agree to meet halfway for exchanges, as opposed to what was set out in the Final Order, I am prepared to give Mr. Pavlovic this reasonable deduction. Considering that access will be once per three weeks, child support will therefore be reduced by $60.00 per month.

[83] Based on the above, I find it is appropriate to impute income of $29,120.00 to Mr. Pavlovic. Taking into consideration the deduction for reasonable transportation costs, he will pay child support in the net amount of $188.00 per month ($248.00 - $60.00), commencing August 1, 2017.

[84] On the issue of s.7 expenses, Ms. Steenwyk submits that the Father should be obliged to contribute toward the ongoing costs and expenses associated with the child’s upbringing and maintenance. He should pay reasonable child support and share equally in reasonable special and extraordinary expenses, as set out in the Guidelines.

[85] Mr. Pavlovic admits that he previously refused to help pay for school supplies for Nicholas.

[86] The cost of Nicholas’ special and extraordinary expenses, are estimated as follows:

1. School supplies and clothing: $2,000.00 total;

2. Contribution toward child benefits: $480.00 total; and

3. Sports / extra-curricular activities fees and equipment: To be determined, half to be paid by Mr. Pavlovic.

[87] I commend both parties for agreeing that Nicholas’ special and extraordinary expenses will be shared equally. I find it is appropriate that the sharing of the child’s Nicholas’ s.7 expenses commence August 1, 2017. These expenses shall be limited to those falling within the confines of the Guidelines. Due to the ambiguous wording of the “child benefits” request above, I am unable to determine whether this meets the requisite criteria to be considered a special and extraordinary expense.

DISPOSITION

[88] A final Order shall issue as follows:

1. Nicholas Pavlovic, born January 13, 2012, shall reside primarily with his Mother, Jennifer Steenwyk, in Newington, Ontario during the school year.

2. Nicholas shall reside primarily with his Father, Mike Pavlovic, in Caledon, Ontario, as follows:

a) During the school-year, the Father will have access to Nicholas on long-weekends, approximately every three weeks, on the following schedule for 2017-2018, repeated with calendar-date adjustments annually [note: both parties are to look at the school calendar to ensure that the spirit of this order is followed in future years, with a particular emphasis on Nicholas being with his Father most, if not all, PD days that fall on Fridays and Mondays, and long week-ends, based on the template set out below]:

b) September 1-4 Labour Day week-end;

c) October 7-9 Thanksgiving week-end;

d) October 27-29 School PD day week-end;

e) November 24-26 School PD day week-end;

f) The parties shall rotate the Christmas holidays evenly, with the Mother having the child from the last day of school, for seven days, on even numbered years (ie: 2018), and the Father having the remainder of the Christmas holidays. In odd numbered years (ie: 2019), the Father shall have the child from the last day of school for seven days, and the Mother shall have the remainder of the Christmas holidays;

g) January 27-28;

h) February 17-19, Family Day;

i) March 10-18, March Break;

j) March 30-April 2, Easter;

k) April 27-29, School PD Day week-end;

l) May 19-21, Victoria Day week-end;

m) June 1-3 School PD Day week-end;

n) July 1-31, 4 weeks during summer vacation;

o) August: 1 additional week during summer vacation, dates to be determined.

3. Access exchanges between the parties shall take place halfway between where the Father and Mother reside, which is agreed upon as being at Amy Bontius’ home in Trenton, Ontario, and shall not be varied except by further agreement of the parties or Order of the Court.

4. Drop off time at the access/residency exchange point will be by 6:00 p.m. on the night prior to the start of any access/residency period if that night prior is a Friday night and otherwise by 9:00 p.m. on the night prior, and return to that point will be by 4:30 p.m. on the last day of the access/residency period.

5. Should the party picking up Nicolas be more than 60 minutes late to the drop off exchange point, it is agreed that Nicolas will be returned to the point from which he travelled with it being the responsibility of the picking up parent to travel the entire distance to fetch him for access/residency/return, unless otherwise agreed by the parties. For example, for Monday long weekend visits pick up by the Father shall be by 6:00 p.m. on Friday evening in Trenton, and drop off return shall be by 4:30 p.m. on Monday. However, for a Professional Development day falling on a Frida,y drop off shall be by 9:00 p.m. on Thursday (due to the Mother’s work schedule) and drop off return shall be by 4:30 p.m. on Sunday.

6. The Father shall have input on all major decisions regarding Nicholas’ education, day care, and extra-curricular activities, with final decision-making authority to the Mother.

7. The parent with whom Nicholas is residing shall exercise final decision-making regarding health-care.

8. The Father and Mother may consult with and obtain information directly from Nicholas’ teachers, doctors or other professionals about his health, education and welfare.

9. Neither parent shall introduce religion to the child until he is old enough to decide the matter for himself.

10. Neither parent shall change Nicholas’ name, either formally or informally, without the written consent of the parent or court order.

11. Neither parent shall remove Nicholas from the Provinces of Ontario or Quebec without the written consent of the other, or court order.

12. Both parties will provide each other with their email addresses, current residnece address, and a telephone number where they can be reached at all times in case of emergency.

13. The party having care and custody of Nicholas shall have discretion to judge whether road weather conditions make it dangerous to transport Nicholas to the other party during transitions between the parties. This discretion shall be exercised reasonably. Should a transition be delayed because of weather conditions, any missed time of Nicholas with the other party will be made up in during the summer holidays, or on a date mutually agreeable to the parties.

14. On Tuesdays, Thursdays and Sundays (or on three other days of the week, as agreed upon by the parties), Nicholas shall have contact with the Father by telephone or internet video communication for a period of up to 30 minutes, during the period where Nicholas’ primary residence is with the Mother during the school year. The Mother shall have contact with Nicholas by telephone or internet video communication on Tuesdays, Thursdays and Sundays (or on three other days of the week, as agreed upon by the parties) for a period of up to 30 minutes, during the period where Nicholas’ primary residence is with the Father during school vacations. The internet video communication shall be limited to the Sunday contact, unless agreed to by both parents.

15. The Father shall pay child support to the Mother, for the benefit of the child, based on an imputed annual income of $29,120.00 ($248.00 per month), minus transportation costs ($60.00 per month), in the net amount of $188.00 per month, commencing August 1, 2017.

16. The parties shall share the child’s special and extraordinary expenses equally (50%-50%). The Mother shall obtain the Father’s consent prior to incurring s.7 expenses, but such consent shall not to be unreasonably withheld. The Father shall reimburse the Mother within 30 days of having been provided a receipt for a s.7 expense, failing which, the Family Responsibility Office shall enforce payment of the expense.

[89] If the parties are unable to agree on the issue of costs, the Respondent may file submissions not exceeding three pages in length, plus attachments, within 14 days of the release of these reasons. The Applicant may file submissions within a further 14 days, with a right of reply within a further five days.

Madam Justice Hélène C. Desormeau

Released: 2018/02/02

Steenwyk v Pavlovic, 2018 ONSC 833

COURT FILE NO.: 17-120

DATE: 2018/02/02

ONTARIO SUPERIOR COURT OF JUSTICE

Jennifer Arendina Kathleen Steenwyk

– and –

Mike Pavlovic

JUDGMENT

Madam Justice Hélène C. Desormeau

Released: 2018/02/02