COURT FILE NO.: FS-17-18229-0000 DATE: 2020-09-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE MARIE VANDENBRINK Applicant
– and –
MICHAEL ROBERT VANDENBRINK Respondent
COUNSEL: Ian R. Fisher, for the Applicant Daniel G. Katzman, for the Respondent
HEARD: February 18, 19, 20 and 21, 2020
REASONS FOR JUDGMENT
HOWARD J.
Overview
1The applicant, Michelle Marie VandenBrink, was born on August 19, 1983, and was 36 years of age at the time of the trial. Michelle resides in Harrow, Ontario.
2The respondent, Michael Robert VandenBrink, was born on June 24, 1980, and was 39 years of age at the time of trial. Michael resides in Amherstburg, Ontario.
3The parties were married on October 13, 2007, separated on April 10, 2013, and divorced on November 19, 2014. Theirs was a marriage of some five-and-a-half years.
4There are three children of the marriage, namely Sawyer VandenBrink, born May 1, 2009 (now 11 years of age), Payton VandenBrink, born July 17, 2010 (now 10 years of age), and Luke VandenBrink, born March 28, 2012 (now 8 years of age).
5The central issues at trial were the parenting arrangements for the children and claims relating to child support.
6In particular, the critical dividing point between the parties was the claim by the respondent father that the three children should reside with each of their parents on a 50-50 “shared parenting” basis.
7The respondent father’s position, if accepted, would have significant impact on his child support obligations.
8The parties are agreed that they should both have joint custody of the children.
9The trial of this matter was held in Windsor on February 18, 19, 20, and 21, 2020. The court heard evidence from eight witnesses over three days. Closing submissions were delivered on the fourth day. The witnesses at trial consisted of the applicant mother, her current partner, the maternal grandmother, the maternal grandfather, the respondent father, his current wife, one of the children’s teachers, and a social worker-counsellor with the Regional Children’s Centre.
Factual Background
10I do not propose to summarize the evidence of each of the witnesses who testified before me at the trial. There is no need to repeat all of that detail here. While the parties should know that I have considered all of the evidence presented at trial, my written decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in dispute or provide sufficient context for an appreciation of the determination of those issues.
11Michelle was 24 years of age when the parties married in October 2007 and not yet 30 years of age when they separated in April 2013.
12Michael was 27 years of age when they married and not yet 33 years old when they separated.
13Less than a year after the parties married, Michelle became pregnant with the couple’s eldest child, and Sawyer was born in May 2009. The evidence is clear that Michelle was, as she said, “a stay-at-home mom” ever since Sawyer was born. She continued in that full-time role throughout the marriage. For his part, Michael was employed in his family’s sole proprietorship farming business, VandenBrink Farms, and worked long and somewhat irregular hours.
14During the marriage, the parties resided as tenants in a residential property owned my Michael’s employer (i.e., his father), municipally known as 246 Knapps Island Road, Amherstburg, Ontario.
15While Michael certainly contributed to the child-rearing responsibilities, it is clear on the evidence before me that Michelle was the primary caregiver to the children throughout the marriage and beyond the time of separation.
16The parties separated more than some seven-and-a-half years ago now.
17At the time of separation in April 2013, the children were very young. The eldest, Sawyer, was 3 years and 11 months of age. Payton was 2 years and 9 months of age. The youngest, Luke, was only 13 months of age when his parents separated.
18At the time of separation, Michelle and the children left the matrimonial home. Michael continued to reside in the matrimonial home, on the property owned by his family, and, indeed, he and his current wife continue to reside there at present.
19Having left the matrimonial home after separation, Michelle and the children lived for about eight months in a house that was owned by her sister, who was trying to sell the property, which was located very close to the home of Michelle’s parents.
20On December 1, 2013, Michelle purchased – with the considerable assistance of Michael – a single-family residence, municipally known as 131 Lake Erie Drive, Amherstburg. The purchase price was $98,000. The down payment was $5,000, and both Michelle and Michael each contributed $2,500 from their respective savings accounts. Title to the property was taken in both of their names because Michelle could not obtain financing on her own. I accept Michael’s evidence that he provided such assistance to Michelle because he wanted to ensure that his children had proper housing.
21Michelle and the children resided at the Lake Erie Drive property for some two-and-a-half years. Title to the property was eventually transferred into Michelle’s name only. It is fair to say that the Lake Erie Drive home needed considerable work. It is common ground that, due to the tireless efforts and sheer hard work of Michelle in fixing up the property, when she eventually sold the property, she made some $35,000 in profit. Michelle used that profit to finance the purchase of her current home.
