COURT FILE NO.: FC-18-FS620-0001
DATE: 2022/10/20
SUPERIOR COURT OF JUSTICE-ONTARIO
RE: MATTHEW ROBERT STEVENSON, Applicant
-and-
KIRSTEN HARGREAVES, Respondent
BEFORE: Gibson J.
COUNSEL: Amy Green, Counsel for the Applicant
Richard Van Buskirk, Counsel for the Respondent
HEARD: September 6, 2022
ENDORSEMENT
Overview
[1] The applicant Matthew Stevenson (“the applicant”) and the respondent Kirsten Hargreaves (“the respondent”) cohabited from December 2014 until their separation in 2016. They have a child, Brody Matthew James Stevenson, born June 20, 2015 (“Brody”).
[2] Pursuant to agreed Minutes of Settlement, the parties consented to the Order of Gordon J. dated July 11, 2019 (“the Final Order”). This Order contained many detailed paragraphs dealing with the parenting roles of each of the parties, in respect of decision-making responsibility, child support and proportionate sharing of s.7 extraordinary expenses. Broadly speaking, the Order provided for joint custody and parallel parenting of Brody and required the parties to meaningfully consult with one another about any important decisions, including decisions relating to health, education and daycare.
[3] The Final Order also provided that ongoing child support for Brody be paid by the applicant in the amount of $558 per month in accordance with his 2018 income of $60,177, and by the respondent in the amount of $464 per month in accordance with her 2018 income of $50,308, resulting in a set-off amount owing by the applicant to the respondent of $94 per month. It provided that the parties were to contribute towards Brody’s s.7 expenses based on their respective incomes, with the applicant’s share being 54% and the respondent’s share being 46%.
[4] By his Notice of Motion dated July 21, 2020 (amended May 30, 2022), the applicant brings a Motion to Change the Order of Gordon J. dated July 11, 2019. He requests that the child support and decision-making terms of this Order be varied based on a material change in circumstances. He requests that the Court impute income to the respondent in the amount of $60,000 commencing July 1, 2020 for the purposes of calculating her child support obligations pursuant to s.9 of the Child Support Guidelines, and that the Court order that the applicant have sole decision-making responsibility for Brody.
[5] The applicant further requests that the Court strike the respondent’s pleadings for what he says is her failure to comply with previous Orders requiring her to provide disclosure necessary to determine the support issue.
[6] The respondent resists the applicant’s motion and brings a cross-Motion to Change wherein she requests the Court to also vary the child support and decision-making terms of the Final Order, specifically that she has sole decision-making responsibility for Brody, and that her child support obligation for Brody be reduced due to her reduction in income commencing on August 1, 2020. She also requests that the Order of Broad J. dated August 21, 2020, regarding costs, be set aside.
Positions of the Parties
[7] The position of the applicant is that there has been a material change in circumstances, and that the respondent has been voluntarily underemployed. He requests that the Court order that the applicant is to have sole decision-making responsibility for Brody in relation to his education, health (medical and dental), and extra-curricular activities; that the respondent’s income be imputed to $60,000 for the purposes of determining her contribution to s.7 extraordinary expenses; and that no child support be paid by either party to the other pursuant to s.9 of the Child Support Guidelines.
[8] The position of the respondent is that there has been no material change in circumstances that would justify making changes to the decision-making responsibility or parenting elements of the Final Order. She also requests a change in the child support obligations of the parties due to a change in her employment circumstances.
Issues
[9] The issues on this long motion are:
Whether there has been any material change in circumstances since the making of the Order of Gordon J. which would justify making any changes to the Order; and,
Whether there should be any imputation of income to the respondent, or a finding of a material change in circumstances in her income, resulting in an adjustment of child support.
Law
[10] A material change in circumstances regarding custody or parenting must be significant - one that has altered the child’s needs or the ability of the parents to meet those needs, in order to justify any change. Absent such a change, there should be no change to the Order. As Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) makes clear, the finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. Absent such a finding, the variation inquiry can go no further: Brown v. Lloyd, 2015 ONCA 46.
