Court File and Parties
COURT FILE NO.: FC-17-2572 DATE: 2019/03/20 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jason Samuel Ronald Pace, Applicant AND Jennifer Christina Barry, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Loreen Irvine, for the Applicant Tanya Davies, for the Respondent
HEARD: March 5, 2019
Endorsement
[1] The parties are the biological parents of twins born on October 15, 2014. At the time of conception, they were cohabitating in Alberta. The pregnancy was difficult. The mother travelled to Newfoundland for assistance from her parents who resided there. The children were born prematurely in Newfoundland. The father flew out to see them the next day, remaining for two weeks. He returned to Alberta expecting the mother and babies would too when they were all well enough to travel. That did not happen.
[2] The mother registered the children’s births in Newfoundland. She did not include the applicant’s name as father. Although the father made numerous requests to visit the children, the mother did not agree. In 2015, she told him she would not be returning to Alberta. A Newfoundland lawyer retained by her wrote the father suggesting paternity testing would be required. At this time the father hired a lawyer in Alberta who he says was unable to obtain a call back from the mother’s lawyer.
[3] The mother did contact the father in June 2016 asking for his medical history. The father replied, asking to see the children, which he continued to do on multiple occasions into 2017. The mother did not reply. Later in 2017, the father heard that the mother had married and moved to Ottawa. He retained a lawyer here, commencing this application in December 2017.
[4] The second contact between the father and children took place in November 2018. By then the twins were four years old. The parents agreed for a social worker to be present to facilitate his introduction to the children. He saw the children every day for a week in November and a week in December, again with the social worker present.
[5] Although the mother has always been the residential and decision making parent, the only parenting order in place is that the father will have access in Ottawa in accordance with a mutually agreed upon schedule. His intention is to do so on a monthly basis, with the social worker present, until he has developed a solid relationship with the children.
[6] The first motion before the court was by the mother seeking child support in accordance with the father’s annual income, and retroactive child support commencing on November 1, 2014. The father’s motion was for an award of child support below the Guidelines amount based on his claim of undue hardship. He also asked for orders adding his name to the children’s birth certificates, to have his surname added to that of the children and restricting the mother from moving the children away from Ottawa without his consent or further order of the court, until this litigation is complete.
[7] At the opening of the hearing, the mother consented to an order to take all necessary steps to register the father as the biological father on each child’s birth certificate. During her submissions on the issue of the retroactivity of child support, it emerged that the extensive factual disputes between the parties in the record would not permit this issue to be properly dealt with on a motion. The mother then agreed to defer the issue to trial.
Child Support
[8] The mother seeks child support in the amount of $1,650 per month based on the father’s 2018 annual income of $113,886 as of January 1, 2018 consistent with the commencement of the application. The father acknowledges his income and obligation, notes the mother’s claim for child support was made in her answer delivered in February 2018, and raises a claim of undue hardship. He proposes to pay child support of $500 or $600 per month.
[9] The father has a daughter from a prior relationship who resides with him on a half time basis. The mother has married and lives with her husband and her two children. She has no income. Her husband is a naval officer. He supports their family with his annual income of $155,000.
[10] The applicable section in the, Federal Child Support Guidelines, SOR/97-175, as am is section 10:
Undue hardship
10 (1) On either spouse’s application, 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 spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the 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; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
Reasons
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so
[11] In S.D. v. J.M., 2013 ONSC 6880 Horkins J. describes the three step process to seeking relief under section 10. Step one requires the claimant to establish undue hardship. Step two requires the claimant to prove that the standard of living in his or her household is lower than the standard of living in the household of the other party. A claimant must succeed on both of these steps to move forward to step three where the court may determine that the appropriate amount of child support is less than the Guidelines amount.
[12] Undue hardship is a high threshold to meet. One court has described “undue” as, “exceptional”, or “excessive” or “disproportionate” in all the circumstances.” See Van Gool v. Van Gool, [1998] B.C.J. No. 2513 (C.A.).
[13] The father relied on subparagraphs (2) (b) and (d) as providing the circumstances that may cause undue hardship. With respect to (d) he has a daughter who resides with him half time. He also pays $320 per month child support and just over $100 per month for her extracurricular activities. These facts would not give rise to a finding of undue hardship.
[14] Given that no travel costs associated with access were incurred prior to November 2018 it follows that the father is ordered to pay child support in the amount of $1,650 per month for two children based on his 2018 income of $113,886, commencing January 1, 2018.
