COURT FILE NO.: 264-2012-1
DATE: 20211123
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jeanne Vincelette, Applicant
AND
Michel R. Dupuis, Respondent
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Stéphane A. MonPremier, for the Applicant
Self-represented Respondent
HEARD: August 6, 2021 (L’Orignal)
ENDORSEMENT
[1] The applicant mother brought a motion to change the February 28, 2013 order of Roy J. and the June 1, 2018 order of Labrosse J.[^1]
The issues
[2] In her motion confirmation form dated July 27, 2021, the mother stated that she was seeking two orders:
(1) An order to change the primary residence of the parties’ son Samuel to her home, which she says would be consistent with a long-standing status quo; and
(2) An order for retroactive variation of child support and child support arrears for 2017 to 2021.
[3] In his motion confirmation form filed July 30, 2021, the respondent father listed as issues the health and safety of the children, orders that had been ignored by the mother and her lawyer, under-employment and unfounded child support requests and equalization of extraordinary expenses. In his oral submissions, the father clarified his perspective on the issues. He confirmed that the two issues identified by the mother were in dispute. He said he would also argue that the mother had been intentionally unemployed, which should be factored into the child support order.
[4] In his written materials, the father had referred to s. 7 expenses. The mother objected and said that if I intended to make a ruling in respect of s. 7 expenses, she should be entitled to deliver responding materials as she had not considered the issue to be before me. As the mother had not raised the issue in her motion to change and the father had not indicated an intention to seek any orders himself, at the outset of the hearing, I ruled that the issue was not properly before me.
Background
[5] This family has had a difficult past. The parties’ two sons have faced significant challenges in life, primarily, as I understand it, of a behavioral nature. The sons’ issues have created great stress and worry for both parents.
[6] The parties agree that the living arrangements for their two boys have been “fluid” and somewhat unpredictable.
[7] The litigation between the parents has been active, with many court appearances. Following their appearance before Labrosse J., the parties retained a parenting coordinator who assisted them in negotiating a partial agreement. The parties had not been able to resolve all of their outstanding issues, however, and the parenting coordinator eventually concluded that she had assisted them as much as she could.
[8] In his submissions, the father said that I should make an order that would solve all of the parties’ parenting issues. I completely understand why the father would ask me to try to fix this situation for the parties. Unfortunately, my jurisdiction on this motion is limited to the issues which are properly before me: 1) Samuel’s primary residence; and 2) child support, including the issue raised by the father, which was whether additional income should be imputed to the mother.
Issue #1: Samuel’s primary residence
[9] I am satisfied, based on the evidence before me, that Samuel’s primary residence is with the mother.
[10] The father is not suggesting otherwise. However, he argues that if I were to grant the mother’s request, and order that Samuel’s primary residence is with the mother, I would be rewarding the mother for breaching the order of Labrosse J., who had determined that Samuel’s primary residence should be with the father. The father says the mother unilaterally changed Samuel’s residence.
[11] The mother acknowledges that Labrosse J.’s order provided that Samuel would live primarily with the father. However, she says that Samuel’s relationship with the father changed almost immediately after Labrosse J.’s order was signed, and that Samuel decided that he wanted to divide his time between his parents and then, subsequently, to live with her. The mother says that there were also times when Samuel decided that he did not want to live with her. The mother says the father consented to Samuel’s change in residence and that Samuel has been making progress in school and with his life choices.
[12] I am satisfied, based on the evidence before me, that Samuel’s primary residence has been with the mother since February 2020.
[13] I am also satisfied that Samuel’s change in residence constitutes a material change from the circumstances at the time of Labrosse J.’s order that justifies a change to the order.
[14] As Samuel has been living primarily with the mother since February 2020, the order requested by the mother would reflect a “status quo” that has been in effect since that time. There was evidence before me that the father consented to Samuel’s change in residence. While the father says that he felt that he had no choice but to do so, the situation before me is that of a son who has been living primarily with the mother since February 2020, with the father’s consent.
[15] For the court to refuse to change an order to reflect the reality of where the son has been living would be to promote a fiction and to create an injustice.
[16] The order of Labrosse J. shall be changed to reflect that Samuel’s primary residence is with the mother.
Issue #2: Has the mother been intentionally under-employed?
[17] To consider the issue of child support, I must first consider an issue raised by the father, which is whether the mother has been intentionally under-employed.
