C.C. v. I.C., 2021 ONSC 6471

C.C. v. I.C., 2021 ONSC 6471

OSHAWA COURT FILE NO.: FC-20-00001305

DATE: 20210929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C.

Applicant

– and –

I.C.

Respondent

Martin Tweyman, Counsel for the Applicant

Denyse Diaz, Counsel for the Respondent

HEARD: September 23, 2021

REASONS FOR DECISION

CHARNEY J.:

1The applicant father and the respondent mother are the parents of two children, B, born […] 2016 and A, born […] 2018.

2The parties started living together in December 2014, when the applicant was 22 years old and the respondent was 16. They were married on July 22, 2017.

3The parties separated on October 6, 2020, when the respondent left the matrimonial home in Courtice, Ontario. The respondent now resides in Oshawa, Ontario.

4Although the respondent continues to care for the children during the week, she has had only two overnights with her children since the date of separation.

5The respondent has brought this motion for a temporary order for a shared parenting schedule with the applicant. Her proposal is to have the children on weekdays, and the father have the children 3 out of 4 weekends and one evening (but not overnight) per week. She also seeks child support and spousal support on an interim basis.

6While the applicant initially opposed giving the respondent any overnight parenting time with the children, his position when the motion was heard was that the parties should share parenting time on a 50/50 basis. He takes the position that the respondent is capable of earning more money than him, and so no child support or spousal support should be paid.

Facts

7During most of their relationship, the parties lived with the respondent’s parents (maternal grandparents). At the date of separation, the maternal grandparents resided in a basement apartment of the rented matrimonial home, while the parties lived upstairs. The applicant still lives in the matrimonial home with the respondent’s parents.

8The respondent left the matrimonial home on October 6, 2020 without the children.

9The respondent now lives in a two bedroom house in Oshawa that is owned by the applicant’s father. The house is approximately 7 km. from the matrimonial home in Courtice. Her rent is $900 per month.

10The respondent graduated from an online Legal Assistant Program from Centennial College in August 2019. There were no in-person classes and no practicum option. Since graduation she has applied for many jobs but has not been hired because the program did not include a practicum. She has also applied for a job as a cleaner but was not hired. After separation she applied for and was receiving Ontario Works, but will have to repay all payments received since June 2021 because of the of the money she earned as outlined below.

11In the absence of any other employment opportunities, the respondent has obtained employment as a virtual sex worker through an on-line website. Since it is online, there is no touching and no sexual contact between her and the customers. The children are not in her care when she is doing this job. Between June 1, 2021 and September 3, 2021, she earned approximately $20,000 CAD from this employment. The respondent plans to discontinue this work if she can obtain more mainstream employment.

12The applicant works in residential construction as a labourer and earned $84,502 in 2020.

13The older child, B, is currently enrolled in SK at [redacted for publication], which is across the street from the applicant’s home in Courtice. The younger child, A, is not yet enrolled in school.

14At the case conference heard on August 26, 2021, the court requested the involvement of the Office of the Children’s Lawyer (OCL) for the purpose of a s. 112 assessment. The parties are awaiting a response from the OCL as to whether they will be providing an assessment.

Positions of the Respondent Mother

15The respondent mother contends that the parties’ relationship was marred by domestic abuse, with the applicant becoming more controlling and physically abusive over time. When angry he would punch walls or throw objects and call her derogatory names

16Since leaving the matrimonial home on October 6, 2020 the respondent picks the children up from the matrimonial home when the applicant is at work and brings them to her house in Oshawa where she cares for the children until the applicant picks them up on his way home from work, usually around 5:00 p.m. The respondent does not own a car and is either driven to the matrimonial home by a relative or by Uber. The applicant does not take the children to the respondent’s home in Oshawa because he leaves for work too early in the morning.

17The respondent asserts that even though she has had only two overnights with the children since the separation, she has continued to be the primary caregiver of the children during their waking hours since the separation.

(i) Parenting Time

18The respondent has offered two alternative parenting plans. Both plans would have the children move to her residence and have B transfer to a school in her neighbourhood in Oshawa.

