Court File and Parties

Court File No.: FS-20-58 Date: 2021-01-25 Superior Court of Justice - Ontario

Re: Danielle Marie Spry, Applicant And: Adam Timothy Shetler, Respondent

Before: Chozik J.

Counsel: Erroll G. Treslan, Counsel for the Applicant Elli M. Cohen, Counsel for the Respondent

Heard: December 10, 2020

Ruling on Motion

[1] The parties brought four motions before the court on a variety of issues. Prior to the hearing of those motions, the parties resolved most of the issues. The four outstanding issues argued at the hearing were:

a. Whether the Respondent had an obligation to pay interim child support for Mason Michael Spry born June 1, 2008 (“Mason”), the Applicant’s son from a prior relationship;

b. Whether the Respondent had an obligation to pay interim spousal support;

c. Whether a neutral location for access exchanges was required with respect to the parties two children;

d. A reasonable time for access exchanges on Sunday during the winter months, to account for hazardous driving conditions.

[2] For the Reasons that follow, I have determined that the Respondent is responsible for child support for Mason and spousal support to the Applicant on an interim basis. I have also concluded that it is in the best interests of the children that there be a neutral location for access exchanges. Exchanges on Sundays shall occur at 4:30 p.m. until March 14, 2021. From March 21 until November 7, 2021 the exchanges shall occur at 6:00 pm, and then revert to 4:30 pm from November 14, 2021 until March 6, 2022.

Interim Child Support for Mason:

[3] The parties started living together on September 1, 2013. They lived together continuously for almost seven years until separation on April 20, 2020. On that date, there was a dispute in the home. As a result of that dispute, the Respondent was arrested and charged with uttering threats and mischief to property. Those criminal charges are unresolved. I draw no inference from their existence. The Respondent has been prohibited from attending at the matrimonial home and there are restrictions in place on his ability to communicate directly with the Applicant.

[4] The parties have two young children from their relationship: Nola Marie Shetler born March 9, 2014 (“Nola”) and Alyssa Danielle Shetler born September 24, 2018 (“Alyssa”). Since their separation, they share parenting of these two children on a week about basis.

[5] When the parties began living together Mason was 5 years old. Mason is now 12 years old. Mason’s biological father has not been in his life since Mason was 11 months old. The Applicant, in her affidavit, asserts that the Respondent is the only father Mason has ever known. The Respondent denies that he stood in place of a parent to Mason. It is not disputed that Mason referred to the Respondent as “dad”.

[6] The Applicant indicates that she chose not to seek child support for Mason from his biological father. This was included in a separation agreement. She decided not to seek support for Mason because his biological father had a history of drug use, incarceration for selling drugs, two suicide attempts (that she knew of) and a sporadic work history. She did not want him to have any involvement in Mason’s life. According to the Applicant, throughout their relationship the Respondent knew of and supported her decision in this regard.

[7] By both accounts, the Applicant’s parents took an active role helping her raise Mason both while she was a single mother, and once she began dating and then living with the Respondent. The fact that Mason’s maternal grandparents are heavily involved in his care and activities does not preclude the Respondent from standing in place of his father: Chartier v. Chartier, [1999] 1 S.C.R. 242, 168 D.L.R. (4th) 540 at para. 42.

[8] To determine whether the Respondent has any child support obligations, I must first determine whether Mason is a child of the marriage. As with spousal support, I must be satisfied that a prima facie case has been established in this regard. The ultimate determination as to whether Mason is a child of the marriage is one that would be made at trial.

[9] Section 1(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) defines a “child” as a person to whom a parent has demonstrated a settled intention to treat as child of his or her family. A “parent” is defined as “a person who has demonstrated a settled intention to treat a child as a child of his or her family…”.

[10] Section 3(1) of the Child Support Guidelines sets out the provisions that govern the determination of entitlement and obligation of child support. Section 5 provides that:

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child. [Emphasis added]

There is a broad discretion to determine the child support obligations of a step-parent, having regard to the best interests of the child and the specific facts of each case: A.(L.M.) v. H.(P.), 2014 ONSC 1707, at paras. 68-69.

[11] The first issue to be determined on this interim motion is whether the Respondent stood in place of a parent with respect to Mason. The second issue to be determined is whether the Respondent’s obligation to support Mason should be off set by the obligation of Mason’s biological father, and if so, by how much.

