Court File and Parties
COURT FILE NO.: FC-18-489 DATE: 20191211
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID MARK TINSLEY, Applicant -and- ELLEN CORINNE DOHERTY, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Carol Crawford, for the Applicant Respondent, self-represented
HEARD: November 21, 2019
ENDORSEMENT
1This is a motion brought by the respondent mother seeking interim child support in the amount of $4576 per month as well as interim spousal support in the amount of $10,296 per month.
Background
2The parties cohabited for a short period of time, from May 2015 until February 22, 2018. They have one child together, Marc, who was born on June 2, 2015. Although both parties were previously married and subsequently divorced, only the father has children from this prior relationship, Carter and Thea (currently 21 and 18), who at the time of the parties’ cohabitation and to this day continue to be dependent children for whom the father is required to pay $4000 per month in child support (in addition to his contribution to their special and extraordinary expenses). The father was also required to pay $6500 in spousal support to his former wife, up until August of this year.
3Before moving in together, the parties negotiated and executed a cohabitation agreement. The mother was pregnant with Marc at the time and she was due to give birth about one month later. Each of the parties were represented by counsel. Pursuant to the terms of the cohabitation agreement, both parties released all rights to spousal support and agreed to limit the payment of child support payable by the father to the mother, in case of a separation, to $1500 per month.
4The father alleges that the reason for the support provisions, among other things, is that he already had child support and spousal support obligations towards his first family and on that basis, the parties had agreed that the amount of $1500 per month would be sufficient to meet their unborn child’s needs in the event of a separation. Further, he states that because he is self-employed, approaching retirement, and has significant health issues (he had a heart attack in 2017), the parties recognized the need for him to save for his retirement to be able to support himself and Marc in the future.
5The mother disputes these allegations. She states that she was coerced into signing this agreement at a time when she was particularly vulnerable, both financially and psychologically, and she seeks to set the cohabitation agreement aside in the context of this application.
6Following the parties’ separation, Marc remained in his mother’s primary care (against the father’s wishes). Since November 2018, the parties care for Marc on an equal timesharing basis until the Office of the Children’s Lawyer (“OCL”) completes its final report. The father has honoured the terms of the parties’ cohabitation agreement and is currently paying child support to the mother in the amount of $1500 per month. In the context of a procedural motion brought by the father seeking a determination of urgency and leave to bring a motion before a case conference to address parenting issues, the parties consented to a without prejudice interim order confirming the father’s obligation to pay interim child support in the amount of $1500 per month.
7Marc is a special needs child. He has met the criteria for Autism Spectrum Disorder and was also diagnosed with Global Development Delay. He is engaged in occupational therapy and in speech language therapy. The parties also have the support of a social worker through CHEO who helps them with all the paperwork related to Marc’s programs and appointments. Marc is also seeing by a genealogist at CHEO, has audiology test appointments, and the parties have been involved in various other programs and support groups associated with Marc’s special needs. Since the date of the parties’ separation in 2018, the father has assumed most, if not all, of Marc’s special and extraordinary expenses. They included the following:
- speech language sessions in the amount of $3910
- occupational therapy in the amount of $4717, and
- daycare in the amount of $7600.
8It is to be noted that since Marc started school in September 2019, there are no more daycare costs.
9The father is a veterinary specialist, specializing in ophthalmology. He is the sole director and shareholder of “Tinsley Veterinary Ophthalmology Professional Corporation”, the company under which he operates his business. His income comprises of an annual salary as well as dividends, which together have provided him with a total yearly income of approximately $350,000 per annum. In 2018, he earned $654,492, but this included insurance proceeds which were paid to his professional corporation as a result of a heart attack he suffered in 2017. In 2019, the father expects to earn approximately $364,000.
10The mother is a dog groomer and she is certified as a veterinary assistant. This was her occupation when she became pregnant with Marc. I do not have the mother’s income tax returns for the years prior to Marc’s birth, but it appears based on her evidence that she had very modest means and was living with her mother. She is currently working as a dog groomer and she has a handful of private clients. She does not have her own space to carry on her dog grooming business, since she lives with her mother at this time, and therefore, she must go to her clients’ own residences to provide her services.
11In order to expand her dog grooming business, she states that she would need to have her own residence. She has also been invited back to work at the Montreal Road Animal Hospital, where she previously worked for a couple of months as a pet groomer. She is hoping to get more hours in the future. On the day of this motion, she stated that she had obtained part-time work elsewhere in the same industry, but there was no evidence to confirm what her income will be through that employment. What is clear to me is that at this time, the mother is still not employed on a full-time basis.
12The mother’s position is that the father’s income for child support purposes is in the amount of $597,647, which includes employment and dividend income earned by him as well as retained earnings which he has chosen to leave in his corporation. The assessment of the father’s true income for support purposes is a complex affair and no expert opinion has been provided in the context of this motion. In those circumstances, I am not prepared to guess whether additional income should be imputed to the father to account for personal expenses paid through his corporation or retained earnings reasonably or unreasonably withheld in his corporation. On an interim basis, I proceed on the basis that the father’s income for 2019 is $364,000, as indicated in his financial statement, and which generally accords with the yearly income earned by him during the past several years as shown on line 150 of his income tax returns.