[18] The father’s argument has two prongs: 1) that in 2018, when the mother took time off work and earned just under $33,000.00, she could have worked more than she did; and 2) that the mother’s income for child support purposes should be based on the maximum salary for her position under her collective agreement and that, to the extent that the annual income reflected on her tax returns is less than that amount, she is not earning as much as she should be.
[19] Section 19(1)(a) of the Child Support Guidelines, S.O.R./97-175, provides that, for income to be imputed, there must be evidence that the parent is intentionally unemployed or under-employed. If any intentional unemployment or under-employment is required by the parent’s reasonable health needs, income will not be imputed.
[20] I am satisfied that the mother suffered a concussion in early 2017, and that she was subsequently diagnosed with post-concussion syndrome, depression and anxiety. The mother took prescribed and over-the-counter medication for these conditions and underwent treatment, including physiotherapy and psychotherapy. There was no evidence before me that the mother was intentionally not working to full capacity for any reason other than her health.
[21] I am also satisfied that the mother’s income for child support purposes should be the line 150 or 15000 income reflected in her income tax returns, and not an income listed in her collective agreement. Absent any evidence of intentional under-employment, and I have found no such evidence in this case, the income that was earned by the mother is relevant, not what she or her similarly-situated colleagues may have earned in different circumstances.
Issue #3: Child support: How much retroactive and on-going support is payable?
[22] The mother had set out in her factum (para. 50.13) a calculation of the child support she is seeking for the father for the years 2018 to 2021. The mother’s calculation included the applicable salary of each of the parties; the support payable was based on the parties’ annual incomes in the previous year. The mother’s calculation indicated whether a shared custody regime was in place or whether Samuel was living primarily with her. The mother’s calculation did not give the father credit for any child support he had paid.
[23] At the hearing of the motion, the father was unable to provide the particulars of the amounts he had paid. I requested supplementary submissions from both parties. I asked the father to provide a detailed response to the mother’s factum para. 50.13 and I gave the mother an opportunity to respond to the father’s submissions. Both parties complied.
[24] The parties do not agree on the incomes to be used to calculate child support. In the table below, I have set out what each party say they earned in each of the relevant years and how much they say the other party earned:
| 2017 | 2018 | 2019 | 2020 | |
|---|---|---|---|---|
| How much the father said he earned | $121,627 | $111,613 | $119,468 | $111,660 |
| How much the mother said she earned | $78,158 | $32,846 | $93,707 | $98,629[^2] |
| How much the father said the mother should have earned | $97,355 | $98,328 | $100,806 | $101,814 |
| How much the mother said the father earned | $121,325 | $111,660 | $119,468.45 | $113,660 |
(I reiterate that the child support payable is based on the income earned by the parties in the previous year, for example, support payable in 2018 is based on the income earned by the parties in 2017.)
[25] I have already determined that I do not accept the father’s argument that the mother was under-employed in 2018 and that I consider her line 150 or 15000 income to be the income to be attributable to her for child support purposes.
[26] For purposes of calculating child support, I accept the evidence of each parent in respect of his or her income for the years 2017, 2018 and 2019, and not the evidence of the parents in respect of how much the other parent earned. For 2020, I accept the mother’s evidence in respect of the incomes of both parents.
[27] For 2020, the father says that his income for child support purposes is $111,660, and not the $113,660 alleged by the mother. The difference is in respect of income from an RRSP cashed by the father. For the purposes of this motion, I accept the mother’s position that because the RRSP income was included in the father’s line 15000 income, it should be included for child support calculation purposes. The father says he cashed the RRSP to pay for sports and psychotherapy for the parties’ sons. The mother did not have an opportunity to respond to this evidence. The parties may explore this issue further when they negotiate s. 7 expenses, which I have determined are not before me.
[28] I note that Roy J.’s order provided that no child support would be payable if the difference between the parties’ incomes was $15,000 or less. The mother’s counsel argued that Roy J.’s order contemplated that the parties would share parenting time with the children and did not contemplate that one of the children would reside primarily with one of the parties. As the difference between the parties’ incomes in the applicable years has been at least $15,000, I need make no finding in respect of this provision of Roy J.’s order.
[29] The mother has provided a calculation of the child support owed by the father.
[30] The mother says that for 2018, the father owes $6,576. In 2018, the parents shared parenting of the two boys. The father owed the mother $548 per month, based on 2017 incomes of $78,158 for the mother and $121,325 for the father.
[31] I accept the mother’s calculation of the amount owing for 2018. It is $6,576.
