Court File and Parties

Court File No.: 19-23 Date: 2021-08-31 Superior Court of Justice - Ontario

Re: Mark Callwood, Applicant And: Cinthia Purdy, Respondent And: Matthew Callwood, Respondent

Before: The Honourable Justice Laurie Lacelle

Counsel: Penelope Gardner, counsel, for the Applicant Mark Callwood David Danielson, counsel, for the Respondent Cinthia Purdy

Heard: June 28, 2021

Endorsement

[1] Matthew Callwood brings a summary judgment motion seeking various orders relating to the child Tyson Michael Cameron Purdy-Callwood (born February 6, 2012). Matthew is Tyson’s father. Tyson has been residing with his father primarily since October of 2020.

[2] Cinthia Purdy is Tyson’s mother. She agrees that a summary judgment motion is appropriate given the issues in this case. She is not opposed to the parenting terms sought by Matthew, save for the language with respect to day-to-day decision-making for Tyson while he is in her care.

[3] Cinthia is opposed to any order for child support or the payment of child support arrears. While she would like to be able to support Tyson, she says that such an order would be a hardship for her given her circumstances as the mother of 7 children with a limited income. While she has not served a cross-motion, Cinthia requests a restraining order prohibiting Matthew from being within a certain radius. She also requests that parts of Matthew’s pleadings be struck or disregarded as inflammatory and irrelevant.

[4] Mark Callwood is Tyson’s uncle. He also agrees that the summary judgment procedure is appropriate in this case. He consents to the parenting terms sought by Matthew but has also filed a cross-motion. The only differences in the orders suggested in that motion and that brought by Matthew relates to his request that the parents seek his input about decision-making. Under his proposal, his input would not be binding upon Tyson’s parents. He also seeks parenting time, though this issue was not further addressed in argument.

[5] In his 35.1 Affidavit dated June 22, 2021, Mark provided his consent for five Children’s Aid Societies to send a report to him and the court indicating whether the society had any records relating to him and the date(s) on which any files were opened and/or closed (if applicable). This document was served on Matthew Callwood, but the five listed Children’s Aid Societies were not made aware of the request for records until various points in July.

[6] This issue remains outstanding. The court has received reports from two Societies. Those reports will be shared with all parties, since Mark has not brought a motion asking the court not to release all or part of the reports, and 20 days has elapsed since they were each received. In the meantime, because it is in Tyson’s best interests to resolve the parenting issues between Matthew and Cinthia, I issue an order addressing the terms I find appropriate. I invite counsel for Mark to advise how he intends to proceed and, if so instructed, to arrange for the filing of further evidence on this issue.

[7] I will refer to each of the parties by their first names for sake of clarity.

The preliminary issue – proceeding by way of summary judgment motion

[8] I am satisfied that this is an appropriate case to be determined by way of summary judgment motion. There are no issues that require a trial to resolve. The parties have all agreed that this is the case. A fair and just result may be obtained based on the written record before me. In particular, a parenting order that is in Tyson’s best interests may be made based on the written record (see Rule 16 of the Family Law Rules and Hryniak v. Mauldin, 2014, SCC 7, [2014] 1 S.C.R. 87 at paras 49 and 57).

The order to issue

[9] The parties fundamentally agree on the parenting terms for Tyson and I am satisfied they are in Tyson’s best interests, subject to some modification of their language, which I will discuss below.

[10] In considering what parenting terms to include in my order, I have considered those factors outlined in s. 24 of the Children’s Law Reform Act, and in particular, that a parenting or contact order with respect to a child requires that a court only take into account the best interests of the child.

Decision-making authority

[11] With respect to the issue of what decision-making responsibility each of the parties should have, some further discussion is necessary.

[12] I consider that Matthew has requested orders in his Notice of Motion that provide for joint decision-making between him and Cinthia. The order Matthew seeks would provide him with the day-to-day decision-making. For major decisions, he proposes having final decision-making authority following notice in writing to Cinthia, and after attempting to resolve any differences in opinion through good faith negotiation over a period of 7 days. In his oral submissions, however, he argues that this will not work if Cinthia will not communicate with him, which he says has been a problem.

[13] I have reviewed the record on the motion as well as prior endorsements by the court. It is clear that there have been issues between the parties and that communication has not been an easy issue as they have worked to co-parent Tyson. Even on this motion, Cinthia is requesting a restraining order, and Matthew’s submissions make clear that communication between the parties remains an ongoing issue. Nevertheless, because he says that it is in every child’s best interests “to have both parents in the picture”, this is the order he asks the court to make.

