Court File and Parties

COURT FILE NO.: FS-23-139 DATE: 2024/04/11 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: CHRISTOPHER ALLEN THOMPSON, Applicant AND: KATHERINE (MUNRO) THOMPSON, Respondent

BEFORE: Justice J.S. Richard

COUNSEL: Melissa M. Young, for the Applicant Dawood Ahamad, for the Respondent

Reasons for Decision

Overview

[1] The Applicant, Mr. Thompson, commenced an Application on September 7, 2023, seeking an order setting aside a separation agreement, addressing child support, and granting him parenting time to the parties’ biological child, Carsyn, who was 13 years old at the time. Carsyn is now 14 years old and in the 8th grade.

[2] The Respondent, Ms. Thompson, filed an Answer in November 2023, requesting not only that Mr. Thompson’s claim be dismissed with costs, but also indicating on the first page of her “Form 10: Answer” that she is making a claim of her own. Ms. Thompson then requests that the parties’ separation agreement be set aside, and that parenting time and child support not only be granted for the benefit of Carsyn, but also for her two daughters from previous relationships, Chelseah and Ashaundé, as well. Chelseah is now 15 years old and in grade 10. Ashaundé is 17 years old and in grade 12.

[3] On February 28, 2024, Ms. Thompson brought a motion seeking table child support and extended benefits for all three children. In her Notice of Motion, Ms. Thompson also requested an order compelling Mr. Thompson to bring Carsyn to his extra-curricular activities when he is exercising parenting time.

[4] Mr. Thompson opposed the motion on the basis that Ms. Thompson had not sought to enforce Ontario Court of Justice orders that were made 12 and 15 years ago with respect to Chelseah’s and Ashaundé’s respective biological fathers, as well as on the basis that Chelseah and Ashaundé were not part of these proceedings as they are not in his Application. Mr. Thompson further opposed Ms. Thompson’s motion on the basis that Ms. Thompson does not come to court with clean hands as she had not provided her 2022, 2023 and up-to-date financial information to the court. Lastly, Mr. Thompson argued that if the motion is to proceed, it ought to be heard as a long motion per the jurisdiction’s Long Motions Protocol, and not as a short motion.

[5] Ms. Thompson’s motion was before the court on March 8, 2024, where the Honourable Justice Kurke endorsed:

Respondent mother seeks child support. Applicant states that it should be a long motion since two of the children are stepchildren and bio-fathers need to be brought in and it will take time to argue.

For reasons orally given, the matter is adjourned to April 5, 2024, at ten o’clock for the Applicant to initiate proceedings against the bio-fathers whom he has located to make claim for contribution. On April 5, 2024, presiding judge will be in a better position to determine if this should be set as a long or short motion and set schedules accordingly.

[6] On March 18, 2024, Mr. Thompson brought a motion seeking an order for direction pursuant to Rule 14(7) of the Family Law Rules.

[7] The biological fathers have not been served with any documents from these proceedings, and both motions are now before the court as short motions.

Background

[8] The parties began dating in 2008, were married in 2012 and separated in 2020. As mentioned, the parties share one biological child: Carsyn, born February 8, 2010. Both parties continue to live in North Bay.

[9] As also mentioned previously, Ms. Thompson has two daughters from previous relationships: Ashaundé, born October 16, 2006, and Chelseah, born September 29, 2008. Ms. Thompson is employed by Royal Lepage as a realtor. She has no 2022, 2023, or year-to-date income before the court. According to her Certificate of Financial Disclosure dated November 10, 2023, in 2021, she earned $101,540.38. According to a Divorcemate calculation filed with the court by Ms. Thompson, she estimates her current income at $120,721.00.

[10] Mr. Thompson resides with his partner and her 7-year-old daughter. He is a pipeline maintenance worker for an Edmonton-based company, on a 9-day-5-day rotation, and is currently looking for employment in North Bay. He earns a gross annual income of approximately $65,000-$71,000 per year. According to his 2023 T4 statement, he earned $66,358 in 2023.

[11] In her affidavit evidence, Ms. Thompson attests that during the first four years of the parties’ relationship, Mr. Thompson worked locally and was very much involved in the day-to-day raising of Chelseah and Ashaundé, who were toddlers at the time. She further explains that the children always called Mr. Thompson “Dad” and that they continue to do so to this day. She posits that the couple did not tell Chelseah and Ashaundé that Mr. Thompson is not their biological father until 2019 and that Carsyn still does not know.

[12] A number of orders have been made in the Ontario Court of Justice relating to Ashaundé and Chelseah, including:

• On March 26, 2009, Justice Duchesneau-McLachlan, ordered that no support would be payable for Chelseah by her father, Timothy C. St. Jean, as he was on Ontario Works at the time.
• On June 25, 2009, Justice Duchesneau-McLachlan further ordered that Mr. St. Jean have no access, and that he notify Ms. Thompson within 10 days of obtaining employment while also providing financial disclosure to her by June 1st of each year.
• On January 30, 2012, Justice G. Rodgers ordered the dispensing of service on Ashaundé’s father, Gabriel Normand Debain-Larocque, and further ordered that Ms. Thompson have custody of Ashaundé, with Mr. Debain-Larocque having no access.

