Rupert v. Rupert , 2019 ONSC 5453

COURT FILE NO.: FS-14-397411-001

DATE: 20190923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BERTRAND LEO RUPERT JR.

Applicant

– and –

SHARDA KANHAI RUPERT

Respondent

Self-Represented

Lenard Kotylo, counsel for the Respondent

HEARD: September 16, 2019

ENDORSEMENT

DIAMOND J.:

Overview

1This proceeding was settled by way of two consent Orders signed by Justice Kiteley on February 1, 2016 and May 19, 2016 respectively. The Order dated February 1, 2016 (“the Kiteley order”) addressed parenting, support and residential schedules for the two children of the marriage, Lorenzo Bertrand Rupert (“Lorenzo”, born August 27, 1998) and Lester Leo Rupert (“Lester”, born May 2, 2006).

2The Order dated May 19, 2016 resolved the remaining property and equalization issues between the parties.

3On July 12, 2018, the respondent brought a motion to change the Kiteley order, as it is her position that the equal residential schedule for Lorenzo and Leo has not been in place since March 2016, thereby entitling the respondent to an Order (a) changing that equal residential schedule going forward and (b) requiring the applicant to pay retroactive and ongoing child support for both sons. In addition, the respondent also sought an Order enforcing paragraph 10 of the Kiteley order requiring the applicant to pay his 50% share of various section 7 expenses incurred by the respondent over the last three years.

4While the applicant originally disputed all of the relief sought by the respondent, at the conclusion of the hearing he withdrew his objection to the respondent’s request that he pay his 50% share of the section 7 expenses. The balance of the relief sought on the respondent’s motion of change remained opposed.

5At the conclusion of the hearing, I took my decision under reserve.

Summary of Key Facts

6Paragraph 1 of the Kiteley Order provided that both Lorenzo and Lester “shall have their residential time with the parties” in accordance with the following schedule:

• They would reside with the applicant from Sunday at 10:00 am to Wednesday drop off at school;

• They would reside with the respondent from Wednesday after school until 11:00 am on Sunday;

• They would spend one of the two Christmas break weeks with each of the applicant and the respondent respectively, with weeks alternating each year unless the parties agreed otherwise;

• During the summer school break, the children would reside with each party on an alternate week basis commencing at 10:00 am on the first Sunday in July; and,

• During March break, the regular residential arrangement would continue unless one party wished to travel with one or both of the children.

7As of the date of the Kiteley Order, Lorenzo was turning 18 years of age and finishing high school. According to the respondent, approximately two weeks after the Kiteley Order was signed (i.e. in or around March 2016) Lorenzo unilaterally decided that he would live continuously with the respondent. Lorenzo continues to reside full time with the respondent, and the respondent submits that this amounts to a material change in circumstances as defined by the governing jurisprudence. For his part, the applicant did not dispute that Lorenzo chose to reside full time with the respondent, and the applicant respected his adult son’s wishes. Lorenzo essentially sees the applicant whenever Lorenzo wishes.

8In the fall of 2016. Lorenzo began attending Durham College as a full-time student in the firefighting program. He is scheduled to complete the program in the spring of 2021. To date, the respondent has paid for all of Lorenzo’s tuition and related expenses for the program. I have reviewed all of the invoices and related documentation produced by the respondent, and find that the total amount of funds paid by the respondent for Lorenzo’s program amounts to $23,970.41.

9Of note, Lorenzo does work on a part time basis - once a week at Food Basics during the school year, and approximately 15-20 hours a week at Food Basics during the summer months.

10With respect to Lester, the respondent testified that ever since Lorenzo began residing with the respondent on a full-time basis, Lester has spent far more time with the respondent than the applicant, primarily to be with his brother. This past summer, Lester resided with the respondent for seven of the nine summer vacation weeks. According to the respondent, since March 2016 Lester has resided with her for the majority of the time, and has spent virtually all holidays with the respondent. The respondent argues that this new reality also amounts to a material change in circumstances. The respondent has incurred $371.85 in daycare/after school programs for Lester (although those programs ended when Lorenzo turned 12 years of age) and the applicant has not paid his 50% share of those expenses.

11The applicant, who according to the respondent lives with his partner in a one bedroom apartment, disputes the respondent’s versions of events and claims that Lester still resides with both parties on a 50/50 basis. While the applicant did testify that Lester does not always adhere to the residential schedule set out in the Kiteley Order, he testified that on a “global, overall basis”, Lester is still residing with both parties equally. I have difficulty accepting this evidence. Apart from paying for Lorenzo’s cell phone bills commencing sometime after the Kiteley Order, the applicant has not apparently incurred any fees or expenses associated with the children. In his Financial Statement sworn December 19, 2018, he lists $20.00 in monthly “clothing for children expenses”, $12.50 for monthly school fees and/or supply expenses, and $0.00 for monthly children’s activities or summer camp expenses. He also incurs no expenses for daycare or babysitting. If Lester has been residing with the applicant on a 50/50 basis, one would have expected to have seen far more significant monthly, or even one-time, expenses for Lester while in the applicant’s care.

