NEWMARKET COURT FILE NO.: FC-19-59011-00
DATE: 20201008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lenin Apolinar Marino Belen
Applicant
– AND –
Julie Marino
Respondent
Paul Pellman, Counsel for the Applicant
Bryan Teskey, Counsel for the Respondent
HEARD: September 30, 2020
RULING ON MOTION AND CROSS MOTION
JARVIS J.
[1] There are two motions before the court. The respondent (“the mother”) has brought a motion dealing with parenting and for child support, this latter relief including a request to impute income to the applicant (“the father”). He has brought a cross-motion for parenting and to dismiss the mother’s motion for failing to file a financial statement. She has, in fact, complied with the Family Law Rules in this regard by delivering an affidavit confirming no material change to her financial statement sworn on August 18, 2019.
[2] The parties were married on December 9, 2012 and separated on January 27, 2019, although the father did not move out of the matrimonial home until March 25, 2019. There are two children of the marriage, MKM born on October 28, 2013 and TTM born on September 29, 2015 (“the children”). They have primarily resided with their mother.
[3] A Case Conference was held by MacPherson J. on December 20, 2019. The parties agreed to an Order for disclosure and the record was endorsed that a motion would proceed on March 25, 2020 on the issues of decision-making, parenting time and child support. The closure of the courts on March 16, 2020 as a result of the current Covid-19 pandemic resulted in the motion and now the cross-motion being adjourned to this date.
[4] The issues involving parenting and child support will be separately addressed.
Parenting
[5] With the exception of the father’s request for a modest expansion of the children’s time with him and the mother’s concerns about the father’s Covid-19 Social Circle (about which more below), the parties’ other parenting issues are relatively minor. The father also maintains that no Order is needed that references primary care responsibilities for the children because there is already a de facto (but not de jure) arrangement in place.
Primary care
[6] In circumstances where there remain parenting issues before the court it is preferable that there be as little left to uncertainty, dispute or chance as possible. An Order that the mother have primary care recognizes the current reality. That does not relieve her though of sharing decision-making responsibilities with the father. Neither party shall have final authority at this time but should a dispute arise about a major decision impacting the children’s best interests a motion should be brought, on an urgent basis if necessary. There is no reason why the parties should not be exploring decision-making protocols now. That would certainly be the court’s expectation if a motion had to be brought or for the next conference event.
Passports, travel
[7] Both parties expressed concerns about the other trying to relocate outside of Canada with the children. The father alleged, and the mother denied, that she had just acquired British Nationality and was looking for a teaching job in the Canary Islands. The mother alleged that the father’s parents had recently moved to Costa Rica (which he acknowledged) and that he owned property in Venezuela. In email exchanges between the parties in mid-May 2019 the father proposed that the parties cooperate in obtaining multiple passports for the children, the mother alleging that the father had threatened to unilaterally obtain Venezuelan citizenship for the children.
[8] The mother proposed that her lawyer hold her and the children’s passports until a further Order of the court or a separation agreement between the parties was concluded. The father did not think that unreasonable or that the obligation should not be reciprocal. I agree.
Mobility
[9] Both parties rent their current accommodations. The father proposed in his cross-motion that there be a term contained in the Order that required the children to stay within a 20km radius of the Markham/Stouffville area. The mother did not object to a term that the radius be 50km from their residence, the implication being from her residence. In my view, neither party should move beyond 30km from their current residence pending further Order of the court or written agreement between the parties.
Expansion of time with father
[10] Two issues were raised: the first dealt with expanding the children’s alternate weekend time with their father to their return to their mother’s care by 3:30 p.m. on the Monday; the second was a one-half hour difference in the return time for the children on Wednesday evenings: the mother wished a 6:30 p.m. return time, the father a 7:00 p.m. time.
[11] In my view, the time that the children spend with their father is beneficial for them and to the extent that they are being home-schooled, a decision made by the mother (to which the father acquiesced), the fact that he works from home and is prepared to make the commitment to school them too, there is no compelling reason why the return time should not be 3:30 p.m. on the Monday as requested. Nor is there any compelling reason why the Wednesday return time cannot be 7:00 p.m.