22More than a year following their separation, the parties entered into a separation agreement dated May 28, 2014. Michael was represented by a lawyer in connection with the preparation of the separation agreement; Michelle was not. However, as part of the agreement, Michelle signed an acknowledgement that she was aware of her right to receive independent legal advice before signing the separation agreement, and she waived that right.
23The separation agreement provided, in para. 7(a), that Michelle and Michael “shall have joint custody of the children who shall reside primarily with [Michelle] subject to liberal and generous access to [Michael] including but not limited to an approximately equal sharing of all holidays and special occasions.”
24In terms of Michael’s child support obligations, the separation agreement noted, in paras. 2(b) and (c), that Michael had been employed at VandenBrink Farms for the past 14 years, that he was then (May 2014) earning $11 per hour, working approximately 55 hours weekly, and that he earned $31,460 of employment income in 2012. Paragraph 8(a) of the separation agreement provided that Michael should pay ongoing child support of $620 per month based on an annual income of $31,460.
25Paragraph 8(b) of the agreement required the parties to contribute their proportionate share of valid extraordinary expenses.
26In the summer of 2016, Michelle and the children moved from the Lake Erie Drive home into a basement apartment in her parent’s country home in Amherstburg. They remained there for some two years.
27In July 2018, Michelle and the children moved to their current residence, located at 585 Lakeside Drive, Harrow, which she described as a “cute, all-wood cottage,” located on the north shore of Lake Erie near Amherstburg. Title to the property is held in the names of both Michelle and her father. Apparently the home was built in the 1930s and, as Michelle said, “needs lots of work.”
28It is common ground that at the time of separation and, indeed, as of the making of the separation agreement in May 2014, Michelle was unemployed. She supported the children with what she received from government assistance and child support from Michael. It is fair to say that in the several months following separation Michelle and the children certainly did not lead anything approaching what could be called a lavish lifestyle. On the contrary, when asked how she managed in those months, Michelle responded “with difficulty.” It is clear to me that Michelle had to be careful with her money and her expenses; but, as she said, “I didn’t do much, so I didn’t need much.” The evidence of Michelle was that she would work some side-jobs painting houses to try to earn some money on the side.
29According to her notices of assessment (line 150 total income), Michelle earned:
a. $5,376 in 2014;
b. $16,070 in 2015;
c. $19,577 in 2016; and
d. $31,116 in 2018.
30Ultimately, Michelle obtained employment with Canada Post as a letter carrier, on an hourly basis, commencing in October 2014. She was attracted to the position because it offered very flexible hours, by reason of which she was able to better coordinate her parenting responsibilities. In that vein, Michelle returns home after her workday at 3:30 p.m., and the children’s bus arrives at 3:45 p.m.; so she is home with the children when they return from school.
31In November 2019, Michelle was offered and accepted a temporary assignment as a Supervisor, Letter Carrier in Wallaceburg, Ontario, which temporary assignment ran from November 24, 2019, to February 29, 2020 (i.e., concluding as of a week or so after the conclusion of the trial). Her temporary rate of pay during this temporary assignment, extrapolated over an annualized basis, would amount to $61,903 per annum.
32For his part, Michael has always worked for VandenBrink Farms. According to his notices of assessment (line 150 total income), Michael earned:
a. $33,664 in 2014,
b. $34,488 in 2015,
c. $33,653 in 2016,
d. $32,851 in 2017, and
e. $32,757 in 2018.
33Clearly, Michael’s income has been much more consistent than that of Michelle in the years following their separation. Michael expects that his income in 2019 would be in the same vicinity.
34All of the children currently attend Malden Central Public School, in Amherstburg, which is a public elementary school within the Greater Essex County District School Board. The children have always attended at Malden Central, and the evidence of Michelle is that when she purchased her current home, she did so with the intent of purchasing a home within the catchment area of Malden Central in order to keep the children at the same school that they have always known. At the time of trial, Sawyer was in Grade 5, Payton was in Grade 4, and Luke was is Grade 2.
35The children are doing well at school. On his progress report card dated November 11, 2019, Sawyer received three “Excellent” and three “Good” grades on his learning skills and work habits, and his teacher noted that he had adjusted well to Grade 5. Michelle added that Sawyer is “an observer” and is “very mechanically-minded”; he can speed-read and “reads a chapter of a book in no time.”
36On her November 2019 progress report, Payton received all “Good” grades on her learning skills and work habits, and her teacher noted that in her first few months of school, “Payton has shown a lot of responsibility” and “demonstrates self-direction in her learning.” Michelle described Payton as “very artistic” and that while some things “don’t come as easily” to Payton, she just needs them explained differently than, say, Sawyer.