[14] But for the fundamental consent between the parties about the parenting terms, which is commendable given all the conflict between them during this litigation, and the report of the OCL, I would be particularly hesitant about making an order for joint decision-making as suggested by Matthew in his Notice of Motion. I am satisfied it is in Tyson’s best interests, however, subject to minor modification about day-to-day decision-making and final decision-making, given the parties’ consents and the evidence about Tyson’s deep attachment to his mother.

[15] As was previously noted by Justice Desormeau in an endorsement relating to these parties, the courts have been increasingly willing to consider joint decision-making responsibility for children in certain circumstances, even if communication between the parties is the source of some difficulty. In this case, Tyson’s attachment to his mother is clear. He wants her to be involved with him. Matthew’s oral submissions reinforce what is clear in the evidence, which is that Tyson values his relationship with his mother enormously. I find that it is in his best interests that his mother continue to have meaningful input into issues that will affect him, since her involvement means so much to Tyson and it is important that his mother have a significant role in his life even if he does not live primarily with her. I believe this is why Matthew has also proposed the decision-making terms that he has.

[16] With respect to item 10 in the Notice of Motion, I agree with counsel that the person having care of Tyson should have authority to make the day-to-day decisions required while he is in their care. However, it is also appropriate that as Tyson’s primary caregiver, Matthew will have authority to set Tyson’s routine, and Cinthia is to respect that routine while she is caring for Tyson. For example, if Matthew has established rules for Tyson about how much screen time he is allowed, certain video or other games he can and cannot play, or the time he gets up and the time he goes to bed, these routines should be respected and followed while Tyson is in Cynthia’s care. Matthew will need to communicate what these routines are to Cinthia. Given Tyson’s needs and ongoing efforts to address his psychological health, consistency in routine between households will be very important for Tyson.

[17] At the same time, it is clear that Cinthia has to be able to make other types of day-to-day decisions while Tyson is in her care, such as what activities to do, and when. The order will allow her to make such decisions. If Tyson needs medical treatment while in her care, she is to communicate with Matthew as soon as reasonably possible to notify him of what care Tyson requires, while ensuring that Tyson gets the care that he needs until Matthew can also be involved.

[18] I have also determined that the order needs to allow Matthew to have final say in decision-making in the event that Cinthia does not communicate with him. This is in Tyson’s best interests because it will permit a decision to be made on issues affecting him in the event Cinthia chooses not to communicate with Matthew.

Child support

[19] Cinthia says it would cause undue hardship to have to pay table amount child support. Her income is from ODSP. She is the mother of 7 children, 3 of whom are in her full-time care. She has parenting time with her other children as well. She also has debt. She says that she is just managing to scrape by. While Cinthia would like to support Tyson, she says she is in such poor financial shape that it would genuinely cause her undue hardship to have to pay table amount child support.

[20] Matthew says that the income being used by Cinthia as her line 150 income in her DivorceMate calculations ($13, 860) is wrong, and “hardship is not a game that can be played here”. He says that he has $54, 000 in debt (I am aware that this is not reflected in the Financial Statement of 2019), but he cannot take the position that he is not responsible for Tyson, as Cinthia has. He argues that Tyson is a child with serious needs, and the court should enforce the child support amount payable based on her most recent line 150 income.

The evidence

[21] I am satisfied on the evidence before me that Cinthia’s line 150 income for 2020 as indicated in the tax reassessment documents is $22, 500. The evidence also shows she currently receives $1, 155.00 in ODSP benefits, or $13, 860 per year, which is the amount she has used in her DivorceMate calculations. Her financial statement indicates that she has expenses of $22, 524.00 annually. She lives alone with her children and there is no other income earner in the household.

[22] Her evidence is also uncontested that she is the mother of 7 children and 3 of those children live with her full time. Two of her children see her every other weekend, and a third sees her every weekend. Further, she is in debt in the amount of $13, 480.00. She says that sometimes she needs to choose which expenses she can pay from month to month to scrape by.

[23] Matthew’s most recent Financial Statement was filed on April 1, 2019. At that time, he indicated he had been unemployed since March 2019. He had total monthly income of $2997.00, which consisted of social assistance income (including ODSP payments) of $2152.00 and $845.00 from Child Tax Benefits. His monthly expenses were the same as his monthly income. He additionally owned a vehicle valued at $10, 995.00.

