Court File and Parties

COURT FILE NO.: FC-20-25 DATE: March 31, 2021 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: E.M.N. v. S.R.N.

BETWEEN: E.M.N., Applicant and S.R.N., Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Rebecca Rosenstock for the Applicant M. Peter Sammon for the Respondent

DATE HEARD: March 15, 2021

Endorsement

James J

[1] The Applicant has brought a motion for child support and disclosure.

[2] The Respondent has brought a motion for a shared parenting arrangement for the parties’ two youngest children, A.M.R.N., age [omitted for publication] and A.P.N.J.N., age [omitted for publication.

[3] The parties have 6 children in all- M.T.M.N, dob [omitted for publication], T.G.J.N., dob [omitted for publication], J.H.J.N, dob [omitted for publication], G.G.C.N., dob [omitted for publication], A.M.R.N., dob [omitted for publication] and A.P.N.J.N., [omitted for publication].

[4] The Applicant and the children have remained in the matrimonial home since the parties’ separation in May 2018. The Applicant does not work outside the home. The Respondent is a teacher at a private school.

[5] The parties agreed to a temporary child support order in December 2020 based on the Respondent’s income of $39,552.

[6] As of January 1, 2021, the Respondent’s income is $40,374.26. The Respondent agrees that ongoing child support should be based on his latest income amount. This translates into a child support obligation for the parties’ 6 children of $1,246.33 per month.

[7] The shortfall in the payment of child support for the three-month period from January to March 2021 is $771.15.

[8] The Applicant receives in excess of $50,000 annually in tax-free child benefits. A change in parenting responsibilities such as shared parenting for some of the children would likely trigger a re-ordering of which parent the benefits are paid to and result in more litigation regarding the apportionment of temporary support obligations.

[9] M.T.M.N., the parties’ eldest child, turns 18 in March 2021 and it is unclear whether child support after March 2021 should include an amount on account of M.T.M.N.

[10] Since June 2020 the Respondent’s access has been every second weekend, Friday afternoon until Monday morning with a midweek visit that is supposed to alternate between an overnight and an evening visit. This routine has not been maintained, especially by the older children. The parties do not agree on the reasons why the children have not been visiting the Respondent regularly. On a temporary basis, the Respondent is content to leave the issue of access for the four oldest children in accordance with their wishes. A.M.R.N. and A.P.N.J.N have been spending time with the Respondent on a more regular basis. The Respondent says that by mid-April he will be finished teaching school for the year and will be in a position to provide full time care for A.M.R.N. and A.P.N.J.N.

[11] The Applicant says the Respondent minimizes the risks associated with the COVID-19 pandemic and is not fully compliant with current health guidelines and orders. This is especially concerning because of A.M.R.N.’s [omitted for publishing] condition. A.M.R.N. has diabetes and is supported by a medical team from the [omitted for publishing]. She uses a medical device to assist in tracking and managing her condition. The Applicant says the Respondent prefers not to use the device at all times and is not vigilant in monitoring her [omitted for publishing]. The Respondent says he is keen to participate in the management of A.M.R.N.’s condition and that the Applicant is not as forthcoming with information as she could be. I would expect that the Respondent will comply with her medical program and COVID recommendations.

[12] [omitted for publishing], on behalf of the Office of the Children’s Lawyer, has interviewed the children several times. With respect to A.M.R.N., her preference would be to have bi-weekly weekend access and a mid-week visit in the off week but not an overnight. With respect to A.P.N.J.N, he is content with the current arrangements. Ms. Gutoskie said that transitioning A.M.R.N. and A.P.N.J.N to a week about arrangement is not in accord with their views and preferences. Another point is that A.M.R.N. and A.P.N.J.N are close and well-bonded. Treating them separately for access purposes may not be in their best interests.

[13] I think that some weight ought to be attached to the information from the OCL in favour of the status quo.

[14] I am concerned that a week-about arrangement would be too long for A.M.R.N. and A.P.N.J.N to be separated from the Applicant and their siblings, especially for the 5-year-old. Stability, consistency and well-established routines are important for healthy development. I have also considered whether a rotation that was less than week about would work in place of weekly changes.

[15] The evidence suggests that the Respondent physically restrains the children as a parenting technique which seems unusual. It is concerning that the Respondent is allegedly not be attentive to A.M.R.N.’s diabetes, although this hasn’t been proven. Also, the Respondent says FCS has not indicated any safety issues.

