Court File and Parties
Court File No.: FS-20-18441 Date: 2023-01-20 Superior Court of Justice - Ontario
Re: Maria Magana, Applicant And: Oliver Cabrera, Respondent
Before: Justice Sharon Shore
Counsel: Sam Zaslavsky, Counsel for the Applicant Counsel, for the Respondent
Heard: August 9, 2022
Endorsement
[1] The applicant mother Maria Magana is seeking an interim order:
a. Changing the current parenting schedule, so that the respondent father, Oliver Cabrera, has parenting time with the child two out of every three weekends from Friday after school until Sunday at 6:00 PM with the child otherwise residing with her;
b. For decision-making authority for the child, Liam Cabrera, born June 13th, 2016;
c. That the respondent pay child support in the sum of $721 per month based on an annual income of $77,390; and
d. Permission to amend her pleadings to claim spousal support.
[2] For the reasons set out below, I am not prepared to make an order for interim sole decision-making authority, nor will I make an order varying the current parenting schedule. However, the respondent has not paid child support since separation, and this needs to be corrected. The applicant has leave to amend her pleadings to include a claim for spousal support.
Brief Background
[3] The parties were married on July 19, 2012 and separated on October 26, 2019. There is one child of the marriage who is six years old.
[4] The child was diagnosed with level two and three autism in February 2019. The parties agree that the child requires a consistent and stable routine.
[5] The child started Grade 1 in September 2022. The child attends school near the applicant’s home and receives support in school, including being accompanied by an educational assistant at all times.
[6] The applicant has been a stay-at-home mother. The respondent is a unionized bricklayer.
[7] The marriage broke down when the applicant was charged with assaulting the respondent. The applicant pled guilty to the charge of assault and was given a peace bond, the terms of which expired in April 2022.
The Parenting Plan
[8] Currently the respondent has the child in his care every weekend from Saturday at 9:30 AM until Tuesday morning when he returns the child to school. The child is in the applicant’s care every week from Tuesday after school until Saturday at 9:30AM. Although the applicant submits that she never agreed to this schedule, this schedule has been in place at least since June 2021 (although the respondent submits it was in place as early as separation). This has been the child’s schedule and routine for at least the last year and a half.
[9] The applicant is seeking an order to change the temporary parenting plan because she submits that there has been a material change in circumstance. In April 2022, the respondent moved to a different location in Scarborough, further away from the child’s school. The applicant submits that it will now take the respondent between 45 minutes to an hour, depending on traffic, to take Liam to school in the morning. The applicant submits that the respondent moving further away from Liam's school is a material change in circumstance which would permit this court to change the current status quo.
[10] The school is approximately 15 minutes away from the applicant's home.
The applicant submits that as a result of the increased distance, Liam is arriving at school tired during the weekdays and it has interfered with Liam's bedtime and school routines. Although she is not present at the respondent’s home, the applicant suggests that Liam has to wake up between 5:30 to 6:00 AM so that he can be dropped off at his bus stop to get to school on time. The applicant is also finding it difficult that she has no weekend/downtime with Liam.
[11] The applicant is therefore asking for an order that the respondent’s parenting time takes place on the weekend, and not during the weekdays, and that she has one out of every three weekends with the child.
[12] The respondent denies this allegation and advises that Liam wakes up at 7AM when at his home, similar to when he wakes up when at the applicant’s home. The applicant offers no independent evidence that there has been a change as a result of the applicant’s move, that Liam is now tired at school or that the school has expressed any concern.
[13] The respondent recognizes how important routine is for the child. He submits that he tries to replicate the child’s routine with the applicant when the child is in his care, including wake up and bedtimes.
[14] The parties agree that the child does not do well with change. I am not satisfied that the change in the husband’s residence is a material change in circumstance, and certainly not one that would warrant changing the child’s schedule on a temporary basis.
[15] Even if I am wrong in determining that there has been no material change in circumstance, I would still not order a change to the current plan.
[16] In making this decision, the only consideration for the court is the best interest of the child, having primary consideration for the child’s physical, emotional and psychological safety, security and well-being. The Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) sets out several factors to consider when determining the best interest of the child: DA, s. 16(3), (4), (5) and (6).
[17] I have considered all of the factors set out in s.16 of the DA, but in this case, the child’s needs, including his need for routine and stability, play an important role in my decision. Both parties agree that due to the child’s special needs, routine, consistency and stability are important for his well-being. This is not just about the consistency of the current schedule, but also the frequency of both parties’ involvement in the child’s life. The child has regular contact with both parents throughout the week.
[18] The schedule has worked well for the child. Other than the applicant’s submission that the child is tired because of the longer commute, there is nothing to suggest that the schedule is not working for the child.
[19] The applicant’s proposal would not only change the current schedule, but it would reduce the child’s time with his father. In some weeks, the child would go for more than 10 days without seeing his father, when he currently spends three days a week with him. This would not be in the best interest of the child, disrupting his routine and the frequent time he spends with both parents. It would be contrary to the best interest of the child to change the current status quo on a temporary basis to perhaps have it change yet again when the issue is determined or resolved on a final basis.
[20] Both parties allege that the other parent abdicates some of their parenting time to their respective parents (the child’s grandparents). What I draw from this is that the child is fortunate to have support and love from extended family.
[21] There is no independent evidence that the child is struggling in any way with the current schedule, and I have no concerns about each parent’s ability to meet the needs of the child.
[22] As set out in more detail below, I do have concerns about the parties’ willingness to support the child’s relationship with the other parent. This factor weighs in favour of not changing the current schedule which would limit the respondent’s time with the child. I have also considered this factor in determining whether to grant decision making responsibility to the applicant on an interim basis.
