COURT FILE NO.: FS-21-25773 (Toronto)
DATE: 20220711
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
devon kathleen brady
Applicant (Responding Party)
– and –
brendan conor fitzpatrick
Respondent (Moving Party)
Dani Frodis and Charley Levitan, for the Applicant
Elliot Birnboim and Hailey Corrigan, for the Respondent
HEARD: June 30, 2022 in Toronto by video conference
R. A. Lococo J.
REASONS FOR decision
I. Introduction
[1] The respondent Brendan Conor FitzPatrick brings a motion, claiming interim child support from the applicant Devon Kathleen Brady.
[2] Devon is a recovering alcoholic. In mid July 2021, Brendan restricted Devon’s parenting time with the parties’ two young children after he learned of Devon’s second arrest for impaired driving and other alleged offences following a motor vehicle accident. In the period from July 2021 to June 2022, the children resided primarily with Brendan in the former matrimonial home. Effective July 1, 2022, the parties have equal parenting time with the children under court order.
[3] On an interim basis, Brendan seeks child support in the full amount specified in the Federal Child Support Guidelines, SOR/97-175, (“Guideline support”) for the period from July 2021 to June 2022, when the children resided primarily with him. He also seeks ongoing child support on an offset basis, given the parties’ equal parenting time and income differential.
[4] Devon argues that Brendan’s motion should be dismissed in its entirety. She says that Brendan, who is self-employed and not fully compliant with court-ordered financial disclosure, has not established his current income for support purposes. She therefore questions Brendan’s prospective entitlement to offset child support. She also argues that the court should be hesitant to address retroactive child support on an interim basis based on contested evidence. Among other things, she says that to do so would reward Brendan’s use of self-help remedies to restrict her parenting time rather than seeking court intervention on a timely basis.
[5] For the reasons below, I have concluded that Devon should pay interim child support to Brendan, consisting of (a) Guideline support commencing in November 2021, when Brendan provided his Answer to Devon’s Application, and (b) ongoing offset support, effective July 1, 2022, based on the parties respective 2021 stated incomes.
II. Background
[6] The parties separated on March 15, 2020, after being married over seven years. They have two children, currently age seven and five.
[7] Shortly after the parties’ separation, Devon was arrested for impaired driving and other alleged offences after a motor vehicle accident while the children were in the vehicle. She spent 37 days in a residential substance abuse program. The children stayed with Devon’s parents during that time.
[8] Since the parties’ separation, Devon has resided at her parents’ residence. Brendan and the children remain in the former matrimonial home, which is currently listed for sale. Brendan has borne the expenses relating to the matrimonial home since separation, including mortgage payments, taxes and utilities. Neither party has paid child support to the other. Brendan says that Devon has not contributed to expenses relating to the children’s activities.
[9] Following the parties’ separation, they initially had approximately equal parenting time with the children. Brendan restricted Devon’s parenting time in July 2021, after learning of her second arrest for impaired driving and other offences. The charges against Devon were resolved in November 2021 by guilty pleas to certain offences, including impaired driving relating to the second accident. Her sentence included probation for 12 months and suspension of her driver’s licence for 18 months.
[10] Devon is a kindergarten teacher. Her annual income was $96,032 in 2019, $99,721 in 2020 and $94,025 in 2021. She admits to being a recovering alcoholic.
[11] Brendan is a real estate agent, who earns commission income. His income is variable, but prior to 2021, his annual income for tax purposes was higher than Devon’s. His stated income was $120,997 in 2020 and $83,381 in 2021. He says that his 2022 year-to-date income before expenses is $21,080.
[12] Devon commenced her divorce application on September 28, 2021. She also seeks decision-making responsibility, parenting time and child support. Brendan made the same child-related claims in his Answer dated November 5, 2021.
[13] The parties’ parenting claims were discussed without resolution at a case conference before Pinto J. on January 24, 2022. In Pinto J.’s conference endorsement dated February 16, 2022, he granted Devon leave to bring an urgent parenting motion.
[14] By Notice of Motion dated March 17, 2022, Devon brought her parenting motion, seeking equal parenting time with the children. On March 29, 2022, the motion was adjourned upon terms that included (on a without prejudice basis) same-day parenting time for Devon on Saturday and Wednesday, supervised by her parents.
