NEWMARKET COURT FILE NO.: FC-23-2009-00
DATE: 20240830
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.S. Applicant
– and –
A.B. Respondent
Catherine M. Hibberd, for the Applicant
Valois P. Ambrosino, for the Respondent Ms. A. Voss, Agent for the Respondent
HEARD: August 28 2024
MACPHERSON J.
Relief Requested
[1] The Applicant filed a motion requesting the temporary relief that follows:
a) an order that the Respondent pay to the Applicant, child support for the three children: L.B. born May 30, 2011, E.B. born February 22, 2013 and H.B. born February 22, 2013;
b) an order that the Respondent pay to the Applicant temporary periodic spousal support in the amount of $359 per month on the first of each month and commencing August 1, 2023;
c) an order that spousal support be indexed pursuant to section 34 of the Family Law Act;
d) an order apportioning section 7 expenses;
e) an order that the Respondent maintain the children as beneficiaries under his extended health, medical and dental plan;
f) an order that the Respondent name the Applicant as beneficiary of his life insurance policy and maintain the policy in good standing until further court order; and
g) costs.
Brief Background Facts
[2] The parties were married July 24, 2010 and separated May 24, 2023. The Applicant and the children left the matrimonial home on July 28, 2023 and they reside, temporarily, with the maternal grandmother.
[3] There are three children of the union namely, L.B. born May 30, 2011, E.B. born February 22, 2013 and H.B. born February 22, 2013.
[4] The Applicant alleges that there was domestic violence throughout the marriage, and she states that on June 18, 2023, the Respondent sexually assaulted her. The Respondent was charged with sexual assault and subsequently charged with breaching his bail conditions by, the Applicant says, harassing her post separation.
[5] The Respondent denies that he was abusive in any way and states that any reports of abuse are false. As there are criminal proceedings going on, the Respondent does not detail the incidents. The Respondent states that he was charged with breach as the Applicant attended his home to collect and drop off the children.
Parenting-time
[6] Commencing July 2023, the Respondent exercised parenting time every second weekend from Friday to Sunday; every Wednesday overnight to Thursday; and every second Thursday overnight to Friday. In November 2023 the Applicant states that the Respondent overheld the children until Monday morning following his weekend parenting time and he continues to do so every second Sunday.
[7] There is no agreement on the parenting schedule.
[8] The Respondent states that he desires a shared parenting arrangement. He states that he was a heavily involved parent in all aspects.
[9] The Applicant states that under the current arrangement the Respondent leaves the children in the care of a friend, Larc, who also assists the Respondent with exchanges. The Respondent denies leaving the children alone with his friend, Larc, who lives with him.
[10] The Office of the Child’s Lawyer has been appointed and their report may prove useful.
Employment
[11] The Applicant is 43 years old and in the final year of a full-time PhD program at York University in Humanities. The Applicant worked as a teacher until 2019 before going on leave to complete her PhD which commenced in September 2019. The Applicant states that she continues to supply teach while completing her PhD and she will pick up some income curriculum writing for TVO. She estimates her 2024 income to be $25,000. In 2023 her income from all sources totaled $42,737. The Applicant states that if she returns to full-time teaching, she will not be able to complete her PhD.
[12] The Respondent states that the Applicant is capable of earning $100,000 per annum by working full time as a teacher. He states that her pursuit of a PhD will not increase her earning capacity and she is simply doing so for her own personal enjoyment. The Respondent states that the Applicant had a job lined up for January 2024 and did not take it. Similarly, she has a job lined up for September 2024.
[13] The Respondent also states that the Applicant has three degrees – Bachelor of Arts, Bachelor of Education and a Master of Education. The Respondent states that while completing her PhD the Applicant receives a grant and income working as a teacher’s assistant. The Respondent states that the Applicant has not disclosed her bank and credit card statements, her receipts for section 7 expenses, her school loans and financial aid and proof of ownership of vehicles.
[14] The Respondent is also teacher. He is employed at the Toronto District School Board earning an income of $103,000 per annum. The Applicant states that the Respondent also owns and operates several businesses. The Applicant states that the Respondent has a security guard business and is involved in investments with other individuals. The Applicant states that the Respondent has not provided details of his earnings, nor has he provided his corporate tax returns nor his business and personal bank statements. The Respondent is silent on his business interests and income.
[15] The Applicant states that when the parties sold the former matrimonial home in 2021 the net sales proceeds of $360,000 were invested in the Respondent’s businesses. There are two outstanding litigation claims with the Respondent’s businesses as Defendants and the plaintiffs are seeking a) $245,865 and b) $3,924,853 respectively.
School
[16] The children have been in private schools during their academic careers. Commencing in 2015, the children were enrolled in the Toronto Waldorf School. The children have always attended Toronto Waldorf School save and except for the 2022/2023 school year when they attended Kindred Spirits Day School, which is also a private school. The children were enrolled in Kindred Spirits Day School for the year the Applicant was employed there, and the children received a significant tuition subsidy. The Toronto Waldorf School tuition for three children during the 2024/2025 academic year is $45,940.
[17] The Respondent states that the Applicant covered the tuition fees associated with private schools since the children commenced their education. The Respondent states that she was able to do so with the financial assistance of her family. The Respondent does not agree with the children being enrolled in private school as the parties cannot afford it.
