Browning v. Browning, 2020 ONSC 2697

Court File and Parties

COURT FILE NO.: F134/20 DATE: April 30, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Jeffery Browning, applicant AND: Chantal Browning, respondent

BEFORE: TOBIN J.

COUNSEL: Joanne Beasley for the applicant Bailey Guslits for the respondent

HEARD: April 29, 2020

APPEARANCES: Chantal Browning; Joanne Beasley for the applicant; and Bailey Guslits for the respondent

THIS MOTION WAS HEARD BY TELECONFERENCE PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK

Endorsement

1The respondent (mother) asks for child support from the applicant (father) for their three children based on his income of $82,000 per year.

Urgency

2The triage judge found the mother’s request for child support to be presumptively urgent.

3Counsel for the father concedes that the request for child support is urgent as contemplated in the Notice to the Profession dated March 15, 2020.

4In the Notice to Profession, urgent matters can include issues regarding the parties’ financial circumstances.

5I agree that the urgent criteria formulated by Kurz J. in Thomas v Wohler, 2020 ONSC 1965 at para. 38 are met in this case.

6The mother’s evidence of urgency is that:

(a) because of COVID-19, she has been laid off from her employment, where she had earned approximately $37,000 per year; (b) she now receives the CERB in the amount of $2,000 per month; (c) she has not received the Canada Child Benefit (CCB) for reasons that are in dispute; (d) the father has not paid her any child support since the parties separated in January 2020; and (e) on her income, without child support and the CCB, she is struggling to financially meet the basic needs of the children.

7These circumstances support a finding that this is an urgent matter. The issue of child support is immediate, serious and material.

Child Support

8The parties began living together in March 2011. They married on September 17, 2011.

9The parties had three children, now ages 9, 5 and 2. The mother’s child from a previous relationship, now age 16, also resided with the parties.

10In this motion, the mother is not seeking child support from the father on account of the 16 year old child, even though she claims he acted as a stepfather to her.

11The father left the matrimonial home on January 20, 2020 when he was criminally charged.

12The children now live primarily with the mother.

13There is a dispute in the evidence about the amount of time the children are in the father’s care.

14The parties entered into interim interim minutes of settlement that dealt with a parenting schedule.

15The father claims that on April 8, 2020 the parties agreed to adjust that schedule. He claims that he has the children 6 out of 14 days or 42 percent of the time.

16The mother’s evidence is that the father has the children less than 40 percent of the time: the youngest, 39 percent, and the two older children, 35 percent.

17The amount of time the children are in the care of both parents is important to the parties’ respective entitlement to the CCB. Counsel agree that this court is not able to decide to whom the CCB should be paid. This a matter they need to take up with the Canada Revenue Agency which administers the CCB.

18The amount of time the children are in the care of both parents is relevant to the issue of the calculation of child support under the Federal Child Support Guidelines, (SOR/97-175). Does cl. 3(1)(a) or s. 9 apply?

19While s. 9 provides that the 40% calculation is “over the course of a year” in this case that calculation can be inferred based on the current childcare arrangement.

20For the purposes of this motion, I find that child support should be considered under cl. 3(1)(a). The mother’s evidence is more detailed as to the time each of the children is now in the father’s care. In her reply affidavit, she deposes that the applicant has the youngest child for approximately 131 hours in a 336-hour period (or a 14-day rotation), which equates to 39 percent. The applicant has the two older children for 118 hours in the same period, which equates to 35 percent of the time.

21The father’s calculation is based upon overnights only. He claims to have the children for 6 nights out of 14, or 42 percent of the time.

22In this case, I find that using the hours in care, as opposed to the overnights only calculation, provides a more accurate assessment of the sharing of childcare responsibilities.

23The next issue to consider is the father’s income upon which child support is to be calculated.

24The mother asks that child support be based upon the father having income of $82,000 per year. The basis of this request is that this is the approximate amount he earned both in 2018 and 2019.

25The father’s evidence is that during the months of March and April 2020, while COVID-19 has been ongoing, he earned approximately $5,125.89 per month, which annualized is $61,510.68.

26The father does not know how long he will be able to earn this amount of income.

27The father works for two different companies. Because of COVID-19, the father will not be able to work at both places of employment effective April 30, 2020. He must choose one or the other. The father’s evidence is that he will evaluate the employment options he has with a view to maximizing his income. He does not anticipate being able to earn more than $5,125.89 per month while he is restricted from working at both places of employment.

28In determining the father’s income for child support purposes, the Child Support Guidelines require that his current and ongoing income be the basis for doing so. While COVID-19 is ongoing, it is not appropriate to use the father’s 2018 or 2019 income as the basis for his ongoing child support obligation. The evidence is clear he is not making that amount of money and he has not caused his income to be reduced.

29The best evidence on the record before the court is the actual income the father earned in March and April 2020. However, I must also take into account the evidence that, effective April 30, 2020, he will not be able to work at both places of employment. Taking into consideration these factors, I find that the father’s income for ongoing child support purposes at this time is to be based upon an annualized income of $50,000.

30The father shall be required to keep the mother informed, through counsel, of his actual ongoing income and employment opportunities.

31On income of $50,000 per year, the father’s monthly child support obligation for the three children is $977.

32The father acknowledges that he has the responsibility to pay child support but it should start after the matrimonial home is sold.

33The father argues that he should not be required to pay child support at this time because he has the responsibility of paying expenses related to the matrimonial home. These expenses include:

(a) the monthly first mortgage payment of $3,184.70; (b) the monthly mortgage payment for the second mortgage in the amount of $325; and (c) the monthly payment on account of a promissory note in the amount of $540.21 (collectively referred to as the “matrimonial home debts”).

34The matrimonial home is listed for sale. Neither party is currently living in the matrimonial home. The father wants to pay as much as he can toward the matrimonial home debts so that when the home is finally sold, they will have equity to share.

35The effect of the father’s argument is to prefer the matrimonial home creditors over the needs of the children. With respect, in the circumstances of this case, the father’s obligation to the children through child support must come before those owed to the matrimonial home creditors. Steps are being taken to satisfy the matrimonial home creditors. The home remains listed for sale. The listing price was recently reduced. Meanwhile, the needs of the children are immediate and necessary. They must be met by the father through child support.

36The father’s child support obligation shall start, as requested by the mother, on May 1, 2020 and thereafter on the first day of each month pending further order of the court.

37Any issue related to child support owing prior to May 1, 2020 can be dealt with at the trial of this proceeding, if not resolved beforehand.

38Accordingly, an order shall go as follows:

1. The respondent’s motion for child support is deemed urgent under the Notice to Profession dated March 15, 2020.
2. Commencing the first day of May 2020 and on the first day of each month thereafter, the applicant shall pay to the respondent for the support of their three children the sum of $977 based upon: (a) the applicant’s anticipated annualized income of $50,000; and (b) cl. 3(1)(a) of the Federal Child Support Guidelines.
3. The applicant shall keep the respondent informed of his ongoing income and employment opportunities.
4. If the parties cannot agree on the issue of costs, brief (no more than two pages, double-spaced) written submissions will be required. The respondent shall serve her submissions within ten days of the release of this endorsement. The applicant shall serve submissions within ten days thereafter. Submissions are to be delivered through the trial coordinator.

39In the circumstances of the Covid-19 emergency, this endorsement is deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

40The parties may submit formal orders for signing and entry once the court re-opens; however, this endorsement is an effective and binding Order from the time of release.

41A final comment. I would suggest and hope that the parties, with the assistance of counsel, help the mother have the CCB restored to her as these funds are desperately needed by this family.