[15] Faieta J. heard Devon’s parenting motion on April 19, 2022. He provided his decision in Reasons for Decision dated May 2, 2022 (reported at 2022 ONSC 2380). Those Reasons set out further information relating to the parties, their separation and the parenting arrangements since separation.
[16] In his temporary order, Justice Faieta granted additional (but not equal) parenting time to the Applicant mother during May and June 2022, supervised by Devon’s father, subject to strict conditions that required frequent testing to ensure Devon continues to be alcohol-free. Effective July 1, 2022, the parenting schedule provides the parties with approximately equal parenting time. The supervision requirement for Devon no longer applies but strict alcohol testing requirements remain in place.
[17] In his Reasons for Judgment, Faieta J. accepted that equal parenting time was the status quo parenting schedule prior to July 2021 and further stated as follows (at paras. 33-35):
[33] Given that the purpose of an interim parenting order is to provide stability to the children and the parties pending trial, it has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331, para. 34….
[34] 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: Gray v. Canonico, 2020 ONSC 5885, para. 48. However, the status quo is not changed by a parent who, for any reason, unilaterally imposes a parenting regime. Self-help is not a legally effective strategy for modifying parenting arrangements. A parent that changes the status quo due to concerns about a child's safety while in the care of the other parent must seek the court's approval at the earliest opportunity: Skitch v. Hiscock, 2018 ONSC 5581, para. 15.
[35] Accordingly, the Respondent's unilateral action to keep the children in his care while seemingly well-intentioned, does not alter the 50/50 parenting arrangement that existed prior to the Applicant's arrest in June 2021.
[18] At para. 45, Faieta J. went on to find it in the children’s best interests to make an interim parenting order that includes equal parenting time after a two-month transitional period, subject to the additional restrictions outlined above.
III. Parties’ positions
A. Brendan’s position
[19] Brendan seeks Guideline child support for the period from July 2021 to June 2022, when the children resided primarily with him. He also seeks ongoing child support on an offset basis, given the parties’ equal parenting time and income differential. As well, he seeks proportionate sharing of the children’s special or extraordinary expenses in accordance with s. 7 of the Federal Child Support Guidelines (“s. 7 expenses”).
[20] In particular, Brendan claims child support as follows:
a. $1,468 per month commencing in July 2021, based on Devon’s 2020 stated income of $99,721;
b. $1,398 per month for May and June 2022, based on Devon’s 2021 stated income of $94,025;
c. $801 per month commencing July 1, 2022, on an offset basis, being the difference between Guideline support of $1,398 that would be payable by Devon based on her 2021 stated income and Guideline support of $597 per month that would be payable by Brendan based on his 2022 income, which Brendan estimates to be $40,000; and
d. A proportionate sharing of s. 7 expenses from the date of separation.
[21] In support of Brendan’s estimate of his 2022 income, he includes (as part of his reply affidavit) a commission statement from the real estate firm that he works for, indicating that his net commissions earned in 2022 year-to-date total $21,080. He notes that this amount is before deduction of expenses, stating that his net income would be nil. He acknowledges that his stated income has been higher in previous years, falling from over $120,997 in 2020 to $83,281 in 2021, but notes that he has only one listing at present. He attributes his failure to secure other listings to “lack of loyalty, being used, being priced out of the market, or just bad lack.” He acknowledges that he continues his efforts to earn further income this year but expresses concern about the downturn in the real estate market as a factor adversely affecting the amount that he may be able to earn. In these circumstances, Brendan’s counsel suggests (in his oral submissions) that the court “pick a number” to determine Brendan’s estimated 2022 income for support purposes, to be adjusted in due course based on Brendan’s actual income for the year. His counsel submits that it is reasonable to base the child support calculation on an estimated 2022 income for support purposes of $40,000, being double his income before expenses year to date.
[22] In support of his request for interim child support, Brendan also notes that he continues to bear the expenses relating to matrimonial home, without any contribution from Devon, who has no housing expenses and has her parents as a source of additional funds (as indicated by her financial statement). Until July 1, Brendan also had primary responsibility for the children’s care, including driving them to school and their activities (Devon’s driver’s licence being under suspension), without contribution from Devon for activity expenses.