37Luke received five “Excellent” and one “Good” grade on his November 2019 report card. His teacher noted that Luke had adjusted very well to the Grade Two program and that “he comes to class eager to learn and settles into our morning routines.” His teacher also noted that Luke “always follows classroom rules and routines without supervision. He is always willing to assist the teacher and often volunteers to assist his classmates during independent work time. He always listens attentively while others are speaking and is very considerate of their opinions. Luke is a happy, friendly, and cooperative child who is very well liked by his peers.”
38The evidence is clear, and essentially unchallenged, that the children are thriving in their current circumstances. The only real qualification is that, Michael maintains, the children wish to spend more time with him.
39Following the parties’ separation in April 2013, the children continued to reside with their mother with occasional ad hoc visitation periods with their father. There was no defined parenting schedule providing regular, consistent parenting time with the father, and even the separation agreement in May 2014 spoke only of a “flexible schedule” with both parties cooperating to provide “ongoing access on a non-specified and flexible basis.”
40Inevitably, that “non-specified” and undefined “flexible schedule” began to create scheduling difficulties as the children became older and began school and their own activities. Over time, Michelle became increasingly desirous of a regular, defined access schedule, that was reduced to writing.
41At some point, the parties put in place more defined (albeit still unwritten) arrangements, whereby Michael would have parenting time with the children on Wednesday evening for a couple of hours and then alternate weekends, on Friday and Saturday. Later on, Sunday was added to the alternate weekends, such that Michael would have the children from Friday after-school until Sunday night around 7:00 or 8:00 p.m.
42In or about March 2017, the parties agreed to move the mid-week Wednesday visit to Thursday and, further, to make the Thursday an overnight access so that, on the weekends that the children were in Michael’s care, there would be less exchanges for the children. That is, the alternate weekends became Thursday after-school until Sunday night.
43In the summer of 2017, the alternate weekend schedule was further changed so that the children would remain with Michael overnight on Sunday as well, and he would return them to Michelle on Monday morning.
44The evidence of Michelle was that she agreed to the Sunday overnights on a trial-basis and only for the summer of 2017 because the children, of course, had no school schedule during the summer months.
45However, with the return of the children to school in September 2017, the children continued with the Sunday overnight schedule. Michael took the position that the children had become used to the Sunday overnights by that point. Michelle maintained that she did not agree to Sunday overnights on a permanent basis, and she does not in fact like that schedule because, not having seen the children since the Thursday morning, she does not know what is coming up in their school week when she does not have them back on Sunday night.
46In any event, the children have remained on that schedule since the summer of 2017. While Michelle is not happy with that schedule, she does not take the position at trial that it should now be altered.
47To be clear, the children have never experienced a parenting schedule whereby the would reside with each of their parents on a 50-50 “shared parenting” basis.
48Michelle commenced this proceeding by application issued on November 1, 2017, pursuant to the Divorce Act.1 In her application, Michelle claimed, inter alia, child support, defined parenting time, and equalization of net family property. The application was served on Michael on November 11, 2017.
49In response, Michael delivered his answer dated November 30, 2017, in which he claimed, for the first time, that “it would be in the best interests of the children that the children’s residency be shared equally.”
50The application was amended five months after it was commenced. By order of Campbell J. dated April 13, 2018, Michelle’s application was amended to include a claim for child support retroactive to April 10, 2013, i.e., the date of separation.
51It is common ground that, consistent with the terms of the separation agreement, Michael has been paying $620 per month in child support since 2015.
Issues
52As I have said, the central issue at trial involves the appropriate parenting arrangements for the three children, which necessarily impacts the issue of child support. I address the following below:
a. Custody;
b. Appropriate parenting arrangements;
c. Ongoing child support; and
d. Retroactive child support.
Analysis
Custody
53As I have said, the parties are agreed that joint custody is in the children’s best interests. I agree. I am satisfied that there is “evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”2
54Accordingly, there shall be an order for joint custody of the children.
Appropriate Parenting Arrangements
55In exercising the court’s authority under s. 16(1) of the Divorce Act to make an order respecting the custody of and access to the children, I have taken into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances,” as mandated by s. 16(8) of the Act, the maximum contact principle enshrined in s. 16(10) of the Act, and the list of factors enumerated in s. 24(1) of the Children’s Law Reform Act,3 which usefully inform the analysis.
56“The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.”4
57Subsection 24(2) of the Children’s Law Reform Act sets out criteria to consider when determining the best interests of the children. These considerations have been adopted when considering an application under s. 16 of the Divorce Act.5
58Subsection 24(2) requires the court to consider all the child’s needs and circumstances, including:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
59The court must decide the best interests of the children on all of the evidence and the appropriate legal principles and must not abandon that decision to an assessor.6 The best interests of the children are not necessarily the same as the wishes of the children or of the parents.7 Rather, the court must consider what is best for the children in the long run.