[12] The principles relating to the child support obligations of a non-biological parent who stands in loco parentis - in the place of a parent - to a child were set out by the Supreme Court of Canada in Chartier v. Chartier, [1999] 1 S.C.R. 242, 168 D.L.R. (4th) 540. In that case, the court held that (1) a person cannot unilaterally withdraw from a relationship in which he or she stands in loco parentis to a child, and (2) the court must look to the nature of the relationship to determine if a person does, in fact, stand in the place of a parent to the child (at para. 17). It is in the best interests of the child to be able to count on the continuation of the parental relationship after the breakdown of a marriage (at para. 32).

[13] The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child and the nature or existence of the child’s relationship with the absent biological parent (at para. 39).

[14] Once a child is shown to be a “child of the marriage,” the parental obligations and rights with respect to that child become the same as those relating to a biological child (at para. 39).

[15] I have considered the principles above and the evidence before me. Given the following factors, I have concluded that the Applicant has established a prima facie case that the Respondent stood in place of a parent in respect of Mason:

a. The Respondent held himself out in public representations as Mason’s father. He submitted a photo of himself and Mason as his “son” to his work magazine published in 2018 and circulated to approximately 2000 of his co-workers;

b. The Respondent willingly assumed financial responsibility for Mason while the parties lived together. He provided financial support for this family, which included Mason;

c. The Respondent was aware that the biological father was absent, and that the Applicant had not pursued child support for Mason from him;

d. There is no evidence that the Respondent was concerned about the role of the birth father or whether he paid child support for Mason. From this, I infer that the Respondent accepted that he would be financially responsible for Mason during the relationship;

e. Until the separation, the Respondent included Mason under his work benefits as a dependent child;

f. The Respondent participated in Mason’s life as a father, including attending hockey games and tournaments, attending parent teacher interviews and doing projects together such as building a tree fort;

g. Mason called the Respondent “dad”.

[16] The Respondent argues that to determine his obligation to support Mason, this court must first determine the section 3 child support obligations of Mason’s biological father. He relies on Bielby J.’s decision in Truong v. Truong, 2012 ONSC 3455 in support of this position.

[17] In Truong v. Truong, Bielby J. found that the applicant mother had made a decision not to pursue the biological parent for child support, instead deciding to pursue the respondent stepparent who stood in loco parentis (at para. 24). Bielby J. decided that the respondent stepparent should not be required to pay full guideline support because the applicant had chosen not to pursue the child’s biological parent for support, who had a legal obligation to support the child (at paras. 24-25).

[18] The decision in Truong is not binding on me.

[19] In A.(L.M.) v. H.(P.), C. Horkins J. conducted a thorough analysis of the law in this area and rejected an argument similar to that of the Respondent in this case. When the biological parent is not present, and his support obligation cannot be quantified or enforced, there may be circumstances where the stepparent will have to meet the primary obligation of child support in order for the child to continue to enjoy the standard of living he or she enjoyed while living with the step parent: Shen v. Tong, 2013 BCCA 519, at para. 58, cited in A.(L.M.) v. H.(P.), at para. 178.

[20] In my view, the Respondent’s position that the court must first determine the absent biological father’s child support obligation before imposing any obligation on him is not correct. If it were, then it would leave Mason with no support for a considerable time. His biological father is not a party to these proceedings. The biological father has had no contact with Mason or the Applicant in years. The biological father’s circumstances and ability to provide support are entirely unknown.

[21] To ignore the Respondent’s child support obligations, when there is a prima facie case he has stood in the place of a parent to Mason for the past seven years, in favour of ascertaining the support obligations of an absent biological parent first, would not be consistent with the “children first” aim of the Guidelines. Primacy must be given to the child’s standard of living. A child in Mason’s circumstances ought not be left without support and in a state of complete uncertainty. The Respondent cannot unilaterally terminate that relationship.

[22] While I recognize that the primary obligation to pay child support may rest on Mason’s biological father, I am exercising my discretion to order the Respondent to pay a full Guidelines child support for all three children, including Mason, on an interim basis effective April 21, 2020.

[23] I also do not accept the Respondent’s argument that the Applicant must find and serve the biological father with notice of these proceedings. The obligation to do so is on the person seeking a contribution. In this case, the person seeking a contribution from the biological father for Mason’s support is the Respondent.

Interim Spousal Support:

[24] The Applicant seeks interim spousal support. The Respondent disputes the Applicant’s entitlement to spousal support. In his affidavit, he states that their relationship “was never like a marriage”: he never had any intention to marry the Applicant and they were never engaged. He argues that their financial affairs were always independent of one another and that the Applicant has no compensatory or needs based entitled to support.