B. Devon’s position
[23] Devon does not dispute Brendan’s claim for interim child support to the following limited extent.
[24] Devon agrees that Brendan should receive interim child support of $1,398 per month for the months of May and June 2022. During those months, the children resided primarily with Brendan pursuant to the terms of Faieta J.’s temporary order dated May 2, 2022. Devon’s counsel advised that those amounts were in fact paid to Brendan prior to the motion hearing.
[25] As well, Devon agrees that there should be a proportionate sharing of the children’s s. 7 expenses. However, she disputes that there is any evidence before the court to support her payment of any particular amount for expenses incurred to date.
[26] Otherwise, Devon submits that Brendan’s motion should be dismissed for several reasons, including as set out below:
a. The court should be hesitant to exercise its discretion to order retroactive child support in this case based on contested facts that call into question Brendan’s entitlement to support. It is preferable to leave that determination until trial based on a complete record.
b. In his parenting Reasons, Faieta J. determined that the equal parenting time status quo that existed since separation was not altered by Brendan’s unilateral decision in July 2021 to engage in “self-help” by restricting Devon’s parenting time. Brendan was required to seek the court’s approval at the earliest opportunity. It was Devon who brought the matter before court by bringing her application in September 2021.
c. Since Brendan is not a salaried employee, the onus is on him to prove his income for support purposes in order to establish his entitlement to ongoing support on an offset basis. He has not done so. He has not fully complied with court-ordered financial disclosure. As well, the disclosure he has produced suggests that his income for support purposes may be materially more than the amount of his declared income. He has not explained the drop in his stated income from 2020 to 2021 in a then-vibrant real estate market, nor has he explained the significant discrepancy between his bank deposits and his stated income in 2020 and 2021.
d. Brendan has been selective in seeking child support for the period commencing in 2021, when his stated income was less than Devon’s income. In 2020, when the parties had equal parenting time, Brendan’s stated income, while likely less than his income for support purposes, was still greater than Devon’s income. Therefore, child support calculated on an offset basis would have flowed from Brendan to Devon in 2020, which would reduce the amount of any child support that Devon may owe to Brendan for 2021 or 2022 year to date.
IV. Analysis and conclusion
[27] For the reasons below, I have decided that Devon shall pay interim child support to Brendan as follows:
a. $1,398 per month for the period November 1, 2021 to April 30, 2022, for a total of $8,388, based on Devon’s 2021 stated income of $94,025; and
b. $137 per month commencing July 1, 2022, on an offset basis, being the difference between Guideline support of $1,398 that would be payable by Devon based on her 2021 stated income of $94,025 and Guideline support of $1,261 that would be payable by Brendan based on his 2021 stated income of $83,381.
[28] As well, the parties shall share s. 7 expenses for the children in proportion to their respective incomes, set on interim basis at 53 per cent for Devon and 47 per cent for Brendan.
[29] Devon’s counsel says that Brendan should not receive interim child support prior to Faieta J.’s interim parenting time order, given his use of “self-help” in restricting Devon’s parenting time after he learned of her second arrest for impaired driving.
[30] I disagree.
[31] In his decision, Faieta J. found that for the purpose of determining the allocation of parenting time on an interim basis, Devon’s use of “self-help” without immediately bringing the matter before the court did not alter the prior status quo of equal parenting time. I do not consider that finding to be determinative of (or even relevant to) whether Brendan should receive interim child support for the period prior to Faieta J.’s parenting time order. As noted in Brendan’s counsel’s submissions, child support is the right of the children, not the recipient parent. The children should not be disadvantaged by denying them access to interim child support based on the recipient parent’s alleged misconduct in restricting the payor parent’s parenting time. Court processes provide other means of sanctioning or otherwise addressing a custodial parent’s alleged misconduct that do not include financially disadvantaging the children.
[32] As well, I consider Devon’s counsel’s characterization of child support for the period prior to Faieta J.’s order as “retroactive” child support to be misguided.
