COURT FILE NO: FC-19-918

DATE: 2019/11/21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: John Sinclair Petifer Robson, Applicant AND Marie Carmel Brigitte Pellerin, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Philip Augustine for the Applicant Kerry Fox for the Respondent

HEARD: October 31, 2019

ENDORSEMENT

[1] A motion and cross motion were before the court. The applicant’s motion proceeded on parenting issues, imputation of income to the respondent, child support, contribution to section 7 expenses, for relief with respect to a post separation withdrawal the respondent made from a joint line of credit registered against their matrimonial home, and disclosure. The respondent’s cross motion also dealt with parenting. She raised two additional issues, namely appointment of the Office of the Children’s lawyer and temporary spousal support.

[2] The parties married in 2001. They have three daughters ages 13, 11 and 9. The date of separation is disputed but it is agreed that the respondent left the matrimonial home effective July 1, 2018 and that the children have remained living there with their father. The parents agree, and I order on a temporary basis that the children shall remain primarily resident with the applicant and shall visit with the respondent one evening per week pursuant to a temporary order. Other parenting terms are also agreed. These are attached as Schedule A to my endorsement and shall form part of the temporary order.

[3] Line 150 incomes for 2018 were $93,303 for the applicant and $37,235 for the respondent. The respondent agrees she should pay the table amount of child support for the three children based on her line 150 income. She also agrees that she should contribute her share of section 7 expenses to the applicant based on her percentage of their combined line 150 incomes. She opposes the applicant’s position that $70,000 annual income should be imputed to her.

[4] The applicant disputes entitlement to spousal support. Further, if income is imputed to the respondent as he asks, he says no spousal support should be awarded.

Office of the Children’s Lawyer

[5] The respondent sought a section 112 clinical investigation from the OCL. The applicant opposed. The parents disagree as to the parenting roles each performed during cohabitation. They also disagree whether the respondent has been requesting more access since separation and has been turned down by the applicant, or whether she has only sought more contact in response to the applicant’s motion. These are all factual disagreements a trial judge will be able to resolve without input from the OCL. The respondent alleges school absences and illnesses experienced by the children in their father’s care. These issues can also be resolved by oral or documentary evidence from the schools and physicians involved, without the need for an independent investigation by the OCL.

[6] Of more concern is the father’s repeated reference to the children deciding whether to see their mother more than the one agreed upon weekly visit. He maintains that an article she wrote in June 2018 has hurt her relationship with the children and that additional contact should be as they and the parents agree. For her part the mother believes the father is making it difficult for the children to be in touch with her and has discouraged them from doing so.

[7] It is important for the court to hear the voice of the children and to have reliable information as to their views and preferences with respect to their residential schedules with both parents. The applicant believes an OCL report restricted to this inquiry would be upsetting and intrusive for the children. I disagree. A VOC report is an unobtrusive way for the court to hear what the children have to say and to consider the independence of their views, and at the same time keep them from being drawn into the parental conflict by being asked what they want by one or both parents.

[8] For these reasons an order will go asking the OCL to provide a VOC report with respect to these children.

Parenting Issues

[9] The applicant did not seek an order with respect to decision making (custody) in his Notice of Motion. During the hearing he asked for an order that the parents consult with each other concerning major decisions affecting the children or any one of the children, with final decision-making authority to himself in the event of a disagreement. The respondent opposed this request. She sought joint decision making in her cross motion.

[10] Decision making on a temporary motion is an important issue. Absent compelling circumstances an order for final say decision making ought not to be made without specific notice given in the Notice of Motion. Here there was evidence of one disagreement about whether the oldest child should attend a sex education seminar. There was another issue as to whether the applicant had given the respondent timely notice of a health issue relating to a child. The evidence falls short of inability to make joint decisions for the children. Nor are any known major decisions expected within the likely time frame of this temporary order.

[11] I make no order with respect to decision making. The result is that the parents remain equally entitled to participate in decision making for their children. Should they be unable to agree on a major decision for a child they may return to court for determination of the issue, if they are unable to agree to an alternate dispute resolution mechanism.

