Court File and Parties
Court File No.: FS-16-408508-0001 Date: 2024-08-23 Superior Court of Justice - Ontario
Re: Lucille Papaevangelou, Applicant And: Billy Papaevangelou, Respondent
Before: M. Kraft, J.
Counsel: Haig DeRusha, for the Applicant Mark Greenstein, for the Respondent
Heard: August 23, 2024
Endorsement
Nature of the Motion
[1] Pursuant to the Endorsement of Rhinelander, J., dated August 6, 2024, the parties each brought motions before the court today.
[2] The applicant mother brought a motion seeking an order for a Voice of the Child report of the parties’ youngest child, age 11, to obtain her views and preferences regarding moving to reside with the applicant in St. Catharines. The respondent father objected to this relief, with his main concern being that the child is being influenced and pressured by the mother and he calls into question the independence of what the child might say.
[3] The father brought a motion for retroactive and prospective child support. The father seeks full table child support for the parties’ two children pursuant to the Federal Child Support Guidelines, SOR-97-115 (“CSG”) given that he submits both children reside primarily with him. He argues that he made a request for child support as far back as 2017 and seeks retroactive child support to that date. Alternatively, he seeks retroactive child support to February 2024, when his counsel wrote to the mother seeking income disclosure from her. The mother disputes any retroactive child support obligation on her part. In terms of prospective child support, the mother proposes that the parties pay set-off child support to one another under the tables, pursuant to s.9 of the CSG given that she claims the children reside with the parties pursuant to a shared parenting arrangement.
Brief Background
[4] The parties were married on June 10, 2005. They separated on October 22, 2015. They have two children of their marriage, Z., age 16 and L., age 11.
[5] The Final Order of Pollak, J., dated July 13, 2016, entered into on consent of the parties, sets out that the parties have joint decision-making responsibility for the children, the parties are to equally divide the children’s holiday time, and that neither parent would pay child support to the other. In terms of the regular parenting schedule, the Final Order provides that the children were to be in the father’s care from Monday morning to Friday afternoon and be in the mother’s care every weekend, from Friday after school to Monday morning.
[6] At the time the Final Order was made, both parties resided in Toronto.
[7] The mother moved to Burlington, Ontario about a year or two after the Final Order and the regular parenting schedule changed so her weekends ended on Sunday night. The father moved to Bradford, Ontario.
[8] In mid-2017, the mother started this Motion to Change. She sought to change the parenting schedule in the Final Order so both children would reside primarily with her. In his Response to the Motion to Change, the father sought child support from the mother. The parties attended one DRO conference in October 2017, which did not resolve the issues. After the DRO Conference, the mother moved to St. Catharines. Neither party took further steps to advance the Motion to Change.
[9] In January 2024, the father re-engaged his counsel to seek table child support from the mother. A letter was sent to the mother by the father’s counsel in February 2024 seeking income disclosure from her, including Notices of Assessment and Income Tax Returns. The mother delivered the disclosure five months later.
[10] More recently, the mother has sought a change so that the parties’ youngest child, L., age 11, moves to St. Catharines with her and goes to school in St. Catharines.
[11] The father opposes the youngest child moving to St. Catharines and changing schools.
[12] The mother’s evidence is that the child wants to move to St. Catharines and is excited about a change in school. The father believes the mother is placing pressure on the child to move.
Issues to be Determined
[13] The issues for me to decide on this motion are as follows: a. Is it appropriate for a Voice of the Child Report to be ordered for the parties’ 11-year-old child? b. Do the children reside with the parties pursuant to a shared parenting arrangement? c. Is there retroactive child support owing by the mother and if so, from what date should this be calculated? d. What is the mother’s prospective child support obligation?
Issue One: Is it appropriate to order a Voice of the Child (“VOC”) report for the parties’ youngest child?
[2] I have determined that it is appropriate in this case to order a VOC report for the parties’ 11-year-old child.
[3] In order to make any parenting determination, the court’s only consideration shall be the best interests of a child: s.16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).
[4] Section 16(3) of the Divorce Act sets out the best interests factors for the court to consider one of which includes, the child’s views and preferences, given due weight to the child’s age and maturity.