[33] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court of Canada set out the principles for determining the extent to which a court should make a retroactive child support order. When determining whether to exercise its discretion to make a retroactive order, the court should strive for a holistic view of the matter and decide each case on the basis of its particular facts, balancing the payor parent’s interest in certainty with the need for fairness to the child and flexibility: DBS, at paras. 96, 99. One of the factors that should be considered is the conduct of the payor parent: DBS, at para. 99-117. The court did not identify the conduct of the recipient parent as a relevant consideration.
[34] If it is determined that a retroactive order should be made, the court also provided guidance with respect to determining the effective date of the order. The "general rule" is that the effective date of the order would be the date that the recipient parent gave effective notice to the payor parent of the recipient parent’s intention to seek child support: DBS, at para. 121. In the normal case, the effective date should not be more than three years before the recipient parent gave “formal notice” of intention to seek child support, for example, by starting court proceedings or providing written notice of intention to do so: DBS, at para. 123.
[35] In Grant v. Grant, 2021 ONSC 1202 (a decision Brendan’s counsel relies on), the custodial parent sought interim child support commencing September 2018 (the month after the date of separation), which was over two years prior to the interim child support hearing. Based on the custodial parent’s alleged misconduct in retaining the child outside the jurisdiction, the non-custodial parent argued that interim child support should be ordered on a prospective basis only, and that the child support for prior periods should be left to be determined at trial. The court rejected that position, noting that the court was not provided with “any case law to support the proposition that child support, which is for the benefit of the child, should be denied based on misconduct of the recipient parent”: Grant, at para. 8. The court found that the interim child support order should have an effective date of March 2019, the date that the respondent gave formal notice of her child support claim in her Answer to the non-custodial parent’s application. At para. 9-10, the court explained as follows:
The applicant submitted that the application of the D.B.S. factors pertaining to awarding retrospective support are factual and contextual and should be deferred to the more fulsome hearing available at trial. This proposed approach does not accord with the policy of the law that child support should be paid for the benefit of the child in a timely fashion when it is due. It also overlooks the definition of retroactive child support in D.B.S., 2006 SCC 37, [2006] 2 S.C.R. 231 as a claim for child support that was neither paid nor claimed when it was supposedly due. The retroactive part of this claim can only predate the delivery of the respondent's Answer in March 2019.
There is no reason in fact or law why the mother's claim for child support would not take effect at latest from March 2019. The date of the formal claim is a compelling date to commence a temporary order for child support.
[36] Consistent with the court’s reasoning in Grant, I have decided that the effective date of the interim child support order in this case should be November 1, 2021, the month that Brendan gave “formal notice” of his intention to seek child support from Devon. There is no evidence on this motion that Brendan gave Devon gave “effective notice” of his intention to seek child support prior to that date. At trial, it would still be open to Brendan to provide further evidence relating to his entitlement to (and the effective date of) retroactive child support on a final basis.
[37] On similar reasoning, I am not persuaded that there is any unfairness in addressing child support commencing in 2021, when Devon’s stated income was higher than Brendan’s, and not in 2020 (the year when the parties separated), when Devon’s income was less than Brendan’s. The motion before me is Brendan’s motion for interim child support. Devon has not brought a corresponding motion. Even if she had, there is no evidence before me that she provided notice to Brendan of her intention to seek child support prior to her Application in September 2021, when she provided formal notice of her claim. At trial, it would still be open to Devon to provide evidence relating to her entitlement to (and the effective date of) retroactive child support on a final basis.
[38] Turning now to ongoing child support, there is no dispute between the parties that during the period going forward in which the parties have equal parenting time by court order, it would be appropriate to calculate interim child support on an offset basis. As a result, the party with the higher income would pay the offset amount to the party with the lower income. Brendan claims interim child support from Devon going forward on that basis. There would be no practical difficulty making that calculation if both parties’ incomes were readily ascertainable and relatively stable from year to year. That is the case for Devon, a salaried employee. It is not the case for Brendan, whose income depends on the commission he earns as a real estate agent.
[39] Brendan says that his commission revenue this year has effectively fallen off a cliff for various reasons, including the uncertain state of the real estate market. He therefore asks the court to impute a level of income for 2022 for support purposes that is less than half of his declared income in 2021 and less that a third of what it was in 2020.
