COURT FILE NO.: FS-19-0288-00
DATE: 2021-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DALLAS SHAE MARKALL
Applicant
- and -
LISA MARIE EDDY
Respondent
COUNSEL: W. Shanks, for the Applicant L. Conti, for the Respondent
HEARD: December 16, 2021, at Thunder Bay, Ontario
BEFORE: Mr. Justice W. D. Newton
Motion Reasons
Overview
[1] This is a motion by the applicant for temporary child support.
[2] The applicant and respondent cohabited from April 2008 until October 2015. The applicant father has two children from a previous relationship who are 17 and 15 at present.
[3] The parties entered into a separation agreement in 2018. The agreement dealt specifically with the obligation for child support stating:
Dallas (the applicant) will continue to be solely responsible for the custody, care and support of the said children. Lisa (the respondent) shall in no way be responsible for the custody, care or support of said children, nor shall she have any access rights to such children. Dallas shall indemnify Lisa against any claims and costs related in any way for support for the said children.
[4] Approximately two years after the settlement agreement was signed the applicant brought an application for child support.
[5] This matter is set to proceed to trial on February 7, 2022. Counsel advised that the trial is expected to last one day with only the parties testifying.
[6] The motion was originally returnable November 25, 2021 and argued on December 16, 2021.
[7] The central question is whether I can or should decide the obligation to pay temporary child support on conflicting affidavit evidence when the trial is less than seven weeks away.
The Evidence
[8] The applicant deposes that when the settlement agreement was drafted, he did not have the benefit of independent legal advice and was not aware of his right to claim child support from the respondent. This is one of the many facts that the respondent contests. She deposes that the applicant was very aware of the potential to claim child support.
[9] As to the delay in bringing this temporary motion, the applicant deposes that recent actions by the federal government which reduce his income result in the need for child support at this time.
[10] The biological mother of the children has been involved in the lives of the children and appears to be currently paying monthly child support of approximately $300. The respondent’s affidavit claims that the biological mother had shared parenting time during the majority of the time that the respondent cohabited with the applicant, and, from 2012, parenting time every second weekend and on holidays.
[11] The affidavit evidence of the applicant indicates that the respondent’s conduct demonstrated their “settled intention to treat a child as a child of his or her family[^1]” – but is contradicted by the affidavit evidence of the respondent. Areas of dispute include responsibility for decision-making, discipline, and other parenting obligations. Up until August 2013, the parties had separate bank accounts and the respondent contributed to rent and utilities. From August 2013, until separation about two years later, the parties had a joint account with income pooled for family expenses.
[12] Apart from four visits with the children within six months after separation in 2015, there has not been any access or parenting time by the respondent with the children.
The Law
[13] Counsel for the parties do not dispute the applicable law, rather they dispute the application of the law to these disputed facts. The applicable principles are established in such cases as Chartier v. Chartier.[^2]
[14] The applicant also relies on s. 56(1.1) of the Family Law Act[^3] . That section provides that a court may disregard any provision of a domestic contract relating to the child support which is “unreasonable having regard to the child support guidelines, as well as any other provision relating to support of the child in the contract.”
[15] The case law also sets out that that a judge hearing an application for temporary relief must decide at least whether there is a prima facie case for entitlement.[^4]
Analysis
[16] In this case, there is contradictory evidence from the parties as to whether there was an objective settled intention to stand as parent.
[17] There is also a clear and unequivocal acknowledgement in a separation agreement signed by the applicant two years after separation that the respondent had no custody or care obligations, no right to access, and no obligation to provide support to the applicant’ s children.
[18] As such, this is not a prima facie case. Whether there is an obligation to provide child support and whether the separation agreement is unreasonable is best determined at the trial which will proceed on February 7, 2022.
Costs
[19] At the outset of the motion I asked counsel for their position as to the appropriate amount of costs to be awarded if successful or unsuccessful. The parties agreed to $1500.
[20] The respondent shall have her costs of this motion fixed in the amount of $1500 inclusive of disbursements and HST.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: December 22, 2021
COURT FILE NO.: FS-19-0288-00
DATE: 2021-12-22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
DALLAS SHAE MARKALL Applicant
- and -
LISA MARIE EDDY Respondent
MOTION REASONS
Newton J.
Released: December 22, 2021
/cjj
[^1]: Family Law Act, RSO 1990 c. F.3 s. 1(1). [^2]: 1999 CanLII 707 (SCC), [1999] 1 SCR 242 at para. 39. [^3]: RSO 1990, c. F3. [^4]: See for example Maelbrancke v. Proctor, 2016 ONSC 1788.```