[12] The next parenting issue is whether the respondent should have alternate weekend access with the three children. The applicant says her access should be limited to day visits on alternate Saturdays and Sundays because her accommodation is not suitable for overnight visits. He also says her relationship with the children has been adversely impacted by articles she has written and accordingly the children should decide if they want to attend these visits.

[13] The respondent lives in a two-bedroom apartment with her partner. The children have stayed overnight on nine occasions. The respondent says the accommodations are satisfactory for overnight visits. She disagrees that the visits should be left in the children’s discretion because the applicant discourages them from spending time with her.

[14] To successfully pursue her claim for primary or shared residential care of the children on a final basis it is likely the respondent will have to obtain other accommodation. But the prospect of sharing a room is not sufficient in and of itself to deny overnight visits on a temporary basis. The absence of specific details of problems during the nine overnights to date leads me to infer there has not been a significant problem.

[15] The respondent deposed that she had been the primary parent, worked part time most of the time to facilitate this role, and took the lead with home schooling the children. She submits regular overnight access is essential to her continuing meaningful relationship with the children. With respect to the June 2018 article she says that in it she carefully distinguished between not wanting to be a “mom” but very much wanting to be a good Mother to her children and stressed her deep love for them.

[16] The applicant deposed that he had been the primary parent and that the respondent’s articles show her disinclination to parent and to put the children’s best interests ahead of her own. Given that I am not addressing either primary or equal residential time, rather only the issue of alternate weekend overnight access I do not find the articles of much assistance to my decision. The respondent and children should have more contact including on an overnight basis, and this access should not be in the discretion of the children.

[17] The overnights to date have been single nights. This should continue but on alternating weekends. Therefore, the alternate weekend access schedule will be from 9:00 a.m. Saturday morning until 7:00 p.m. Sunday evening.

[18] The respondent also sought an equal share of holidays on a rotating basis, but without providing other specifics. The applicant did not address holidays. Without additional information I decline to make an order other than the for upcoming winter school vacation. I order an equal sharing of the December 24, 25 and 26 period, and of the December 31 and January 1 period, with the regular schedule in place for the balance of the school vacation. The parents are free to agree on the sharing of these periods but failing an agreement the applicant shall have the first half of the December 24 to 26 period and the respondent the second half, and the respondent shall have New Year’s Eve day overnight until 10:00 a.m. the morning of January 1 when the children shall return to the applicant.

[19] After the OCL report is available either party may bring a motion for additional holiday access. Any such motion shall provide the court with information relating to proposed parenting plans for the children during requested holiday periods.

Imputation of Income

[20] The applicant relies upon Section 19 (1) of the Child Support Guidelines, O.Reg. 391/97 as am, as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; …

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so; …

[21] Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 Carswell Ont 3228 OCA is instructive with respect to section 19(1)(a) in particular at paras 23, 28, 32, 44, 45:

[23] In my view, in applying this provision, the trial judge was required to consider the following three questions.

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?

[28] Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed 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. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[32] 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.

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[45] 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 have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[22] The burden of proof rests with the party seeking to impute income. To establish the proposed imputed income of $70,000 the applicant refers to full time employment the respondent obtained with Sun News in 2011. She had this employment for about two years, choosing to leave in 2013. Her annual salary at Sun News was $65,722. The applicant infers from this that she should now be able to earn $70,000 in a full-time job.

[23] Since the birth of the first child the employment with Sun News was the respondent’s only full-time employment. The balance of her employment was part-time. In 2010 and from 2014 to 2018 a large part of her income derived from the parties jointly owned company, Robson Pellerin Communications Inc. Work from RPC has not been available to her since July 2018.

[24] The respondent deposed that she took the job with Sun News so that the applicant could also obtain employment there as part of a “package deal”. She says she left because the job required her to be up by 3:00 a.m. to prepare for the morning broadcast and was far too onerous having regard to her family obligations. The applicant disagrees. He says the respondent has a habit of quitting jobs she does not like. I am unable to resolve this factual dispute on the motion record.

[25] Sun News went out of business in 2015.