60Subsection 24(3) permits the court to consider the parents’ past conduct only to the extent that it relates to the parent’s ability to act as a parent.8 A party’s actions that reflects poorly on a party as a spouse may not affect that party’s ability to parent.9
61In this regard, some of the evidence at trial was devoted to each party recounting their own perspective on the “who did what to whom” chronology of events and offering their own views as to which party bears responsibility for each incident. I have in mind here the evidence concerning, for example, the May 2018 incident, the Christmas calendar incident, dealings with teachers at school, and the like.
62I do not propose to review and comment upon those incidents in any detail. That kind of review is neither necessary nor helpful. In my view, none of the incidents in question truly reflects the abilities of the parties to parent the children. I think such incidents say more about parties who have been engaged in litigation for close to three years than they do about anyone’s parenting ability.
63That said, I would ask both parties to reflect on the fact that the three children are still young, and they have before them many years’ worth of experiences, some wonderfully happy and no doubt others less so, in respect of which they will require that both their parents find a way to parent them and participate in their lives in a constructive, respectful, and responsible manner. In the circumstances, I think it appropriate to include in the order some language – to apply mutually – that prohibits both parties from disparaging the other.
The regular schedule
64It is common ground that since the summer of 2017, the respondent father has been having parenting time with the children according to the following unwritten schedule:
a. Week 1: From Thursday, 3:30 p.m. to Monday, 9:00 a.m.
b. Week 2: From Thursday, 3:30 p.m. to Friday, 9:00 a.m.
65The position of Michelle at trial was that, although she was not happy with the Sunday overnight access, the parenting schedule that, effectively, has been in practice since the summer of 2017 should continue.
66The position of Michael at trial was that, as I have said, the children should now start to reside with each of their parents on a 50-50 “shared parenting” basis. In particular, when asked to submit a proposed final order, the respondent father submitted an order that provided that the children should have parenting time with the applicant mother on Monday and Tuesday, with the respondent father on Wednesday and Thursday, and with each parent on alternate weekends.
67I would simply note that the particulars of the 2-2-3 schedule apparently proposed by the respondent father was not something that was specifically addressed or pursued in the examination of the witnesses at trial. Rather, the gist of the examinations of the witnesses at trial was merely along the lines of “the children should spend more time with their father,” and then the specific suggestion of the 2-2-3 schedule was first raised in the proposed draft order submitted by the respondent father in closing argument.
68As I have said, the children here have never experienced a 2-2-3 schedule or any 50-50 shared parenting schedule. That has not been their life experience.
69Respectfully, I am not persuaded that the children’s lives should be fundamentally changed by the imposition of a 50-50 shared parenting schedule at this point. To my mind, that would be a very significant change for the children. Without any history or real experience with such arrangements, it is not clear to me how that would be in their best interests. Indeed, to suggest that the children should now follow a 2-2-3 schedule is to suggest that, essentially, we should experiment with the children’s lives and hope for the best. We do not experiment with children’s lives. And hope is not a strategy.
70The evidence at trial was very clear that in the six-and-a-half years since their parents’ separation, the children have thrived in the primary care of their mother. They are doing well at school. They adjusted well to their new Grades. They are happy. In these circumstances, while some modifications might be appropriate, a fundamental disruption to their routine and their lives is not in their best interests.
71As I have said, the evidence at trial is clear that the children’s primary residence has been with their primary caregiver, their mother. I would not disrupt that. As Michael very candidly and sincerely offered, he believes Michelle is “an excellent mom.” To be clear, I fully appreciate the important role their father has played and will continue to play in their lives. He clearly loves the children, and by all accounts, including Michelle’s, they love him too.
72However, it is not without some significance that the parties agreed in their separation agreement that the children should principally reside with their mother.
73Respectfully, I do not accept the arguments advanced on behalf of the respondent father for moving the children to a 2-2-3 or other 50-50 shared parenting model. Whatever the developments in the American jurisdiction reported on in The Washington Post, I agree with Mr. Fisher that the maximum contract principle enshrined in s. 16(10) of our Divorce Act does not create a default presumption in law in favour of a 50-50 shared parenting model. That said, I certainly agree that the children should have as much contact with each parent “as is consistent with the best interests” of the children.
74Nor do I accept Mr. Katzman’s submissions that the applicant mother is currently “stretched too thin.” Respectfully, there is simply no evidence of that. Rather, the evidence would indicate that the applicant mother is a very hard worker and has an impressive capacity for multi-tasking. The evidence is that her share of responsibilities for “Fun-In-The-Box,” the fledgling internet business Michelle founded with friends, requires some seven hours a week of her time, which, she said, she does when then children are in bed. I appreciate that Mr. Katzman questions that figure, but that is the uncontroverted evidence before the court.