[25] Having reviewed the evidence on this motion, I am satisfied that the parties commenced living together in September 2013. This is not in dispute. They had two children together. This is not in dispute. They owned several properties during the course of their relationship. While one party or the other held title to the properly, their financial arrangements were entirely commingled.

[26] I do not accept the Respondent’s claim that this was not a “marriage” or that the parties lived separate, financially independent lives and moved in together simply to facilitate coparenting Nola. On the evidence before me, I am satisfied that these parties were living together, had two children together, were raising their three children together and were financially operating as a family unit.

[27] On a spousal support order, the claimant must demonstrate entitlement to support: Zahelova v. Wiley, 2019 ONSC 5024, at para. 4. The bases on which to claim entitlement are compensatory, non-compensatory, and consensual (at para. 5). Non-compensatory entitlement can be demonstrated by a difference in the need and means of the parties and a pattern of economic dependency created during the relationship (at para. 6).

[28] On a motion for interim spousal support, the court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to trial. Interim support is a holding order to maintain the accustomed lifestyle pending final disposition, as long as the claimant is able to present a triable case for economic disadvantage: Maelbrancke v. Proctor, 2016 ONSC 1788, at para. 11.

[29] I am satisfied that the Applicant has presented a prima facie case for entitlement to support. She took two maternity leaves (one 12 months and one 18 months) during the relationship in order to be the primary caregiver to the parties two children, while the Respondent worked full time to provide for their family.

[30] There is a significant difference in need and means. There is a discrepancy in the parties’ incomes: it is agreed that for the purposes of support the Respondent’s annual income was approximately $190,199,[^1] while the Applicant’s income, prior to September of 2020 was $24,000 because she was laid off and receiving only the CERB. After September of 2020, her annual income went up to approximately $52,000.

[31] The Respondent argues that the Applicant has no need for spousal support. He points to the Applicant’s financial statement to argue that it shows that she has enough money to support herself and the children. He also argues that her willingness to buy his interest in the matrimonial home and carry those expenses for that house shows that she has sufficient means.

[32] I do not accept his arguments in this regard. The Applicant’s financial statement shows that her annual income is $63,139.44, but her annual expenses are $99,155.76. In that financial statement, she has not provided for any savings or emergencies. The financial statement, based on her income alone, does not reflect the lifestyle she or the parties’ children are accustomed to. The Applicant’s affidavit also indicates that her ability to buy out the Respondent’s interest in the matrimonial home is dependant on her parent’s assistance. These aspects do not negate the Applicant’s need based claim for spousal support.

[33] I am satisfied that a spousal support order is justified to allow the Applicant to maintain the pre-separation lifestyle for herself and the children in the home the children are accustomed to, pending a final determination at trial with respect to entitlement, duration and quantum.

[34] The SAAG calculations are as follows, based on shared custody of Nola and Alyssa, and Mason being primarily with the Applicant:

Commencing April 21, 2020 to August 31, 2020:

a. The Applicant’s income being $24,000 and the Respondent’s income being $190,199, the offset table amount of child support for three children is $2,922;

b. The “with child support formula”, spousal support is $2,095 (low), $2,727 (mid) and $3,286 (high).

Commencing September 1, 2020 and on-going:

a. The Applicant’s income being $52,000 and the Respondent’s income being $190,199, the offset table amount of child support for three children is $2,496;

b. The “with child support formula”, spousal support is $1,427 (low), $1,970 (mid) and $2,508 (high).

[35] Based on these calculations, on an interim, without prejudice basis, I am satisfied that the spousal support the Respondent should pay is in the low to mid-range amount of $2,500 per month for April 21, 2020 to August 31, 2020 (with the table amount of child support payable for three children). Effective September 1, 2020 the Respondent should pay low to mid-level spousal support of $1,750 per month (with the table amount of child support payable for three children).

Neutral Access Exchange Location:

[36] Since the separation and the Respondent’s arrest, the Respondent has lived with his parents while the Applicant resides at the matrimonial home. Access exchanges occur at the parties’ residence and have been facilitated by Katherine Walker, the Respondent’s mother.

[37] On November 4, 2020 there was an argument during a real estate inspection of the matrimonial home. On that day, Ms. Walker attended with the Respondent’s real estate at the property and attempted to gain entry to the house. She was denied access by the Applicant’s mother and a real estate agent. A video recording of the incident shows Ms. Walker becoming very upset. She phoned 911. During the call to 911, Ms. Walker can be heard repeatedly telling the emergency operator that she had been denied access to her son’s home.