[26] The respondent worked primarily in RPC Inc after leaving Sun News in 2013, until July 2018. RPC income accounted for almost all of her earned income in those years. The applicant acknowledges that the income the respondent derived from RPC is no longer available to her. Since July 2018 she has not matched her prior income. In my view it is more relevant to consider what she has done since to replace her RPC income than to make a finding based on full-time employment she had six to eight years ago.

[27] The applicant submits the respondent has made insufficient efforts and has provided insufficient disclosure of her efforts and income earned. I disagree. The respondent has generated about $37,000 on an annualized basis since leaving the matrimonial home. This exceeds what she made in 2016 and is virtually the same as what she made in 2017. The respondent has applied for many positions, with six applications still outstanding, and for grants. She has submitted book manuscripts for publication. She is focusing on her previous experience as a writer and columnist rather than as a broadcaster as she was with Sun News, or as a documentary filmmaker, which was some of the work she assisted with at RPC. The respondent knows the difficulty writers in Canada face in generating reasonable incomes. She has recently broadened her search which is appropriate. The respondent also drives for Lyft and Uber for additional income, not as a chosen low-income pursuit.

[28] The career path the respondent is pursuing is not unrealistic, unreasonable or unrelated to her existing skills, experience or previous work, and as such is distinguishable from the cases the applicant relied upon.

[29] I am not persuaded that the respondent is intentionally underemployed; income is not imputed to her.

Child Support and Section 7 Expenses

[30] The table amount of child support based on the respondent’s line 150 income is $758 per month. The applicant seeks payment of this amount commencing July 1, 2018, despite his assertion of an oral agreement between the parties which includes a provision for no child support and no spousal support. The respondent denies any such agreement was made. She seeks spousal support effective July 1, 2018.

[31] Accordingly, the order for child support in the amount of $758 will commence July 1, 2018. In the event the applicant successfully pursues his claim with respect to the oral agreement an accounting of amounts paid would presumably be required.

[32] I make no order for the retroactive adjustment of the section 7 expenses incurred by each parent after July 1, 2018. Each agreed to pay the other his or her portion of the expenses incurred by the other, $700 by the respondent and $1224.18 by the applicant. The resulting offset is de minimus.

[33] Future section 7 expenses consented to in writing in advance shall be shared between the parents in accordance with their line 150 incomes, consent not to be unreasonably withheld.

Spousal Support

[34] Entitlement of the respondent to spousal support is in issue. On a temporary motion the support claimant is required to establish a prima facie case for entitlement: see Politis v. Politis, 2015 ONSC 5997 at para 15.

[35] Politis also reviews the principles applicable to an interim motion for spousal support at para 14:

1.On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;

2.An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;

3.On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;

4.The courts should not unduly emphasize any one of the statutory considerations above others;

5.On interim applications the need to achieve economic self-sufficiency is often of less significance;

6.Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

7.Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;

8.Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

[36] I find that the respondent has established a prima facie entitlement to spousal support on both a needs and compensatory basis. The period of cohabitation was either 16 or 18 years, with three children born to the couple. Since the birth of the first child the respondent was only employed full time for some two years. The balance of the time she had part-time employment to facilitate her child care responsibilities which included home schooling. In 2010 and from 2014 to 2018 a large part of her income derived from Robson Pellerin Communications Inc. which work has not been available to her since separation. Although jointly owned RPC Inc. has been solely operated by the applicant since July 2018. The respondent and her partner since August 2018 share common expenses equally. Even so she has a monthly deficit on a modest budget and has depleted $36,000 of capital since July 2018.

[37] The respondent seeks support at the midpoint of the Spousal Support Advisory Guidelines [^1] which is $794 per month. This amount would provide the respondent with 25.7 percent of their net disposable incomes and she will still experience a slight monthly shortfall after the payment of child support.

[38] In his financial statement the applicant claimed expenses for repairs and maintenance, cottage insurance and furniture, boat expenses, and recreation totaling $5,341 per month. He also included $987 per month for legal fees. I am satisfied he has the ability to pay the requested amount of spousal support with necessary modifications to his budget and in light of the child support which he will also receive.

[39] The order for spousal support shall also commence July 1, 2018 on a tax deductible, tax included basis.