[16] The Respondent is concerned that the Applicant is not sufficiently supportive of the importance of parenting time with both parents. It bears repeating that generally speaking children do better when they are able to spend positive time with both parents. The parent with primary parenting responsibility has an obligation to support and encourage access time with the other parent unless there are demonstrated good reasons that time spent with both parents is not in the children’s best interests.

[17] At bottom, I am not persuaded that the parenting times should be changed as suggested by the Respondent at this time.

[18] I would encourage the parties to take advantage of the ample time off work that will be accruing to the Respondent in the near future. There may well be regular activities that the Respondent can enjoy with the children, not necessarily as a group, that don’t involve formal parenting time allocations. Also, summer is typically a time when an access parent gets to spend more time with the children and the Applicant’s role in encouraging and facilitating this will warrant some scrutiny as this case progresses.

[19] The Applicant is seeking a temporary order for payment of retroactive child support. The payment of child support only commenced recently. She says the Respondent knew he had a child support obligation but ignored it. The Applicant also contends that the Respondent is intentionally under-employed.

[20] The Respondent says he maintained the family home for the Applicant and the children while he had to re-locate to new accommodation which was difficult to do because of his expenditures for the family. He says his monthly payments on account of household expenses approximated what he would have had to pay for child support.

[21] The Applicant says the Respondent is obliged to pay his share of the mortgage for the jointly-owned matrimonial home plus child support. The Respondent says there ought to be off-setting occupation rental. The financial situation in this case is unusual due to the high level of child benefit payments. The Applicant says there is a lack of transparency regarding the Respondent’s housing costs.

[22] I am not prepared to make a temporary order for retroactive child support at this time. The evidentiary record is incomplete and the parties dispute important facts that can’t be resolved with affidavit evidence that is untested by cross-examination. Also, the Applicant receives substantial tax-free governmental benefits that exceed the Respondent’s gross income.

[23] The Applicant complains that the Respondent overwhelms her with an oppressive quantity of communications. This can constitute a form of harassment, even if unintended. Restraint is required here. There should be a provision to control and verify the quantity of communications being exchanged.

[24] The parties do not agree on the status of their disclosure requests. This will be addressed below.

Disposition

[25] There shall be an order for ongoing child support payable by the Respondent in accordance with paragraph 6 commencing January 1, 2021.

[26] Arrears of temporary child support for the period January to March 2021 set at $771.15.

[27] Counsel shall jointly advise the court within 10 days of their position regarding child support for M.T.M.N. due to her approaching 18th birthday so the situation can be dealt with in an order for the period after March 2021. If the parties are in agreement, the order implementing this endorsement can incorporate their agreement regarding M.T.M.N.’s situation.

[28] The Respondent shall have access with A.M.R.N. and A.P.N.J.N every second weekend from Friday afternoon to Monday morning. In the off week, there shall also be an access visit on Wednesday afternoon that includes dinner with the Respondent but not an overnight. Times and exchange arrangements shall be the same as the current arrangements unless the parties mutually agree to adjustments that can be included in the order that implements this endorsement.

[29] Counsel shall exchange the details of the disclosure that they say is outstanding within 30 days. To the extent that an item is recognized to be proper disclosure, it shall be provided within 30 days of the date of the request if it has not been provided already.

[30] Either party may bring a disclosure motion to compel the delivery of any required disclosure but this ought to be done relatively promptly. The parties have been separated for nearly three years. No such motion may be brought after the expiration of 90 days from the date of this endorsement except with prior leave from a justice of this court explaining the delay.

[31] The parties shall make a good faith effort to comply with all COVID-19 recommendations and orders.

[32] The parties shall continue to use a communication app such as My Family Wizard to exchange information about the children and other necessary information. In addition, both parties shall maintain a log of any phone calls, texts or email exchanges between them including the date, time and purpose of the communication. These logs shall be provided to counsel every 60 days and counsel will exchange copies of the logs within a reasonable time after having received same. Communications between the parties shall be succinct, respectful and business-like.

[33] Ongoing child support will be finalized by a further endorsement after counsel have provided input regarding the situation with M.T.M.N. turning 18 years old next week, in the absence of an agreement between the parties that gets incorporated into the order that follows this endorsement.

[34] If the parties are unable to agree on how the costs of the motions are to be dealt with, they may deliver costs outlines and draft bills of costs within 30 days on a schedule agreed to by counsel.

James, J.

DATE: March 31, 2021