75In the same vein, for the reasons expressed at trial, I do not regard Michelle’s Facebook post (Exhibit No. 11) and, in particular, the comment that “the Mom Guilt is REAL” to be any type of admission that she is spread too thin or unable to care for the children appropriately. There is no smoking gun there. To my mind, one does not need be a mother to recognize, or at least have some inkling about, the commonly-held, self-critical feeling that conscientious mothers typically harbour. That was all that Michelle was giving voice to; nothing more. For my purposes, nothing turns on Exhibit No. 11.
76It is not lost on me that if the respondent father’s 2-2-3 shared parenting proposal were implemented, it would trigger a calculation of child support pursuant to s. 9 of the Federal Child Support Guidelines,10 and the result would very likely be that the respondent father would end up paying little, if any, child support. I need not make an express finding on whether that result was at least one of the motivations underlying the father’s proposal because I have found that, in any event, it is not in the children’s best interests.
77Having said all of that, just as the parties have made some relatively modest modifications to the parenting schedule over the years, I would address the single concern that I have with the current parenting schedule. It is distinctly lopsided. On one week, the children are with their father for four nights; on the next week, they have one-overnight with him. The schedule is seriously unbalanced in its treatment of the father’s parenting time over the two weeks.
78I appreciate the history of how the current schedule came into being, with the parties making piecemeal revisions to it over the years. However, sometimes repeated piecemeal revisions result in something that one would never have intended if one were initially considering the undertaking in a comprehensive way at the outset.
79In my view, the children would be better served if they had one more night with their father on the second week but one less night on the first week, in accordance with the following schedule:
a. Week 1: From Thursday, 3:30 p.m. to Sunday, 8 p.m.
b. Week 2: From Wednesday, 3:30 p.m. to Friday, 9:00 a.m.
80In my view, the advantages to this schedule include the following:
a. It represents minimal change to the current pattern of their schedule, minimizing the disruption to the lives of the children.
b. It maintains the same number of overnights they currently have with their father. That is, the children will continue to have five overnights over a two-week period.
c. It maintains the same amount of exchanges they currently have between the two residences and avoids the increased number of exchanges that would result if the father’s 2-2-3 proposal were implemented.
d. It provides more balance between the two weeks for the children, meaning that the period of time that the children currently experience without seeing their father in the second week is reduced.
e. It provides the opportunity for more meaningful parenting time with the father during the second week.
f. The added Wednesday night on the second week is the same night that the children had with their father for four years following separation, before the mid-week overnight was changed from Wednesday night to Thursday night.
g. It returns the children to their primary caregiver on Sunday night at the end of the first week so that the mother is better able to coordinate and support the children for their school activities in the second week, as had been their routine for the four-year period following separation. In this regard, I agree with the rationale Michelle gave in her evidence as to why she prefers to have the children home on the Sunday night. I accept that Michelle never agreed to the Sunday overnight on a permanent basis and, especially, during the school year, but that she acquiesced with Michael’s unilateral decision simply in order to avoid confrontation. Parenting decisions by unilateral action should not be condoned as a general rule.
81For all of these reasons, I find that it is in the best interests of the children if they continued to have their primary residence with the applicant mother and had parenting time with the respondent father according to the following schedule:
a. Week 1: From Thursday, 3:30 p.m. to Sunday, 8 p.m.
b. Week 2: From Wednesday, 3:30 p.m. to Friday, 9:00 a.m.
The holiday schedule
82There is no real dispute that there should be an equitable sharing of all holidays and special occasions. The evidence indicates that, for the most part, the parties have been able to work cooperatively together regarding the schedule for holidays, summer vacations, and special occasions. In the circumstances, beyond affirming the general principle that there should be a shared schedule, there is no need for the court to impose a detailed, prescriptive holiday schedule on the parties.
Ongoing Child Support
83Absent considerations of whether the respondent father should have shared custody of the children – a submission that I have rejected – it is not in dispute that, on a go-forward basis, the respondent father should be paying child support in the amount of $675 per month, in accordance with the tables under the Federal Child Support Guidelines, based on the respondent’s annual income of $32,757, which is derived from his line 150 total income on his notice of assessment for the 2018 taxation year. Again, the evidence of Michael is that he expected his 2019 income to be consistent with his income in 2018.
84Accordingly, the ongoing child support obligation of the respondent father shall be in the amount of $675 per month based on his annual 2018 income of $32,757, subject to annual review.