[15] In relation to (b) the first task is to determine what expenses are incurred to exercise access to the twins. The father travelled to Ottawa to see them in November, December 2018 and March 2019, this latter trip coinciding with the motion date. His plan is to visit monthly at least until his relationship with the children has solidified.
[16] His travel costs in November and December averaged at about $2,560. This figure includes some expenses that he would have incurred, even had he and the children resided in the same location. Groceries, gas for driving them around, entertainment, gifts and toys, and car seats for the children are standard expenses of access which ought not to be taken into account in connection with a claim for undue hardship.
[17] On average the additional expenses he incurred to exercise access included air travel, accommodations and rental car in Ottawa, totaling an average of $1,690 per visit. He is not asking to include any amount he may continue to incur for the assistance of the social worker in developing his relationship with the children.
[18] Expenses for March were not available for inclusion in the motion record.
[19] The mother made several submissions in support of her position that step one had not been established. She suggested in argument but did not allege in her sworn materials that the father may be living with his girlfriend, may have driven from Edmonton rather than flown, or stayed with a friend or relative at no cost. She submitted the expenses should be disallowed because receipts were not attached. I do not accept these submissions. In both an affidavit and his financial statement, the father deposed that he lived alone. He deposed that these were his expenses. The amounts for flights, accommodation and car rental were reasonable on their face. There was no evidence that receipts had been requested and not provided. His evidence is uncontradicted and I accept it.
[20] In Somerset v. Somerset, 2004 ONSC 16881 Pierce J. considered an undue hardship claim based on unusually high access costs. She took into account the difference in access costs depending on where access was exercised, the proportion the expenses represented of the access parent’s net income, and the proportion that access costs plus table support would represent of his net income. She also considered whether it was the payor parent who moved away thereby giving rise to the higher costs of access. At para [98] she stated:
[98 ] An order for the table amount of support at the prescribed level would mean the access order would be frustrated for financial reasons, on the present facts, and the children would be deprived of meaningful contact with their father, and he with them. This would constitute an undue hardship for both father and children.
[21] A consideration of these factors leads me to conclude that the father has established step one of the test for undue hardship. I find reasonable costs incurred for airfare, accommodation and car rental in Ottawa for the exercise of access are unusually high in relation to his income. The combined total of the annualized actual amount of additional expenses and annualized Guidelines child support is $40,080, representing almost 49 % of his net income. As will be explained below, I have concluded that ongoing expenditures for access in that magnitude are not affordable. A lower amount of $11,250 is reasonable now. Combined with child support the total represents 38% of the father’s net income. Even at that lower cost I remain of the view that step one of the undue hardship test has been met in the circumstances of this case.
[22] The father meets step two, the standard of living test in both scenarios. In both his household standard of living calculated according to Schedule II of the Guidelines is lower than that of the mother’s household.
[23] I now turn to a consideration of the parents’ financial circumstances. As noted, the mother is not working outside the home. Her financial statement shows income from Child Tax Benefits of $448.51, monthly expenses of $2,071.05, for a shortfall of $1,622.54. The budget includes expenses for herself and the children. Her net worth is $16, 177.
[24] The father’s budget is problematic. The monthly expenses were incorrectly totaled at $8,635.16. The corrected total, as presented, is $14,210.55. This total includes an error in double accounting for his mortgage payment of $1,818.41. Correcting for this still leaves monthly expenses of $12,392, against an income of $9,490.43. This deficit is clearly unsustainable, particularly since he has not included child support or travel costs referable to these children. His net worth is $29,834.55.
[25] The law expects the father to take reasonable steps to organize his financial affairs so that he can meet his obligations to his children. Child support takes precedence over debt payments. The father could wipe out all of his debt by selling his house and using the proceeds for debt reduction. He owns four vehicles. Disposing of three of those is likely to reduce his transportation expenses and produce some proceeds.
[26] Taking these steps could probably reduce his monthly expenses by $3,000, using his current mortgage payment as an estimate for rent. Other expenses claimed will also need to be reduced. This category includes groceries, meals out, land line, pet care, laundry and dry cleaning, clothing, entertainment, vacations, gifts, plus small monthly amounts for education, ($20), school supplies ($25), and summer camp ($10). The amounts claimed for EI premiums and CPP contributions were high by $315 per month by comparison to the Divorce Mate calculation.