19The first alternative essentially gives the respondent weekday parenting time and the applicant weekend parenting time, as follows:

(a) The children will live with the respondent mother every Sunday from 7:00 p.m. until Friday at 5:00 p.m. and one out of every four weekends

(b) The children will live with the applicant father three weekends out of every four weekends, from Friday at 5:00 p.m. until Sunday at 7:00 p.m.

(c) The applicant father will also have parenting time with the children every Tuesday and Thursday evening from 5:00 to 7:00 p.m.

20In the alternative, the respondent proposes the following parenting plan:

(a) The applicant father shall have parenting time with the children on alternate weekends and every Tuesday and Thursday overnight from 5:00 p.m. and shall return the children to the respondent mother by 8:00 a.m. the next morning.

(b) The children will be in the care of the respondent mother at all other times.

21The respondent acknowledges that if the children reside with her during the school week, B will have to transfer to a school in her neighbourhood. While the parties live only 7 kms. apart, she does not have a car, and it takes her an hour to get to the applicant’s house by bus. She has travelled by Uber, but that costs approximately $26.00 per trip, and she cannot afford that on a frequent basis. Her Form 13.1 Financial Statement dated September 8, 2021 indicates that she is spending approximately $500 per month on public transit and taxis.

22If the children’s primary residence continues with the applicant, the respondent’s mother (who shares the residence with the applicant), will be responsible for weekday child care because the applicant works weekdays. The respondent takes the position that her mother is not capable of taking care of A for five days every week while the applicant is at work and B is at school. The respondent takes the position that she will have to care for A on weekdays regardless of where the children reside, which would require her to go the applicant’s home whenever the children are there.

23She has offered the applicant three out of four weekends per month because he is at home on weekends.

24Under either of the respondent’s proposals, the applicant will be responsible for all transportation.

(ii) Child and Spousal Support

25The respondent’s 2020 income based on her Notice of Assessment was $1,348. The applicant’s 2020 income from his Notice of Assessment was $84,502.

26The respondent has received no child or spousal support since separation.

27The respondent is asking the applicant to pay guideline child support of $1,277 per month if the children are primarily in her care.

28While they were married for only three years, they lived together for six years in a traditional relationship in which she stayed at home to look after the children while the applicant earned income to support the family.

29She argues that no income should be imputed to her since she has not been able to find work despite her efforts. Moreover, if she did obtain employment, she would have to find full day child care for her younger child, A.

30Based on their respective 2020 incomes, the respondent argues that, if the children reside primarily with her, spousal support should range from a low of $670, mid range $870, and high of $1,084, in addition to child support.

31If the parties share parenting time equally, spousal support ranges from a low of $1,253 to a high of $1,755.

32At this stage the respondent seeks a minimum of $1,000 per month spousal support on a temporary, without prejudice basis.

Position of the Applicant Father

33Initially the applicant father opposed any overnight parenting time for the respondent mother. At the motion, however, his position changed, and he proposed a schedule that included some overnight weekdays and alternative weekend parenting for the mother.

34Given this change in the applicant’s position it is unnecessary for me to review many of the applicant’s allegations that were made to support a denial of overnight parenting time for the respondent. Suffice it to say that I have considered these allegations, and the applicant was wise to adopt a more reasonable position at the return of the motion.

35The applicant was concerned that the respondent intended to move to Minnesota for work, and that she would take the children with her. There are text messages from the respondent indicating her intention to go to Minnesota for a job with a law firm. The respondent did go to the airport, but was denied entry into the United States. The children do not have passports and did not go with her to the airport.

36The applicant denies the allegations of abuse, and states that these claims are either exaggerated or false.

37The applicant acknowledges that the respondent has been caring for the children at her home during the day while he is at work, and he picks the children up from her home at the end of the day.

38The applicant contends that the maternal grandparents have been of great assistance in caring for the children. The maternal grandmother does not work and is able to take B to school (across the road from their house) each day and pick him up at the end of the day.

39The applicant does not want to drop the children at the respondent’s home in the morning on his way to work because he begins work at 7:00 a.m., and this would require waking the children up unnecessarily early.