Retroactive Child Support
85The applicant mother seeks an order that the respondent father pay retroactive child support in the total amount of $10,734 for the years 2015, 2016, 2017, and nine months of 2018.
86The basis of the claim is that the respondent father was provided with rent-free housing from April 2013, i.e., the date of separation, until October 1, 2018, when the father began paying rent of $700 per month.
87The applicant mother claims that the rent-free benefit of $700 per month should be grossed up by 25 per cent to account for income tax, resulting in a monthly benefit of $933 per month or $11,200 per annum.
88It will be remembered that, prior to their separation, the applicant mother and respondent father were living in the same accommodations on the respondent’s family property. The evidence of the applicant mother is clear that they did not pay rent to the respondent’s family and she was well aware of the fact that they were not paying rent. Michelle’s evidence is that she well understood that the reason why Michael was paid what she described as the relatively “low” amount of salary from his family’s farm was because they were receiving free room and board. Michelle acknowledged that Michael told her that “many times.”
89The parties then entered into the separation agreement of May 2014, providing for the respondent father’s obligation to pay child support of $620 per month based on his then annual income of $31,460. That same separation agreement noted that the parties resided as tenants in a residential property owned by the respondent’s family. The separation agreement did not impose an express obligation on the respondent father to make annual income disclosure.
90The evidence at trial concerning when the applicant mother gave effective notice to the respondent father concerning her claim for retroactive child support was somewhat unclear. On the one hand, the testimony of Michelle was that she made it clear to Michael when they separated that the value of his free room and board should be included in his income, but she acknowledged that nothing was put in writing. Further, when Michelle retained previous counsel to commence a simple divorce application in or about August 2014, she acknowledged that the divorce application did not include a claim for retroactive child support. The evidence of Michelle was that, “I chose not to raise it” at that time. Michelle also acknowledged that she did not raise the claim for retroactive child support when the instant application was issued in November 2017. In cross-examination, Michelle acknowledged that the first time she raised the claim for retroactive child support “with the courts” was when she amended her application in April 2018.
91From the legal perspective, any claim for retroactive child support should commence with the acknowledgment of the well-established principle that child support is the right of the child.11 In this regard, in its seminal decision in D.B.S., the Supreme Court of Canada acknowledged the contemporary approach to child support and the core principles that animate the support obligations that parents have towards their children, in the following terms:
The contemporary approach to child support was delineated by Kelly J.A. in Paras v. Paras (1970), [1971] 1 O.R. 130 (Ont. C.A.). In that case, the Ontario Court of Appeal established a set of core principles that has been endorsed by this Court in the past and continues to apply to the child support regime today: see Richardson v. Richardson, [1987] 1 S.C.R. 857 (S.C.C.); Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.). These core principles animate the support obligations that parents have towards their children. They include: child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.12
92In D.B.S., the Supreme Court recognized that one of the situations in which it may be appropriate for a court to order that a retroactive award of child support be paid is where there has been a previous agreement between the parties that outlines child support obligations.
93Again, in the instant case, the separation agreement of May 2014, provided that the respondent father should pay child support to the applicant mother in the amount of $620 per month based on his then annual income of $31,460. The evidence before me is that, pretty much without fail, the respondent father kept current with this child support obligations under the separation agreement.
94In D.B.S., the Supreme Court made the following observations relevant to separation agreements:
In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it: compare C. (S.E.) v. G. (D.C.) (2003), 43 R.F.L. (5th) 41, 2003 BCSC 896 (B.C. S.C.).13
95Having reviewed those situations in which a court will generally have the power to order that child support be paid retroactively, the Supreme Court in D.B.S. went on to consider when a court should exercise that discretion.
96The Supreme Court noted that a balancing of interests will be required in considering whether to order that child support obligations be paid retroactively, as follows:
It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.
Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.14
97The Supreme Court then proceeded to enumerate the relevant factors that a court should consider before awarding retroactive child support, noting that none of the factors is decisive, as follows:
a. reasonable excuse for why support was not sought earlier;
b. conduct of the payor parent;
c. circumstances of the child; and
d. hardship occasioned by a retroactive award.
98Upon consideration of all of the factors, I conclude that, in the circumstances of the instant case, the court should exercise its discretion in favour of not making a retroactive award of child support, as claimed. The first, second, and fourth considerations are paramount in my analysis.
99In considering the applicant mother’s excuse for not asserting the retroactive claim for increased child support earlier, what troubles me most is that, while the applicant mother says that the respondent father ought to have been paying increased child support based on the fact that he was receiving free room and board, the applicant mother clearly, and admittedly, knew that the father was receiving free room and board since before 2013 because she herself benefited from the same accommodations when she was living with the respondent on the same property, on the same terms, during the marriage, not paying room and board. The evidence is clear that the applicant mother knew that the respondent father was not paying room and board after separation but, for a variety of reasons, which I acknowledge were understandable from her perspective, she chose not to press the issue with the respondent father.
