Court File and Parties

COURT FILE NO.: FC-18-2272 DATE: 2021/02/16 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Justin Stuart Grant, Applicant AND Larissa Elizabeth Grant, Respondent

BEFORE: Mackinnon J.

COUNSEL: Karla Policelli for the Applicant Cheryl Hess for the Respondent

HEARD: February 9, 2021

Endorsement

[1] The respondent mother brings this motion seeking a temporary reduction to the father’s parenting time with their daughter by removing overnight contact, for child support commencing September 2018, and for a contribution to section 7 expenses incurred commencing in 2019. The applicant father opposes any reduction to his parenting time. He asks the court to order child support and sharing of agreed section 7 expenses starting from January 2021, and to defer her other claims to final determination.

[2] The motion is allowed in part. Overnight visits will continue with terms imposed and subject to potential review on completion of the section 30 assessment. The child support order shall commence effective March 1, 2019. The father shall contribute his proportionate share to already incurred daycare and two extracurricular activity fees, and on an ongoing basis to extracurricular activities agreed to by the parents in advance of the expenditure, consent not to be unreasonably withheld.

[3] The child, Isla, is seven years old. She has lived primarily with her mother since the parents separated on August 29, 2018. At that time mother and child were living in the United Kingdom where the mother had a time limited work assignment for her Canadian employer. The father commenced this application for custody and child support in November 21, 2018. Mother and daughter returned to Canada in January 2019. The Answer was delivered in March 2019 and included the mother’s claim for custody and child support for Isla.

Commencement Date for Child Support Order

[4] The mother asks for a child support order effective the first of the month immediately following the parties’ separation at the end of August 2018. The father asks the court to commence the child support order as of January 2021, and not before.

[5] The father submits that he has a triable claim that the respondent stood in the position of a parent to his son and as such would owe him child support for eighteen months, which he will pursue at trial and which would provide an offset against the amount he would owe for Isla’s support. The father has not claimed this child support for his son at this motion. He sets out limited facts in his affidavit which do not when taken together with the additional facts set out in the respondent’s affidavits establish in the motion record that she probably did stand in the place of a parent to his son. His counsel points out that at trial the father would present a more fulsome and detailed account and that the trial judge would then be a better position to decide the issue. Be that as it may, the potential of succeeding at trial on an issue not raised by the motion before the court is not a reason not to commence child support for Isla before January 2021.

[6] The father submits the respondent will owe him money on account of post-separation payments made for a joint line of credit, car insurance and a storage locker. He also suggests the respondent’s employer reimbursed her for some shared costs of selling their matrimonial home that ought properly to be shared with him. The respondent disputes all these allegations. Basic documents required to do the accounting were not included in the motion record; the court cannot determine whether the accounting would favour the father. Raising the issue does not warrant the delay sought in the commencement of child support payments. In any event the accounting sought is properly addressed with the remaining property issues between the parties.

[7] The applicant addresses several submissions to say that no child support should be ordered prior to the respondent’s return to Ottawa in January 2019. He posits that the respondent may have received a living allowance or other contribution to Isla’s expenses in the U.K. that ought to be considered in reducing his obligation for child support. But the table amount of child support is not dependent upon the recipient parent’s income.

[8] The applicant also alleges misconduct by the respondent, deposing that she wrongfully retained Isla in the U.K., improperly invoked the jurisdiction of the U.K. court in an effort to keep Isla there, and only returned to Canada when ordered to do so in response to his Hague Convention application. The parties presented differing versions of the legal processes between them in the U.K., but again no court documents were produced that might have enabled the court to determine the facts of what did happen. Nor was the court providing any case law to support the proposition that child support, which is for the benefit of the child, should be denied based on misconduct of the recipient parent.

[9] The applicant submitted that the application of the D.B.S. factors pertaining to awarding retrospective support are factual and contextual and should be deferred to the more fulsome hearing available at trial. This proposed approach does not accord with the policy of the law that child support should be paid for the benefit of the child in a timely fashion when it is due. It also overlooks the definition of retroactive child support in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 as a claim for child support that was neither paid nor claimed when it was supposedly due. The retroactive part of this claim can only predate the delivery of the respondent’s Answer in March 2019.

[10] There is no reason in fact or law why the mother’s claim for child support would not take effect at latest from March 2019. The date of the formal claim is a compelling date to commence a temporary order for child support.

Applicant's Income for Child Support Purposes

[11] The applicant’s line 150 income for 2019 was $130,916. Child support commencing March 1, 2019 shall be paid at the table amount for that income in the monthly amount of $1,153.15.

[12] According to his financial statement the applicant’s income in 2020 was $136,629.95. he submits that $17,715.12 ought not to be included in his income for child support purposes because it is paid to him as a U.K. military disability pension. There is no merit to this argument. The table amount of child support for 2020 shall be paid in the amount of $1,197.79 per month consistent with his stated total income for the year.

[13] The applicant submits that his child support for 2021 should be paid on his base salary, which is $120,263, and then adjusted at year end to reflect his actual income for the year. The applicant has provided income disclosure for the years 2018 to 2020 inclusive. In these years his lowest line 150 income was $130,916. His highest was $147,778. I do not agree that his regular monthly payments should reflect his base salary.