[27] These budgetary considerations demonstrate that while a monthly visit with the children may be desirable, it is not affordable. The same applies to the duration of each trip. The November and December trips were for 6 and 7 days. On the other hand, at this developmental stage of the relationship, less than nine visits in the upcoming year would not be sufficient. Nine visits a year, for three or four days, scheduled in advance to take advantage of less costly airfare, on a barebones budget, will easily amount to $1,250 per visit or $11,250 for the year. This is the number included in consideration of all three steps of the undue hardship analysis.
[28] Making substantial but necessary reductions to his monthly expenses the father can make available $1,800 per month, $865 for child support and $935 for additional access costs prorated over twelve months. Accordingly, commencing November 1, 2018 he is ordered to pay the mother $865 per month child support for the two children.
[29] This award is reviewable at the end of 2019. By then the relationship between the father and children should be such that fewer visits at a lower cost may be appropriate. If so, more of his income can be devoted to child support.
[30] In the event the father does list his house for sale forthwith, at a reasonable price as confirmed by a licensed real estate agent, agrees to accept any reasonable offer to purchase, provides a written direction in form satisfactory to the mother for payment of arrears of support accumulated in 2018 from the net proceeds of sale, then, enforcement of those arrears will be stayed pending closing of the sale or further order of this court.
Access to Information
[31] The father seeks an order for access to information in respect of the children’s health, education, welfare and religion directly from third parties involved with the children. He is entitled to this order pursuant to section 20(5) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am, and I so order. To facilitate the order the mother shall provide the father with the names and contact information of all third-party service providers to the children, and should it become necessary, shall also provide the service providers with her written authority to provide information directly to the father.
Declaration of Parentage / Name Change
[32] The father asks for a declaration of parentage naming him as parent of the two children pursuant to section 13 (3) of the CLRA which provides:
13(3) If the court finds on the balance of probabilities that a person is or is not a parent of a child, the court may make a declaration to that effect. 2016, c. 23, s. 1 (1) .
[33] DNA testing has confirmed the father’s paternity. Accordingly, the Declaration of Parentage is made as sought. The father then asks for an order pursuant to section 17 of the CLRA changing the children’s surname from Barry to Pace-Barry. The mother opposes the name change.
[34] The test to be applied is whether the name change is in the best interests of the child. The father submits the name change should be allowed because the mother has demonstrated an intention to cut him out of the children’s lives. He submits that sharing his name is essential to protect the children’s future relationship with him. He also notes their half-sister’s surname is Pace. The mother counters with allegations about the nature of the parties’ relationship prior to the children’s birth, which if true, she submits justified her decision to remain in Newfoundland. She says the father knew where she and the children were or could easily have found them. Further he never paid any child support and took no legal steps to obtain access until January 2018. She says the children know he is their biological father, have never met their half-sister, and that the name change sought by the father will have no bearing on the future of their relationship with him.
[35] The children have resided with the mother continuously since birth and carried her surname throughout. Since their mother’s marriage in August 2017, they have also resided with her husband who stands in a parental position to them. Other than the contact the father had with them at birth there has been no contact or relationship between him and the children until November 2018.
[36] At this point it cannot be said that the father has a close or continuing relationship with the children. Many disputed facts exist which cannot be determined on the motion record. I conclude that the application for a name change is premature. It should be deferred to the trial judge for determination.
Restriction against the mother relocating children
[37] The father seeks to restrict the mother from moving the children out of Ottawa, Ontario pending the conclusion of this court case. His primary concern is not so much to restrict her from relocating rather to avoid having to commence new litigation in another jurisdiction if she does relocate before this case is over. The court’s jurisdiction is found in section 22(1) (a) of the CLRA which provides as follows:
22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
[38] The court can continue to exercise its jurisdiction until the case is concluded by a final order, even if the children are relocated in the meantime. During the oral hearing the mother acknowledged this. She agreed that if she were to move before a final order had been issued that she would undertake to provide the father with as much advance notice of the move as she has, including her proposed address and new contact information and would consent to an order to continue whatever the father’s access was at that time in her new place of residence.
[39] These are appropriate terms and shall be included in my order. Additionally, each parent shall also file an undertaking with the court confirming the court’s jurisdiction over the children’s parenting regime until the case is concluded by a final order and confirming that neither of them will commence litigation in any other jurisdiction prior to such an order issuing here.
Costs
[40] If the parties are unable to agree on costs counsel may make written submissions on the issue. These should be confined to three pages plus attachments of bills of costs and any offers to settle the motions. The father shall deliver his submissions on or before April 12. The mother shall deliver her submissions by April 26. The father may exercise a brief right of reply by May 3, 2019.
J. Mackinnon J. Date: March 20, 2019