13In her financial statement sworn on August 21, 2019, the mother indicates that she is earning less than $300 per month through employment. She also receives child tax benefits and rebates in the amount of $592 per month. Her income last year was nil and her income in 2016 and 2017 was less than $2000. While I accept that Marc’s special needs require that his parents attend several medical and other appointments on a weekly and monthly basis, I do not accept that this, in and of itself, justifies the mother’s inability to secure full-time employment for the past two years. Marc is four years of age and he has been sharing his time equally with both parents for more than a year. He started school in September 2019, and before that he was in daycare on a full-time basis. The father has attended all of Marc’s medical and other appointments (as confirmed in the OCL’s interim report) and this has not prevented him from running his business on a full-time basis.
14I have been provided with no medical evidence that would support a finding that the mother cannot be gainfully employed in her own field or in any other field. For that reason, I find it appropriate to impute her with a minimum wage, full-time employment income for the purpose of establishing interim child support obligations, which I set at $30,000 per year.
Child Support
15The father takes the position that this motion should be adjourned to the trial judge or dismissed. In his view, a trial judge would have all the evidence before them to decide whether the cohabitation agreement should be set aside or confirmed, and the provisions of the cohabitation agreement entered into by the parties with independent legal advice should be upheld on an interim basis until trial.
16For oral reasons given at the motion hearing, I refused to entertain the mother’s motion for interim spousal support at this time and chose to defer the issue of spousal support to the trial judge based on the principles laid out in Balsmeier v. Balsmeier, 2014 ONSC 5305, 50 R.F.L. (7th) 390. However, I allowed her motion for interim child support to proceed.
17Section 56(1.1) of the Family Law Act, R.S.O. 1990, c. E.22 provides that when determining a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter when the provision is “unreasonable having regard to the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”), as well as to any other provision relating to the support of the child in the contract”.
18It is not disputed that there are no other provisions in the cohabitation agreement that directly or indirectly benefits Marc when he is in the care of his mother. The father relies on the case of Spencer v. Irvine, (1999), 1999 CanLII 14977 (ON SC), 45 R.F.L. (4th) 434 (Ont. Sup. Ct.) as support for his position that it is not sufficient for the court to conclude that the provision is inadequate simply because it does not accord with the Guidelines. In his view, the child support he pays and the child tax benefits that the mother receives, coupled with her own income, fully cover all of Marc’s needs while he is in his mother’s care. In other words, the mother’s monthly living expenses are fully covered by these three sources of income and, therefore, Marc’s needs are fully met when he is with his mother.
19To further support this position, the father argues that his own monthly expenses related to Marc’s care are in the amount of approximately $1200. This, he suggests, is additional proof that the amount of $1500 per month that he pays in child support is more than sufficient to meet all of Marc’s needs while in his mother’s care.
20The father’s submissions in that regard are, in my opinion, flawed for several reasons.
21Firstly, the facts in Spencer were significantly different than the facts in this case. In Spencer, while the parties’ agreed upon monthly child support was clearly below the amount provided for in the guidelines, the agreement had made provision for the transfer of property to the support recipient which was effectively intended to offset child support that might otherwise have been payable. After having reviewed s. 56(1.1) of the FLA, the court stated the following:
In my view it is not sufficient for the court to conclude that the provision is inadequate “on the face” on no other basis than the existence of the Child Support Guidelines. There must be a consideration by the court of whether to support provision meets or fails to meet the needs of the child having regard to any other relevant provisions in the agreement. Where, as in this case, the agreement makes provision for a transfer of property or other financial benefit which purports to meet the needs of the child, in whole or in part, that provision must be considered and assessed before a determination to disregard should be made. It is only after a determination is made under s. 56(1.1) that the provision falls short of meeting the needs of the child that s. 33(11) and 33(12) come into play.
22In M. (C.M.) v. C. (D.G.), 2015 ONSC 1815, Horkins J. stated:
First, child support is the right of the child. Second, no contract or agreement can oust the court’s jurisdiction in respect of child support. Parents cannot barter away a child’s right to support. Third, the parent’s conduct at the time of the child’s birth and thereafter, and at the time of the agreement, is irrelevant to the child’s entitlement to support. Finally, the court is always free to intervene and determine the appropriate level of support for a child.
23The issue as to whether a child’s needs are being met is not limited to an analysis of whether he eats every day, is properly clothed or has a roof over his head. It is also determined having regard to the parties’ respective financial means, needs and other circumstances. In particular, the parents’ income, their respective standards of living and their financial ability to provide for their child are all relevant considerations.
