COURT FILE NO.: FC-20-1732
DATE: 2021/09/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALICIA LADOUCEUR, Applicant
-and-
MARTIN PARENT, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Marc Coderre, for the Applicant
Self-represented Respondent
HEARD: September 7, 2021 (By Zoom)
ENDORSEMENT
Introduction
[1] The applicant’s motion is for relief with respect to the parties’ only child, Ava Parent (DOB: September 25, 2010). Specifically, the applicant seeks relief related to Ava’s primary residence, parenting time, child support (including arrears), Section 7 expenses, and beneficiary designations for the parties’ respective insurance and/or benefits plans.
[2] In support of her motion, the applicant filed a notice of motion, two affidavits sworn by her, a financial statement, and a factum. The respondent did not file any materials, but did appear on the return of the motion.
[3] The respondent requested that the motion be adjourned. That request was contested and denied. The reasons for denying the adjournment are set out below.
[4] In reviewing with the respondent the bases for his request for the adjournment, it became apparent that he consented to much of the relief requested by the applicant. On the consent of the parties, a temporary and without prejudice order was made in the court’s endorsement dated September 7, 2021.
[5] The matters raised on the motion and for which the court’s decision is under reserve are as follows:
a) The applicant’s request for an order requiring the respondent to name the applicant as the beneficiary of a life insurance policy in the amount of $100,000;
b) The pick-up and drop-off times for the respondent’s parenting time with Ava every second weekend;
c) The amount of the child support, including arrears, that the respondent is to pay for 2020 and 2021; and
d) The applicant’s request for the respondent to pay her costs of the motion.
Background
[6] The parties lived together from 2010 until October 2017. The mother resides in the Beacon Hill area of Ottawa. The father’s address is currently unknown; he is believed to have moved, in May 2021, from Orleans to Alexandria, Ontario. The latter location is approximately 100 km from Beacon Hill.
[7] Within a matter of months following their separation, the parties agreed to a parenting plan based on 50-50 time with Ava. That arrangement continued from December 2017 until August 2020. In the latter month, the respondent informed the applicant that he no longer wished to share parenting time on an equal basis. From August 2020 forward, the respondent’s parenting time has been every second weekend from Friday at 3:00 p.m. to Monday at 9:00 a.m. That arrangement continues to this date, without a formal agreement to that effect having been reduced to writing.
[8] Commencing in September 2020, the applicant began to pursue the respondent for child support. The respondent paid $275 per month for each of September, October and November 2020. He has not paid child support in any subsequent month.
[9] As a result of the respondent failing to pay child support, the applicant commenced this application. A case conference was conducted in the spring of 2021. In early May 2021, the applicant served her notice of motion and the first of two affidavits filed in support of the motion. The second affidavit, served and filed in August 2021, addresses the respondent’s recent move from Orleans to Alexandria, Ontario.
[10] Included as exhibits to the applicant’s April 2021 affidavit are the respondent’s Canada Revenue Agency notices of assessment for 2018 and 2019, extracts from the respondent’s 2020 income tax return, and copies of the respondent’s pay stubs for four consecutive pay periods in September and October 2020. As a result, and although the respondent did not file any materials in response to the motion, there is evidence before the court as to the respondent’s income in the years 2018 to 2021.
The Respondent’s Request to Adjourn the Motion was Denied
[11] At the outset of the motion, the respondent requested an adjournment. He had not contacted the applicant’s counsel, prior to the return of the motion, to provide notice that a request for an adjournment would be made.
[12] The grounds upon which the respondent relied in support of the request for an adjournment were as follows. First, he had moved residences on August 1, 2021. Second, he had started a new job on August 5, 2021. Third, he was not aware that he was required to deliver materials no later than four days prior to the return of the motion.
[13] With respect to this third ground, the respondent acknowledged that he was served with the notice of motion in early May. He also acknowledged that the requirement to deliver materials no later than four days prior to the return of the motion is set out on the first page of that document.
