Court File and Parties

COURT FILE NO.: FS-19-00000100-00 DATE: 2023 07 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michael Thomas Hoy Jennifer Eensild, for the Applicant Applicant

• and -

Kimberley Sue Harron Respondent Katie Baker, for the Respondent

HEARD: In writing

Endorsement

MCGEE J.

Overview

[1] The parties were in a common law relationship from 1997 to December 19, 2017. They have three children, S, aged 20, from whom Mr. Hoy is estranged, M aged 15 and Ma aged 10.

[2] The parties’ former matrimonial home was sold in 2019 and the net proceeds were divided equally. Since the sale, Mr. Hoy has lived in Strathroy with his mother. The children and their mother have remained in Guelph.

[3] Almost none of the issues arising from the end of their relationship have been resolved.

[4] This is Ms. Harron’s Motion dated May 19, 2023 for Orders concerning the care of, and financial support for the two younger children.

[5] With respect to parenting, she asks to be granted the responsibility for decision making, a set parenting schedule for their father, including a detailed holiday schedule, that all parenting exchanges take place at a Tim Hortons, and that the father be responsible for transporting the children to and from the exchange location. She further asks that Mr. Hoy not attend at her home for any reason unless he has first received her approval.

[6] With regard to financial support, she asks for table child support based on Mr. Hoy’s receipt of Canada Pension Plan (“CPP”) disability benefits. Although he has a history of significant income earned as a skilled tradesman, she accepts his current mental health limitations and asks only for table support for two children of $326 based on income of $21,144.

[7] Mr. Hoy brings a cross motion dated June 21, 2023 for joint decision making, shared transportation, a shared summer schedule and an alternating holiday schedule. There is little difference in each of the parent’s proposed schedules for the school year.

[8] Mr. Hoy also asks for an Order that the younger two children have a year-round, week-about shared parenting arrangement in the event that he relocates to Guelph.

[9] I cannot decide Mr. Hoy’s prospective relocation claim because he sets out no immediate plans to move. Neither have any proposed details been provided. The best interests of the children cannot be predetermined on unknown future circumstances.

[10] The parties agree to three temporary Orders: a. that all communications with respect to the parenting schedule, decisions, and other issues involving the children pass directly between the parties and not be communicated through the children. b. That Malleck and Ma have a video or telephone call with the parent with whom they are not present each Monday, Wednesday, and Friday at 8:30 p.m. c. That the children not be restricted in their communication with the other parent at any time. Orders to issue accordingly.

[11] In the ordinary course, I would not decide the issue of decision making on a motion for temporary Orders. However, and for the reasons set out below, I do grant Ms. Harron the sole responsibility for decision making on this motion, as well as table child support, and her preferred parenting schedule, including a provision that Mr. Hoy continue to do the driving for his parenting time and that the exchanges occur at a public location.

Mr. Hoy’s Unlawful Retention of the CPP Children’s Disability Benefit

[12] Mr. Hoy has never paid an amount in voluntary child support to Ms. Harron since their 2017 separation. At the time of separation, the children were 4, 9 and 14 years of age. She has struggled to meet the children’s financial needs on her income of $40,000 to $45,000 per annum.

[13] Mr. Hoy receives annual CPP disability of $15,582.72, interest on his investments of $256.49 per year and an additional annual amount of $6,120.72. The additional amount is his receipt of the CPP children’s disability benefit which is calculated as $255.03 per month for each of M and Ma (S’s allotment would have ended in 2021.)

[14] In his cross motion, Mr. Hoy asks that no child support be payable primarily due to his financial hardship, and as an alternative, because he asks that the children reside with him on alternate weeks during the summer. If he is to pay child support, he asks that it only be on his CPP Disability income of $15,839.21.

[15] The Government of Canada website sets out the particulars of the CPP children's benefits program at: https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-childrens-benefit.html In summary, the benefit is paid on behalf of a child of a disabled contributor, if they have any custody and control of the child. If disabled contributor does not have custody and control of the child, the person or agency having custody and control of the child may receive the disabled contributor's child benefit on behalf of the child.

[16] Ms. Harron asks me to remedy the current situation through an Order for table child support based on Mr. Hoy’s combined receipt of CPP disability benefits, the children’s benefits, and interest, being $21,144 rather than $15,582.72.

[17] I cannot make that Order because the legislation provides for the whole of the $6,120.72 per year to be paid to Ms. Harron.

[18] The children’s benefit went into pay prior to the date of separation. I was not advised how Mr. Hoy continues to qualify for its receipt given that the children have exclusively resided with their mother since 2017. I am left to surmise that he has either failed to update his tax filings or misrepresented the children’s residence to the Canada Revenue Agency.

[19] Irrespective of the source of the error, the current benefits situation must be immediately rectified.

Award of Sole Decision Making to Ms. Harron

[20] On this motion, I am satisfied that Ms. Harron meets and exceeds the criteria to be granted the sole responsibility for decision making for M and Ma per section 24 of the Children’s Law Reform Act. In making this decision, I have considered the factors in section 24(3) of the CLRA:

Factors

(3) Factors related to the circumstances of a child include,

(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 co-operate, 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 co-operate 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.

[21] Since Mr. Hoy’s struggles with mental health surfaced in 2010, and principally over the past six years, the children have been in Ms. Harron’s primary care. She has made all the decisions for the children, including health, medical and dental care. She has financially provided for them as best as she is able. During certain post separation periods, Mr. Hoy was wholly absent. When he did resume regular parenting time - which the boys craved - Ms. Harron describes difficult episodes of boundary setting and overholding.

