Court File and Parties
COURT FILE NO.: FC-19-1900 DATE: 2021/06/08
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, FAMILY COURT (Ottawa)
RE: Joshua David Parkinson, Applicant AND: Sheena Catherine Parkinson, Respondent
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Kimberley Pollard, for the Applicant Allison Lendor, for the Respondent
HEARD: May 27, 2021
REASONS FOR DECISION
[1] The motion before the court is a motion by the applicant for a temporary order increasing his parenting time, moving to a shared parenting schedule on a week about basis, setting a holiday schedule and reducing child support. There is a cross motion to increase child support, fix arrears and to order temporary spousal support.
[2] Prior to the hearing, the parties had resolved a number of issues. They have listed the matrimonial home for sale. They had also agreed to a holiday parenting schedule and certain other ancillary issues reflected in the draft order and consent. They have agreement on the amount of child support (subject to potential adjustment for the younger child in a shared parenting regime if ordered) and for contribution to post-secondary expenses for the eldest child. The respondent conceded that the issue of retroactivity should be deferred for the time being.
[3] The issues to be decided include the following:
a. Should income be attributed to the respondent for purposes of a temporary order?
b. Should there be a change to the agreed upon parenting time pending trial or final resolution?
c. What amounts of child support and spousal support should be ordered pending trial or other final resolution?
Background
[4] The parties cohabited between June of 2001 and August of 2019. They were married on September 8, 2001. They have two children, Abigail Piper Parkinson, born February 13, 2002 and Bohden Parkinson, born December 4, 2014. Abigail is 19 and is enrolled in post-secondary education. Bohden is 6 and is the child at the centre of the parenting dispute. This legal proceeding was started in September of 2019.
[5] The current parenting arrangements are based on minutes of settlement signed at a case conference on December 6, 2019. The order provides that the applicant will have parenting time each of the first three weekends of each month starting on Friday at 3:30 p.m. and continuing until Monday (or Tuesday in the case of a long weekend) at 9:00 a.m. The applicant also has parenting time on Thursday evening from 3:30 p.m. until 7:30 p.m. on the fourth week of each month.
[6] The applicant is a federal public servant. His income is not in dispute. His current salary is $89,766 per year. The respondent originally deposed that she has not been employed outside the home since the eldest child started attending school in 2005. This is not accurate. In her affidavit in support of her cross motion, and in response to the applicant's affidavit, the respondent sets out details of employment when the parties were residing in Nova Scotia until 2007. During that time, the respondent worked at various short-term jobs, earned a B.A. in Psychology and had a one-year contract as a counsellor. She also had some temporary work in 2013 and has completed part of a master's degree by long distance learning.
[7] It is not disputed that the parties were living in China between 2013 and 2016 and between 2018 and 2019. It is the respondent's evidence that the family relocated on several occasions including the two postings in China in order for the applicant to pursue his career. The respondent did not have any significant employment during those years and deposes that she is not currently employed. Her only current income is social assistance (Ontario Works). Her income as disclosed on her financial statement and tax returns is $13,548.
[8] It is undisputed that since separation, the respondent has been paying all of the carrying costs of the matrimonial home. He also declared bankruptcy in November of 2019. The respondent and the children lived in the home until they moved to a shelter in December of 2020. At a case conference before Justice Kershman on April 6, 2021, the parties agreed to sell the home. They also agreed to a child support order of $385 per month which is derived by setting off the carrying costs of $953 per month against the table amount for two children of $1,338 per month. This effectively treats the carrying costs of the home as a credit against child support.
[9] It is relevant that when the current parenting schedule was agreed to in December of 2019, the applicant was living in Cornwall and the respondent was still living in the matrimonial home in Ottawa. Since that date the respondent has vacated the home, the parties have agreed to sell it, and the applicant has moved to Ottawa with his new partner. The applicant now lives in the same school catchment area as the matrimonial home. He argues that this change in circumstances justifies a change to the parenting schedule and it is in the best interests of Bohden to spend equal time with each parent.
[10] An additional change since the date of the existing temporary order is the change to the statutory regime. Both provincial and federal legislation have been amended to eliminate concepts of custody and access and to clarify that the best interests of the children is the sole criterion to guide courts in making parenting orders.
Analysis & Decision
a) Change to the temporary Parenting Order
[11] The first question is whether the evidence demonstrates that it would be in Bohden's best interests to change the parenting time set out in the existing temporary order. That order was made on consent. The proposed order would not be.
[12] S. 16 (6) of the Divorce Act now contains a provision that in allocating parenting time, the court shall be guided by the presumption that it is in the best interests of a child to have as much time with each parent as is consistent with the child's best interests. It does not follow from this that there should be an automatic presumption of equal parenting time in alternating weeks. Still less can the statutory amendments be seen as requiring changes to existing temporary orders. Many factors go into assessing what is in the child's best interests. One of these is the ability of the parents to communicate and avoid conflict. Another is whether the current status quo should be disrupted.