[14] Oral reasons were given for refusing to grant the adjournment. The factors considered in that regard included the following:
• The applicant’s counsel first communicated with the respondent in September 2020 to request that the issue of child support be addressed. The applicant has been trying for a year to resolve the issue of child support;
• The parties participated in a case conference in the spring and were unable to resolve child support and other issues. The applicant chose to proceed with this motion and the requisite materials were served on May 3, 2021;
• The respondent had four months in which to retain counsel, respond to the motion, and attempt to resolve at least some of the issues through communication with the applicant’s counsel. Yet, the respondent did none of those things;
• If an adjournment were granted, the return of the motion would be delayed for several months and possibly into 2022; and
• The respondent would experience minimal, if any, prejudice if the motion proceeded.
[15] The court does not condone the type of delay in which the respondent engaged. It is incumbent upon parties to family litigation to make reasonable efforts to move the proceeding forward and to be prepared to proceed when their matter comes before the court. This is particularly so when an adjournment, if granted, will result in the proceeding being delayed by several months – possibly as many as six or more.
[16] I turn, then, to the substantive issues that remain to be addressed.
The Issues
[17] The issues to be determined on this motion are:
Is the applicant entitled to an order requiring the respondent to name the applicant as the beneficiary of a life insurance policy in the amount of $100,000?
What are the pick-up and drop-off times to be for the respondent’s parenting time with Ava every second weekend?
What amount of child support is the respondent to pay for the years 2020 and 2021?
Issue No. 1 - Is the applicant entitled to an order requiring the respondent to name the applicant as the beneficiary of a life insurance policy in the amount of $100,000?
[18] On the return of the motion, the respondent informed the court that he recently changed jobs. As a result, the applicant requested that (a) the motion as it relates to the insurance-related relief be adjourned, and (b) the court make an interim order requiring the respondent to provide to the applicant evidence as to what life insurance policy, if any, he has available to him personally, through his employment, or otherwise. The applicant does not request an order requiring the respondent to identify who the named beneficiary or beneficiaries of any such policy is or are.
[19] The order made below includes terms adjourning the main issue and requiring the respondent to make the disclosure requested.
Issue No. 2 - What are the pick-up and drop-off times to be for the respondent’s parenting time with Ava every second weekend?
[20] Since August 2020, when the respondent requested the change from equal parenting time to every second weekend only, the pick-up time has been Friday at 3:00 p.m. and the drop-off time Monday at 9:00 a.m. The applicant asks that the status quo be maintained.
[21] There is minimal evidence before the court as to either party’s work schedule. The applicant works as a personal support worker (“PSW”) in a residential setting, providing support for disabled individuals. The respondent’s current work situation is unknown. It is, however, apparent that each party’s position with respect to the pick-up and drop-off times is based on their respective (a) employment situations, and (b) lack of familial or other support in terms of someone to stand in the party’s place for either the pick-up or drop-off.
[22] Again, although there is no evidence before the court, I understand from information provided by the applicant’s counsel that the applicant’s shift work as a PSW is such that she is unable to postpone pick-up to a time of day later than 3:00 p.m. on Fridays or to advance drop-off to Sunday evening. Similarly, I understand from the respondent that his new job involves shift work and he may not always be available for the historical pick-up and drop-off times.
[23] If the respondent wanted to seek relief in the form of a change to the historical pattern for the pick-up and drop-off times, it was incumbent upon him to bring a cross-motion for relief in that regard. The respondent has had since early May 2021, when the notice of motion and first of the applicant’s two affidavits were served on him, to put together his responding materials. He failed to deliver any responding materials.
[24] I also find that the respondent failed, prior to the return of the application, to inform the applicant’s counsel of his position with respect to pick-up and drop-off times. As a result, there was no opportunity for the parties to attempt to resolve this issue prior to the return of the motion. The parties were, in any event, given an opportunity on the return of the motion to attempt to resolve the issue; they were unable to do so.
[25] In the absence of any evidence as to why the status quo should be changed, I find that it is in Ava’s best interests to maintain the exchange pattern that has been in place for approximately one year.