[13] Ms. Thompson deposed that Mr. St. Jean only saw Chelseah when she was born, and that the visit lasted about five minutes. According to her affidavit evidence, Mr. St. Jean never contacted her to advise of his employment status.

[14] Ms. Thompson deposed that Mr. Debain-Larocque was in Ashaundé’s life only for the first 9 to 10 months, and that Ashaundé has not seen him since she was a year old. She further deposes that she does not know where he is, that he “has since moved out west somewhere” and that she has not heard from him or spoken to him in nearly 16 years.

[15] In his affidavit evidence, Mr. Thompson explains that following separation in 2020, he tried to remain in Chelseah’s and Ashaundé’s lives, but that Ms. Thompson did not support or promote their relationship with him. He further explains that he did not include them as part of the proceedings because this would have necessitated serving their respective biological fathers who are parties to an order from the Ontario Court of Justice for custody and access. Mr. Thompson added that they were already almost 17 and 15 when his Application was filed, which would have made a parenting time order difficult to enforce. In the end, Mr. Thompson chose not to include them in the proceedings “as the Respondent mother did not regularly promote [him] as a father figure to the girls.”

[16] On September 18, 2023, a case conference was held and, on consent, Mr. Thompson was granted parenting time with Carsyn every second Wednesday, from after school until 8 pm, and every second weekend from Friday after school to Sunday at 8 pm, as well as any additional time as agreed upon by the parties.

[17] In support of her motion, Ms. Thompson submitted a 10-page affidavit with 29 pages of exhibits, and a 5-page reply affidavit with 27 pages of exhibits. The exhibits included lengthy excerpts of text messages between the parties from 2020, 2021, and 2023, as well as snippets of videos. In addition to her own affidavits, Ms. Thompson filed four additional supporting affidavits from her friends and family to support her claim that Mr. Thompson owes support due to his in loco parentis status with Chelseah and Ashaundé.

[18] Mr. Thompson relies on two affidavits with one of them attaching 33 pages of exhibits.

[19] Evidently, much of the facts are contested in a plethora of competing affidavits in support of the motions currently before the court, and no Rule 20 questioning has been conducted. Mr. Thompson emphasizes that he only commenced the Application because Ms. Thompson was withholding Carsyn from him and was insisting they have a court order or separation agreement before he could exercise any parenting time. Ms. Thompson added Chelseah and Ashaundé to the proceedings by way of her “Form 10: Answer”.

Issues

[20] The issues before the court are as follows:

1. Should child support be ordered for Carsyn?
2. Does this court have the jurisdiction to make an order for child support for Chelseah and Ashaundé given that there are existing Ontario Court of Justice orders relating to them?
3. If so, should this court order Mr. Thompson to pay support for Chelseah and Ashaundé?
4. Should this court order that all three children be maintained on Mr. Thompson’s extended health and dental benefits?
5. Should this court order that Mr. Thompson be compelled to take Carsyn to his extra-curricular activities when he is exercising parenting time?
6. What directions, if any, should this court give pursuant to Rule 14(7)?

Analysis

1. Child support for Carsyn

[21] Mr. Thompson does not contest that child support is payable for the benefit of Carson. Based on his 2023 income of $66,358, the table support for Carsyn alone amounts to $618.37 per month.

2. Does this court have the jurisdiction to make an order for child support for Chelseah and Ashaundé given the orders of the Ontario Court of Justice?

[22] Mr. Thompson argued that this court does not have the jurisdiction to change the Ontario Court of Justice Orders of which Ashaundé and Chelseah were subject. Mr. Thompson posits that Ms. Thompson would be required to bring a Motion to Change to allow this court to do so, and that it was her responsibility to bring the motion to change, or at least, to first try to enforce the orders as the biological fathers first bear the financial responsibility for Chelseah and Ashaundé.

[23] Ms. Thompson argues that Justice Kurke already ruled on this question on March 8, 2024, that this court has jurisdiction to order child support for all three children “if it is established by Ms. Thompson that Mr. Thompson stood in loco parentis, and that it is Mr. Thompson, as the one seeking contribution from the biological father, “who needs to make certain that any orders that the court makes with respect to these children don’t conflict with anything else that exists at this point in time.”

[24] Child support orders are not exclusive to the dependent children subject to an order. Rather, they are exclusive to the parental relationship, which means that the Ontario Court of Justice order of March 26, 2009, is exclusive to the parental relationship between Chelseah and her father, Timothy C. St. Jean, and the Ontario Court of Justice Order of January 30, 2012, is exclusive to the relationship between Debain-Larocque and Ashaundé.

[25] It is well-established in caselaw that a child may have more than one payor parent if a non-biological parent stood in loco parentis (See Chartier v. Chartier, [1999] 1 S.C.R. 242; see also Wright v. Zaver, 59 OR (3d) 26 [2002] (ONCA)).

[26] Thus, as explained by Justice Kurke in his endorsement of March 8, 2024, even without involvement from the biological fathers, this court has the jurisdiction to make an order requiring Mr. Thompson to pay child support for the benefit of Chelseah and Ashaundé if Ms. Thompson can prove that Mr. Thompson stood in loco parentis.