[11] The necessity that there be a finding of a material change in circumstances as a prerequisite to an examination of the merits of an application to vary an existing custody or access order was recently confirmed by Pazaratz J. in F.K. v. A.K., 2020 ONSC 3726, and by Ryan Bell J. in Joachim v. Joachim, 2021 ONSC 8584 at para. 34.
[12] Where a party seeks a change in support provisions, the test for material change is less than one for changes in custody or parenting, but it is still a significant one: Pustai v. Pustai, 2018 ONCA 785; L.M.P. v. L.S., 2011 SCC 64.
Assessment
[13] In order to justify striking a party’s pleadings, there must be wilful non-compliance with court orders that is egregious and exceptional: Mullin v. Sherlock, 2018 ONCA 1063; Holly v. Greco, 2019 ONCA 464; Peerenboom v. Peerenboom, 2020 ONCA 240; Martin v. Watts, 2020 ONCA 406. I do not make such a finding here. The respondent’s pleadings will not be struck.
[14] Both parties make accusations against the other respecting their ability to communicate in Brody’s best interests. Unfortunately, this is not a novel issue. Their antagonism pre-existed the agreed Minutes of Settlement which were crystallized in the Order of Gordon J.
[15] Each has presented a blizzard of affidavits trading insults and constituting a catalog of petty grievances against the other, recounting a dispiriting parade of minor incidents, such as the acrimony about a wart on Brody’s toe, or an earache, or a birthday cake.
[16] These do not amount to a material change in circumstances. None justify an alteration in the arrangements previously agreed to by the parties and prescribed on consent in the Order of July 11, 2019. I do not accept the contention of the applicant that there has been a material change in circumstances due to the respondent’s inability to meet Brody’s needs in a timely and effective manner as a result of her animosity towards the applicant, and that this was not foreseen at the time that the parties signed Final Minutes of Settlement and obtained the Order on consent. Both parties have engaged in a “tit-for-tat” series of recriminations. An absence of maturity on the part of both parties, or a desire of one to control the other, does not warrant a finding of a material change in circumstances or a variation in the Order.
[17] I find that there has been no material change in circumstances concerning decision-making responsibility or parenting time regarding Brody. Accordingly, the necessary prerequisite to an examination of the merits of an application to vary an existing custody or access order is absent. The Motions to Change of both parties in this regard will be dismissed. The provisions of the Order of Gordon J. will continue in effect.
[18] Parenting requires maturity and a resolute focus on the best interests of the child. That is what these parties need to work on, not dissipating resources in trying to seize control from the other.
[19] The respondent previously worked for a while as a dental assistant. She was not able to continue with this due to the early morning start times in this field which would not allow her to accommodate getting Brody back and forth to school and still be in Kitchener for 8:00 a.m. for work. She is currently completing courses online through Westervelt College to become a Pharmacy Assistant. She expects to finish this program in November 2022 and begin work in 2023. She says that she chose this line of work in that it would allow her to have some control over her working hours and thereby accommodate dropping off and picking up Brody from school.
[20] Subsection 19(1)(a) of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include that the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child or by the reasonable educational needs of the spouse.
[21] The applicant contends that the respondent is intentionally underemployed, and that a greater income should consequently be imputed to her.
[22] Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse if it considers it appropriate in the circumstances, which circumstances include "the parent or spouse is intentionally under-employed or unemployed." In Drygala v. Pauli, (2002) 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), the Court of Appeal held that there is no need to find a specific intent to evade child support obligations before income can be imputed. Read in context and given its ordinary meaning, "intentionally" in s. 19(1)(a) means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. There is no requirement of bad faith in s. 19(1)(a), nor is there language suggestive of such a requirement.