[26] The order made on this motion is an interim one. It remains open to the respondent to bring a motion to address the logistics and timing of the exchanges. The respondent must understand that he will be required to file evidence in support of the relief requested if he intends to pursue a motion in that regard.
[27] It also remains open to the parties to attempt to reach an agreement addressing the logistics and timing of exchanges. Based on the evidence before the court, I conclude that maintaining the status quo is in Ava’s best interests. It is clear, however, that the record before the court is incomplete with respect to the logistics and timing of exchanges.
[28] It is in Ava’s best interests that the parties consider all of the relevant information available and, if necessary, reach an agreement regarding exchanges. Having an order in place that is unworkable and causes strife between the parties is not in Ava’s best interests.
Issue No. 3 - What amount of child support is the respondent to pay for the years 2020 and 2021?
[29] The applicant seeks child support from September 2020 forward. She acknowledges that the respondent paid $275 in each of September, October, and November 2020. The respondent has not paid any child support for the months of December 2020 forward.
[30] It is undisputed that the respondent’s total income for 2020 was $51,598 and comprised of employment income of $27,598, CERB income of $14,000, and RRSP income of $10,000.
a) The Positions of the Parties
[31] The applicant asks the court to order child support in the amount of $478 per month based on the Child Support Guidelines and a total income of $51,598. On that basis, the arrears owing for September through December 2020 would be $1,087 ((4 x $478) – (3 x $275)).
[32] The applicant originally requested that child support commencing in January 2021 be set at $540 per month based on an annual income of $59,000. As the basis for an annual income in that amount, the applicant relied on four pay stubs, disclosed by the respondent, for September and October 2020.
[33] On the return of the motion, the applicant’s position was that she is, on a temporary and without prejudice basis, prepared to agree to child support for 2021 in the amount of $478, with an adjustment to be made for 2021, if necessary, following the production in 2022 of the respondent’s 2021 income tax return and notice of assessment.
[34] The respondent asks the court to base his 2020 and 2021 child support obligations on $27,598 – reflecting income actually earned and excluding both the CERB and the RRSP portions of his 2020 income. Without any evidence to support his position, the respondent claims to be in dire financial straits and unable to pay child support in the amount of $478 per month.
b) Analysis
[35] The issue on this interim motion is whether to include the respondent’s CERB income ($14,000) and/or RRSP income ($10,000) in his 2020 income for the purpose of determining his child support obligations.
[36] There is ample authority for the inclusion of the CERB income for the purpose of determining the respondent’s child support obligations. See, for example, Dalgleish v. Spencer, 2021 ONSC 1708, at paras. 24 and 33; T.M.R. v. J.K.S., 2021 ONCJ 182, at para. 54. The CERB was intended to replace employment income lost because of the COVID-19 pandemic. I see no reason to exclude the respondent’s CERB income when determining his child support obligations for 2020.
[37] At para. 29 of its decision in Liu v. Huang, 2020 ONCA 450, the Court of Appeal for Ontario reviewed the law with respect to RRSP income in the context of determining child support obligations: “RRSP income received in a particular year is presumptively part of a spouse’s income. Section 17 of the Guidelines permits a court to depart from the income determination made under s. 16 where it is of the opinion that this would not be the fairest determination of income. However, this exclusion is not mandatory and remains within a court’s discretion.”
[38] There is no evidence before the court as to why the respondent withdrew $10,000 from his RRSP in 2020. Absent any evidence to explain that withdrawal, the $10,000 is presumptively part of the respondent’s income for 2020. The order made at the conclusion of this endorsement is an interim order only. It remains open to both parties to address child support payments (even historical payments), on a final basis, when the matter proceeds to trial or through a negotiated resolution. If the respondent intends to request that the 2020 RRSP income be excluded from his income for the purpose of child support payable in 2020, he must lead evidence in support of that request.
[39] In summary, there is no evidence before the court to depart from the presumption that the respondent’s RRSP income in 2020 forms part of his income for the purpose of determining his child support obligations.
