Court File and Parties

COURT FILE NO.: FS-21-44567

DATE: 2022-10-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Willis Brownson, Applicant

AND:

Christine Brownson, Respondent

BEFORE: Kurz J.

COUNSEL: Peter Callahan, for the Applicant

Sean Heeley, for the Respondent

HEARD: October 13, 2022

ENDORSEMENT

Introduction

[1] The parties each move regarding parenting and child support. These motions have been before the court since spring. While the father moved first, the mother brought a cross-motion. Conlan J.’s endorsement refers only to the father’s motion being adjourned to today. His counsel originally attempted to argue the mother’s motion is not properly before me but eventually conceded that I may consider it as well.

Background

[2] The parties began to cohabit in January 2012. They married on November 18, 2013. They separated on November 18, 2019 but remained together in the matrimonial home until the father moved out to the home of his father (the paternal grandfather) in March 2020.

[3] The parties have two children, aged 10 and 6. Since the parties separated, they have been in the mother’s primary care. The father’s parenting time takes place each Thursday overnight and alternate weekends from Friday after school to Monday return to school.

[4] The former matrimonial home was owned by the father alone. In June 2022, it was sold on consent, in accord with the order of Mills J. of March 23, 2022.

[5] The mother moved to Stoney Creek with the children immediately after the house sale closed. She says that she did so because she could not afford to either buy or rent a home in Burlington, site of the former matrimonial home. She had requested the release of $100,000 from the home proceeds but the father was unwilling to agree unless she agreed that he would be entitled to 50/50 shared parenting time. An order releasing $100,000 was not made until Lemon J. did so on June 29, 2022, almost four weeks after the mother moved to her new home in Stoney Creek.

[6] The father purchased a home near the site of the children’s school. As a result, the mother has consented to the children remaining in that school. She did so even though her notice of motion originally requested that the children be enrolled in a school in her new school catchment area.

[7] Because of the father’s new location, the children are entitled to remain at their old school. The mother says that unless one of the parents reside in that catchment area, they would not be able to attend their old school.

Issues

[8] This motion raises two issues:

1. What parenting arrangement is in the children’s best interests, and
2. What quantum of support should the father be paying effective the date of closing of the matrimonial home, June 3, 2022?

Issue 1: What parenting arrangement is in the children’s best interests?

Applicable Law

[9] In Barendregt v. Grebliunas, 2022 SCC 22, 2022 CSC 22, 2022 CarswellBC 1292 (“Barendregt”), Karakatsanis J., writing for the majority of the Supreme Court of Canada (Cote J. in dissent), wrote that:

8 Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child…

9 The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge’s discretion.

[10] For divorcing parents, the framework and factors cited by Justice Karakatsanis are provided by ss. 16 and 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Under s. 16.1(1), a "court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage on application by (a) either or both spouses". Under s. 16.1(2), the court may make an interim parenting order in respect of the children pending the hearing of the parent's application.

[11] This court has the jurisdiction to make broad range of parenting orders under s. 16.1(4) and (5), as follows:

16 (4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

[12] The sole consideration for the determination of parenting decisions under the Divorce Act is the best interests of the child: s. 16(1). Under s. 16(2) and (3), the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being," while considering "all factors related to the circumstances of the child".

[13] The factors that relate to the child's best interests are set out in s. 16(3) as follows:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[14] As I wrote in Phillips v. Phillips, 2021 ONSC 2480, at para. 47: "The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her."

The Parenting Time Factor

[15] A further parenting factor that the father asks this court to consider is the provision in s. 16(6) of the Divorce Act, which states that "[i]n allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child." [Emphasis added.] The previous iteration of this clause of the Divorce Act contained the same wording but also included the heading, "Maximum Contact", to describe it. Citing that provision and dated precedent, the father argues that the “maximum contact principle”, embodied by both the provision and its former heading, remains the law of Ontario. That is no longer the case.

[16] In Rigillo v. Rigillo, 2019 ONCA 548, 31 RFL (8th) 356 the Court of Appeal for Ontario found that a court's failure to advert to the “maximum contact principle” represented an error in law. Any judge who departs from that principle must provide reasons for doing so. Implicit in the principle is the notion that those reasons must be in a child's best interests.