100The following comments of the Supreme Court in D.B.S. are apposite:
Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent’s interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.
The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From a child’s perspective, a retroactive award is a poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, [1991] O.J. No. 406 (Ont. Gen. Div.). Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.15
101In the circumstances, given the applicant mother’s express and admitted knowledge of the circumstances, I find that the applicant mother has not provided a reasonable excuse as to why retro-active child support was not sought earlier. The applicant mother has failed to satisfy the first prong of the four-part D.B.S. test.
102In terms of the second prong of the D.B.S. test, which considers the conduct of the child support payor parent, I would note that the instant case does not involve the type of wrongful conduct on the part of the payor parent to which the D.B.S. court took exception. That is, the instant case does not involve a “payor parent [hiding his] income increases from the recipient parent in the hopes of avoiding larger child support payments” or a payor parent who “intimidate[s] a recipient parent in order to dissuade … her from bringing an application for child support” or a payor parent who “mislead[s] a recipient parent into believing that his … child support obligations are being met when … he knows that they are not.”16
103In the instant case, the respondent father took no steps to conceal his receipt of free room and board – which the applicant mother was well aware of – and, I would also note, there was no obligation in the separation agreement to make annual income disclosure.
104I cannot find that Michael’s conduct in the instant case was of the same ilk that was considered by the Supreme Court in D.B.S. to be wrongful conduct on the part of the payor parent.
105In considering the fourth prong of the D.B.S. test, that is, whether hardship would be occasioned by a retroactive award of child support, I am mindful of the following comments by the Supreme Court in D.B.S.:
On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.
106In this regard, I note that the $10,734 claim for retroactive child support represents essentially one-third of the respondent father’s entire annual 2018 income of $32,757. The imposition of a retroactive child support obligation of one-third of the payor’s current income would constitute, almost by definition, a hardship for most payors. I appreciate the father’s evidence that, if he were required to pay retroactive support of $10,734, he would “find a way” to “make it work” but, firstly, I would also note that Michael also said such a retroactive award would be “difficult” to satisfy and, secondly, I regard his comments as reflecting his commitment to abide by any court order imposed, as opposed to any fair assessment of the difficulty would be entailed in complying with any such court order.
107I would also note that at the time of trial, Michael was remarried to his current wife, Kristy, and the couple were expecting their first child within a matter of months following the trial of this matter.
108In the circumstances of the instant case, I find that the making of any retroactive award of child support as claimed by the applicant mother would cause hardship to the respondent father payor.
109Having considered all of the relevant D.B.S. factors, I would not exercise my discretion to permit the applicant mother to advance a claim for retroactive child support in the circumstances of the instant case.
Conclusion
Order
110For the reasons set out above, a final order shall issue in the following terms:
Custody
a. The applicant mother and respondent father shall have joint custody of the children of the marriage, Luke VandenBrink, born March 28, 2012, Payton VandenBrink, born July 17, 2010, and Sawyer VandenBrink, born May 1, 2009.
b. The children of the marriage, Luke VandenBrink, born March 28, 2012, Payton VandenBrink, born July 17, 2010, and Sawyer VandenBrink, born May 1, 2009, shall primarily reside with the applicant mother.
Regular Parenting Schedule
c. The respondent father shall have parenting time with the children of the marriage as follows:
i. Week 1: From Thursday, 3:30 p.m. to Sunday, 8 p.m.
ii. Week 2: From Wednesday, 3:30 p.m. to Friday, 9:00 a.m.
Holiday Schedule
d. There shall be an equitable sharing of all holidays, vacations, and special occasions. In particular, each of the applicant mother and respondent father shall have:
i. one-half the annual Christmas school vacation, during which period the regular schedule shall be suspended;
ii. one-half the annual March Break vacation, during which period the regular schedule shall be suspended;
iii. two weeks vacation during the months of July or August, in each year, during which time the regular schedule shall be suspended.
Parenting Incidentals
e. Neither party shall schedule any regular activities for the children during the other’s party’s parenting time without the written consent of the party who is scheduled to parent the children, such consent not to be unreasonably withheld.
f. Each parent may make inquiries and be given information by each child’s teacher, school officials, physicians, counsellors, psychologists, and other health care providers. The applicant and respondent shall sign any consent, direction, authorization, or other document necessary to give effect to this provision.
g. If a child of the marriage is admitted to hospital, the parent with whom the child is residing shall notify the other parent within 15 minutes of admission.