Social Circle
[12] In her motion the mother has raised a number of concerns about the father’s care of the children, mostly historical and of unreliable provenance, ranging, for example, from incorrectly-installed car seats on occasion, accepting video-calls while driving and the lack of fencing around the pool at his residence. There are clear difficulties in the parties’ effective, child-focussed interactions whether those involve minor medical issues (i.e. a cold, pink-eye) or planning (in 2019) of Halloween arrangements. These are purposed to emphasize the mother’s claim that it is she rather than the father who has historically been and remains the parent best able to primarily care for the children. She is willing to cooperate with the father in jointly parenting the children: he is unwilling according to her. The father dispute this.
[13] The mother’s most important complaint, however, is that the father has not been following Covid-19 guidelines. Based on the children’s statements to her, the mother alleges (and the father acknowledges) that he introduced the children to his new partner and her two children, the details of whose involvement with the children have not been shared before this motion, despite her requests. This is a major concern to the mother because she and the children are in regular contact (two to three times a week) with her elderly parents who are, especially in her father’s case, at an increased risk of harm. The maternal grandfather is 77 years old and, according to his physician (a note from whom accompanied the mother’s evidence) has a “complex and involved medical history that put (sic) him at a very high risk of a bad outcome should he develop a Covid19 infection”. The mother said that her father suffers from severe asthma, rheumatoid arthritis and was recovering from recent cancer treatments. The physician explained that his patient should comply with all provincial and national guidelines and restrict his contact with other persons who might be at risk of having or carrying the infection.
[14] In her motion, the mother sought the following Covid-related relief,
An interim order that the “social circle” of the Children, with whom the Children will be permitted to spent time with without the use of facemasks and social distancing, shall be limited to the parties and the Respondent’s parents.
An interim order that the Applicant shall access all overnight access at his home and shall not exercise overnight access with one of more of the Children at the home of any third parties. The Applicant shall not permit any third parties into his home, other than the Children, when one or more of the Children are present and shall not visit the homes of any third parties (except for day visits, either at his home or the homes of third parties, which are limited to no more than three hours in duration in which the Applicant, the Children, and all third parties shall follow all provincial protocols, including but not limited to with respect to masking and social distancing which are applicable for individuals not in a person’s “bubble”, so long as government guidelines continue to permit the same).
[15] The provincial government has put out the following Social Circle guidelines outlining safety steps:
Step 1: Start with your current circle: the people you live with or who regularly come into your household.
Step 2: if your current circle is under 10 people, you can add members to your circle, including another household, family members or friends.
Step 3: Get agreement from everyone that they will join the circle.
Step 4: Keep your social circle safe. Maintain physical distancing with anyone outside of your circle.
Step 5: Be true to your social circle. No one should be part of more than one circle.
[16] The father said that he has been living alone since February 2020 when his parents went to live in Costs Rica and that he has been compliant with Social Circle guidelines. According to him, the thrust or intent underlying the mother’s concern is her desire to prevent him from seeing his girlfriend. He communicated to the mother that his girlfriend and her family (two children who lived with her) also followed the Ontario guidelines but that he was reluctant to provide the mother with more identifying information (such as the girlfriend’s name) because the mother suffered from anxiety and panic attacks for which she was receiving medical care and had been demonstrating that behaviour since discovering his new relationship. He was concerned that the mother would stalk the girlfriend, show up at her residence or workplace (a private school identified by the father) and investigate her private life, among other intrusive actions. The father did acknowledge that the children had enjoyed an overnight backyard camping experience at his girlfriend’s residence with her children in early September just before school was scheduled to start.