[22] One particularly bad period was when the Covid restrictions were first implemented. Mr. Hoy refused to return the boys to their mother’s care. The restricted access to courts during this period left her with little option but to wait until Mr. Hoy returned the boys on his own accord.

[23] Throughout, Ms. Harron has remained child focussed and flexible, balancing their daughter’s refusal to be with her father and the boys’ desire to spend time with him. For example, Ms. Harron conceded in this motion to Mr. Hoy’s preferred return time for the boys, which was later than what she had proposed was in their best interests.

[24] I must also consider the family violence that occurred between S and her father in February of 2019. Mr. Hoy was charged and later convicted of an assault on his daughter. Since then, S has had her own mental health issues that are triggered by her father. Mr. Hoy does not acknowledge S’s experiences as valid, instead treating them as a projection of her mother’s alienation – a conclusion that is not reasonable given Ms. Harron’s support of his relationship with the boys.

[25] Finally, I give considerable weight to Mr. Hoy’s failure to financially provide for the children in any manner, but for when they are in his care.

[26] In my view, the term “care” as set out in the CLRA at sections 24(3)(d), (g) and (h) includes financial care. Financial care of a child is as much a parental tenet as being emotional present and physically supportive. Both in the past and in his proposed future care, Mr. Hoy asks to be absolved of any responsibility for the children’s financial well being while in their mother’s care.

[27] He justifies his approach as allowing him to better provide for the boys when they are in his care, given his financial hardship. He sets out in his affidavit that he is able to purchase clothes and shoes for them while they are with him, take them for haircuts, summer vacation with them in Northern Ontario and Manitoba, and in 2021, he planned a trip to Florida for the boys as a Christmas present. Ultimately, the Florida trip did not go ahead, but only because the boys’ passports could not be issued in time.

[28] The purpose of child support is to ensure that each parent is contributing to their children’s financial needs proportionate to his or her means. By refusing to pay any child support, Mr. Harron refuses to meet his sons’ financial needs as an incident of their overall care within each of their parents’ homes.

[29] Howsoever modest, M and Ma are entitled to a continuity of care in each of their parents’ homes. The failure to offer even a token amount of child support over the past six years, while in receipt of a monthly amount legislatively designated for their financial care, reveals Mr. Hoy to be self focussed rather than child focussed. I find that he does not meet the criteria for an award of joint decision making.

[30] On this motion for temporary Orders, I grant to Ms. Hoy the sole responsibility for decision making for M and Ma effective July 1, 2023, formerly known as sole custody.

[31] In making this decision, I have given little weight to the conflicting incidents described by counsel during submissions, that is, the emergency room notice and the Manitoba incident. Even joint decision makers are never perfectly aligned, and I do not find the communication difficulties set out in the respective affidavits to be fatal to co-parenting. Instead, I rely on the reasons set out above.

Child Support

[32] Ms. Harron is to provide a copy of this Order to the appropriate government authorities so that the payment of the CPP children’s benefits is paid to her directly.

[33] With this determination, I accept that Mr. Hoy’s income for support purposes is limited to his receipt of CCP benefits of $15,582.72 and interest of $256.49 for a total of $15,839.21. On this amount, the table child support for two children is $198.00 per month. Commencing July 1, 2023, Order to issue accordingly, including a Support Deduction Order.

[34] The retroactive child support owing to Ms. Harron for the period of January 1, 2018 to June 30, 2023 shall be decided at Trial. That determination may turn on whether the CPP children’s benefit for all three children has been or can be retroactively adjusted and paid to Ms. Harron to reflect the children’s primary residence with her since December 19, 2017.

Section 7 Expenses

[35] Ms. Harron asks that Mr. Hoy pay a proportionate share of the boys’ section 7 expenses, such as Karate fees. I cannot make this Order given Mr. Hoy’s modest means. A qualifying expense must be both necessary to the child’s well being and reasonable to the means of the family. On annual income of $15,839.21 I find that no amount in section 7 activity expenses is reasonable for Mr. Hoy to fund in addition to table child support, no matter how necessary or beneficial the activity.

Parenting Schedule

[36] I prefer Ms. Harron’s proposed summer and holiday parenting schedule because M is now working and will risk forfeiting or limiting his Guelph employment income were he to live with his father on alternating weeks or for extended holiday periods. Given his parents’ modest means, any income that he earns will be critical to his ability to access post secondary education.

[37] As for Ma, Ms. Harron proposes a more flexible schedule, provided that Mr. Hoy supports his engagement in Karate, which his father does. The Karate is a recent advantage and has provided significant benefits to Ma in the form of physical ability and self confidence.

[38] Order to issue for summer, holiday, and school year parenting time in accordance with Ms. Harron’s draft Order.

[39] I deny Mr. Hoy’s request to share the costs of driving because the cost of the non-residential parent’s transportation is factored into the table amount of child support.

[40] At the same time, I do urge the parents to agree to a mutual exchange location that reduces some of Mr. Hoy’s driving time. An exchange location such as a Tim Horton’s outside of Guelph, on the way to Strathroy will also avoid inadvertent contact between father and daughter.

[41] Each of the parties’ counsel is a highly skilled lawyer who practises collaboratively. If counsel are unable to resolve the location of parenting exchanges, I may be spoken to.

Costs Submissions

[42] Ms. Harron has been the successful party on this motion. If the parties are unable to settle the issue of costs, I will receive Ms. Harron’s cost submissions by July 20, 2023, Mr. Hoy’s responding submissions by August 3, 2023 and reply by August 10, 2023.

[43] Cost submissions are limited to three pages exclusive of any Offers to Settle or a Bill of Costs. Caselaw is to be hyperlinked within the body of the submissions.

McGee J.

Released: July 6, 2023