Court File and Parties
Court File No.: 328/18 Date: 2019-02-06 Superior Court of Justice - Ontario
Re: Shawnette Abina McLennan, Applicant And: Ronald Wayne Campbell, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Ms. Jennifer Vandenberg, Counsel, for the Applicant Self-Represented Respondent
Heard: February 6, 2019
Endorsement
[1]
Introduction
This was a very straightforward trial which extended into a second day.
2At the outset, all issues were in dispute. During the first day of trial we took some breaks and the parties were able to resolve most issues by way of Partial Final Minutes of Settlement.
3That left only two basic issues: Child support and the mother’s ability to travel with the child. Each party gave evidence on those two issues.
[4]
Background
The background:
a. The Applicant mother is a native of Guyana.
b. The Respondent father is a native of Jamaica.
c. They started living together here in Ontario in about June of 2017.
d. A daughter Ronacia was born of this relationship on July 2, 2017. Ronacia was a premature baby born with many health problems. She remained hospitalized for three to four months, and she continues to receive medical care for ongoing health issues.
e. The parties separated in January 2018.
f. Upon separation the mother relocated with the child from Toronto, where the parties were residing, to Hamilton, where she and the child continue to reside. The father continues to live and work in Toronto.
g. The father has not seen the child since January 2018.
[5]
Settlement
The Partial Final Minutes of Settlement resolve all parenting issues and include the following terms:
a. Applicant mother to have sole custody.
b. Respondent father to have supervised access in Hamilton for two hours on alternate Saturdays. The purpose of the visits is to reintegrate the Respondent into the child’s life. Access can be reviewed by way of a motion after six months.
c. Applicant to provide Respondent with full particulars regarding professionals and third parties involved in the child’s life, and Respondent entitled to communicate with all such third parties.
d. Respondent to maintain health care coverage and life insurance coverage as available through his employment.
[6]
Child Support
Both parties acknowledge that in August 2018 the Respondent started paying $200.00 per month by way of post-dated cheques, as child support.
a. The Respondent says this is the amount the Applicant requested, and it’s all that he can afford. He wants that level of child support to continue.
b. The Applicant disagrees that she ever requested this specific amount or acknowledged that it is appropriate.
c. She seeks full table support for the child retroactive to April 1, 2018, on the basis that the Application for child support was commenced and served on the Respondent in March 2018.
d. The Respondent opposes any retroactive adjustment, or any increase in relation to future payments.
7The Respondent’s income for child support purposes was disputed.
a. The Respondent proposed that child support be calculated based upon his earning an income of $36,000.00 per year. He says this is the amount he is guaranteed to earn based on his base salary, without overtime. He says overtime is not guaranteed so it shouldn’t be factored into child support.
b. Notably, even if child support were calculated based on $36,000.00, it would still be more than the $200.00 per month the Respondent is proposing to pay.
8The Respondent asks the court to take into account that he has a 10 year old daughter of another relationship now living with him. However, I agree with the Applicant’s counsel that this factor would not result in any deviation or reduction from the table amount set out in the Child Support Guidelines.
a. The Respondent has never pleaded any claim in relation to Undue Hardship.
b. Even if an Undue Hardship analysis were to be applied, the Respondent would not be able to establish that he should receive any relief under this section.
c. Each household consists of an adult and a child.
d. The Respondent’s employment income and his household income are greater than those of the Applicant.
e. The Applicant has significant extra medical expenses in relation to Ronacia’s significant and ongoing medical issues, and the Respondent is not contributing to those expenses. Neither parent currently has a health care plan to assist.
f. The Respondent acknowledges that he is not seeking any contribution from the mother of the child living in his care.
g. The Respondent claims overall financial hardship, but in 2017 he was able to contribute funds into an RRSP.
h. The Respondent claims a reduction because he is sending money to his mother in Jamaica. The details of such payments were disputed and the amounts were unclear. But there is no legal obligation on the Respondent to send money to Jamaica, and this should not be the basis for any reduction of his child support obligations here in Canada.
i. So there is no basis for any reduction of child support from the applicable amount under the tables.
9I accept the Applicant’s submission that the Respondent’s income for child support purposes should be found to be $45,000.00. The Respondent’s historic income:
a. 2015: $38,213.00
b. 2016: $41,421.00
c. 2017: $45,006.00
d. 2018: $45,000.00 (unverified but based on the Respondent’s acknowledgement).