[17] A number of observations about the parties’ evidence are pertinent:
(a) The father has not complied with the Social Circle guidelines in not identifying his girlfriend’s name or seeking the mother’s agreement in advance to introducing the girlfriend and her children to the parties’ children (Step 3 of the provincial guideline);
(b) The father’s concerns about the mother may have some merit. She says that her consent is needed to expand the “bubble members” and that she wants to know the girlfriend’s identity, that of her former partner, to satisfy herself about their work situations, their possible Covid exposure and to know with whom they are in regular contact;
(c) There is no evidence that the mother and children live with her parents;
(d) The nature of the children’s interactions with their maternal grandparents is unclear. There is no evidence why any such interaction could not be via video-call, Skype or some other communication modality;
(e) Both parties allege that the other is not following Social Circle guidelines. The father says that, according to the children, they have outside contacts with the mother’s friend and their families: the mother says that the father has refused to tell her whether he is taking the children to the homes of third parties.
[18] In Rocheleau v Lajoie,[^1] MacKinnon J. dealt with a mother’s request to change a final Order dealing with the parenting of the parties’ child as a result of the pandemic. The child had a serious medical presentation but that was being well-managed. The father had not been complying with general public recommendations applicable to the child. Based, however, on the available medical evidence, MacKinnon J. found that the child was not at higher risk of severe complications should he become infected. While there is no evidence before this court of any presenting medical or other health concern affecting the children, the terms of the Order made by MacKinnon J. recommend themselves which, adapted to the circumstances of this case, I Order,
(a) Both parties shall ensure that they and their household members adhere to all Ontario public health guidelines for COVID-19 in force from time to time;
(b) The children’s circle shall include their mother, father, themselves, their maternal grandparents, the father’s girlfriend and her two children. Each party may increase the children’s circle by two suitable people of their choice provided they agree to comply with the recommendations in place from time to time to be in a social circle with the children;
(c) Both parents shall insist on handwashing, social distancing and masks being worn where distancing is not possible, if and when the children are exposed to anyone who is not in their social circle. The children may not travel with anyone who is not part of the parties’ circle nor may anyone outside that circle reside in or spend overnight in the home while the children are present in it;
(d) Travel including an overnight by the children with a member of their social circle shall only occur with the written permission of both parents given in advance;
(e) The children shall not attend any indoor events, social, or recreational activities other than within the household of a parent or a named person who is in the circle without the prior written agreement of both of parents. If either child or both children is/are in the house of a named person in their social circle, handwashing, and physical distance or masking shall be maintained by anyone present who is not in the children’s circle;
(f) The children may attend outdoor events, or outdoor social or recreational activities that comply with the applicable public health guidelines, provided they attend only with members of their social circle and the circle maintains its distance from all others present or everyone in the circle wears a mask. Handwashing immediately after the activity is mandatory. Notice of the children having attended any such event or activity shall be given forthwith to the other parent;
(g) A copy of the terms of this Order shall be provided to every adult member of the children’s social circle. All adult members shall deliver their written undertaking to both parents signifying their agreement to adhering to the terms of this Order failing which they shall not be part of the children’s social circle; and
(h) These terms may be changed by written consent of the parents or by Order.
[19] In the event of any change to the provincial Covid-19 guidelines, and the parties are unable to agree on terms compliant with those guidelines, counsel may contact the judicial assistant (meghan.billings@ontario.ca) to arrange a teleconference with me for conference/motion scheduling purposes.
Child support
[20] The mother seeks to impute a $245,000 annual income to the father which, if accepted by the court, results in $3,217 monthly child support payable pursuant to the Child Support Guidelines. This level of income was estimated/forecasted by the father in a letter dated July 31, 2020 that he sent to her lawyer: the father was representing himself at the time. Already underway, but not yet completed until September 23, 2020 (the day after the mother started her motion), was an income analysis that opined that the father’s 2020 income was estimated to be $184,000. Based on that analysis, the father claims that he has overpaid child support.
