COURT FILE NO.: FS-22-001-00
DATE: 2022-09-23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Courtney Jean Armstrong v. Robin Brian Simmons
HEARD: September 8, 2022
BEFORE: Fitzpatrick J.
COUNSEL: P. Howie, for the Applicant Self Represented Respondent
Endorsement on Motion
Introduction
[1] The applicant Courtney Armstrong (Ms. Armstrong) moves for an order that the respondent Robin Simmons (Mr. Simmons) pay temporary monthly child support for Kalesi Rose Armstrong (DOB June 2, 2016), Arya Rae Armstrong (DOB June 1, 2014) and Everleigh Louise Simmons (DOB May 18, 2018).
Background
[2] A consent order without prejudice to the current motion was made April 26, 2022. It provided Mr. Simmons would pay support for Everleigh in the amount of $247.00 per month based on an estimated annual income of $29,000.00. Mr. Simmons does not oppose paying ongoing support for Everleigh.
[3] Mr. Simmons does oppose paying child support for Kalesi and Arya. This is because they are not his biological children. Kalesi and Arya have different fathers.
[4] Ms. Armstrong and Mr. Simmons started cohabiting on or about March 2017. They were married October 2, 2019. They separated May 3, 2021.
Issues
[5] There are three issues to be determined on this motion. First, what is Mr. Simmons’ income for purposes of calculating the quantum of support for any amount of support to be paid. Second, is the evidence available to the court on this motion sufficient to establish a prima facie entitlement of Ms. Armstrong to have Mr. Simmons pay support for Arya and Kalesi. Finally, what is the quantum of support to be paid.
Disposition
Mr. Simmons’ income
[6] Following the making of the consent order in April 2022, Mr. Simmons has made additional financial disclosure. He filed a financial statement sworn August 19, 2022. In that statement he swears his annual income is $68,145.12. In submissions he disavowed this amount and stated his income will be more in the range of $40,000.00. Counsel for Ms. Armstrong fairly conceded that the financial statement might have been prepared in error, and indicated for temporary purposes, an annual income of $40,000.00 appeared fair.
[7] I find based on the submissions of the parties and the evidence on the motion that Mr. Simmons’ income for the purposes of temporarily paying child support on an ongoing basis is $40,000.00. This finding is without prejudice to any position the parties may take about Mr. Simmons’ income to be determined at trial if the matter does not settle.
Support for Arya and Kalesi
[8] Ms. Armstrong submits the evidence on this motion establishes on the balance of probabilities that Mr. Simmons stood in the place of parent for Kalesi and Arya throughout the duration of the relationship of the parties. Mr. Simmons disagrees.
[9] This matter is brought under the Divorce Act. Section 2(2)(b) of the Act provides;
2(2) CHILD OF THE MARRIAGE – for the purposes of the definition of “child of the marriage” in subsection(1) a child of two spouses or former spouses includes
(b) any child of whom one is the parent and for whom the other stands in place of a parent.
[10] Section 5 of the Federal Child Support Guidelines provides:
- SPOUSE IN PLACE OF A PARENT – where the spouse against whom a child support order is sought stand in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
[11] In the decision Bell v Bell, [2006] O.J. No. 2843 Shaw J. determined that a court may find a party stands in place of a parent on motion, if the evidence establishes a prima facie case for entitlement.
[12] In the decision Chartier v. Chartier, 1999 CanLII 707 (SCC), [1998] S.C.J. No. 79 the Supreme Court of Canada set out indicia that would lead a court to make a finding that a person was standing in the place of a parent. The factors were as follows:
a. The nature of the relationship, including the opinion of the child regarding the relationship with the step parent;
b. Whether the parties were intent on forming a new family;
c. Whether the child participates in the extended family in the same way as a biological child would;
d. Whether the person provides financially for the child;
e. Whether the person disciplines the child as a parent.