40The applicant argues that maintaining the status quo would mean that the children would continue to live primarily in the house in Courtice, and that B would continue to attend the school across the road from that house. B has an Individual Education Plan (IEP) at his Courtice school and has already started school there. The applicant argues that the respondent lives only an 11 minute drive from his house in Courtice (the respondent has estimated 20 minutes), and there would be little inconvenience to her if she had to drive the children to school in the morning.

(i) Parenting Time

41The applicant has proposed a shared parenting schedule:

(a) Tuesday and Thursday overnight with the applicant father.

(b) Monday and Wednesday overnight with the respondent mother.

(c) Friday to Sunday, alternate weekends with each parent.

(ii) Child and Spousal Support

42The applicant notes that the respondent earned $20,227 CAD (an average of $6,743 per month) from June 1, 2021 to September 3, 2021 from her virtual sex trade work. This would equal approximately $80,000 per year. With the addition of her Ontario Works and the child tax credit, the applicant estimates that the respondent’s income will be $117,000 in 2021.

43The applicant notes that the respondent’s Financial Statement dated September 8, 2021 reports $5,133 per month in self-employment income, and $1,370 per month for the child tax credit benefit, which would equal $78,036 per year.

44He argues that child support and spousal support should be calculated on the basis of her projected 2021 income, since it is significantly higher than her 2020 income. The parties did not separate until October 2020.

45The applicant argues that if the respondent’s income is imputed at $117,000, and the parties share parenting time on a 50/50 basis, he will have no child support or spousal support obligations. Even if her income is imputed at $78,000, his set-off child support and spousal support will be negligible. Accordingly, he asks that the respondent’s claim for interim child support and spousal support be dismissed.

Analysis

Status Quo

46There is no dispute that the court must make this determination based on the best interests of the child, taking into account the various factors set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990 c. C12, (CLRA)

47Often in these cases, “best interest” is determined by maintaining the status quo: Ursic v. Ursic, 2006 CanLII 18349 (ONCA), at para. 32; De Matos v. De Matos, 2015 ONSC 4554, at para. 18; Pancel v. Henri, 2012 ONSC 546, at paras. 25 and 26; McPhail v. McPhail, 2018 ONSC 735, at para. 15.

48The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings if there are, as in this case, conflicting affidavits: R.C. v. L.C., 2021 ONSC 1963, at para. 62.

49The courts have also determined that a party cannot unilaterally alter the status quo by denying the other party parenting time without a court order or formal agreement. The status quo does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order. Thus, the status quo in this case must be determined by examining the status quo before separation: McPhail, at para. 17 and cases cited therein; Rifai v. Green, 2014 ONSC 1377, at para. 25.

50In the current case, both children are young and the older one has only just begun school. Prior to separation, the family lived in the house in Courtice, Ontario with the maternal grandparents. The respondent was the primary care giver. That was the status quo prior to separation.

Issues

51This motion raises the following issues:

(a) Parenting Time

(b) Imputation of Income

(c) Child Support

(d) Spousal Support

52I will consider each in turn.

(a) Parenting Time

53While there is no presumption of equal parenting time (Bembenek v. Bembenek, 2019 ONSC 4050, at para. 96; J.L. v. D. L., 2021 ONSC 4997, at paras. 55-56), the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child. Section 24(6) of the CLRA provides:

In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

54Young children with attachments to both parents need sufficient contact with both parents without prolonged separations to maintain a meaningful and close relationship with both: Wilson v. Wilson, 2015 ONSC 479, at para. 63. In the present case I am satisfied that the court should try to establish a shared parenting schedule on a temporary basis. In making this decision I have considered the ages of the children and the fact that the children have been living in Courtice, Ontario since birth.

55The respondent has moved 7 kms. from the matrimonial home and is asking for an order that B transfer to the school near her home in Oshawa.

56The fact that B has already started school in the neighbourhood that he was living prior to the separation is an important but not determinative factor. All things being equal it is preferable that he continue to attend the school in Courtice that is across the street from his house and where he has already commenced classes.