3. If so, should this court order Mr. Thompson to pay child support for Chelseah and Ashaundé?

[27] It has long been recognized that a parent’s duty to support a child financially under the Divorce Act, R.S.C. 1985, c.3, is not limited to biological parents. In fact, section 2(2) of the Divorce Act, even states:

Child of the marriage

For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

[28] The person seeking an order for child support first has the onus of proving that the other party stood in loco parentis (i.e. in the place of the parent). As was summarized by the Ontario Court of Appeal in McGuire v. Bator, [2022] O.J. No. 2445, at para. 17:

To establish an entitlement to child support, the appellant has the onus to prove that the respondent exhibited a settled intention to treat the child as his own. The long-standing factors for the court to consider are set out in Chartier v. Chartier, [1999] 1 S.C.R. 242, at para. 39:

The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly.

[29] As previously mentioned, the parties filed voluminous materials in support, and in opposition, to these two motions. Volume, however, does not equate to truth, no matter how many affidavits from friends and family, or excerpts of past conversations and snippets of videos, a party files. While the volume of material on this short motion is somewhat concerning, I take issue with the contradicting affidavit evidence rather than the volume. The versions of events painted by each side in sworn evidence are so contradictory that this court may not make determinations of fact that can allow for a decision on the issue.

[30] As such, determining the nature of Mr. Thompson’s relationship with Chelseah and Ashaundé must be properly determined at trial or, at the very least, in a long motion with possibly viva voce testimony or questioning transcripts available to the court.

[31] In addition, if Mr. Thompson is found to have stood in loco parentis of Chelseah and Ashaundé, the parties will have to turn their minds to a number of issues that will arise when determining quantum and contribution. For instance, is the presence of biological fathers necessary to the motion such that are “necessary parties” under Rule 7(1) and Rule 7.5 for the “efficient or just disposition” of this issue? (See Bielak v. Dadouch, 2021 ONSC 1663). Will Motions to Change have to be brought by the mother to allow the court to vary any child support orders made in the Ontario Court of Justice, and if she refuses to do so, will the onus shift to her for her failing to do so? Or, will it remain on the parent seeking contributions from the biological fathers even if adding them to the proceedings might still not permit any child support orders without motions to change the existing orders of 2009 and 2012? If that is the case, whose burden is it when attributing quantum given these uncommon set of facts?

[32] Entitlement, in addition to all of these additional issues that will arise if entitlement is proven, will either have to be argued during a long motion, or at trial.

4. Should the court order that all three children be maintained on Mr. Thompson’s extended health and dental benefits?

[33] In light of this court’s inability to answer question three, at this time this court can only order that Carsyn be maintained on Mr. Thompson’s benefit, though Mr. Thompson is not barred from agreeing to voluntarily add Chelseah and Ashaundé on a without prejudice basis if he so chooses.

5. Should this court order that Mr. Thompson be compelled to take Carsyn to his extra-curricular activities when he is exercising parenting time?

[34] Carsyn is 14 years old, and it will not be long until he can drive himself to his baseball games. Until he is able to do so, however, to serve Carsyn’s best interest, both parents should support his extra-curricular activities by driving him. Carsyn should also have the option of missing a game or a practice if he is spending time with his parents or family out of town. Accordingly, this obligation will be imposed upon both parties, but subject to Carsyn’s wishes.

6. What directions, if any, should this court give pursuant to Rule 14(7)?

For reasons outlined above, the issue of Mr. Thompson’s child support obligations relating to Chelseah and Ashaundé shall be adjourned to trial, or to a long motions date.

Order

[35] Accordingly, this court makes the following temporary order:

1. The Applicant, Christopher Allen Thompson, shall pay child support for the benefit of Carsyn David Thompson, born February 8, 2010 (“Carsyn”), in the amount of $618.37 per month, commencing May 1, 2024, and every month thereafter, based on the Applicant’s gross income of $66,358, pursuant to the Federal Child Support Guidelines;
2. The Applicant, Christopher Allen Thompson, shall maintain Carsyn on his extended health and dental benefits, so long as they continue to be available through his employment;
3. The parties shall serve and file with the court copies of their 2023 income tax returns and notices of assessment as soon as they become available, and the Applicant shall adjust table support in accordance with his notice of assessment as of July 1, 2024, and every year thereafter;
4. The Respondent shall serve and file her full 2022 income tax return and notice of assessment as soon as possible;
5. Leave is granted for Rule 20 questioning;
6. Leave is granted for both parties to amend their pleadings within 60 days if they wish to add the biological fathers to the proceedings;
7. The issue of child support with respect to the children Ashaundé Irene Thompson, born October 16, 2006, and Chelseah Jade Thompson, born September 29, 2008, shall be dealt with by way of a long motion per the Long Motion Protocol and Rule 14(17), or at trial;
8. The parties shall facilitate Carsyn’s attendance at extra-curricular activities, subject to Carsyn’s wishes;
9. No costs shall be payable by either party on these motions.

Justice J.S. Richard