[24] While the hardship claim being made by Cinthia was discussed in court appearances prior to this motion being heard, it appears no one addressed the benefit of having an updated Financial Statement from Matthew, particularly so that he might respond to Cinthia’s hardship claim by completing “Schedule B” of that form. The issue was not raised by counsel for Cinthia during the hearing of this motion. For her part, Cinthia filed her Financial Statement 6 days prior to this motion being heard.

The law

[25] In deciding what child support, if any, is payable by Cinthia, I apply the law set out in the Child Support Guidelines.

[26] Section 3 of the Guidelines sets out the presumptive rules that the amount of child support for a child (under the age of majority) is the amount set out in the applicable table.

[27] Determination of a parent’s income is made in accordance with various provisions. In this case, s. 16 applies. It says that annual income is determined using the sources of income “set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency” (and adjust it to accord with Schedule III). This means that child support is calculated on the payor’s total income for income tax purposes: Bak v. Dobell, 20017 ONCA 304 at para. 40.

[28] Section 2(3) is also relevant. It says that “[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used”.

[29] With respect to a claim of hardship, it is s. 10 of the Guidelines that applies. It lists circumstances that may cause undue hardship (the list is not exhaustive), which include the fact that the payor parent has a legal duty to support a child, other than a child of the marriage, who is under the age of majority (s. 10(2)(d)).

[30] However, even where a court makes a determination of undue hardship, an application under section 10 must be denied by the court “if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse”. Finally, s. 10(4) provides that in comparing standards of living, the court may use the comparison of household standards of living test set out in Schedule II. This requires information about the annual income of each person in each household.

[31] In summary, there are three parts to the test for undue hardship (see for instance Atkinson v. Johnson, 2021 ONCJ 15 at paras. 83 and 88):

a. The person making the claim must show that there are circumstances that could create undue hardship. The hardship must be “exceptional, excessive or disproportionate, not merely awkward or inconvenient”. The term has also been interpreted to mean “excessive, extreme, improper, unreasonable, unjustified” and as “excessively hard living conditions”;

b. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s; and,

c. If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties. But the court also retains the discretion to refuse a reduction in the table amount even if the first two parts are made out.

[32] The onus is on the party applying under s. 10 to establish undue hardship. This includes providing cogent evidence showing why the table amount would cause undue hardship. At least one appellate court has held that hardship will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than that of the other spouse (except where the payor is at the lowest income level for the payment of child support): Van Gool v. Van Gool, 1998 BCCA 5650 at paras. 51-53.

Analysis

[33] I begin by noting what evidence is not before the court.

[34] I have no evidence as to what child tax credits Cinthia receives in respect of the children in her care so that she may meet the expenses she sets out in her Financial Statement (which total $22, 524.00 annually). I have no other information about how she is meeting the gap between her income and her expenses. I have no evidence as to the status of child support payments to Cinthia from the fathers of the three children who reside with Cinthia full time.

[35] I have no evidence as to what the incomes of Matthew and his spouse are currently, or what they were in 2020 when Tyson began to live with them. While the DivorceMate calculation filed by Cinthia has attributed incomes to each of Matthew and his spouse, Ms. Peralte, I cannot tell on this record how those figures were determined.

[36] Cinthia’s affidavit contains few facts that assist in determining the child support issues. There is nothing in her affidavit that explains the apparent disparity in her income for 2021 and from 2020. There is nothing else in the evidence which suggests her sources of income have changed since 2020, and the disparity is puzzling. I note that Cinthia’s 2020 line 150 income is relatively consistent with the line 150 incomes from 2019 ($18, 000) and 2018 ($19, 131).

[37] With respect to the analysis of the standard of living in each household, Cinthia has only provided a DivorceMate calculation. This document, by itself, is not evidence of the incomes in the other household. The figures it is based upon must be established in the evidence as well.

[38] Further, as I read the document, a Canada Child Benefit of $4, 970 has been included for Matthew’s household, while no children’s benefit has been assigned to Cinthia’s. I am unable on the record before me to assess whether this is accurate, and why, if Cinthia has 3 children in her care full time, she is not in receipt of a tax benefit for each of those children. While the benefit is not part of income for child support purposes, it is relevant to the comparison of the net disposable income in each household.

[39] No factum was filed or other argument made directing the court to other documents in the court record which fill in the gaps in the evidence. Even with the assistance of court staff (since I have access only to the electronic court record which is voluminous and difficult to search) I have been unable to locate any documents that assist me.