[23] Finally, both parties allege family violence instigated by the other parent. Both parties allege that they were abused by the other party and that Liam was witness to the domestic violence. The applicant acknowledges she was physical with the respondent but submits that they were both violent with one another.
[24] On the record before me, I am not prepared to make any findings on this issue. The parties are in an arrangement where the exchanges take place at school or a public location. I am not concerned about the child being witness to domestic violence under the current parenting plan. The schedule minimizes any contact between the parties.
[25] I am not prepared to change the current schedule on the evidence before this court.
Decision-making responsibility
[26] The applicant is seeking interim decision-making responsibility for the child.
[27] There are no pressing issues at this time. There are many allegations raised that will need to be addressed at a trial but none that would cause me to give temporary sole decision-making responsibility to one parent over the other.
[28] Further, I do have concerns that if the respondent is not involved in making major decisions for the child at this stage, the applicant will not keep the respondent informed and will exclude the respondent from being actively involved in the child's life, contrary to the best interest up the child. I find it is in the best interest of the child that the parties continue to have joint decision-making responsibility for the child.
Child Support
[29] It is always concerning when a motion is brought for child support and the evidence before the court is that other than a few sporadic payments, the payor has not paid child support for the child since separation approximately three years ago. The law in Ontario with respect to child support and disclosure is abundantly clear. It is only in the rarest of circumstances that a payor is justified in not paying child support pending a court order. This is not one of those cases.
[30] The applicant has been asking for child support since November 2019. Her application is dated August 18, 2020. There is no doubt that the respondent had notice of the request for child support.
[31] In 2020, the respondent earned $77,390, and his obligation under the Federal Child Support Guidelines, SOR/97-175 ("CSG"), was $721 per month.
[32] The respondent’s financial statement indicates that in 2021 the respondent earned $68,084.89. His obligation under the CSG was $631 per month. The respondent did not provide information with respect to his expected income for 2022.
[33] The respondent in turn is asking the court to impute income to the applicant. The applicant has been a stay-at-home mother. However, since Liam started school full time in September 2022, the mother could have been looking for work to contribute to her own support. That issue can be addressed at another time, and I am not prepared to impute income to her on this interim motion, which was argued only shortly after the child started school full-time.
[34] The applicant's income in 2020 was $11,228 and her income in 2021 was $27,922. The applicant’s only sources of income are on Ontario Works, child tax benefits, and an additional benefit from the Assistance for Children with Severe Disabilities Program.
[35] The respondent submits that he should pay a setoff amount of child support because the child is with him six out of 14 days, more than 40% of the time. The setoff amount for 2020 would be $486 per month and $361 per month in 2021. In this submission, the respondent is relying on s. 9 of the CSG:
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.
[36] When relying on s. 9, there is no presumption of a table amount, but there is also no automatic reduction for shared custody. The court must consider a myriad of factors: see for example Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, and Flick v. Flick, 2011 BCSC 264.
[37] One of the overall objectives of the Guidelines is to avoid great disparities between households, to the extent possible. Often when there is a great disparity of income, there will be no variation from the table. In 2020, the respondent earned over $77,000. The applicant was on Ontario Works. In 2021, the respondent earned $68,084. The applicant was on Ontario Works.
[38] I have considered the parties’ incomes in each of the years as well as their applicable table amounts. I have reviewed their financial statements and their expenses. I appreciate that the respondent may have some increased costs given that the child is with him every Saturday until Tuesday morning. However, the applicant’s set costs for the child changes very little. Her needs, do not change. She has limited income. She needs the child support to meet the needs of the child. To some extent, her needs have increased because until now, she has not received any child support for the child, leaving her in a very precarious financial situation.
[39] I find this is not an appropriate case to order a set off on a temporary basis.
Leave to amend pleadings
[40] The applicant has leave to amend her pleadings to include a claim for spousal support. The parties have participated in one case conference, in December 2021. There is no serious prejudice to the respondent at this time. The respondent did not object to the request during the motion.
Costs
[41] The parties agreed that costs of $4,000 is a reasonable amount to order for this type of motion. However, given that success was divided, I am not awarding costs to either party.
[42] Several years have passed since separation. This matter needs to proceed to trial, for a final determination of the issues. The next step shall be a combined settlement conference/ trial management conference.
Order
[43] Order to go as follows:
a. The applicant’s motion to vary the interim parenting plan for the child is dismissed.
b. The applicant’s motion for interim sole decision-making responsibility is dismissed.
c. Commencing January 1, 2020, and on the first day of each month thereafter until December 31, 2021, the respondent shall pay the applicant child support for Liam Cabrera, in the sum of $721.00, based on his income of $77,390.
d. Commencing January 1, 2021, and on the first day of each month thereafter until December 31, 2021, the respondent shall pay the applicant child support for Liam Cabrera, in the sum of $631.00, based on his income of $68,084.
e. Commencing January 1, 2022, and on the first day of each month thereafter, until varied by agreement or court order, the respondent shall pay the applicant child support for Liam Cabrera, in the sum of $631.00 based on his 2021 income of $68,084.
f. The respondent shall receive credit for any amounts paid from January 1, 2020, to date.
g. SDO to issue.
h. The applicant has leave to amend her pleadings to include a claim for spousal support. The amended application shall be served and filed within 30 days of release of this order. The respondent shall have 20 days to file his amended answer.
i. Within 10 days of release of this order, the applicant shall contact the Trial Coordinator’s Office and schedule a combined SC/TMC. The parties shall cooperate in scheduling one of the first available dates offered by the TC Office.
j. No costs of today.
Justice Sharon Shore
Date: January 20, 2023