[17] In Knapp v. Knapp, 2021 ONCA 305, 155 OR (3d) 721, issued after the amendments to the Divorce Act cited above, the Court of Appeal for Ontario strongly implied that the principle set out in Rigillo remains in place following the coming into force of those amendments. At para. 30, Justice Benotto appears to have implicitly accepted the continuing application of the Rigillo principle. But writing for the court, just before adverting to the former and current Divorce Act parental contact provisions, Justice Benotto cautioned:

As this court said in Rigillo v. Rigillo, [2019] O.J. No. 4088, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

[18] Whatever broad view may exist regarding the reach of the “maximum contact principle” has now been dispelled by the Supreme Court of Canada in Barendregt. There, Karakatsanis J. began by describing the “maximum contact principle” and its corollary, the “friendly parent rule”, as follows:

133 What is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the “friendly parent rule”, which instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent, where appropriate: see Young, at p. 44. Both of these considerations have long been recognized by the Divorce Act: see Divorce Act, pre-amendments, ss. 16(10) and 17(9); and Divorce Act, post-amendments, ss. 16(6) and 16(3)(c).

[19] At para. 134, Karakatsanis J., continued, referring to the decisions of some courts, based upon the “maximum contact principle”, as “effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access.” She then referred to the implication which arises from the “maximum contact” label, stating:

[i]ndeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

[20] That view is incorrect, as Karakatsanis J. explained:

135 These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

Parenting Arguments

[21] The father argues that the children should be in his 50/50 shared parenting care. He makes those arguments because:

1. He was always an involved parent;
2. He has a flexible schedule in his job at PepsiCo;
3. The parties agreed, when he moved out of the home that they would move to a 50/50 parenting arrangement. Yet when it came time to move into such an arrangement, the mother reneged;
4. The children should have the benefit of his love and affection. The “maximum contact” principle should be the basis of the court’s parenting decision;
5. His new home is far closer to the children’s school than that of the mother. He says that they travel 30 – 40 minutes each way to get to school from the home of the mother. The father adds that his mother, a real estate agent, offered two rental properties in the Burlington area to the mother but she rejected them. Thus she had no reason to move away to Stoney Creek.

[22] The father’s counsel stated that “the main thrust” of the father’s argument is that he wants to spend equal time with the children. He cites the “maximum parenting” principle set out in the former version of the Divorce Act.

[23] The mother offers four arguments in favour of maintaining the present parenting arrangements:

1. Those arrangements represent the status quo for the entirety of the children’s lives. The children’s parenting arrangements always called for the mother to be their primary caregiver. She gave up her job as a personal support worker to start a photography business because of the temporal flexibility that her business offered to her. She continues, stating that during the course of the marriage the father was rarely home. His absence was due to both his day job and his work as a referee, 5-6 nights per week. Contrary to the father’s claims, when the parties physically separated they agreed to her primary care, with his current Thursday overnight and alternate weekend parenting time. The court should not interfere with that status quo absent clear evidence that a change is in the children’s best interests.
2. The father is not utilizing all of his current parenting time. Rather, he offloads it to his parents or his girlfriend. The mother points to the father’s absences from home as a primary reason for the deterioration of their marriage. In a May 11, 2022 letter from her counsel, she indicated that she had been willing to entertain added parenting time provided that he was present for that parenting time. He did not accept that term. She adds that the father has returned to his refereeing career after a COVID layoff. The father does not deny that he has done so but has not provided his refereeing schedule.
3. Regarding the father’s housing advantage, she concedes that he purchased a home in the children’s school catchment area. But he has yet to move into the home because he is renovating it. He continues to reside with his father, where the children share a room. She was unable to arrange her own accommodation in Burlington because of the expense. The father’s mother, a real estate agent, offered her two potential rental properties, but neither was suitable (one was in poor condition and the other would not allow her dog). She was unable to make a down payment on a home in Burlington because the father was unwilling to release sufficient funds to allow her to do so before the matrimonial home sold. The agreement to simply release the money without precondition was only arrived at on June 29, 2022, the date of the Lemon J. order. That was weeks after she had already moved to Stoney Creek. She, of course, had to make arrangements for new accommodations well before then. Further, she says that she timed the trip from her residence to the school and it is 19 minutes.
4. The mother asserts that the father’s motivation for his request for equal shared parenting is financial. He paid the expenses of the matrimonial home (which he exclusively owns) until it was sold, and thereby did not pay child support to her. But after it sold, he chose to only pay her based on his unilateral calculation for a shared-parenting arrangement. He did so even though she was still the children’s primary caregiver and the fact that he simply chose to impute an income to her that did not reflect her tax return. Further, he waited until about two years after his physical separation to bring this motion.

[24] In reply, the father says that he always sought 50/50 parenting time and that he was willing to release $100,000 to the mother to buy a home in Burlington. But, as the mother’s counsel pointed out that, $100,000 offer had some broad strings attached to it. The offer was contingent on the acceptance of a 50/50 parenting arrangement. She may have been able to find a Burlington home had he earlier agreed to the unconditional release of the money.