[5] The case law supports the court ordering VOC reports when it is necessary and appropriate to the determination of the best interests of the child. The burden is on the party requesting the report to demonstrate that a professional opinion is necessary: Irwin v. Irwin, 2019 NSSC 397, at para. 10.
[6] Determining whether a VOC report is appropriate is an exercise of discretion of the court to consider a combination of a child’s age, maturity, and the specific issues in a case.
[7] The obligation to consider the views and preferences of the child before parenting orders are made recognizes the agency of children and is based on the rights of the child. The United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Article 12 (“UNCRC”) specifically recognizes that children who are capable of forming their own views have the right to express those views in all matters affecting them, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial proceedings affecting them, either directly, or through a representative or an appropriate body. As Benotto, J.A. states in M.A.A. v. D.E.M.E., 2019 ONCA 777, at para. 46:
The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests -- which is engaged in all child-related matters -- must incorporate the child's view.
[11] In addition to a VOC Report, other ways a court can receive a child’s views and preferences are through a parenting assessment; through the appointment of the Children’s Lawyer, through a judicial interview, through admissible hearsay statements by the children to their parents, or through the child's direct testimony in court.
[8] Neither party seeks a parenting assessment, the appointment of the OCL or a judicial interview.
[9] A VOC Report allows a skilled mental health professional to meet with the child more than once, when she will be taken to the professional’s office by each parent. The VOC Report does not provide an opinion as to what is in a child’s best interests, nor does it report on the ability of willingness of a parent to meet a child’s needs. Rather, it simply reports on what the child’s stated views and preferences are on the disputed issue and comments on whether the professional is of the view that the child’s views are consistent, reliable and independent.
[10] The child is 11 years old. Moving from her father’s home in Bradford, Ontario to her mother’s home in St. Catharines, Ontario is a significant change. It would involve the child not residing with her 16-year-old sibling during the week and it would mean a change in school. It is important that the child’s views and preferences be obtained and that the court have this information. What weight will be given to these expressed views and preferences will depend on the outcome of the VOC Report and will be one factor the court considers in whether it is in the child’s best interests to move their primary residence from their father’s home to their mother’s home.
[11] The mother has put forward four names of potential mental health professionals to conduct the VOC Report. The father does not take issue with any of these professionals.
Issue Two: Do the children reside with their parents pursuant to a shared parenting arrangement?
[12] The father submits that the children reside primarily with him. Since the Final Order was made, the children have resided at the father’s home from Sunday evening to Friday after school. The children reside with the mother every weekend from Friday, after school to Sunday evening. The parties agree the children reside with them on an equal basis during the summer months. Neither party gave clear evidence as to how the children spend their time over the Christmas Holidays, March Break, long weekends, or any other school holidays. The Final Order provides that the children will share their holiday time with the parents.
[13] The mother submits that she will pay child support prospectively to the father in the amount equal to the set-off of what each parent has to pay the other under the tables in the CSG. The father disagrees that the correct quantum of CSG is a set-off of the table amounts. Instead, he argues that the mother owes him child support pursuant to the tables, because there is no shared parenting arrangement. The mother’s 2023 income tax return lists her income at $152,713, which corresponds to table child support of $2,110 a month for two children.
[14] Pursuant to section 9 of the CSG, if the children reside with a parent for not less than 40% of the time over the course of a child, 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.
[15] Section 9(a) is what is commonly referred to as “set-off” child support. However, the formulaic language of set-off found in s.8 of the CSG is not found in s.9. The language of s.9 requires the court to determine child support “by taking into account” the three factors contained therein. This language, and the language of subsection (b) pertaining to increased costs of shared custody and subsection (c), “The conditions, means, needs and other circumstances of each spouse and of any child for whom support is fought”, suggest an individualized, fact-specific approach to each case. Contino v. Leonelli-Contino, para. 45.
[16] I agree with para. 46 set out in Contino, “the straight set-off approach ignores the fact that shared custody may result in overall costs of caring for a child that are greater than the CSG amount that an individual parent would otherwise be obligated to pay. It also ignores the spending patterns of the parties for the child. Had the legislators wished to adopt a set-off approach in s. 9 cases, they would have said so.”
[17] Whether the children reside with the parties pursuant to a shared residency schedule impacts the child support calculations.