24Although she is able to meet Marc’s basic needs while he is in her care, it is clear that the mother is unable to provide Marc with the same amenities and the same (or even a similar) lifestyle as the ones he enjoys while living with his father. At this time, she is residing with her mother, Marc’s maternal grandmother, not by choice but because she cannot afford her own place (although I appreciate that this was also the case before she moved in with the father). While the maternal grandmother tries to help the mother, her daughter, as best as she can, she is now retired and is a person of modest means. As the mother is currently unable to contribute to her and Marc’s housing expenses, this burden presently falls on the maternal grandmother, at least in part.
25While I acknowledge that the father, until recently, had significant financial obligations towards his first family, and that he is assuming all of Marc’s special and extraordinary expenses (which until August 2019 included daycare costs), it is obvious that he enjoys and is able to offer Marc a significantly higher standard of living than the one his mother can offer. According to the father’s financial statement, his budget includes monthly expenses exceeding $7750 on account of housing, utilities, household expenses, vacation and transportation costs alone. He has no car loan or lease payments, which may or may not be covered by his professional corporation; he owns a $664,000 home which is almost paid off (there is an outstanding mortgage of $10,000 only); he owns three cars and has an overall net worth exceeding $1.5 million.
26The mother, on the other hand, shows monthly expenses in the amount of $1817 for the same type of expenses (housing, utilities, household expenses, vacation and transportation costs) which include a car lease payment in the amount of $453 a month. She does not pay rent to her mother at this time because she has no ability to pay (although as I appreciate that the mother’s ability to pay would increase if she were employed on a full-time basis).
27Based on an income of $364,000 for the father, an imputed income of $30,000 for the mother, and the shared parenting arrangements in place between the parties, the set-off amount in accordance with s. 9(a) of the Guidelines would result in the father paying net base child support in the amount of $2584 per month (the father’s Table amount of $2840 minus the mother’s Table amount of $256). In accordance with s. 9(b) and (c) of the Guidelines, I am required to take into consideration the increased costs of shared custody arrangements as well as the conditions, means, needs and other circumstances of each party as well as of Marc.
28In my view, the child support provisions agreed upon by the parties in their cohabitation agreement do not meet Marc’s reasonable needs while in the care of his mother. I find that $2500 per month, on a temporary basis, would be reasonable, beginning on September 1, 2019 and every month thereafter until further varied by the court at trial. In arriving at this amount, I have considered the following additional factors:
- The father’s obligation to pay monthly spousal support $6500 to his ex-wife came to an end on June 30, 2019;
- There are no further daycare costs for Marc since September 2019, when he started to attend school full-time;
- The mother would be required to pay 7.6% of Marc’s special and extraordinary expenses which currently stand at approximately $8600 per annum (equal to a monthly contribution of $55 per month from the mother), and those are being assumed by the father in full;
- Even if I impute a reasonable income to the mother who has failed to seek and secure full-time employment within a reasonable time after the separation, the reality is that the income disparity between the two households is so great that a child support amount approaching the full Table amount payable by the father (as if the child was in his mother’s primary care) is, in my view, appropriate and necessary in this case.
Costs
29I wish to make clear that although I found in favour of the mother on the issue of child support, my decision should not be viewed as disapproving of the father. I acknowledge that he has voluntarily paid child support from the very outset after the parties’ separation and he has assumed all of Marc’s significant special and extraordinary expenses so far, without seeking a contribution from the mother. He has also advanced the mother $5000 to facilitate the purchase of a car so that she and Marc would have a means of transportation. Although I found that I was not bound by the provisions of the parties’ cohabitation agreement dealing with child support, I recognize that the father has honoured its terms, and even exceeded his obligations thereunder to a certain degree.
30In my view, success in this motion was mixed. The mother’s motion for temporary spousal support was dismissed, and her motion for temporary child support was granted, leading to an important increase of the support paid by the father on a temporary basis. However, the mother’s position in this motion with respect to the father’s income was rejected, and she was imputed a $30,000 income.
31For those reasons, I am not inclined to award either party any costs for this motion. However, if there are Offers to Settle that were exchanged between the parties or if there are any circumstances that, if known, might affect my conclusion on the issue of costs, the parties may provide me with written submissions on costs (not exceeding three pages, exclusive of Bills of Costs and Offers to Settle) within the following timeframe:
- The father shall have until January 6, 2020 to provide his submissions;
- The mother shall have until January 24, 2020 to provide her submissions;
- The father shall have until January 31, 2020 to provide a brief reply (not exceeding one page), if he so wishes.
Madam Justice Julie Audet
Date: December 11, 2019
COURT FILE NO.: FC-18-489 DATE: 20191211
ONTARIO SUPERIOR COURT OF JUSTICE
RE: DAVID MARK TINSLEY, Applicant -and- ELLEN CORINNE DOHERTY, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Carol Crawford, for the Applicant Respondent, self-represented
ENDORSEMENT
Audet J.
Released: December 11, 2019