[40] Given the state of the evidence, and the important information I am missing, I am unable to conduct the analysis required by the law to determine whether the hardship claim advanced by Cinthia should succeed. While I am sympathetic to the circumstances advanced by Cinthia, the evidence does not allow me to set aside the presumption that table amount child support is payable.

Child support arrears

[41] The evidence before me establishes that Tyson has been living full time with Matthew since October 2020. Child support arrears for the months of November and December 2020 are therefore payable. I use Cinthia’s line 150 income from 2020 to determine the table amount payable, which is $179.90 per month. Accordingly, the arrears for 2020 are fixed at $359.80 payable by Cinthia to Matthew.

Ongoing child support and the arrears from January 1, 2021 to August 30, 2021

[42] The evidence before me is that Cinthia’s is currently in receipt of ODSP benefits which total $13, 860.00 annually. Her last line 150 income, however, is $22, 500. This is relatively consistent with her income in each of 2018 and 2019. Given the gaps I have identified in the evidence, I do not use the figure claimed in Cinthia’s financial statement as her income for this analysis. In accordance with the law I have outlined above, I use her most recent line 150 income to determine her table support payable for 2021. If the actual income for 2021 is different (Cinthia must disclose her tax documents to Matthew so long as child support remains payable), this figure may be adjusted at a later date.

[43] Using this income, Cinthia’s monthly child support obligation is $179.90. She shall pay this amount to Matthew monthly starting September 1, 2021.

[44] Cinthia also owes arrears for child support between January 1, 2021 and August 30, 2021 (e.g. 8 months x $179.90). Accordingly, the total arrears owing for this period are fixed at $1, 439.20.

The request for a restraining order

[45] As I have said, Cinthia is requesting a restraining order with respect to Matthew. She has not filed a Notice of Motion seeking that relief. She says it can be granted notwithstanding that lack of procedural fairness because the Family Law Rules provide that it is a paramount consideration to deal with cases justly. It was also pleaded in her Answer, insofar as she asked for a non-harassment order. She says the language of her pleadings is broad enough to support the order she is seeking.

[46] I do not agree. I am not persuaded that the order is appropriate in the circumstances.

The request to strike pleadings

[47] Cinthia asks that various parts of Matthew’s affidavit dated June 18, 2021 be struck (paras 31, 43 and part of 68) because it refers to a history which has already been addressed by the court. She argues that reference to these facts is inflammatory and serves no purpose.

[48] No notice of this intention to seek this relief has been provided. I find it is not necessary to grant the relief to make a just order in this case.

Conclusion

[49] Matthew has requested costs for this motion. I will not make this order without providing the parties with an opportunity to make submissions on the issue based on the contents of this decision.

[50] Each party may make costs submissions of no more than 2 pages, addressing the facts and law (set out in Rule 24 of the Family Law Rules). Attachments to show receipts for expenses paid may be attached to the 2-page submission. Matthew shall have 30 days from today to file his costs submissions. Cinthia shall have a further 21 days to respond. My decision will then be released to the parties in writing.

[51] For the reasons indicated above, an order shall issue on the following terms:

PARENTING TIME

1. Tyson Michael Cameron Purdy-Callwood, born February 6, 2012 (the “Child”) shall reside primarily with Matthew Callwood.

2. Cinthia Purdy shall have regular parenting time with the Child as follows:

a) Every weekend from 6:00 p.m. on Friday to 6:00 p.m. Saturday; and

b) At all other reasonable times as mutually agreed upon between Cinthia Purdy and Matthew Callwood, consent for which shall not unreasonably be withheld.

3. Matthew Callwood and Cinthia Purdy shall facilitate contact between Tyson and his other relatives.

4. Matthew Callwood and Cinthia Purdy shall equally share holidays and special occasions, which include Easter, Good Friday, March Break, Thanksgiving, New Years Eve, New Years Day, Christmas Day, Boxing Day, Family Day and Tyson’s birthday.

a. In even numbered years, Cinthia shall have the Child for Christmas Day, Family Day, New Years Day, Good Friday, and March Break and Matthew shall have the Child for Christmas Eve, Thanksgiving, Easter, New Years Eve, and Boxing Day. The order shall be reversed for odd numbered years.

b. For Tyson’s birthday, (i) if the birthday falls on a non-school day, Cinthia shall have the Child from noon to 3:00 p.m., and Matthew shall have the Child from 3:00 p.m. to 6:00 p.m.; and (ii) if the birthday falls on a school day, Cinthia shall have the child from after school until 7:00 p.m.

c. For Mother’s Day, Tyson shall reside with Cinthia, and for Father’s Day, Tyson shall reside with Matthew, as long as this does not interfere with Tyson’s schooling.

d. For any other special occasion or holiday, the parents shall agree in advance, in writing, on parenting time.