Communication
h. The applicant mother and respondent father shall refrain from any form of reliance on the children to communicate information between the parents.
i. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage other persons to do so in the presence of the children. Neither parent shall post any disparaging or negative comment about the other parent in social media.
j. Neither parent shall discuss with the children, or with another person in the presence of the children, any issue relating to parenting arrangements, present or past legal proceedings, financial issues relating to the parties or the child, including child support and special or extraordinary expenses, or conflicts between the parties relating to any such issues.
k. Neither parent shall leave out or make accessible to the children any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit the children access to their personal email where communications regarding these matters are stored.
l. Neither parent shall do anything that would estrange the children from the other parent, injure the opinion of the child as to their mother or father, or impair the natural development of the child’s love and respect for each of their parents.
Child Support
m. The respondent, Michael Robert VandenBrink, shall pay child support to the applicant, Michelle Marie VandenBrink, for the children of the marriage, Luke VandenBrink, born March 28, 2012, Payton VandenBrink, born July 17, 2010, and Sawyer VandenBrink, born May 1, 2009, in the amount of $675 per month, in accordance with the tables under the Federal Child Support Guidelines based on the respondent’s annual (2018) income of $32,757, commencing March 1, 2020, and continuing on the first day of each month that follows.
Medical Benefits
n. The applicant and the respondent shall each maintain coverage for the children under the health benefit plan available to each of them through their respective employment.
Life Insurance
o. The respondent father shall obtain a life insurance policy for $150,000 and shall designate the applicant mother as irrevocable beneficiary in trust for the children. The respondent father shall maintain that designation for so long as any one of the children is a “child of the marriage” for the purposes of the Divorce Act. When the obligation of the respondent father to provide support for the children is terminated, the respondent’s obligation to maintain the insurance policy is also terminated.
Costs
111Costs should normally follow the event. Subrule 24(1) of the Family Law Rules provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
112That said, in my view, neither party here can fairly be said to be the “successful party” at trial, as neither party was entirely successful relative to the claims they advanced at trial.
113The central issues were the parenting arrangements and child support. The respondent father sought a 50-50 shared parenting schedule. As I have ruled, shared parenting is not in the children’s best interests, and thus the father’s claim was not successful.
114On the question of retroactive child support, the applicant mother sought a retroactive payment of $10,734 dating back to 2015. I found that no retroactive claim is appropriate in the circumstances of the instant case.
115Accordingly, I find that success at trial was divided and, as a result, each party should bear their own costs.
"Electronically signed and released by Howard J." J. Paul R. Howard Justice
Released: September 21, 2020
COURT FILE NO.: FS-17-18229-0000 DATE: 2020-09-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELLE MARIE VANDENBRINK Applicant
– and –
MICHAEL ROBERT VANDENBRINK Respondent
REASONS FOR JUDGMENT
Howard J.
Released: September 21, 2020
Footnotes
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
- Kaplanis v. Kaplanis, [2005] O.J. No. 275, 10 R.F.L. (6th) 373, 249 D.L.R. (4th) 620 (C.A.), at para. 11.
- Children’s Law Reform Act, R.S.O. 1990, c. C.12.
- Kalliokoski v. Kalliokoski, 2016 ONSC 2273 (S.C.J.), at para. 31, citing Gordon v. Goertz, [1996] 2 S.C.R. 27, and Young v. Young, [1993] 4 S.C.R. 3.
- See, for example, Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284 (S.C.J.), at para. 74; and Laramie v. Laramie, 2018 ONSC 4740, [2018] O.J. No. 4130 (S.C.J.), at para. 25 and cases cited therein.
- See, for example, Dunnett v. Punit, 2006 ONCJ 442, 32 R.F.L. (6th) 446, at para. 7.
- Kaplanis v. Kaplanis, at para. 13.
- Gordon v. Goertz, at p. 48, para. 23.
- Somerville v. Somerville, 2007 ONCA 210, 36 R.F.L. (6th) 7, at para. 16.
- Federal Child Support Guidelines, SOR/97-175.
- See, for example, D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 31 R.F.L. (6th) 1, 270 D.L.R. (4th) 297 [D.B.S.], at para. 38; P. (P.) v. D. (D.), 2017 ONCA 180, 137 O.R. (3d) 138, 90 R.F.L. (7th) 1, at para. 61; Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321, 2 R.F.L. (8th), 1at para. 26; and P. (S.) v. P. (R.), 2011 ONCA 336, 1 R.F.L. (7th) 269, at para. 67.
- D.B.S., at para. 38.
- Ibid., at para. 78.
- Ibid., at paras. 95-96.
- Ibid., at paras. 102-103. [Emphasis added.]
- Ibid., at para. 106.