Analysis of the Children’s Best Interests

Status Quo

[25] There is no explicit reference to the status quo as a factor in parenting decisions in the Divorce Act. However, s. 16(3) (d) does raise “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”. In Cosentino v. Cosentino, 2016 ONSC 5621 at para. 17, Pazaratz J. noted that “[t]he status quo -- and avoiding reckless creation of a new status quo -- are important considerations.”

[26] Further, as McDermot, J. wrote in Southorn v. Ree, 2019 ONSC 1298 at paras. 12 and 13:

12. Normally, the status quo which arises between the parties after separation largely determines the time-sharing relationship between the parties pending trial. The case law confirms that the court is hesitant to change a long term status quo unless compelling circumstances dictate otherwise see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda 2013 ONSC 7869, Green v. Cairns, 2004 9301 (Ont. S.C.J.) and Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.). In Grant v. Turgeon, 2000 22565 (Ont. S.C.J.), MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.”

13. There are good reasons for this. It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child’s life. Moreover, evidence at a trial has the benefit of being tested through cross examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.

[27] Here, the status quo is one of maternal primary care, both before and after the parties’ physical separation. The mother changed careers to be better available to the children. In addition to his day job, the father worked numerous nights as referee. Even after he moved out, the father’s parenting time was only one overnight per week and alternate weekends.

[28] The father says that there was an agreement to increase his parenting time to 50/50. But he fails to offer any evidence of such an understanding. The mother says that she was open to expending the father’s parenting time, so long as he was the person parenting the children and not delegating that role to others. He did not agree.

[29] It is important to note that the father waited almost two years before moving for equal shared parenting, during which time a post-separation status quo developed. Even when he brought a motion for a change to the parenting arrangements, he did so within the context of a request for relief that included sale of the matrimonial home, which the mother and children were occupying.

[30] In sum, the status quo strongly favours the mother’s primary care.

Parenting Plans

[31] The father argues that he will be the primary parent of the children when they are in his care. He says that he has great flexibility at work. He dismisses the mother’s claims that he delegates the role to others. I have no independent evidence one way or another. However, he did not agree to the mother’s offer to increase his parenting time if he undertook to be the children’s exclusive caretaker during his parenting time.

[32] I also have concerns that the father has not been candid in setting out his present refereeing schedule, even though the mother has raised it as an issue. Without knowledge of that schedule, including the schedule since 2020, I cannot say for sure that the father intends to always be the children’s primary caregiver when they are in his care.

Housing Arrangements

[33] The father points to the fact that he purchased a home near the children’s school and that he intends to have a separate bedroom for each. The mother says that he has yet to move into that home because it is being renovated. She says that he still resides with his father, where the children have to share a room. Nonetheless, she admits that the father’s home (when he moves in) is closer to the children’s school than hers. But the mother adds that the difference in driving time at present is minimal (15 minutes from the grandfather’s home against 19 from hers, in Stoney Creek). She argues that a 19-minute commute is not unreasonable. Further, she points out that she had no choice but to rent in Stoney Creek, for the reason set out above.

Financial Motivations

[34] One of the unintended features of s. 9 of the Child Support Guidelines (“CSG”), which is discussed in greater detail below, is the fact that the determination of parenting time has a financial impact on the parties. It allows for a variation from the Guideline table amounts when each parent has the child/ren in their care for 40% or more of the time. It is often argued that a father wants shared parenting in order to reduce support. But of course, the converse of that argument is that the request for added time is being opposed for financial reasons.

[35] Here, there is at least some reason to find that the mother’s argument is credible. As set out above, the father’s request for equal, shared parenting time, made two years after separation, was made in the context of his request for financial relief; sale of the home and set-off child support.

[36] Perhaps even more to the point is the father’s conduct regarding child support after the home was sold. Rather than simply pay table support based on his income, he unilaterally imposed a s. 9 calculation on the mother, even though there was no shared-parenting arrangement at the time. He then essentially imputed an income to the mother, which he used to set off his support obligations to $343 per month. With an income of $76,222 in 2021, he should have paid $1,157 per month. By paying less than 30% of his obligation, he underpaid table support by $814 per month.

[37] Even if there were a set off, there is insufficient evidence before the court to accept the father’s position regarding the mother’s income. That is the case whether he seeks to base her income for support purposes on her gross income (which is unlikely to be appropriate because her income comes from a legitimate business) or his unilateral determination of her net income. The latter is based on his own decision about which business deductions are proper.

[38] If s. 9 applied to the determination of the father’s support obligations, and 2021 tax return’s income figure of $36,000 per year were used, the father’s would be required to pay $1,157 per month, set off by a notional obligation by the mother of $546 per month, leading to a set-off payable by the father of $611.

[39] In other words, and in the vernacular, no matter how you slice it, the father deliberately underpaid support after the matrimonial home sold. And to mix metaphors, he showed his cards by improperly adopting a set-off support figure at a time that he knew that s. 9 did not apply.

