COURT FILE NO.: 42910/20

DATE: 2020-12-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N., Applicant

AND:

A., Respondent

R., Respondent

BEFORE: Conlan J.

COUNSEL: Alla Koren, for N., the Applicant

Matthew J. Armstrong, for A., the Respondent

Ron Shulman, for R., the Respondent

HEARD: December 10, 2020

ENDORSEMENT

Introduction

[1] If this case did not involve two precious young children, I would let this decision drip in sarcasm and then serve it as an aperitif, pre-trial. Though, come to think of it, the supper (the trial) would take so long to get to, given the frenzied pace of motion warfare to date, that my warm-up would hardly be satisfying.

[2] This case is about the two children. Everything else is secondary. Their welfare, which includes proper financial support for them, reigns supreme.

[3] On December 9, 2020, my colleague, Justice Kurz, released an Endorsement in this same file. His Honour had to deal with three Motions, one by each party, that had been heard on December 2nd. That’s just nine days ago.

[4] This is what my colleague said, at paragraphs 2 through 6 of the decision (for reporting purposes, I have amended the names of the parties and the children to first initials only – “N.” and “R.” for the two fathers, “A.” for the mother, and “X” for the younger male child and “Y” for the older female child).

[2] In the eleven months since this proceeding began, the parties have had nine court appearances. The litigation between the parties threatens to get out of hand, if it hasn’t already done so. The expense involved threatens to get well beyond the abilities of these parties to afford it. The time involved in these appearances threatens to disproportionately tax the resources of this court.

[3] I am told that there are a variety of other attendances scheduled for the next month or so, including:

• a written motion for leave to appeal an interim order of Chozik J. of September 17, 2020,

• a motion for child support brought by N. and R., returnable during the week of December 7, 2020,

• a cross-motion brought by A., returnable at the same time as the original support motions. There is a risk that the time involved in A.’s motion will push the case beyond the one-hour short motion limit.

• There is also a motion before Conlan J. to appoint a psychiatrist to assess A., as previously ordered.

• A. also plans to bring a motion to appoint a s. 30 assessor despite the fact that her own assessment is supposed to have already commenced.

[4] From my review of the materials filed and listening to the exchanges of counsel for N. and A., I am concerned with the manifest degree of rancour and inability of counsel to cooperate. This concern was demonstrated early in this motion. N.’s counsel complained that A. had brought her motion that day despite a mutually agreed upon schedule for the exchange of materials that did not include A.’s motion. A.’s counsel disagreed that there had been any agreement. Then, during the course of the day, when the parties were supposed to be negotiating the terms of an agreement to some of the issues before me today, A.’s counsel served other materials for motion on counsel.

[5] Further, during the course of argument of the motion, the parties were not even able to agree to the simple exchange of transfers of the two jointly owned vehicles, one of which is in N.’s possession and the other of which is in A.’s possession. The fact that this issue had to be raised at all on this motion demonstrates the degree of unnecessary conflict in this matter.

[6] While I will not comment on the propriety of the procedural steps taken by the parties to date, I point to them out to highlight the challenges of litigation when the parties are unable to communicate or work with each other at all.

[5] In terms of who is who, I can do no better than repeat what Kurz J. stated at paragraph 9 of His Honour’s Endorsement dated December 9th. Again, the same amendments have been made to the names of the parties and the children, which initials I will continue to use herein.

By way of background, N. and R. (jointly “the fathers”) each fathered a child with A. (“the children”). N. is the father of five-year old X, a child whom I understand to be on the lower functioning end of the autism spectrum. R. is the father of Y, who is now eleven.

[6] My task, perhaps a comeuppance, was to deal with another two Motions in this file on December 10th. There was actually a third Motion that tried to get snuck on, but we withstood it.

[7] One Motion was brought by father N. – he wants, principally, child support for X to be paid by A. He says it should be $1184.00 monthly starting March 1, 2020, based on a gross annual income for A. of $134,839.00, plus he wants her to pay half of specified section 7 expenses.

[8] The other Motion was brought by father R. (why one Motion could not have been brought by both fathers, I do not know and did not bother to ask). R. wants basically the same thing – child support for Y to be paid by A. He says it should be $1101.00 per month commencing March 1st, based on an income of $124,285.00. And he wants A. to pay 59.4% of section 7s.

[9] Each father also advances in his Motion some other ancillary relief.

[10] The mother, A., admits her obligation to pay child support for her two children, but the specifics being asked for she disputes.

Decision

Some Opening Remarks

[11] I considered opening with an order, on my own initiative, barring any further motion in this proceeding, by any party, without leave of the Court, and also appointing a case management judge to wrestle the matter back down to ground level, but I think I should give the parties a chance to be heard on those things, so I will not make those orders.

[12] This Endorsement will be in the file, though, along with that of Justice Kurz, so it will be no secret to any judge who hears the next matter that the proceeding is out of control.

[13] Now, having said the above, I was impressed with the politeness and the professionalism of all three counsel during the Zoom Court attendance on December 10th, and I was particularly happy to hear Mr. Shulman’s remarks about it being time for everyone to try to avoid the litigation by motion instalment approach (my term). I agree.