57This is not a determinative factor because B has only just begun SK, and he will not be at any significant educational disadvantage even if he were to transfer after one month of school. That said, the respondent wants to transfer B to the school in Oshawa more for her own convenience than for any educational advantage or benefit to B. Given the temporary nature of this Order, I am not persuaded that it would be in B’s best interest to transfer schools at this time.

58Given the proximity of the parties’ current homes, school placement should not interfere with whatever parenting arrangement is put in place. Seven kms. is an insignificant distance for the purposes of parenting plans. The distance may entail some inconvenience, but some inconvenience is an inherent part of shared parenting.

59Nor do I think that it would be fair to penalize the applicant because he has steady employment and will have to rely on the maternal grandparents for some child care arrangements. Working parents frequently rely on grandparents to assume some responsibility for parenting, and a child’s relationship with their grandparent is often an important and valuable relationship. Parenting assistance from a grandparent is simply a reality for many working parents, separated or not. I would not, for example, limit the father’s parenting time with the child simply because the child spends some, or even most, of that time with the maternal grandmother.

60This position is consistent with s. 24(3)(b) of the CLRA, which includes the nature and strength of a child’s relationship with his or her grandparent as a relevant factor in determining the child’s best interest. In the present case the children have always lived in the same home as their maternal grandparents.

61While the first alternative proposed by the respondent would be the most convenient for her, I do not believe that it is in the children’s best interest to relegate the applicant to the status of “weekend” dad.

62The respondent’s second alternative would not be in the best interests of the children because it includes too many short transitions for the children. They would spend Monday overnight with the mother, Tuesday overnight (5:00 p.m. – 8:00 a.m.) with the father, Wednesday overnight with the mother and Thursday overnight (5:00 p.m. – 8:00 a.m.) with the father.

63I am also not persuaded that the schedule proposed by the applicant would be in the children’s best interest. It is similar to the respondent’s second alternative, although the time spent with the father would be somewhat longer, but would still have the children flipping from house to house almost every day of the week. There are too many transitions for children of this age and it does not provide sufficient stability for the children.

64Instead, I will order a 2-2-5-5 parenting schedule, with the children residing with the Mother on Mondays and Tuesdays, the children residing with the Father on Wednesdays and Thursdays, and the children alternating weekends (Friday through Sunday) with each party.

65The resident parent will be responsible for getting B to school and picking him up from school. That said, the respondent is certainly free to make arrangements with the maternal grandmother to assist in any of these obligations.

66The parenting time exchanges will take place at a location agreed upon by the parties in the morning before school or at some other time agreed to by the parties.

(b) Imputation of Income

67The applicant takes the position that at least $80,000 per year income should be imputed to the respondent, since her September 8, 2021 Financial Statement reports $5,133 per month in self-employment income. This income is derived from her employment as a virtual sex trade worker.

68The respondent indicates that she plans to discontinue this work if she can obtain more mainstream employment.

69This dispute involves an issue of public policy. It is an unfortunate economic reality that some women can earn more money as sex trade workers than they can from more conventional employment. If a person voluntarily chooses to work in the sex trade, their employment income from that work should be taken into account like any other income when calculating child and spousal support.

70Where, however, a person indicates their intention to discontinue such work, it would, in my view, be contrary to public policy for the court to impute income at a level that effectively compels that person to remain in the sex trade.

71This is particularly true on a motion for temporary support, where the court will have an opportunity in the future to correct any overpayments that may result if the payee’s income proves to be greater than her imputed income. Moreover, the evidence in this case is that the respondent was not involved in the sex trade prior to separation, and her recourse to that occupation was intended as a temporary amelioration of her post-separation financial difficulties.

72Based on this analysis, I will impute income to the respondent on the basis of part-time minimum wage earnings. Since the youngest child is not yet in school, the respondent will have child care-responsibilities when it is her parenting time, and she is not expected to work full time. The respondent has not been able to find employment as a legal assistant, and she is unlikely to find alternative employment at more than minimum wage.

73In these circumstances, and for the purposes of this temporary order, part time will be calculated on the basis of one-half time and set at $14,000 per year.