[40] The father is represented by a very seasoned and capable lawyer. He must be presumed to know what he was doing when he chose to underpay support in that manner.

[41] It is open to the court in the circumstances to find that his parenting request has a financial motivation and I so find. That finding is not determinative, but it also cannot be ignored.

Father’s Personal Factors

[42] I note that the father’s counsel offered the submission that the “main thrust” of his client’s argument is that he wants to spend equal time with the children. The father raises his love for his children and close relationship with the children as factors for the court’s consideration. I agree that they are relevant. But they also point to the fact that he and the children are able to maintain a close relationship despite a parenting arrangement that is less than satisfactory to him.

Conclusion Regarding Parenting

[43] The evidence before the court raises no concerns about the manner in which the status quo parenting arrangements affect the best interests of the children. I see no reason at this time to change that status quo. That does not mean that it is locked in forever. This is an interim order. I also recognize that the mother has signalled an openness to expanding the father’s time provided that he assured her that he would be the one who cared for the children during his parenting time. Of course, he would have to follow through on any such assurance.

[44] Thus, I find that it is in the best interests of the children that they be in the primary care of the mother. She shall have the right to make all major decisions for the children, but shall do so after consulting with the father and considering his perspective.

[45] The children shall be in the care of the father each Thursday from after school until the following Friday and alternate weekends from Friday after school to Monday return to school. Other than as set out above, at all other times, the children shall be in the care of the mother.

[46] The parties have spent over two years dealing with holidays. I heard no arguments in that regard. I expect that they will be able to deal with those issues on their own based on the status quo. If they are unable to do so, they may arrange to attend before me.

Issue No 2: What Amount of Child Support should the Father Pay?

CSG s. 9 and Contino Factors

[47] Regarding support, as set out above, the father argues that he should pay support under CSG s. 9, based on a shared-parenting arrangement. The provision reads:

Shared parenting time

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[48] The leading case regarding the determination of support in shared parenting arrangement is the decision of the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 (“Contino”). Among the principles that emerge from Contino are the following:

1. The court must consider all three factors set out in CSG s. 9;
2. The court’s consideration should be flexible, with none of the three factors having primacy;
3. No presumptions apply. Section 9 creates a different method of calculating child support in these cases;
4. The court must look to the continuing ability of the support recipient to meet the needs of the child;
5. The idea of a setoff may not apply in all situations. The court can modify the setoff if the parties are experiencing different standards of living;
6. The court must consider the budgets and actual expenditures of each party.

[49] I mention that partial list of factors to demonstrate that even in the event of a shared parenting arrangement, a set off- is not automatic, particularly if the parents have very disparate incomes. A set off would be inappropriate if it led to children to live in poverty in one home and in relative luxury in the other: Magee and Faveri [2007] O.J. No. 4826. If the mother’s position is to be accepted, the father earns about twice what she makes.

Application of the Law to the Facts of this Case

[50] Here, absent a court order or even the assertion that the parties were engaged in a shared parenting arrangement when the matrimonial home was sold, the father unilaterally imposed a set-off s. 9 arrangement on the mother. He says that the mother’s annual income should be determined at $53,465, which is apparently the gross income of her business for 2021. He takes this position even though he states in his materials that her income should be netted out at $48,464. During argument, the father’s counsel stated that he was not seeking to base the mother’s income on any net figure but was simply relying on the gross one. He did not explain why I should ignore the notion that in a business, it takes money to earn money.

[51] The mother says that there is no evidence that would allow the father to impute income to her. She says that, to the extent that her income is relevant, at the interim support level, it should be determined based on her 2021 line 15,000 figure of $36,000.

[52] In light of my decision above, table child support is a very straightforward issue. I have not ordered a shared parenting arrangement. The mother is entitled to full table support.

[53] The father shall pay table support of $1,157 per month for the two children of the marriage, commencing on June 1, 2022 and continuing on the 1st day of each subsequent month until further order. He will be given credit for the payments he has made to date. He should have paid $5,785 since June 1, 2022 (5 x $1,157). He actually paid $1715 (5 x $343). Therefore, he owes the mother $4,070 in arrears of support. That amount is payable forthwith.

[54] The father shall also pay 2/3 of all special and extraordinary expenses for the children. However, none shall be incurred without his consent, such consent not to be unreasonably withheld.

Costs

[55] Although I have not seen any offers to settle exchanged by the parties, the mother appears to have been fully successful in this motion.

[56] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the mother may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle. The mother, as the successful party, shall do so within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The father may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.

”Marvin Kurz J.”

Justice Marvin Kurz

Date: October 17, 2022