Court File and Parties
Court File No.: FC-15-00000053-0002 Superior Court of Justice In the Matter of: The Family Law Act
Between: Oakland Winston Knight, Applicant v. Christine Rose Frobel, Respondent
Before: The Honourable Justice P. Roger On: March 22, 2024, at L'Orignal, Ontario
Appearances: O. W. Knight, In-person C. R. Frobel, In-person
Reasons for Judgment
Monday, March 22, 2024
Roger, J. (Orally):
The parties have a 13-year-old daughter, Chloe. The parties never lived together and never married. It is an understatement to say that the parties have found it difficult to deal with one another, and litigation and the court interventions were often required.
Prior to June 18, 2023, parenting time was shared between the parties, and pursuant to an order of Justice Pelletier of January 3, 2020, no child support was being paid. An event occurred on June 18, 2023, and Chloe went to live with her mother until about October 14, 2023. On October 14, 2023, Chloe went with her father until the end of January, 2024, but Chloe, with the help of a lawyer, decided that she wished to reside with her mother. To their credit, the parties were able to agree on a new parenting order as of February 2, 2024, that sees Chloe living primarily with her mother. The only issue before me today relates to child support.
With regards to child support, there has been a material changed in circumstances in that Chloe now resides primarily with her mother. This entitles the mother to the payment of child support.
The father argues that the mother is not entitled to child support because, he says, the parties agreed in 2020 with Justice Pelletier's assistance that, as consideration for their settlement of outstanding child support issues, neither party would be entitled to further seek child support from the other and both parties waived child support such that it is provided in the order that child support may not be reviewed despite any change in circumstances. The father argues that he would not have agreed to compromise child support amounts owing without this permanent waiver of child support.
The father's arguments that child support cannot be varied are unsuccessful because parents cannot contract away the child's right to support and the father has not met his burden of establishing an exception to the above.
Section 33(12) of the Family Law Act provides an exception or special provisions. However, here, the agreement on child support as reached in January 2020 is not out of the ordinary or is not unusual. In fact, it is quite common for parties to compromise their respective positions in order to reach an agreement on issues, including on child support. Furthermore, viewed objectively, it is not at all clear to this Court that Chloe benefited directly or indirectly from this agreement between the parties. As well, it has not been established that the application of the child support guideline would result in some inequitable amount of child support being paid.
Furthermore, many of the arguments of the father predate the January 3, 2020 order of Justice Pelletier which dealt with child support prior to that date. Since January 2020, there is no evidence of a material change in circumstances until June 2023, when Chloe decided that she wanted to live primarily with her mother. As a result, the father's arguments are not successful.
Since June 18, 2023, Chloe lived with her mother until October 14, 2023, and with her father from October 14 until the end of January 2024, when she returned to live with her mother. When I consider the parties' 2023 income, the four months with the mother that Chloe lived after June 2023, and the 3.5 months that she lived with her father, the net table amount of child support that would result is minimal and therefore not considered by this Court. In other words, amounts owing by the mother versus amounts owing by the father for this period are essentially the same such that there is no child support payable until the end of January 2024, when the parties reached an agreement that the primary residence of Chloe would be with the mother.
With regards to the father's requests for disclosure from the mother, these requests essentially relate to allegations of rental income, and there is no evidence of such income earned by the mother post-2020. That request for disclosure is therefore dismissed.
The mother is seeking a table amount of child support for Chloe since February 2024, on the father's income as shown in his financial statement of March 5, 2024. She is not seeking any imputation of income and she is not seeking to prove any additional income for the father. She made that clear today during her presentation this morning.
Using the father's March 5, 2024 financial statement and removing the child tax credit that the father no longer receives, the father's current income is $74,507.28. The father agreed to this amount of income during his part of the presentation. Using $74,507.28, the table amount of child support is $696 per month.
The mother also claims section 7 expenses. I do not allow her claim for cellular phone expenses because the evidence does not establish that this is necessary or extraordinary as this is defined in the legislation. The same is applicable to the mother's request for a yearly vacation for Chloe. These two requests are not allowed.
I do not know what the cost of sporting activities is going to be because none have been incurred at the moment and no evidence was presented in that regard. However, the father agrees today to pay his pro rata share of reasonable sporting activities for Chloe. As well, the father also agrees to pay his pro rata share of expenses relating to the purchase of a computer required for school and similar articles required for school. And the father also agrees that reasonable dental expenses and braces would be shared on a pro rata basis and reasonable future expenses would be considered as well. Supporting documents for these would have to be provided. The father also agrees to pay all of Chloe's ongoing side co-parenting sessions, provided these are in-person at least 50 percent of the time, such that the mother would be required to bring Chloe in-person 50 percent of the time or, currently, once per month.
Considering the parties' current income of $74,507 from the father and $93,726 from the mother, I find, subject to the parties otherwise agreeing, that their pro rata share of section 7 expenses is 44.3 percent for the father and 55.7 percent for the mother.
With regard to cost of today's appearance, the mother was entirely successful and is presumptively entitled to cost. I see no reason not to apply this presumption in the circumstances of this case.
The mother seeks $1,500 for her cost as a self-represented litigant. She says that this is for her lost time from work and related expenses for cost of preparing her details for the child support portion of her motion to change and for her lost time from work related to her appearances today.
A self-represented litigant is not automatically entitled to his or her cost. As a party, the mother would have had to attend at today’s motion in any event even if she had to work and would have had to spend some time preparing documents for her lawyer. As well, there is no evidence that the mother could not have prepared her materials when she was not working. The mother says that she sought legal advice for about half a day and that she took time off work for that reason, but I have no evidence as to what this represents. Considering everything that relates to cost, I will allow between three to four hours to the mother for her costs for preparing and attending for this motion and will allow her $500 for the cost of today.
Consequently, the following is ordered on a final basis.
Orders
Starting on February 1, 2024, the applicant, Oakland Knight, shall pay to the respondent Christine Frobel, the amount of $696 on the first day of each month for the table amount of child support based on income of $74,507.28.
Unless otherwise agreed, the parties shall pay section 7 expenses on a pro rata basis with the applicant paying 44.3 percent and the respondent paying 55.7 percent. Cellular phone expenses and the cost of a vacation for the child are not allowed. The parties shall provide and share particulars of section 7 expenses that they claim and reasonable section 7 expenses shall be reimbursed within 30 days of making such payment requests supported by particulars.
The costs of today's motions and appearance are allowed in the amount of $500 payable by the applicant to the respondent within the next 30 days.
FORM 2 Certificate of Transcript (Subsection 5(2)) Evidence Act
I, Melissa Arsenault, certify that this document is a true and accurate transcript of the recording of Knight v. Frobel in the Superior Court of Justice held at L'Orignal, Ontario, taken from Recording No. 3411_CR02_20240322_092810_10_ROGERP.dcr, which has been certified in Form 1.
April 26, 2024 (Date) (Signature of Authorized Person)
Melissa Arsenault ACT ID: 7421486716