(c) and (d) Child Support and Spousal Support

74Having established parenting time and the respondent’s imputed income, we can now consider child support and spousal support.

75The parents have equal parenting time, so s. 9 of the Federal Child Support Guidelines, SOR/97-175 applies. Child support should be the table amount for each of them under the Federal Child Support Guidelines, based on each of their respective incomes/imputed income for child support purposes, set off against one another, in accordance with Section 9.

76I have based my calculations on the applicant’s 2020 income of $84,502 per year, and the respondent’s imputed income of $14,000 per year.

77Based on these calculations the applicant’s set-off child support is $1,143 per month ($1,277 - $134).

78Spousal support ranges from a low of $573, mid range of $822 and a high of $1,095.

79Section 33(8) of the Family Law Act, R.S.O. 1990, c. F.3, provides that an order for support of a spouse should:

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Part I and II.

80The respondent was only 16 years of age when the parties started living together, and only 18 when she had her first child. She has no real employment history because of her child care responsibilities when the parties were together. She is still attempting to attain some level of self-sufficiency.

81Given that this is an order for interim spousal support, a complete inquiry into all aspects and details of the case will have to wait until trial. The primary purpose of interim support is to ensure that the respondent has adequate resources to care for the children when they are residing with her, to transport B to his school in Courtice during her parenting time, and to cover her immediate needs.

82The most significant factor in my view is the respondent’s lack of employment experience, which limits her ability to earn income at this time. I am of the view that $850 per month is appropriate for spousal support on a temporary basis. This is slightly more than the mid range SSAG Guidelines. Combined with set-off child support, the applicant will pay the respondent $1,993 per month.

Conclusion

83Based on the foregoing, this Court makes the following temporary Order:

a) Commencing October 4, 2021, the Applicant Father and Respondent Mother shall have a 2-2-5-5 parenting schedule with respect to the children, B, d.o.b. [redacted for publication] 2016 and A, d.o.b. [redacted for publication] 2018, with the children residing with the Mother on Mondays and Tuesdays overnight, the children residing with the Father on Wednesdays and Thursdays overnight, and the children alternating weekends (Friday through Sunday overnights) with each party.

b) The child B will remain registered in in-person school at [redacted for publication], Courtice, Ontario.

c) The resident parent will be responsible for taking the children to school and bringing them home.

d) The parenting time exchanges will take place on Monday, Wednesday, and Friday mornings, unless the parties agree otherwise.

e) Where Christmas falls during one parent’s scheduled parenting time, the children will reside with the parent who has scheduled parenting time from December 24 to December 25 at 11:00 a.m. The children will reside with the other parent from December 25 at 11:00 a.m. to December 26 at 11:00 a.m.

f) Neither party shall make any substantial decision affecting either child without the written consent of the other or a court order.

g) Neither party shall remove the children from Ontario without the other’s consent.

h) The Applicant shall pay interim child support to the Respondent in the amount of is $1,143 per month, based on the set-off amount from the Applicant’s 2020 income of $84,502 per year and the Respondent’s imputed income of $14,000 per year, commencing October 1, 2021.

i) The Applicant shall pay interim spousal support to the Respondent in the amount of $850 per month, commencing October 1, 2021.

84I recognize that several factors remain uncertain at this interim stage. The most significant factor is that it is not known whether the OCL will be providing an assessment. The temporary parenting plan put in place at this stage is not intended to pre-empt any recommendations made by the OCL.

85Also, as indicated, it is not known whether the respondent will continue to earn income from the virtual sex trade, and it may be necessary to correct any overpayments that may result if the payee’s income proves to be greater than her imputed income.

86If the parties are not able to agree on costs, the respondent may file written submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision, and the applicant may file responding submissions on the same terms within a further 15 days.

87I am also mindful of the fact that the parenting plan set out in this Order is not one proposed by either party. As a result, I may have failed to cover relevant details in the Order set out above. If the parties are unable to agree on any details regarding the implementation of this Order, they are invited to file a 14B motion to my attention, on notice to the other side, setting out their disagreement, and I will endeavour to provide a resolution on an expedited basis.