COURT FILE NO.: FS-12-76705
DATE: 20210903
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CIPRIAN TEODOR BORS
Applicant
– and –
ANA CRISTINA BORS (BELEUTA)
Respondent
Brian Ludmer for the Applicant
Gloria Ichim for the Respondent
Review meeting: August 25, 2021
REASONS FOR JUDGMENT
van melle, j.
[1] This endorsement results from a Review meeting on August 25, 2021. In my Order dated December 4, 2019, I said, at paragraph 38:
The Court shall not undertake a review of the custody and access provisions of this Order until Ana engages and meaningfully participates in therapy to gain insight into her alienating behaviour and meaningfully works towards supporting reconciliation between Ciprian and the Children.
[2] Although Ana has engaged in some therapy with Lourdes Geraldo, Ms. Geraldo told me today that Ms. Geraldo does not believe that Ana accepts and understands her role in the alienating behaviour that caused me to change custody to Ciprian.
[3] Further Ms. Geraldo is concerned that the gains that the children have made in their relationship with their father will be undermined if Ana has unsupervised access to the children before appropriate therapy has taken place and before paragraph 38 of my decision is complied with.
[4] I am heartened by Ms. Geraldo’s information that the children are doing very well under the present regime. Ms. Geraldo indicated that M who was spending days with Ciprian and nights with Ana, does not want to be put in the middle between her parents. M indicated as well that she would abide by any decision that I make regarding where she should live.
[5] I am satisfied that the renovations that Ciprian has made to his condominium whereby he has carved out a room for M, meet the requirements in my order. M should have gone into her father’s fulltime care as soon as the room was completed.
[6] I hereby order that M is to go into her father’s full-time care immediately if she has not already done so. The conditions set out in my Order will continue to apply. I add the following clause to my Order so that enforcement can take place if necessary:
The Peel Regional Police Services, the Ontario Provincial Police and the Royal Canadian Mounted Police, and all enforcement officials having jurisdiction in any area where it appears that the Children may be and to whose attention the Order is brought shall be directed to assist in enforcing the provisions of the Court Orders concerning this family, and such Police and enforcement officers are directed to take all such actions as may be required to locate, apprehend and deliver the Children to Ciprian or to the Family Therapist for the purpose of enforcing the custody and access provisions of this Order and any other Orders concerning this family, including the power of search and entry at any time. This Police Enforcement Order expires November 30, 2023.
[7] I remain concerned that Ana appears to be unable to understand her role in alienating the children from their father. I am also concerned about the long-term consequences to the children of a total rupture of their relationship with their mother (even if it is her own doing). I would therefore ask Ms. Geraldo to consider and advise me if some short periods of supervised visits (for example one or two hours once or twice a month) with their mother would be beneficial to the children.
[8] Ana has not been paying any child support. Ciprian seeks an order for full table child support based upon Ana’s 2020 income of $42,880.
[9] Ana says that she is unable to pay full table support and relies on the undue hardship provision in the Child Support Guidelines. She points to the fact that her income is garnished for $580 per month until August 2022 and is asking that her child support be reduced to $100 per month until then. She submits that she is unable to pay the $615 per month that she would be obliged to pay on her 2020 income of $42,880. Six hundred and fifteen dollars appears to be a miscalculation as the Child Support Tables call for a payment of $638.
[10] Section 10 of the Child Support Guidelines is as follows:
10(1) Undue hardship On the application of either spouse or an applicant under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
10(2) Circumstances that may cause undue hardship Circumstances that may cause a parent, spouse or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising parenting time with respect to a child;
(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;
(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
10(3) Standards of living must be considered Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 8, 8 or 9 have a higher standard of living than the household of the other parent or spouse.
10(4) Standards of living test In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
10(5) Reasonable time Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
10(6) Reasons Where the court makes an order for the support of a child in a different amount under this section, it must record its reason for doing so.
[11] An undue hardship analysis requires three steps:
A consideration of the factors under section 10(2) which although not exhaustive is rarely expanded upon.
The standard of living in the payor’s home must be lower than the standard of living in the recipient’s home.
If conditions 1 and 2 are met, the court must still determine that support other than the table child support should be paid.
The debt that is being garnished is a costs order resulting from the trial in this matter. Ana was warned by different judges that she would face costs consequences if she continued to interfere with Ciprian’s access to the children. She cannot now rely upon undue hardship due to the costs orders resulting directly from her actions.
[12] Ana submits that if she is ordered to pay table child support she will be prevented from being able to obtain and pay for a therapist to comply with my December 4, 2019 order. It is now 20 months after the order was made and there is no evidence that other than attending a few meetings with Ms. Geraldo at the outset, Ana has done anything to comply with my order. It is Ana’s inability to accept her role in the children’s initial alienation from their father, rather than the cost of such therapy that stands in the way of parenting time with the children.
[13] Ana is to pay child support of $638.00 per month starting September 1, 2021. I base my order on her 2020 income of $42,880.00. As the children went into Ciprian’s primary care as of November 18, 2019, I order retroactive support commencing January 1, 2020 in the amount of $12,760. The collection of the retroactive child support is stayed until January 2023.
[14] Ana is also to contribute to any medical and dental costs incurred on behalf of the children that are not covered by a benefit plan. Based on the parties’ respective incomes ($72,259 for Ciprian) the proportionate sharing of medical and dental costs would be 37.2% and 62.8%. However, I order Ana to pay 30% of any costs not covered by a benefit plan. She does not have to contribute to any other s. 7 expenses. Given that the pandemic resulting from COVID-19 has curtailed extracurricular activities, this should not be an issue.
[15] While I will continue to remain seized of this matter for now, I remind the parties that any review meetings are in addition to my regularly scheduled work. Lengthy affidavits containing numerous photographs and other irrelevant information are not required. A document with a brief, to the point outline of any issues to be discussed is all that is required. If the parties feel compelled to file affidavits those affidavits must be filed through whatever portal the court is using at the time of filing. They must also be filed in a timely manner to permit me to review the documents in advance. I note as well, that I agreed to hold off on releasing an endorsement after the Review meeting because Ciprian’s lawyer had specific wording that he required should there be any difficulty in having M go into her father’s care overnight. Instead of the wording a complete order was produced. Again, this was unnecessary and did not reflect what I intended to do after the meeting.
[16] An order will issue based on this endorsement. Support deduction order to issue. No order as to costs for the Review meeting.
Van Melle J.
Released: September 3, 2021
COURT FILE NO.: FS-12-76705
DATE: 20210903
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CIPRIAN TEODOR BORS
Applicant
– and –
ANA CRISTINA BORS (BELEUTA)
Respondent
REASONS FOR JUDGMENT
Van Melle, J.
Released: September 03, 2021