[40] For the purpose of the interim order made at the conclusion of this endorsement, I make the following findings:
• The respondent’s income for the calendar year 2020, for the purpose of determining his child support obligation, is $51,598;
• The respondent’s child support obligation for the months of September through December 2002, pursuant to the Child Support Guidelines, is $478 per month;
• The arrears of child support for September through December 2020 are $1,087;
• The respondent’s child support obligation for the calendar year 2021 (i.e., as of January 1, 2021 and on the first of each month thereafter) is $478 per month. This amount is subject to review and, if necessary, adjustment following the exchange by the parties in 2022 of their respective income tax returns and notices of assessment;
• The arrears of child support for January through September 2021 are $4,302 (9 x $478);
• Commencing on October 1, 2021, the respondent shall pay to the applicant the sum of $100 per month to be applied towards the total arrears of child support of $5,389 ($1,087 + $4,302).
Disposition
[41] For the reasons set out above, I make the following interim order:
Life Insurance
The applicant’s motion for an order that the respondent name the applicant as the beneficiary of a life-insurance policy in the amount of $100,000 is adjourned and to be brought back by the applicant in accordance with the Family Law Rules. O. Reg. 114/99.
The respondent shall disclose to the applicant what life insurance, if any, he has available to him personally, through his employment or otherwise.
Pick-up and Drop-off
- The respondent’s parenting time with the parties’ daughter, Ava Parent (DOB: September 25, 2010), every second weekend, shall begin with pick-up at 3:00 p.m. on Friday and conclude with drop-off at 9:00 a.m. on Monday.
Child Support
For the months of September through December 2020, the respondent shall pay to the applicant child support in the amount of $478 per month, based on the respondent’s income of $51,598.
The arrears of child support for September through December 2020 are set at $1,087 ((4 x $478) – (3 x $275)).
Commencing January 1, 2021, the respondent shall pay to the applicant child support in the amount of $478 per month with said amount subject to review and, if necessary, adjustment following the exchange by the parties in 2022 of their respective income tax returns and notices of assessment.
The arrears of child support for January through September 2021 are set at $4,302 (9 x $478).
Commencing on October 1, 2021, the respondent shall pay to the applicant the sum of $100 per month to be applied towards the total arrears of child support of $5,389 ($1,087 + $4,302). The respondent shall continue to pay $100 per month until such time as the arrears of child support are reduced to $0.
The support provisions shall be enforceable by the Family Responsibility Office, with a support deduction order to be issued.
Unless this order is withdrawn from the Family Responsibility Office, the amounts payable pursuant to it shall be enforced by the Director and amounts owing shall be paid to the Director, who shall pay them to the person to whom they are owed.
Costs
[42] The applicant is entitled to her costs of the motion.
[43] The respondent’s litigation conduct is addressed above in the section of this endorsement providing the court’s reasons for refusing the respondent’s request for an adjournment of the motion. That litigation conduct forms part of the reasons why I find that the applicant is entitled to her costs of the motion.
[44] In addition to the respondent’s litigation conduct, I have considered the following:
• The applicant was successful on all of the issues pursued;
• The applicant was reasonable in her approach to the issue of the life insurance policy;
• The applicant was reasonable in her approach to the issue of the respondent’s child support obligations for 2021.
[45] In the event the parties are unable to agree upon the applicant’s costs of the motion and the terms upon which they shall be paid by the respondent, then the parties shall deliver costs submissions in accordance with the following sub-paragraphs:
a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
c) Electronic copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
d) The applicant shall deliver her costs submissions no later than 4:00 p.m. on Friday, October 1, 2021;
e) The respondent shall deliver his costs submissions no later than 4:00 p.m. on Tuesday, October 12, 2021; and
f) The applicant shall deliver reply submissions, if any, no later than 4:00 p.m. on Tuesday, October 19, 2021.
Madam Justice S. Corthorn
Date: September 15, 2021
COURT FILE NO.: FC-20-1732
DATE: 2021/09/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ALICIA LADOUCEUR, Applicant
-and-
MARTIN PARENT, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Marc Coderre, for the Applicant
Self-represented Respondent
ENDORSEMENT
CORTHORN J.
Released: September 15, 2021