10The Respondent says overtime is not guaranteed. But he has worked overtime in every year, and he testified that he takes overtime when it is available. There is no evidence that there is expected to be a reduction in available periodic overtime. The Respondent acknowledged that he has already worked some overtime in 2019.
11Accordingly, I accept the Applicant’s position that child support should be calculated based upon an income of $45,000.00 and that the appropriate commencement date is April 1, 2018.
[12]
Travel
With respect to travel:
a. The Applicant seeks authorization to travel outside of Canada with the child for vacation purposes without the consent or permission of the Respondent.
b. The Respondent says he wants the Applicant to be required to obtain his consent before she travels. He said he would give consent, but he doesn’t trust the Applicant and wants her to obtain his consent before each and every proposed trip.
13On this issue, I agree with the Applicant:
a. This is a high conflict couple.
b. They went a full year since separation without being able to resolve access.
c. Having observed their interaction with one another while the self-represented Respondent cross-examined the Applicant, it is clear that there is a very high level of animosity, mistrust, and bitterness between the parties. I had to ask them to stop arguing with one another.
d. In the summer of 2018 the Applicant had to (successfully) bring a motion to be permitted to travel to Guyana with the child, because the Respondent refused to sign any consents.
e. I accept that the Applicant has legitimate reason to travel with the child back to Guyana for vacation purposes. She has family there including an elderly, ill mother. She wants Ronacia to be able to visit with her family.
f. I do not accept the Respondent’s expression of concern that the Applicant might leave with the child and not return. Both of these parties have permanently settled in Canada. The Applicant was quite candid in explaining that Ronacia has major medical issues and the Applicant would never remove the child from Canada where she is receiving excellent medical attention.
g. The Respondent testified he is aware that the Applicant wishes to travel to Guyana again with the child in the coming months, and he says he will consent to this.
h. Given the extreme conflict between the parties; the mother’s complete responsibility for the child during this past year; the mother’s reasonable travel/vacation plans; and the fact that the mother has already been met with unreasonable opposition to travel by the Respondent (resulting in her having to bring a motion), I am not prepared to create more opportunities for needless conflict or interaction between the parties.
[14]
Final Order
Final order:
a. Per Partial Final Minutes of Settlement.
b. The Respondent shall pay to the Applicant support for the child Ronacia in the sum of $418.00 per month based upon the Respondent’s stated 2018 income of $45,000.00. Payments commence April 1, 2018 with the Respondent to receive credit for having paid $1,000.00 in total during the months of August-December 2018.
c. Any arrears of support are to be repaid at the rate of $75.00 per month.
d. The Applicant may obtain or renew a passport for the child, and she may travel outside of Canada with the child for vacation purposes, without the consent or participation of the Respondent. The Applicant shall provide the Respondent with at least 14 days written advance notice of any travel plans. She shall provide a full itinerary including details as to where the Applicant and the child will be staying, and contact information (telephone or e-mail). When the child is old enough to communicate by telephone, the Applicant shall facilitate telephone calls between the Respondent and the child at least every three days during the duration of the trip.
e. Support deduction order to issue.
[15]
Costs
The Applicant seeks costs in the sum of $5,000.00. This is a very reasonable request. The Applicant was entirely successful on all issues. The Respondent now tries to portray that he was trying to be reasonable all along, but as recently as the first half of day one of the trial yesterday, the Respondent made it clear that he disagreed with almost all of the relief the Applicant was seeking and he had his own list of relief he wanted.
16The bottom line is that the Applicant acted reasonably throughout and the Respondent did not.
17I have taken into account all of the factors set out in Rules 18(16) (an offer was served by the Applicant but it did not trigger Rule 18(14) consequences); Rule 24; reasonableness; proportionality; and ability to pay.
18The Respondent shall pay to the Applicant costs fixed in the sum of $5,000.00 inclusive of HST and disbursements. One half of that amount is to be enforced by the Family Responsibility Office (given that approximately 50% of the dispute related to child support). Costs are to be paid at the rate of a minimum of $100.00 per month, which is the amount FRO should be collecting until 50% of the costs have been paid.
19Court staff are to expedite having this order issued. Approval as to form and content is dispensed with.
Pazaratz J.
Date: February 6, 2019