[18] The father submits that the children reside with him primarily. He argues that they are in his care for five out of seven days a week during the school year which is 10 months out of the year. He calculates this to be 68% of the time in his care and 32% of the time in the mother’s care. Alternatively, he argues that even if the children reside with the mother for 50% of their summer vacation, this equates to her having the children in her care, at the very most, 39.4% of the time over the whole year. During oral submissions, counsel for the father stated he counted the time the children were in his client’s care by looking at the hours.
[19] The mother disputes the father’s claim that the children are primarily in his care. In the mother’s affidavit sworn on August 16, 2024 she states that the parties have had “equal time with the children” since their separation in 2016. She states that the children were in her care from Friday to Monday morning for the 4 years she lived in Burlington. She also submits that the children were in her care for the entire summer every year with the exception of 1 week, when the father took the children to her parent’s cottage; they were in her care for the entire March Break year; and that during Covid, the children resided with her and not the father.
[20] The reference in s.9 of the CSG to “not less than 40 percent of the time over the course of a year” is why an analysis needs to be undertaken to determine whether the children spend 40% of the time with the mother. “Over the course of a year” is not defined the CSG, nor does the case law support a single interpretation. In some cases, the court look at the hours spend with each parent: Lussier v. Lussier. In other cases, the court calculates the time by overnights spent with a parent.
[21] In Hus v. Hus, the court stated:
5 The onus is on the parent wishing to invoke the operation of s. 9 to demonstrate to the court's satisfaction that a shared custody arrangement as contemplated by s. 9 is in fact in place, and has been, or will be in place over the course of a year. While it is not necessary that there be in all circumstances a written agreement or court order to this effect before the onus can be discharged, the court should, in my opinion, exercise caution before imposing a s. 9 child support regime on what may be a short term informal custody arrangement. 6 In this case, the respondent is prematurely relying on s. 9. A track record has not yet been established. Whether or not he will continue to have access to or physical custody of the children for more than 40 percent of the time over the course of a year is unclear. Accordingly, I am bound to determine child support having regard only to the respondent's income and the applicable table.
[22] Given the conflicted record, it is impossible for the Court to determine whether the children were residing with the parties pursuant to a shared parenting arrangement or whether they were living primarily with the father. The court would need detailed schedules from the parents to see whether the children were living with the mother for all the Christmas holidays, March Break and summer, as she claims, or whether they were sharing their holidays over the course of a year before a determination could be made as to shared custody.
[23] Accordingly, I am not making a determination at this time whether or not the parties have a shared parenting arrangement as defined by s.9 of the CSG. Such a determination can only be made on better evidence, after the Questioning of the parties, or at a trial.
Issue Three: Is there retroactive child support owing by the mother and if so, from what date should this be calculated?
[24] The father argues that the mother owes him retroactive child support to 2017 when she brought her Motion to Change, since it was clear to her that he was claiming child support by his Response to the Motion to Change.
[25] He takes the position that he is owed retroactive child support in the sum of $129,454 for the period of January 1, 2017 to July 31, 2024, based on the following calculations:
| Year | Mother’s Income | Table Child Support for 2 children |
|---|---|---|
| 2017 | $56,099 | $856/mo. = $10,272 |
| 2018 | $57,499 | $876/mo. = $10,512 |
| 2019 | $61,845 | $943/mo. = $11,316 |
| 2020 | $58,199 | $887/mo. = $10,644 |
| 2021 | $104,533 | $1,527/mo. = $18,324 |
| 2022 | $173,439 | $2,358/mo. = $28,296 |
| 2023 | $152,713 | $2,110/mo. = $25,320 |
| 2024 | $152,713 | $2,110/mo. = $14,770 for 1st 7 months |
[26] The record demonstrates that neither party took any steps to advance the Motion to Change between the date of the DRO conference in October 2017 and January 2024. There is insufficient evidence on the record about why no steps were taken by either party over that seven-year period.
[27] It is clear that in February of 2024, counsel for the father wrote to the mother seeking disclosure for child support purposes and that by the very latest, she knew as of February 2024 that child support was being sought by her.
[28] The mother argues that there is no retroactive child support obligation because the Final Order was clear that neither party was to pay child support to the other.
[29] I do not agree with the mother’s position regarding retroactive child support.