[13] Bohden already has significant time with his father. It is to the father's credit that he spent this time with Bohden even when he was living in Cornwall. It is also to his credit that he has moved back to Ottawa to be close to the child. That said, the evidence is not persuasive that the existing arrangement is in any way harmful to the relationship or that the child's need for contact with both parents is not being met.
[14] The applicant asserts that it would be in Bohden's best interest to spend equal time with him. He asserts that the respondent has a history of undermining his relationship with his children. He asserts that Bohden has a healthy relationship with the applicant's new partner. None of this is significantly different than it was in December of 2019 nor is it self-evident how these issues will be affected by an alternating parenting schedule as opposed to the current schedule where Bohden spends the majority of his weekends with the applicant.
[15] If a trial is necessary, then evidence may be led concerning all of the factors in s. 16 (3) and the trial judge will be in a position to carry out a full and nuanced analysis. I am not prepared to make the requested order on a temporary basis. Motions to change temporary orders should not be routinely granted (see Fraser v. Fraser, 2015 ONSC 4640 and Pereira v. Ramos, 2021 ONSC 1737 @ para. 33). The parties would be better served by moving the case forward towards a final resolution.
b) Child Support
[16] There is no real dispute about the child support. The father has been paying reduced child support due to the carrying costs of the home. It would not be useful to revisit that offset on a temporary basis although I observe that the basis for offsetting household expenses against child support as opposed to some other obligation might be questioned once the mother and children had vacated the home. It is anticipated that the home will sell shortly and at that point the table amount of $1,338.00 per month will be paid. Justice Kershman's order of reduced support was intended to last until the sale of the house. For the sake of certainty, I am ordering that child support of $1,338.00 commence on August 1, 2021.
[17] In addition to the table amount, the father will be responsible for his share of s. 7 expenses including post secondary education for the elder child. The parties acknowledge that they have to review the contributions Abigail can make to her own education and whether her grandparents will make funds available from a RESP they have apparently been maintaining.
c) Imputing Income
[18] The question of imputed income is relevant to the claim for spousal support and also the percentage of s. 7 expenses to be paid as child support. S. 15.2 (6) (d) of the Divorce Act includes the promotion of the economic self-sufficiency of each spouse within a reasonable period of time as one of the objectives of spousal support. In addition, the guidelines permit the attribution of income to a spouse who is underemployed.
[19] I am asked to impute income of $25,000 which is the equivalent of full-time employment at minimum wage. The evidence is not clear that the respondent has the capacity to find such employment at this time and of course this is complicated by the COVID pandemic. It is not seriously disputed that there will be entitlement to some level of support for some period of time. The evidence is clear that the family relocated several times including the time spent in China. The only time the respondent was employed in the field she studied at university was for one year in Nova Scotia in 2007. More recently, she has been upgrading her education by pursuing a master's degree.
[20] Temporary orders for spousal support should be made prudently having regard to the skeletal amount of evidence available on a motion and all of the issues that will have to be proven at a trial. This is not the time to reach conclusions concerning the basis of an ultimate support order and a temporary order is without prejudice to the potential findings of the trial judge based on a full evidentiary record. Similarly, this motion is not the forum to conclusively determine if income should be imputed. I have the evidence of the parties' incomes in 2020 and a needs-based analysis justifies a temporary spousal support order.
[21] In the circumstances of this case, since I have not increased the parenting time or reduced the child support, there is limited room for a spousal support order. The SSAG guidelines suggest a range of $309 - $921 per month if income is imputed as proposed and $1690 - $2092 if the respondent had no income. If I simply use the income figures for 2020, the numbers generated by the guidelines would be somewhere in between these ranges.
[22] I am of the view that a temporary order is justified. I am ordering spousal support of $1,000 per month commencing July 1, 2021. This is without prejudice to the claim for retroactivity or for imputing income and without prejudice to recalculation following the trial.
Conclusion and Order
[23] In summary, I have approved the holiday schedule and other changes negotiated between the parties and contained in the draft consent order. I am not altering the regular parenting time set out in the existing order, but I encourage the parties to work towards a consensual resolution or to move the matter forward to a final adjudication as soon as possible.
[24] The applicant shall begin paying child support of $1,338 on August 1, 2021 and shall begin paying spousal support of $1,000 per month on July 1, 2021. The Applicant shall also pay 80% of reasonable s. 7 expenses as agreed upon in advance. This temporary order is without prejudice to the claims of retroactivity and without prejudice to adjustment at the time of the trial or other final disposition.
[25] I encourage the parties to resolve any question of costs but if they are not able to do so, counsel may arrange to speak to the matter.
Regional Senior Justice C. MacLeod Date: June 8, 2021
COURT FILE NO.: FC-19-1900 DATE: 2021/06/08
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE, FAMILY COURT (Ottawa)
RE: Joshua Parkinson, Applicant AND: Sheena Catherine Parkinson, Respondent
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Kimberley Pollard, for the Applicant Allison Lendor, for the Respondent
REASONS FOR DECISION
Regional Senior Justice Calum MacLeod Released: June 8, 2021