[23] However, an exception is made under s. 19(1)(a) of the Guidelines where the under-employment or unemployment is required by the reasonable educational needs of the parent or spouse. The trial judge must first determine whether the educational needs are reasonable. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. Section 19(1)(a) also dictates that the trial judge determines what is required by virtue of a spouse's educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs.
[24] Section 19 of the Guidelines is not an invitation to the court to select arbitrarily an amount as imputed income.
[25] In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances: Gill v. Gill, 2020 ONSC 1176 at para. 56.
[26] The respondent is not compelled to work only as a dental assistant. The Covid pandemic has been an intervening factor that has had a significant impact upon work in dental offices. The explanation she advances for wanting to change work makes sense, and notably is animated by consideration of Brody. The employment of the respondent as a dispatcher and flight coordinator with Private Air was terminated because of the end of her personal relationship with the owner of the business.
[27] The income of the respondent’s current common-law partner Brandon Durant, who works as a Ship’s Captain on the Great Lakes, does not need to be imputed to the respondent when assessing obligations concerning Brody.
[28] I find that the intentional underemployment is required by the reasonable educational needs of the respondent as parent, as well as by the current needs of the child Brody, and that it is not appropriate in the circumstances to impute an income to her in either of the amounts of $60,000 or $50,000 sought at various times by the applicant.
[29] Rather, I find that there has been a material change in circumstances with regard to the employment income of the respondent that warrants an adjustment in the level of child support to be paid by each party. There should be an adjustment in child support based on the current income of the respondent while training for a new form of employment and based on anticipated income.
[30] The respondent has not provided a satisfactory explanation regarding the costs Order of Broad J. made August 21, 2020 beyond a bald assertion that she did not seek to evade service, and she did not appeal the Order. This Order will not be set aside.
Conclusion
[31] The relationship of the parties is marked by discord and disagreement. But they will both continue to be parents of Brody. Both parties are urged to summon a greater maturity and to manifest this in their communication, and to strive to achieve a common focus on the best interests of Brody. I am not persuaded on the evidence before me on this long motion that this is beyond the capability of these parties. Seeking to resolve their differences through mediation rather than litigation would better achieve that. Attending at By Peaceful Waters for counselling and assistance in parenting coordination might be a useful avenue. Use of conflict-minimizing modes of communication such as Our Family Wizard might also help in this regard. A sensible flexibility in adjusting parenting time for planned vacations would also be desirable.
Order
[32] The Court Orders that:
The applicant’s and the respondent’s motions to change the Order of Gordon J. dated July 11, 2019 in regard to any change in the parenting arrangement, decision-making responsibility, or other changes to the parenting of the child Brody Matthew James Stevenson, born June 26, 2018, are dismissed;
The respondent shall fully comply with all previous Orders of the Court for financial disclosure and for costs;
The parties shall communicate regarding Brody through Our Family Wizard;
The parties shall exchange financial information, including income tax returns and CRA Notices of Assessment, by June 1st of each year for the previous year, commencing June 1, 2023;
The applicant Matthew Stevenson shall pay child support for the child Brody Matthew James Steveson, born June 20, 2015, to the respondent Kirsten Lee Hargreaves, in the amount of $636 per month in accordance with his 2021 annual income of $68,245; and the respondent Kirsten Lee Hargreaves shall pay child support in the amount of $280 per month based on her anticipated earnings of minimum wage for 40 hours per week when she completes her current college course. The resulting set-off amount of child support of $356 per month shall be paid by the applicant on the first day of each month commencing September 1, 2022;
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A Support Deduction Order shall issue; and,
This Order bears post-judgment interest at the rate of two per cent (2%) per year effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.
Costs
[33] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and also to Kitchener.SCJJA@ontario.ca. The respondent may have 14 days from the release of this decision to provide her submissions, with a copy to the applicant; the applicant a further 14 days to respond; and the respondent a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the respondent’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson J.
Date: October 20, 2022