[40] Devon argues that no prospective child support should be ordered in Brendan’s favour, taking into account his failure to provide court-ordered disclosure and his failure to explain discrepancies in the financial disclosure he has provided. Devon says that Brendan has failed to satisfy his onus of establishing his income for support purposes, which he was required to do in order to obtain child support.
[41] In the motion materials, both sides have provided information about the financial disclosure the parties have been required to make, the disclosure that has been made, and the disclosure that is still outstanding. While there is no doubt that Brendan has already made a significant level of disclosure, certain of the required disclosure is still outstanding. However, in my view, the evidence does not support the conclusion that Brendan is withholding financial disclosure for colourable purposes, as Devon’s counsel seems to suggest. In all the circumstances, I am not satisfied that the disclosure deficiencies are so significant that his claim for ongoing support for the benefit of the children should be dismissed in its entirety.
[42] On a motion for interim relief, there are procedural limitations on the court’s ability to address contested or incomplete evidence when making required findings. In some circumstances, those findings are of necessity of a provisional nature, to be reconsidered at trial based on a more complete record and appropriate adjustments made, when required.
[43] In order to establish a party’s income for support purposes, the starting point under the Federal Child Support Guidelines is the party’s income for tax purposes, with certain adjustments applicable in specified circumstances: see ss. 15-20. In order to establish the parties’ 2022 income for support purposes in this case, the most recent objective information for both parties is their stated incomes for 2021, that is, $83,381 for Brendan and $94,025 for Devon. While Brendan argues that his income for 2022 is on track to be less than that, I am not satisfied that the evidence justifies estimating his 2022 income at a level that is less than one-third of his stated income two years ago.
[44] While the difference between the parties’ 2021 stated incomes is not large, an offset child support payment based on those amounts would provide a modest monthly payment for the children’s benefit. Together with the support for the previous period already addressed, those payments will provide some assistance in addressing the children’s needs.
[45] The parties’ respective stated incomes for 2021 also provides a reasonable provisional basis for sharing s. 7 expenses for the children on a proportionate basis, set at 53 per cent for Devon and 47 per cent for Brendan. Brendan’s counsel requests that Devon be required to contribute to s. 7 expenses already incurred, but the material before me does not provide evidence of payments that have been made to date. It is of course open to Brendan to provide Devon with evidence of already-incurred expenses, with a request for proportionate reimbursement.
V. Disposition
[46] Accordingly, a temporary order will issue as follows:
a. Devon shall pay interim child support to Brendan as follows:
i. $1,398 per month for the period November 1, 2021 to April 30, 2022, for a total of $8,388, based on Devon’s 2021 stated income of $94,025; and
ii. $137 per month commencing July 1, 2022, on an offset basis, being the difference between Guideline support of $1,398 that would be payable by Devon based on her 2021 stated income of $94,025 and Guideline support of $1,261 that would be payable by Brendan based on his 2021 stated income of $83,381.
b. The parties shall share s. 7 expenses for the children in proportion to their respective incomes, set on interim basis at 53 per cent for Devon and 47 per cent for Brendan.
c. Support deduction order to issue.
d. If not settled between the parties, costs shall be determined based on brief written submissions, as set out below.
[47] After a discussion between counsel at my request, counsel agreed that it would be appropriate for the successful party to be awarded costs in the range of $6,500, calculated on a partial indemnity basis. I agreed that after providing my decision on the merits, I would give counsel the opportunity to provide copies of any relevant offers to settle together with brief written submissions as to their impact on costs.
[48] If after further discussion the parties cannot agree on costs, the parties shall provide each other and the court (through the court filing portal and CaseLines) within 21 days with any relevant offers to settle together with brief written submissions (not to exceed three pages) as to their impact on costs. If submissions are not received within the specified timeframe, the parties will be deemed to have settled costs.
R. A. Lococo J.
Released: July 11, 2022
COURT FILE NO.: FS-21-25773 (Toronto)
DATE: 20220711
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
devon Kathleen brady
Applicant
– and –
brendAn conor fitzpatrick
Respondent
REASONS FOR decision
R. A. LOCOCO J.
Released: July 11, 2022