[21] In her reply affidavit, the mother complained that the delivery of the analyst’s report on the eve of this motion left her no opportunity to review it and to determine whether she needed to obtain expert assistance. Accompanying that affidavit was a Schedule of the disclosure ordered in December 2019 listing the father’s personal and corporate information that remained outstanding. It is unclear whether any of this outstanding disclosure was taken into consideration by the father’s expert or, if not, why it was not considered. A cursory review of the Schedule raises several presumptively relevant and important inquiries about the income available to the father from all sources for child support determination purposes. Mr. Pellman argued that the Schedule is staledated and that the wife has been provided with the disclosure ordered and, if not, then Mr. Teskey should advise him within the next few weeks what remains outstanding so that his client can quickly address those concerns. Mr. Teskey advised that he had additional disclosure requests anyway.
[22] The father is self-employed as the owner/operator of an incorporated company providing management consulting services. The forensic report attached as an exhibit to his affidavit material was incomplete: it comprised a brief introduction and two pages summarizing the report’s conclusions about the father’s 2015-2019 income. Mr. Pellman indicated that the entire report was not provided because of filing limitations set out in the CER June 26, 2020 Notice to the Profession.
[23] The father filed a September 24, 2020 financial statement. He acknowledges a current $184,803 annual income that is matched by $184,869.24 in expenses. There is no provision for income tax and no tax showed as owing. The father works from home. He identifies that expense: presumably he writes off a portion of his residency expenses as those relate to his business. Other expenses such as his cell phone and internet are identified as being paid by his company. Quite clearly the husband’s qualifying income, at least for 2020, exceeds the $184,000 he is prepared to acknowledge. In his letter to Mr. Teskey, the father, who probably has the most reliable knowledge about his likely earnings, estimated/forecasted a $245,000 annual income. The forensic report does not deal with 2020. Nowhere in his affidavit does the father disclaim the opinion about his 2020 income expressed to Mr. Teskey or offer any explanation why or how his circumstances would have either changed so dramatically from July 31, 2020 or why he was so mistaken in what he said.
[24] I agree, too, with Mr. Teskey that his client is prejudiced by the timing of the report. If the mother disputes its conclusions, she should proceed to engage an expert to advise her. Should that be done, the parties are reminded of the provisions of Family Law Rule 1(7.2)k and should consider a focussed summary of any disagreement between the experts being made available to the settlement conference judge.
[25] In my view, there should be imputed to the father at this time and on a without prejudice basis a 2020 income of $245,000 for child support purposes.
Disposition
[26] The following is ordered:
(a) The mother shall have primary care responsibilities for the children, this on a without prejudice basis. Decision-making shall be the joint responsibility of the parties. In the event of a dispute involving a major decision impacting the children’s best interest, an urgent motion may be brought on notice to the other parent;
(b) As per paragraph 1 of the father’s Notice of Motion dated September 24, 2020 dealing with the expansion of the children’s time with him;
(c) As per paragraph 2 of the father’s Notice of Motion except that the relief requested (i.e. depositing of passports with each party’s lawyer) shall be reciprocal;
(d) The parties shall comply with the terms set out in paragraph 18 (a) to (h) which shall be incorporated into the issued Order;
(e) Neither party shall move beyond 30km from their current residence without further court Order or written agreement;
(f) The father shall pay $3,217 monthly to the mother for child support starting on October 1, 2020 and on the first day of each and every succeeding month until further Order of the court or final agreement between the parties. This amount is without prejudice to either party’s claim as to the income to be attributed to the father and is based on an income of $245,000 a year;
(g) Any issue involving retroactive support is reserved to the judge finally determining that issue in these proceedings.
[27] A Support Deduction Order shall issue.
[28] If the parties are unable to agree upon the costs of this motion, the following directions shall apply:
(a) The father shall deliver his submissions by October 16, 2020;
(b) The mother shall deliver her submissions by October 23, 2020;
(c) Reply (if any) by the father by October 28, 2020;
(d) All submissions shall be single page, double-spaced. In the case of (a) and (b) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;
(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;
(f) Counsel are to advise the judicial assistant when they have filed their material.
Justice David A. Jarvis
Date: October 8, 2020
[^1]: 2020 ONSC 5242.