12Finally, with respect to the parties’ respective income, the respondent estimates that her 2019 income (inclusive of child benefits) will total approximately $65,000.00. The applicant estimates his 2019 income to be approximately $45,000.00, which is consistent with his income for the 2016-2018 years.

Issue #1 Section 7 Expenses

13As previously stated, the applicant does not deny owing his 50% share of section 7 expenses incurred by the respondent on behalf of the two children, all in accordance with paragraph 10 of the Kiteley Order. The applicant cites a current inability to pay due to being “financially ruined” as a result of the parties’ separation and divorce.

14The marital assets were equalized, and the applicant received a $70,000.00 payout along with having his personal and/or joint debts paid as at the date of the Kiteley Orders. There is no current motion to change filed on behalf of the applicant, and as such paragraph 10 of the Kiteley Order remains in full force and effect.

15Accordingly, I order the applicant to reimburse the respondent for 50% share of the section 7 expenses in the total amount of $12,171.13. Paragraph 10 of the Kiteley Order remains in effect, and as such the applicant must continue to fund his 50% share of ongoing section 7 expenses incurred for the two children.

Issue #2 Is Child Support Payable to the Respondent?

16Lorenzo has been living full-time with the respondent while he completes the firefighting program at Durham College. I find that Lester resides with the respondent more than with the applicant, and although Lester does see his father more than Lorenzo does, the reality of the living arrangements for the last three years is that the applicant does have an obligation to pay child support for both children. Even though Lorenzo works on a part time basis and has an obligation to contribute, he is nevertheless attending Durham College on a full time basis and residing with the respondent.

17As such, according to the Child Support Guidelines the applicant is responsible for paying child support in the amount of $674.20 per month, and I order the applicant to make that payment on a go forward basis. As previously stated, Lorenzo’s program is scheduled to be completed in or around April 2021, and the applicant may revisit his obligation to pay the sum I have ordered at that time. Assuming that Lorenzo enters the workforce at some point, the parties can hopefully negotiate a new arrangement at that time, or if necessary the applicant can bring his own motion to change.

18With respect to the respondent’s request that child support be ordered payable retroactively to March 2016, I am not prepared to make that specific order. When Lorenzo unilaterally chose to reside with the respondent on a full time basis, the applicant was entitled to take a “wait and see” approach to the situation as the 2016 summer months were approaching at that time. Objectively, there was likely a transitional period whereby it was still to be determined whether Lorenzo (and in turn Lester) would choose to not adhere to the equal residential schedule. However, by the start of the 2016/2017 school year, that transitional period had likely ended.

19Accordingly, I order retroactive child support for both children in the amount of $674.20 per month payable by the applicant to the respondent commencing on September 1, 2016.

Issue #3 Should a new Residential Schedule be Imposed?

20To begin, the respondent’s motion to change asks for “full custody of Lorenzo and Lester”. I see no reason to grant that relief, as the parties continue to share equally in major decision making as mandated by paragraphs 6 and 7 of the Kiteley Order.

21Lorenzo need not be subject to any residential schedule, as he is now 21 years of age. Accordingly, paragraph 1 of the Kiteley Order is varied to delete any reference to Lorenzo.

22With respect to Lester, it appears that the parties have essentially agreed to let Lester decide when and with whom he will reside. While the applicant understandably wants to maximize his parenting time with Lester, the reality is that to date, the applicant seems to have “taken what he can get” with Lester.

23At this stage, I do not believe it to be in Lester’s best interest to simply order him to live with the respondent, and have the applicant be granted access “on such dates and times as Lester elects”.

24I believe it to be in Lester’s best interest to vary paragraph 1 of the Kiteley Order to reflect a more realistic account of the current circumstances. While the parties may always agree to further vary the residential schedule, in the circumstances of the case I believe that paragraph 1(a)(i) of the Kiteley Order should be changed to Lester having residential time with the applicant from Sunday at 10:00 am to Tuesday drop-off at school, with paragraph 1(a)(ii) of the Kiteley Order being changed to Lester having residential time with the respondent from Tuesday after school to 11:00 a.m. on Sunday. This extra day of time with the respondent more accurately reflects Lester’s current living arrangements.

Costs

25I would ask the parties to exert reasonable efforts to try and resolve the costs of this motion to change. If those efforts prove unsuccessful, they may exchange and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:

(a) the respondent’s costs submissions within 10 business days of the release of this Endorsement; and,

(b) the applicant’s costs submissions within 10 business days from the receipt of the respondent’s costs submissions.

Diamond J.