5. During her parenting time, Cinthia should not allow other individuals to parent or discipline Tyson.

6. Matthew Callwood shall transport the Child to and from his parenting time visits with Cinthia Purdy.

7. Tyson’s medication shall stay on his person during exchanges and shall be administered as directed.

DECISION-MAKING

8. Matthew Callwood and Cinthia Purdy shall have joint decision-making of the Child, Tyson Purdy-Callwood, subject to the following exceptions:

a. Matthew Callwood shall make the decisions about Tyson’s day-to-day routine and communicate with Cinthia in writing about the routine he has established for Tyson. Any routine or house rules set by Matthew for Tyson shall be respected when Tyson is in the care of Cinthia Purdy;

b. Cinthia Purdy may make other types of day-to-day decisions relating to Tyson when he is in her care;

c. In the event Tyson needs medical treatment while in the care of Cinthia Purdy, Cinthia must communicate with Matthew as soon as reasonably possible to notify him of what care Tyson requires. Cinthia may make any decisions necessary to ensure Tyson receives care until Matthew is able to decide what care Tyson shall receive.

9. Each parent shall be entitled to make inquiries and be given information by the children’s teachers, school officials, daycare providers, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. Both parents shall sign any documents necessary to permit this contact.

10. For major decisions, Matthew Callwood and Cinthia Purdy shall have joint decision-making responsibility. Matthew Callwood shall have final decision-making authority as follows:

a. The parent who proposes to make a major decision for the Child shall provide the other parent with 48 hours’ notice, in writing. If the other parent fails to respond within 48 hours, that parent shall be deemed to consent to the proposed decision.

b. If the other parent responds within 48 hours and disagrees with the proposed decision or does not consent to it, the parents shall attempt to resolve the disagreement through good faith negotiation over a period of 7 days. If they cannot agree on a course of action after 7 days, Matthew Callwood shall make a decision in the best interests of the Child taking in consideration Cinthia Purdy’s view.

11. Mathew Callwood may obtain a psychoeducational assessment for the Child.

Should a party want a report, they shall assume the costs of the report writing time.

COMMUNICATION

12. For matters relating to parenting time and decision-making, the parents shall communicate in writing using the Custody X Change software (https://www.custodyxchange.com). If that software is not available for whatever reason, or if the parents mutually agree in writing, they may instead communicate by email or other means.

13. For emergency matters, the parents may communicate by phone.

CHILD SUPPORT

14. For the months of November and December 2020, child support arrears payable by Cinthia Purdy to Matthew Callwood for the benefit of Tyson Purdy-Callwood, born February 6, 2012 are fixed at $359.80. This is based on Cinthia Purdy’s line 150 income for 2020 of $22 500 and is in accordance with the Child Support Guidelines.

15. For the months of January to August 2021, child support arrears payable by Cinthia Purdy to Matthew Callwood for the benefit of Tyson Purdy-Callwood, born February 6, 2012 are fixed at $1, 439.20. This is based on Cinthia Purdy’s line 150 income for 2020 of $22 500 and is in accordance with the Child Support Guidelines.

16. Cinthia Purdy shall pay to Matthew Callwood child support of $179.90 per month for the benefit of Tyson Purdy-Callwood, starting September 1, 2021, based on her line 150 income for 2020 of $22 500 and the Child Support Guidelines.

17. Cinthia Purdy shall repay the arrears owed in child support at the rate of $50 per month, commencing on September 1, 2021, until such time as the arrears are paid in full.

18. For as long as child support is to be paid, Cinthia Purdy shall provide Matthew Callwood with a copy of her income Tax Return and Notice of Assessment on or before July 1 annually, commencing in 2022.

19. Unless the support order is withdrawn for the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.

20. Cinthia Purdy shall provide to the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.

21. This order bears interest at a rate of 2% percent per annum from the date of this order. Where there is a default in payment, the payment shall bear interest only from the date of default.

22. No party is required to contribute toward section 7 expenses incurred by another party.

NON-DISPARAGEMENT

23. The parties shall maintain age-appropriate conversations with Tyson and shall not disparage any of the other parties within earshot of Tyson.

The Honourable Justice Laurie Lacelle

Date: August 31, 2021