[32] The mother says that for 2019, the father owes $13,356. In 2019, the parents shared parenting of the two boys. The mother says the father owed the mother $1,113 per month, based on 2018 incomes of $32,846 for the mother and $111,660 for the father.
[33] The father’s line 150 income for 2018 was $111,613.00, not $111,660.00 as alleged by the mother. Therefore, the amount owed by the father was slightly less per month, $1,112.84, rather than $1,113.40.
[34] I find that the amount owed by the father for 2019 was $13,354.08, not $13,356.00.
[35] The mother says that for 2020, the father owes $10,515. The mother says the father owes $315 for January, 2020, when the parents shared parenting of the two boys and that the father owes $850 per month for the balance of the year, when the parents shared parenting of Maxine but Samuel’s primary residence was with the mother. The mother bases these calculations on her 2019 income of $93,706 and the father’s 2019 income of $119,468.45.
[36] I accept the mother’s calculation of the amount owing for 2020 and find that it is $10,515.
[37] The mother says that to August 31, 2021, the father owes $5,712. The parents shared parenting of Maxine and Samuel’s primary residence was with the mother. The mother based her calculation on her 2020 income of $98,629 and what she says was the father’s 2020 income of $113,600. The mother said that the father owed $714 per month.
[38] I accept the mother’s calculation and find that to August 31, 2021, the father owes the mother $5,712 and that he also owes the mother $714.00 thereafter, assuming the parents continued and continue to share parenting of Maxine and that Samuel continued and continues to live primarily with the mother.
[39] The father, therefore, owes the mother $6,576 for 2018, $13,354.08 for 2019, $10,515 for 2020 and $5,712 to August 31, 2021, with $714 payable each month in 2021 thereafter.
[40] The father says that, during this period, he has paid a total of $2,688.00, representing 12 payments of $224.00. The mother does not take issue with this evidence.
[41] I find that, from January 1, 2018 to August 31, 2021, the father owes the mother $33,469.08 in child support ($6,576 plus $13,354.08 plus $10,515 plus $5,712 minus $2,688.00).
Disposition
[42] In conclusion:
• I find that Samuel’s primary residence is with the mother and has been since February, 2020;
• I find that the father owes the mother child support in the amount of $33,469.08 to August 31, 2021; and
• I find that beginning September 1, 2021, and for the balance of 2021, the father owes the mother child support in the amount of $714.00.
[43] The mother’s lawyer has filed a draft order for my consideration. In recognition of the fact that the parties’ sons’ living arrangements have been fluid in the past and may be the same in the future, the mother’s lawyer proposed, in paras. 17 and 18 of the draft order, that, in the future, in the event of a significant change in the parenting schedule, child support may be reviewed in accordance with the Child Support Guidelines, recognizing that the 40 per cent threshold in the Guidelines represents 146 overnights in the course of a year. The mother’s lawyer also proposed that, in the event of a disagreement on the issue of child support, the parties would have leave to file a written motion for the issue to be determined. I am prepared to make these orders.
[44] Subject to one proviso, based on the parties’ written and oral submissions, I am prepared to sign the order submitted by the mother’s lawyer, with revisions consistent with my conclusions in respect of the child support owing. The one proviso is in respect of para. 1(c) of the draft order. It was not clear to me whether there had been agreement with respect to whether Samuel would be in the father’s care on alternate weekends from Friday to Sunday.
[45] The parties shall discuss that issue, if they have not done so already, and shall provide an approved draft order for my consideration.
Costs
[46] If the parties are unable to agree on costs, the mother shall file brief written submissions within 14 days of the date of this endorsement. The father shall file brief written responding submissions within 14 days of the date of receipt of the mother’s submissions. The mother may then, at her option, deliver brief written submissions in reply within seven days of receipt of the father’s submissions.
Date: November 23, 2021
COURT FILE NO.: 264-2012-1
DATE: 20211123
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jeanne Vincelette, Applicant
AND
Michel R. Dupuis, Respondent
COUNSEL: Stéphane A. MonPremier, for the Applicant
Self-represented Respondent
ENDORSEMENT
Madam Justice Heather J. Williams
Released: November 23, 2021
[^1]: It appeared from the motion to change that the request to change the order of Roy J. had been deleted, however, it was clear from the evidence, factum and draft order filed by the mother, and the written and oral submissions of the respondent father, that both believed the mother was seeking to change both orders. Consequently, I consider the motion before me to be a motion to change both orders.
[^2]: This is the mother’s line 15000 income from her 2020 Notice of Assessment.