[14] I also commend both Ms. Koren and Mr. Shulman, and their respective clients, for not pressing the dispute about what A.’s annual gross income is for support purposes; they will accept her figure of $117,360.00 (see her Affidavit sworn on December 2nd, at paragraphs 128-130).

The Court’s Order

[15] This Court orders as follows, in disposition of both Motions:

1. A. shall, commencing on September 1, 2020, and on the first day of each consecutive month thereafter, pay child support for X (full name and birthdate to be included in the actual Order) of $1047.00 monthly, as per the Table amount in the Federal Child Support Guidelines, based on an income of $117,360.00;

2. A. shall pay fifty per cent (50%) of X’s section 7 expenses*, subject to future adjustment, including retroactive adjustment;

3. A. shall, commencing on September 1, 2020, and on the first day of each consecutive month thereafter, pay child support for Y (full name and birthdate to be included in the actual Order) of $1047.00 monthly, as per the Table amount in the Federal Child Support Guidelines, based on an income of $117,360.00; and

4. A. shall pay fifty per cent (50%) of Y’s section 7 expenses**, subject to future adjustment, including retroactive adjustment.

[16] With regard to clause 2 above, the * refers to those items specified in N.’s Notice of Motion dated November 27, 2020. Those items shall be listed in the actual Order.

[17] With regard to clause 4 above, the ** includes those items specified in R.’s Notice of Motion dated November 27, 2020. For greater clarity, ** includes the costs associated with the child’s therapy with Ms. Browne. Those items shall be listed in the actual Order.

[18] To be clear, for neither X nor Y is A. required to pay anything per month, automatically, on account of section 7 expenses. Her obligation to pay arises only upon the incurrence of such an expense on the part of the respective father.

[19] Further, the relief sought at clause 4 of N.’s Notice of Motion, that regarding the Ontario Autism Grant money, that relief is adjourned to trial, unless resolved by the parties in advance of a trial. The Affidavit evidence is conflictual (particular reference should be had to paragraphs 122-127 of A.’s Affidavit sworn on December 2, 2020), and I see no urgent need to resolve the conflict now, without the help of viva voce evidence.

[20] This Order shall be enforced through the Family Responsibility Office. A Support Deduction Order(s) shall issue accordingly.

[21] As to costs, submissions will be received in writing, if not resolved among the parties. Each submission is strictly limited to two pages in length, attachments excluded. Without leave of the Court, no reply is permitted. The following schedule shall be adhered to: N. and R. to file within thirty (30) calendar days of today, and A. to file within fifteen (15) calendar days of her counsel’s receipt of the last submission delivered by either father.

[22] This is, of course, a temporary Order.

Brief Reasons for the Court’s Order

[23] I will now explain, briefly, why certain disputed matters have been decided as they have been.

[24] Although R. had asked for a slightly higher than 50% share of Y’s expenses to be borne by A., for simplicity and consistency I have decided that it is best, temporarily, to have her shoulder the same percentage for both children. There would not have been a significant discrepancy otherwise.

[25] I agree with Mr. Armstrong that the child support obligations should not go back further than September 1st, as the demands for child support came no earlier than in August 2020. 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.

[26] I disagree with Mr. Armstrong that the holistic approach, which is the correct approach to an assessment of the suitability of retroactive child support, means that there should be no retroactivity here.

[27] I disagree with Mr. Armstrong that the Financial Statement and the Affidavit evidence of A. demonstrates that she cannot afford to pay full Table child support for each of her children. I agree that it will be “tight”, but I encourage these parties to work cooperatively for the sake of the children and change the current supervised access with X from the paid service (which is costing A. a lot of money every month) to a non-paid service, even a non-professional but trusted third party individual.

[28] The change in supervision, I am confident, will not harm the child, even considering his special needs. It is the consistent relationship with A. that counts.

[29] I am unable to accede to the mother’s undue hardship claim at this stage, without prejudice to her advancing it down the road once her pleading is amended, because I am of the view that she has an obligation to try to address the above first (the change in the type of supervision), before resorting to what is a fairly irregular remedy.

[30] I disagree with Mr. Armstrong that this Order should be stayed pending the closing of the sale of the matrimonial home. A. is fortunate enough that she has gone nine months (since March 2020) without paying any support for the children, and besides, this Court has not made the Order commence any earlier than what was suggested on behalf of the mother.

[31] I disagree with Mr. Armstrong that the section 7 expenses for Y should be capped at $875.00 yearly, on account of a prior Order made in the Ontario Court of Justice. That Order, as Mr. Shulman submitted, does not determine the result here. This is a different Court, examining different evidence, at a different time, vis a vis different (at least in part) section 7 expenses.

[32] Finally, on the theory that this Court should order that N. contribute something towards A.’s child support obligations for Y, because N. acted like a parent to Y, A. will have to pursue that argument at trial. It is novel, as Ms. Koren submitted, and I am not deciding that on affidavit evidence. It may have been different if I had accepted the arguments about unaffordability and undue hardship, but I have not done so at this time.

[33] For the above reasons, the Motions are granted to the extent outlined herein. Temporary Order accordingly.

[34] I thank all counsel, and I wish them and their respective clients a greater degree of cooperation moving forward, for the sake of the two children.

(“Original signed by”)

Conlan J.

Date: December 11, 2020