Court File and Parties
COURT FILE NO.: FS-16-410156
DATE: 20221005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hernan Andino Applicant
– and –
Daniela Mazzone Respondent
Nancy Cellucci, for the Respondent
HEARD: In writing October 4, 2022
J. Steele J.
Reasons for Judgment
[1] This is an uncontested trial. The respondent, Daniela Mazzone, was given leave to proceed by way of uncontested trial by Justice Nakonechny on December 17, 2021.
[2] Although the applicant, Hernan Andino, commenced these proceedings, he has failed to take any steps to move the matter forward. He has not provided updated financial disclosure nor has he provided an updated financial statement.
[3] Ms. Mazzone seeks an order for sole decision-making responsibility for the parties’ two children, CMA (age 14) and NMA (age 7), child support, arrears of section 7 expenses, sharing of prospective section 7 expenses, dispensation of the father’s signature for travel, obtaining a passport or other official documents for the children, and a divorce.
Background
[4] The parties commenced their relationship in or around 2004. They first separated in June, 2009. In the summer of 2011 the parties reconciled and married on June 8, 2013. The parties separated on December 16, 2015.
[5] The children have resided with Ms. Mazzone since the parties separated. Mr. Andino sees the children on alternating weekends and holidays.
Analysis
Decision Making, Primary Residence and Travel
[6] Under section 16.1(1) of the Divorce Act the Court has jurisdiction to make an order for decision making responsibility in respect of any child of the marriage on application by either or both spouses.
[7] Ms. Mazzone seeks sole decision making responsibility for the children. Her evidence is that she has always been the primary caregiver for the children since birth. She states that she was always the one to take the children to their appointments. Ms. Mazzone also seeks primary residence of the children and the ability to travel with the children without the requirement to obtain consent to travel.
[8] She states that the parties communicate primarily through text and are only successful when dealing with the children and their visiting schedule.
[9] In making an order for decision making, the Court shall take into consideration only the best interests of the child of the marriage: section 16(1), Divorce Act. Section 16(3) of the Divorce Act provides that the Court must consider all factors related to the circumstances of the child and sets out a non-exclusive list of factors, including the history of care of the child, the child’s needs and the nature and strength of the child’s relationship with each spouse.
[10] Ms. Mazzone’s evidence is that CMA requires specialized medical therapies and that Mr. Andino has refused to acknowledge these needs and pay for his share of the expenses.
[11] Based on the record before me, I am satisfied that it is in the best interests of the children that the primary residence of the children remain with Ms. Mazzone, that Ms. Mazzone shall have sole decision-making responsibility for the children, and that Ms. Mazzone may travel with the children without the requirement to obtain Mr. Andino’s consent to travel. Similarly, Mr. Andino’s signature is dispensed with for obtaining a passport and other official documents required by the children.
Child Support
[12] Ms. Mazzone seeks an order for ongoing child support. Mr. Andino has been paying her $1,060.64 per month for the two children. She states that this is on an income of $69,600, as opposed to his last known income of $61,638.51 in 2015.
[13] Ms. Mazzone’s income is $38,025.00 per year.
[14] Under section 15.1 of the Divorce Act the court may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. In making any such order, the court must do so in accordance with the applicable guidelines.
[15] I agree with Ms. Mazzone’s submission that it is reasonable to assume that Mr. Andino’s income has increased as he is currently voluntarily paying child support based an annual income of $69,600. As this is the only evidence with regard to Mr. Andino’s income, Mr. Andino shall be ordered to pay Table child support in accordance with the Child Support Guidelines to Ms. Mazzone in the amount of $1,060.64 per month for the two children, based on an annual income of $69,600.
Section 7 Expenses
[16] Ms. Mazzone seeks arrears of section 7 expenses in the fixed amount of $3,802.50 (65% of the total amount of $5,850.00) for the retroactive period of 2019-2021. She seeks proportional contribution by Mr. Andino of prospective section 7 expenses.
[17] Under section 7(1) of the Child Support Guidelines:
7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouse and those of the child and to the family’s spending pattern prior to the separation:
a. Child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
b. That portion of the medical and dental insurance premiums attributable to the child;
c. Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
d. Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
e. Expenses for post-secondary education; and
f. Extraordinary expenses for extracurricular activities.
[18] Ms. Mazzone’s evidence is that she has always been the one to take the children to all their appointments and that she has had to pay all extra expenses without contribution from Mr. Andino. These expenses include specialized medical therapies required by CMA and medically necessary orthodontic expenses. Ms. Mazzone’s evidence is that she has provided Mr. Andino with the receipts for the section 7 expenses in respect of which arrears are sought, and he has failed to reimburse her. The receipts are in respect of occupational therapy for CMA and learning assistance for CMA through Oxford Learning and would fall within 7(1)(c) and 7(1)(d) of the Child Support Guidelines.
[19] Mr. Andino shall be required to pay $3,802.50 in respect of the incurred section 7 arrears.
[20] Mr. Andino shall be required to pay 65% of the children’s prospective reasonable special or extraordinary expenses within five days of delivering proof to him of the expense.
Divorce
[21] Ms. Mazzone also seeks a divorce. The parties have been separated for over a year. Ms. Mazzone filed her affidavit for divorce and marriage certificate.
Disposition
[22] Order to go as follows:
a. Ms. Mazzone shall have sole decision-making authority for the children.
b. Commencing the first of every month, Mr. Andino shall pay child support to Ms. Mazzone for the two children in the amount of $1,060.64 per month in accordance with the Child Support Guidelines based on an annual income of $69,600.
c. Mr. Andino shall pay to Ms. Mazzone arrears of section 7 expenses in the fixed amount of $3,802.50 (or 65% of the total amount of $5,850.00), which shall be enforced by the Family Responsibility Office.
d. Mr Andino shall pay to Ms. Mazzone 65% of the children’s prospective reasonable special or extraordinary expenses within five days of delivering proof to him of the expense. The parties shall share the children’s extraordinary expenses in proportion to their incomes in accordance with section 7 of the Child Support Guidelines being 65% for Mr. Andino and 35% for Ms. Mazzone.
e. Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under this Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
f. Mr. Andino’s signature is dispensed with for the following:
i. Obtaining a passport for the children;
ii. A travel consent for the children;
iii. Any official documents for the children requiring the applicant father’s signature.
g. For as long as child support is to be paid, the payor and the recipient, if applicable, shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
h. Divorce Order attached.
J. Steele J.
Released: October 5, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hernan Andino Applicant
– and –
Daniela Mazzone Respondent
REASONS FOR JUDGMENT
J. Steele J.
Released: October 5, 2022