Line of Credit

[40] On May 1, 2019 the respondent took the unilateral self-help step of withdrawing $120,000 from a joint line of credit. She has invested the money. Her proposal is to set off the amount against any equalization payment the applicant will owe her or deduct it from her share of proceeds of sale of their home and or cottage. The respondent regards this as fair because the amount is less than her ultimate entitlement and she will need funds to see her though the litigation.

[41] The applicant seeks an order that the respondent repay the funds into the line of credit, together with the associated interest and insurance costs to date of repayment, or that she takes over those ongoing payments herself. The respondent is unable to make the ongoing payments.

[42] Regardless of the ultimate property determination, it was improper for the respondent to have borrowed unilaterally from the joint line of credit. She may be entitled to pre-judgment interest on an equalization payment owing to her but that does not justify what she did or legitimize her assertion that it can all be accounted for at the end of the day.

[43] The respondent had options. She could have moved for the sale of the matrimonial home, the cottage or both. She could have sought an advance on the equalization payment she believes she is entitled to.

[44] Since she cannot afford to pay the increased interest and insurance costs on this borrowing, she shall refund the principal amount of $120,000 forthwith, and the increased costs incurred to date will be addressed in the final determination of the issues between the parties.

Disclosure

[45] The applicant seeks additional disclosure from the respondent. She is ordered to produce the following in her possession or control:

• Any documentation not yet produced showing income earned as a journalist since June 2018 from any publication whether paper or online.
• Any documentation not yet produced for any work done and income received from any source from June 2018 forward.
• Any documentation showing unpaid work done since June 2018 for an arm’s length third party for which such work would in the normal course of business have been compensable.
• Any letter of employment or contract with Douvris for services she has rendered to them since June 2018, including if it exists, any letter or notice of termination from or to Douvris.
• Any contracts of employment and all communications concerning termination of employment from June 2018 forward.
• Documentation to show any funds received with respect to any book contracts, since June 2018.
• Any documentation pertaining to any retainer for reporting on legal matters from June 2018 forward.
• Any responses received to grant applications
• A copy of the CV she will use to apply for employment or work contracts on a go forward basis.
• A copy of her 2019 Income Tax Return and attachments as filed and Notice of Assessment on receipt.

[46] The respondent shall also provide updates on her income earned and efforts to obtain employment or income by any other means at six-month intervals, commencing April 1, 2020.

Costs

[47] I commend both counsel for providing sealed Bills of Costs and Offers to Settle the motions at the hearing. They asked for the opportunity to make submissions on costs after receipt of this endorsement. If counsel unable to agree on costs, the applicant shall deliver his submissions by December 6, and the respondent by December 20, not to exceed three pages. The applicant may deliver a brief reply if required, by December 30.

J. Mackinnon J.

Date: November 21, 2019

Schedule A

3. The Applicant shall not relocate the children outside of the City of Ottawa without agreement or court order.

4. The parties may exercise daily telephone or Facetime access with the children when the children are in the care of the other party.

5. Both parties shall be entitled to direct access to the children’s teachers, extracurricular leaders, health care providers, counsellors and other persons providing care and guidance to the children.

6. Both parties shall be entitled to direct access to the children’s school, extracurricular, medical, counselling and all other records.

7. The parties shall each advise the other, by email, of all of the children’s doctor’s appointments and both parties shall be entitled to attend all appointments.

8. The Applicant shall provide the Respondent with a copy of the children’s health cards, birth certificates and other identification.

9. Neither party shall travel with the children outside of the provinces of Ontario and Quebec without a travel consent signed by the other party, such travel consent not to be unreasonably withheld.

COURT FILE NO: FC-19-918 DATE: 2019/11/21

ONTARIO SUPERIOR COURT OF JUSTICE

RE: John Sinclair Petifer Robson, Applicant AND Marie Carmel Brigitte Pellerin, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Philip Augustine for the Applicant Kerry Fox for the Respondent

ENDORSEMENT

J. Mackinnon J.

Released: November 21, 2019

[^1]: Spousal Support Advisory Guidelines, prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html