[14] Child support will be payable in 2021 in the monthly amount of $1,197.79 based on the applicant’s stated income for 2020, subject to adjustment in June 2022 to reflect his actual line 150 income for 2021 as shown in his 2021 Income Tax Return and Notice of Assessment.

[15] Credit shall be given to the applicant for the payments he made in 2020 of $6,636 and in 2021 of $1,068 per month as paid to the date of this order.

Section 7 Expenses

[16] The respondent claims a proportionate contribution to Isla’s daycare expenses, and to extracurricular expenses including swimming, skating, Stagecraft Children’s Theatre School and piano lessons. The applicant opposes any contribution to these expenses to date on the grounds that they were not necessary, he was not consulted or did not agree to the expenses, and that some of the activities do not meet the definition in section of the Child Support Guidelines, O. Reg. 391/97 as am. He is prepared to contribute to future extracurricular activities provided he consents to an activity in advance.

[17] The amounts claimed for swimming and skating are $363 and $254 respectively over a two year period. They could be expected to be covered by the table amount of child support and the respondent’s own income. See section 7 (1.1) (a) (i) of the CSG. The childcare expenses were incurred as result of the custodial parent’s employment. Both parents were fully employed when they were incurred. The respondent was not obliged to ask the applicant if he could care for Isla in lieu of arranging day care. The applicant’s counsel advised court that the father’s share of the after tax cost of this expense totals $948.

[18] Stagecraft cost $2,040 for 2019 and 2020. Piano lessons for the same two years cost $2,665. The applicant did agree to the first registration for Stagecraft but denies being consulted thereafter. I find he was aware at all times that Isla was enrolled in this activity. The motion record is less clear as to his knowledge of her taking piano lessons. Consent in advance is regularly included in child support agreements but is not mandatory under the CSGs themselves. These expenses do qualify as extraordinary extracurricular expenses. The total cost of $4,704.65 for the two years in question is reasonably incurred for a child of Isla’s age and parents’ in this income bracket.

[19] Dividing that amount equally between 2019 and 2020 produces an annual amount of $2,352.33. In 2019 the father earned $130,916 and the mother earned $104,810. His percentage share of the 2019 activity expenses is $1,303.54. The father’s income for 2020 was $137,965. The mother changed jobs in 2020. She deposed that her income is virtually unchanged. Yet she also predicts in her financial statement that her income for 2020 will be $90,000. She has only provided three paystubs up to mid-September in support of her 2020 income. In the absence of clarity her income for 2020 is deemed for this motion to have been unchanged from the previous year. On this basis the father’s share of the 2020 activities is 56.8% or $1,336.12.

[20] The father shows an annual surplus in his financial statement of $21,158. Deducting the table amount of child support from that still leaves him well able to have contributed his share of the daycare and activity expenses incurred for Isla in 2019 and 2020. I order him to pay the respondent the total of $3,587.66 in respect to these expenses.

[21] Isla continues to be registered for both Stagecraft and piano in 2021. The applicant shall pay the respondent the monthly amount of $110 as his contribution to these expenses provided that proof of registration and receipts for expenses incurred are provided to him on a quarterly basis. No additional section 7 expenses shall be payable by him without his written consent, provided in advance of the expense being incurred. Consent shall not be unreasonably withheld.

Applicant's Parenting Time

[22] The respondent’s request to remove the applicant’s overnight parenting time is based primarily on information she says she has received from Isla, which has led to her belief that the applicant is drinking heavily and is not able to take good care of Isla at this time. She says Isla told her she could not wake her father up in time for her Stagecraft activity in late January. The respondent has also observed that Isla came back to her in the same clothes that she had apparently worn all weekend, had not been bathed and came home wearing mascara. She says Isla reports being alone in her room a lot where she is left to use her iPad.

[23] The respondent also expresses concern about Isla’s contact with her father’s ex-partner who has had mental health issues previously.

[24] The applicant denies the allegations of heavy drinking or inadequate care of Isla. He says he is always with Isla when she sees his former partner and the visits are short. He says it is important for Isla to continue the relationship since it connects her to her older brother who tragically passed away in July 2020.

[25] The parents have consented to a section 30 assessment which is underway. Completion has been delayed by the passing of the applicant’s son and more recently by a surgery scheduled for the assessor. The report is expected in mid-April. I am not persuaded that Isla’s best interests require a change in the applicant’s parenting time in advance of the completion of the assessment, or on the slim evidentiary record before the court. Rather the applicant shall not consume alcohol for 12 hours prior to or while in a care giving role for Isla. He shall ensure Isla attends her regularly scheduled activities while she is in his care. He shall be present for any interactions Isla has with his former partner and shall restrict those to short visits i.e. one hour or less until further order of the court.

[26] Either party may bring a motion to address parenting issues after the section 30 assessment is available.

Costs

[27] If counsel cannot resolve the costs of this motion, they may make written submissions to me. These should not exceed three pages plus attached Bills of Costs and any offers to settle the motion. If submissions are necessary, they should be exchanged between counsel and delivered to me on or before March 31, 2021 through email at scj.assistants@ontario.ca

Mackinnon J. Date: February 16, 2021