[38] Although neither she nor the children were present at the time of the incident, the Applicant asks that the court impose a neutral location for access exchanges. She does not want Ms. Walker attending at the matrimonial home. The Applicant suggested during the oral hearing of the motion that the exchanges take place at the local police station, but then modified her request to be the parking lot at the local Walmart.

[39] The Respondent resists the imposition of a neutral location. He argues that the children are used to access exchanges occurring at their home and that it is in their best interests to maintain the status quo. His materials indicate that his mother regrets the incident at the matrimonial home (though there is no affidavit from Ms. Walker). Nola has special needs, with early on-set childhood dystonia. She requires daily assistance with walking, dressing and other activities.

[40] I have concluded that it is in the best interest of these children to ensure that there is minimal conflict between the adults in their life. To this end, I am of the view that the imposition of a neutral location (i.e. the parking lot at the local Walmart) is necessary. The Respondent is prohibited from attending near the Applicant due to the outstanding criminal charges. Given Ms. Walker’s conduct, captured on video, I have no hesitation in concluding that she is not a neutral party.

[41] Ms. Walker escalated a minor situation. She phoned 911 as if her access to the house during a real estate inspection, where her son is not allowed to be, was an emergency. She showed very poor judgment. I accept that she regrets the incident. However, it is very concerning that Ms. Walker was unwilling to let go of her idea that she had a right to enter the Applicant’s home. While it was fortunate that neither the Applicant nor the children were present, I am of the view that a neutral location would be preferrable to having either the Respondent or Ms. Walker attend at the matrimonial home for access exchanges at this time.

[42] In my view, to avoid potential conflict between the parties, it is in the best interests of these children that for now, access exchanges occur at the local Walmart parking lot or another neutral location agreed upon by the parties in advance on an interim, without prejudice basis.

Change in Sunday Exchange Time:

[43] The parties have not been able to agree on a change to the time of the access exchange on Sundays during the winter. Access exchanges were occurring at 6:00 p.m. on Sundays. The Applicant is concerned that 6:00 p.m. is too late because it requires driving the children on rural roads in the dark when the road conditions are potentially hazardous. The Respondent proposed to change the access exchange time to 3:00 p.m., so that the driving is during daylight hours. The Applicant thinks 3:00 pm is too early. The parties do not agree that the time for the exchanges be adjusted during the year to account for winter months.

[44] I have considered this issue, and I am of the view that a reasonable time for access exchanges during the winter months (mid-November to mid-March) is 4:30 p.m.; and 6:00 p.m. during the rest of the year.

Conclusion:

[45] In conclusion, I make the following Order:

(a) On an interim without prejudice basis, the Respondent shall pay table amount of child support for three children, effective April 21, 2020 to August 31, 2020 in the amount of $2,922 per month; and from September 1, 2020 on-going in the amount of $2,496 per month;

(b) On an interim without prejudice basis, the Respondent shall pay spousal of $2,500 per month for April 21, 2020 to August 31, 2020; and effective September 1, 2020, the Respondent shall pay monthly spousal support of $1,750 per month;

(c) Support Deduction Order to issue;

(d) On an interim without prejudice basis, access exchanges on Sundays shall take place on during the winter months (mid-November to mid-March) at 4:30 p.m.; and 6:00 p.m. during the rest of the year;

(e) On an interim without prejudice basis, all access exchanges are to take place at the Walmart parking or another neutral public location agreed upon by the parties in advance.

Costs:

[46] As the successful party, the Applicant is entitled to costs of these motions. She seeks costs of $10,285.83 on a substantial indemnity basis or $7,850.68 on a partial indemnity basis. The Respondent claims full indemnity costs of costs of approximately $9,800, $7,500 on a substantial indemnity basis or $5,500 on a partial indemnity basis.

[47] I am of the view that costs are to be awarded on a partial indemnity basis. There is no reason advanced for awarding costs on a higher scale. I have concluded that given the number of issues on these motions, costs of $7,850.68 sought by the Applicant are reasonable in the circumstances.

[48] The Respondent is therefore ordered to pay costs of $7,850.68 to the Applicant forthwith.

(“Original signed by”)

Chozik J.

Date: January 25, 2021

[^1]: $192,174 less union dues.