Court File and Parties
COURT FILE NO.: FC-15-2193-1 DATE: 2019/06/17 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KARL HOFFMAN – Applicant v. VALERIE JOHNSON - Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Deanna Paolucci, for the Applicant Valerie Johnson, Self-Represented Jane O’Neil, for the Children
HEARD: June 11, 2019
Endorsement
[1] This was a motion by Karl Hoffman, (the father) for a final order that the two children of his marriage, George Peter Hoffman born October 20, 2004, and Charles Philip Hoffman born December 6, 2006, (the children) primarily reside with him. Further, that Valerie Johnson, (the mother) would have access to the children on specified terms.
[2] The father further requests an order adjusting the Family Responsibility Office (FRO) support payments owed and paid to reflect the amount of time that the children have primarily resided with him. The father further requests that the mother be imputed an annual income of $50,000 commencing January 2018, for the purposes of support adjustment calculations.
[3] The mother resists any change in the pre-existing arrangement respecting parenting time with the two children, and asked the court to dismiss the father’s motion on the basis that it is without merit and to order a family assessment so as to properly ascertain the best interests of the children at this time.
[4] I have considered the submissions of all the parties, reviewed the affidavit evidence of the mother, the father, John Thompson the clinical agent for the office of the children’s lawyer, and the factum filed; and I come to the following conclusions in deciding this motion:
- The parties were married on August 2, 1996. They had two children George Hoffman, born October 20, 2004 and Charles Hoffman, born December 6, 2006.
- They separated on March 10, 2014 and entered into a separation agreement on June 5, 2014 (the agreement). The agreement set out a child and spousal support payment structure that provided for each parent to receive 50% of their combined net disposable income. The parties agreed to joint custody including primary residence on an equal basis.
- Since November 2017, the evidence supports the proposition that the children have been primarily residing with their father.
- This resulted in three separate temporary orders including the following orders:
- Order of Justice Macleod dated October 25, 2017 which suspended support and varied access.
- Order of Justice Engelking dated February 27, 2018, setting aside the previous order and reinstating support.
- Order of Justice Engelking dated March 27, 2018 resuming the former access schedule.
- Both parents care about and love their children very much.
- The OCL through the clinical agent and counsel representing the children have conducted a thorough investigation into the matter; and the children have in no uncertain terms expressed the desire that they wish to stay with their father on a full-time basis they are 12 and 14 respectively, and their views are in my estimation unequivocal.
- I am satisfied on a preponderance of the evidence that a final order for the most part rationalizing what has been in place since November 2017 on a final basis is what is in the best interests of these children. It is highly unlikely that a family assessment would alter that finding.
- Effective January 2018 Mrs. Johnson has decided to in effect alter her career (a risk adjustment officer for insurance companies) and pursue studies as a paralegal. She anticipates being in the work for some time in the year 2020.
- In the circumstances of this case I would impute some income to Mrs. Johnson, she has the responsibility to assist in the support of her children, that responsibility is ongoing and is superior to a desire to change careers. In the circumstances of this case I would impute an annual income to her of $35,000 from January 2018 onward.
- She has a positive obligation going forward to advise Mr. Hoffman of her any change in her employment status.
- I accept the support calculations presented by counsel for Mr. Hoffman from January 1, 2015 through to December 31, 2017.
- With respect to the calculations effective January 1, 2018 and going forward, the amounts stipulated are to be recalculated using the same formula presented but factoring in an imputed income to Ms. Johnson the mother of $35,000 per year in lieu of the suggested $50,000 per year.
[5] Therefore I make the following order:
a) The father shall on a final basis provide the primary residence for the two children namely George Peter Hoffman born October 20, 2004 and Charles Philip Hoffman born December 6, 2006. b) The mother shall have access in accordance with the times expressed by the children. c) The father shall be allowed to register the children in counselling without the consent of the mother. d) An income of $35,000 per year shall be imputed to the respondent mother for the year 2018 and onward for the purposes of calculating child and spousal support. e) The Family Responsibility Office shall update the support payments owed and paid to reflect the following adjustments: effective January 1, 2015 and until December 31, 2015, the mother owes the father $2359.50; effective January 1, 2016 until December 31, 2016 the father is in arrears to the mother in the amount of $7312.50; effective January 1, 2017 and until October 31, 2017 the father is in arrears in the amount of $6895.60.; Effective November 1 and until December 31, 2017 the mother owes the father the amount of $1016.60; f) From January 1, 2018 through to the present date the amount what is owed by the parties is to be calculated on the basis of an imputed income of $35,000 using the same formula for the above calculations.
[6] Counsel representing the father is to prepare an order in accordance with this endorsement, it shall be presented to the respondent mother she shall have seven days to approve it, failing which it can delivered to my attention to resolve any dispute as to its form and content.
[7] With respect to the issue of costs, I will accept one page of written argument from counsel representing Mr. Hoffman, and from Ms. Johnson within 15 days of the release of this endorsement.