[30] Pursuant to s.15.1(1) of the Divorce Act, a court, on the application of either spouse, make an order requiring a spouse to pay for the support of a child of the marriage.
[31] Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation: Michel v. Graydon, 2020 SCC 24, at para. 41.
[32] Parents have an obligation to support their children in a way that is commensurate with the income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order. Further, retroactive support awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances. No child support analysis should ever lose sight of the fact that support is the right of the child. Where one or both parents fail to vigilantly monitor child support payments amounts, the child should not be left to suffer without a remedy: D.B.S. v. S.R.G., 2006 SCC 37, at paras. 5, 54 and 60.
[33] The court must use discretion to determine whether a retroactive award should be given at all, and how far back it should extend. There are four factors to guide the court’s discretion: (a) the recipient’s delay in seeking retroactive support; (b) the payor’s conduct; (c) the child’s circumstances; and (d) hardship entailed by a retroactive award. Where a retroactive award of child support is appropriate, it is suggested that the date of retroactivity should generally be the date of “effective notice”. A caveat to these rules is that the date of the payor’s increase in income may be more appropriate as the effective date of retroactivity. Not disclosing a material change in circumstances, which includes an increase in income that one would expect to alter the amount of child support payable, is blameworthy conduct. The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use her informational advantage to justify her deficient child support payments: Colucci v. Colucci, 2021 SCC 24, at paras. 38, 39 and 40.
[34] A key factor in determining whether a retroactive child support award is appropriate is the payor’s conduct. That factor looks, in large measure to the presence or absence of blameworthy conduct, which is conduct that has “the effect of privileging the payor’s interests over the child’s right to support”. The payor’s subjective intentions are rarely relevant. Two potential forms of blameworthy conduct are a refusal to pay child support when it is merited and a failure to provide income disclosure. The payor’s efforts to disclosure and communicate will often be prominent considerations in assessing the payor’s conduct in the context of an application for support: Colucci, at paras. 101, 102 and 103.
[35] Five months after the father made a request for income disclosure from the mother, she produced copies of her income tax returns for 2017 to 2023, her 2023 Notice of Assessment and proof of her current income, including a copy of her employment contract.
[36] The father’s position is that he has maxed out his two lines of credit to meet the children’s expenses. He deposes that he is desperate for funds to ensure the children’s needs are being met.
[37] In analyzing the four factors, the court is to consider in ordering retroactive child support, at this stage given the evidence on record before me, I find, a. there is nothing on the written record as to why the father delayed in seeking retroactive child support. In answer to a question from the Court, the father’s counsel indicated that his client did not have the financial resources to advance his claim before January 2024. Further evidence is needed to consider this factor properly; b. In terms of the mother’s conduct, it is clear that the parties consented to the Final Order in 2016 that neither of them would pay child support to the other. This is based on the fact that the parties were earning similar incomes at that time. However, over time the mother’s income increased, most significantly starting in 2021. There was no provision in the final Order that the parties would exchange financial disclosure. The father’s argument is that both parties had an obligation to provide each other with financial disclosure but I note that the father did not provide the mother with his annual income disclosure either. c. There is no evidence on the record about the children’s circumstances. For example, the father has not provided the court with evidence that the children suffered as a result of him not being paid child support. He does however, state that he has struggled financially and is in debt because of his inability to meet the needs of the children. d. Similarly, the mother has put forward no evidence on any hardship she would suffer as a result of a retroactive award being made.
[38] The mother’s counsel argued that the parties should schedule Questioning about the issue of the children’s residency and that any retroactive claim for child support should not be made until after that.
[39] Based on the discrepancy in the evidence on record before me, I decline to make an order about retroactive child support at this time. I find that it is clear the mother knew the father was pursuing child support at the latest by February 2024. In terms of whether the mother had effective notice in 2017, there is insufficient evidence on the record for me to make such a determination.
Issue Four: What is the mother’s prospective child support obligation?
[40] As indicated above, I cannot determine whether the parties have or do not have a shared parenting arrangement. In this regard, the mother has not met her onus. As a result, I am obliged under s.3 of the CSG to order the mother to pay child support on a prospective basis on the tables, based on her last known income of $152,713. This amounts to $2,110 a month for the two children of the marriage. This is intended to be a temporary, without prejudice order for child support, until the parties complete Questioning, and can put forward better evidence as to whether the children have a shared parenting arrangement, and retroactive child support can be determined.