[13] Ms. Armstrong has provided affidavit evidence on this motion where she deposes that during the relationship of the parties Kalesi, and Arya resided primarily with them. Kalesi’s father lives in Wisconsin. Arya has no relationship with her father. Ms. Armstrong additionally deposes that:
a. Mr. Simmons’ relationship with Kalesi and Arya did not differ in any way from his relationship with Everleigh;
b. Mr. Simmons disciplined Kalesi and Arya;
c. Mr. Simmons and Ms. Armstrong blended their finances in manner such that the Mr. Simmons’ income was contributing to household expenses for the benefit of the children;
d. Mr. Simmons had a relationship with Kalesi and Arya that was separate from that of Ms. Armstrong;
e. Kalesi and Arya considered Mr. Simmons to be their father and sometimes referred to him as “Dad”;
f. Kalesi and Arya had a sibling-like relationship with Mr. Simmons’ other children;
g. Mr. Simmons presented himself with Kalesi and Arya to others and the community-at large as a cohesive, family unit;
h. Kalesi and Arya participated in Mr. Simmons’ extended family on the same basis as Everleigh; and,
i. After the separation, Mr. Simmons sought to maintain a comprehensive relationship with Kalesi and Arya, including decision-making responsibility and parenting time schedule on the same basis as Everleigh.
[14] Mr. Simmons deposes Arya and Kalesi did not refer to him as “Dad”. He references an incident on July 30, 2022 where Arya and Kalesi saw him and public and did not come to him to say “hi”. He explained that his post-separation conduct of seeking access to Arya and Kalesi were only as the result of his perception that Ms. Armstrong was not appropriately parenting the girls.
[15] Assessing the evidence as noted above, I find Ms. Armstrong has established a strong prima facie case that Mr. Simmons was standing in the place of a parent while the couple was together. I was not persuaded that Mr. Simmons’ actions were those of a person who was not seeking to form a close relationship with the two children that was very much like that he has with Everleigh. In my view, Mr. Simmons has a financial responsibility to support Arya and Kalesi.
Quantum of Ongoing Support
[16] Much of Mr. Simmons’ material and submissions focused on the difficult financial situation he would face if he is required to pay support for Arya and Kalesi. He also is responsible for paying support for two other biological children he has with another former spouse. These children are 10 and 6 and he pays $447 a month for these children. He also deposes he now is responsible for supporting two other step-children he shares with his new partner. Practically, if an order is made for Arya and Kalesi, Mr. Simmons is financially responsible for seven children.
[17] People make choices. Choices have consequences.
[18] I am persuaded that it is not appropriate in this case to do a straight guideline calculation in order to assess the quantum payable on a monthly basis by Mr. Simmons. The Guidelines provide an amount for families with six or more children. For an income of $40,000.00 for six or more children the Guidelines indicate a monthly payment of $1,236.00. A straight-up per child calculation dividing $1,236.00 by 7 would yield $176 per child per month. For three children, this yields $529 per month. Ms. Armstrong proposes monthly support payable in the range of $600 to $800 a month. I appreciate Mr. Simmons is experiencing some financial hardship as a result of the breakup. I am influenced by his arguments that Ms. Armstrong receives some monthly support from Kalesi’s father, approximately $200 USD. There is an outstanding child support order for Arya from her biological father. The Family Responsibility Office has not been able to enforce the order for the past two years.
[19] I am taking all of this into account and ordering Mr. Armstrong to pay Ms. Armstrong interim periodic child support in the amount of $500.00 per month commencing October 1, 2022 for three children, Everleigh, Arya and Kalesi.
[20] SDO to issue.
[21] If Ms. Armstrong is seeking costs for this motion, she may submit no more than two pages in writing, together with a bill of costs not later than September 30, 2022. Mr. Armstrong will then have until October 7, 2022 to make a written submission as to costs of no more than two pages.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Date: September 23, 2022
COURT FILE NO.: FS-22-001-00
DATE: 2022-09-23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Courtney Jean Armstrong v. Robin Brian Simmons
HEARD: September 8, 2022
BEFORE: Fitzpatrick J.
COUNSEL: P. Howie, for the Applicant Self Represented Respondent
ENDORSEMENT ON MOTION
Fitzpatrick J.
DATE: September 23, 2022