Order
[41] This court makes the following temporary order: a. Commencing September 1, 2024, and on the first day of each following month, until further court order or agreement of the parties, the Applicant, Lucille Papaevangelou, shall pay child support for the two children of the marriage, Z., born in 2007 and L. born in 2013, to the Respondent, Billy Papaevangelou, in the sum of $2,110 a month, based on her 2023, annual income of $152,713. This is without prejudice basis to the Applicant arguing that she should be paying less child support because the children are in a shared parenting arrangement. b. The child support payable as set out above, is on a without prejudice basis, to be adjusted either by agreement between the parties, on a temporary or final basis, or by court dealing with the Motions to Change the Final Order. This includes the determination of any historical child support, for the children since the order of July 13, 2016, as the court may consider is appropriate. This also includes the consideration of any amounts paid by the Applicant or Respondent towards s.7 expenses since the order of July 13, 2016. c. If this Motion to Change does not proceed in a timely fashion, the Applicant may return this temporary motion before the Court once the Questioning has completed and six months have passed to determine child support if she can present evidence that the children are in a shared parenting arrangement. d. The divorce shall be severed from the corollary relief sought in this proceeding, such that either party may proceed to obtain a divorce. e. The parties shall retain Gabbi Silverberg to conduct a Voice of the Child Report to determine the views and preferences of the youngest child, L. in terms of whether L. would prefer to reside with the respondent, as L. has been doing since the Final order was made in July 2016, or whether L. would prefer to move and reside with the applicant and attend school in the mother’s catchment area. The cost of the Voice of the Child Report shall be paid by the applicant initially, on a without prejudice basis, to be apportioned at a later date as the parties may agree or as ordered by the Court. f. The parties shall complete the intake form for the Voice of the Child Report required by the Office of the Children’s Lawyer, attached to this Endorsement to be sent to Gabbi Silverberg and any other intake forms that Ms. Silverberg may request. g. The parties shall attend themselves, (by Zoom or in person) as requested by Ms. Silverberg, and make L. available, for interviews and for the purpose of obtaining background information, which background information if requested by Ms. Silverberg will be made available by the parties, or such further or other authority that may receive a request from Ms. Silverberg to provide information (schools etc.). The parties shall attend themselves as requested by Gabbi Silverberg and make L. available for any interviews. h. Ms. Silverberg shall explain to L. that none of the information gathered during the interviews will be kept confidential. i. Ms. Silverberg, may schedule a Zoom session, for information to be given to the parents and their respective counsel if the report maker concludes that would be an appropriate way of reporting to the parties. j. Ms. Silverberg shall submit the report to the court, and send it to the parties, and will make best efforts to have the report available by the end of November 2024. k. Either party, or Ms. Silverberg may seek further directions from the court, which request for directions may be submitted in writing on reasonable notice to the parties and report maker and report maker may also make submissions. l. If either party wishes to have the report maker attend any proceeding as a witness, the report maker may agree to attend, and if so the party requesting the report maker to attend as a witness will pay the cost of the report maker attending, but this is subject to further rulings of the court, which rulings may occur at a Settlement Conference or Trial Management conference, and this Court notes that in this case there is scheduled Combined Settlement Conference/Trial Management Conference for Wednesday, December 18, 2024 at 2 PM in person. (Pursuant to the ruling of Justice Rhinelander of August 6, 2024, the parties shall file opening statements, offer to settle, and a jointly completed TSEF in advance.). m. The parties shall ensure that Questioning of each party is completed by no later than October 31, 2024 on a date or dates to be agreed upon by the parties. Each party shall be questioning for no more than 3 hours. n. The parties are encouraged to agree upon costs of this motion. If they cannot agree, the applicant shall serve and file written costs submissions of no more than 3 pages, not including Bills of Costs or Offers to Settlement within 10 days of the release of this Endorsement. The respondent shall serve and file written submissions in the same length within 7 days of being served with the applicant’s costs submissions. Reply cost submissions shall be no more than 1 page and submitted by the applicant within 5 days of being served with the responding costs submissions. o. An SDO shall issue.
Justice Kraft Date: August 23, 2024