Support and section 7 expenses
[18] The Applicant states that the Respondent has made no child support payments since separation. The Applicant states that the Respondent has made no contributions to section 7 expenses.
[19] The Applicant states that he is fully responsible for the joint lease on the matrimonial home which is a rental. The rent is $2,510 per month. The Respondent has not disclosed the length of the lease and why he has not secured alternate accommodation one year post separation. The Respondent has not disclosed how much his friend, Larc, contributes to the lease and household expenses as his roommate.
[20] The Respondent states that he pays $30,000 annually for the children’s hockey expenses. He does not address the Applicant’s statements that the children will not play hockey this year.
Analysis
Child Support
[21] The Applicant states that the Respondent should pay guideline child support as he has parenting time less than 40% of the time based on an hour by hour accounting over a year.
[22] The Respondent states that he has a shared parenting arrangement and when the calculation is done counting nights he has just over 40% of the time.
[23] Pursuant to section 9 of the Child Support Guidelines, if each spouse exercises not less than 40% of parenting time with a child over the course of a year the court has discretion to award child support.
40% threshold
[24] The Respondent argues that he has just crossed the threshold if one counts overnights. He currently has 6/14 nights. If one counts hours, the Applicant argues that the Respondent has not crossed the threshold. Neither party provided a detailed chart to assist the court in determining if the threshold was met by utilizing their proposed accounting.
[25] The Respondent has not established, to my satisfaction, that he has achieved the 40% threshold over the past year for the reasons that follow.
[26] Looking back at the past year, and counting by overnights as the Respondent proposes, the Respondent did not achieve the 40% threshold in August 2023, September 2023, October 2023, nor November 2023. At the end of November 2023, the Respondent altered, unilaterally, the arrangement by overholding the children every second Sunday night, retuning them on Monday.
[27] I question the Respondent’s 40% calculation as he includes times when the children are at school. The evidence was clear that the Applicant was the parent that cared for the children when they were sick, during their PA days, and on non-school days. The Applicant is the parent that the school contacts if there are issues.
[28] When one considers that the Applicant is the parent that shoulders parental responsibility during school, the Respondent certainly fails to meet the threshold. The onus is on the Respondent to establish that he has met the 40% threshold and he has not done so.
[29] If the Respondent was able to establish that he met the 40% threshold, I would have ordered full guideline support in any event. Pursuant to section 9 of the Child Support Guidelines, 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 parent or spouses;
b) the increased costs of shared parenting time arrangements; and
c) the conditions, means, needs, and other circumstances of each parent or spouse and of any child for whom support is sought.
[30] It is noteworthy that the three factors are conjunctive.
[31] In Contino v. Contino (2005), 2005 SCC 63, 19 RFL(6th) 272, the Court stated that these three factors structure the exercise of discretion. It is noteworthy that the Court has a broad discretion in conducting the analysis particularly, like here, where the determination is being made on a temporary basis without the benefit of a trial where a deep dive scrutinizing the evidence is achieved.
Applicable Tables
[32] A straight set-off of incomes is not the correct approach, however, it is the starting point.
[33] In determining the set-off, I impute income to the Applicant in the amount of $42,737. The Applicant has only one year left to complete her PhD. The parties, during the marriage, agreed that she would complete her PhD. Completion of her PhD sets a positive example to the children to complete what they start without quitting. The Applicant earned $42,737 last year while completing her PhD. This Court expects that she will be able to earn the same income over the next academic year.
[34] The Respondent earns $103,000 in income as a teacher, and he has alternate sources of income. The Respondent has a security guard business and is involved in investments with other individuals. He is silent on these sources of income. I am not prepared to impute income for these businesses on this interim motion as the evidence is insufficient to do so.
[35] In terms of set off, the Applicant would pay child support in the amount of $852 and the Respondent would pay $1,967. The set-off amount is $1,115.
Increased costs of Shared Parenting
[36] It is noteworthy that there was no evidence presented by the Respondent sufficient to persuade this court that the current parenting arrangement results in increased costs. The court was not directed to any child expense budget. The evidence of the Applicant was that she pays for all of the children’s clothing and incidentals, all of their educational expenses, tuition and school supplies, back packs, lunches, winter clothing, boots, shoes, camping equipment required for school trips, all without contribution from the Respondent. The Respondent does not dispute this characterization offering only a broad stroke statement that he pays for ‘food, clothing and am responsible for other costs’ when the children are in his care. Accordingly, I am not satisfied, on the evidence before me that the current parenting arrangement, if it met the threshold, results in increased costs.
Condition, Needs and Means
[37] There is no standard of living analysis completed as required by Contino. Without this how can the court assess the overall situation? As stated to the parties during submissions, this analysis must be complete when the parties attend trial which is targeting May 2025.
[38] Regardless, based on the evidence before me, the Applicant earns half of the income the Respondent earns. The Applicant has the children in her care significantly more than the Respondent. Both parties claim payment for section 7 expenses.
[39] In terms of standard of living, the Respondent states that the Applicant lives with her mother for free. The Applicant states that she will owe her $1,000 per month in rent. I reject the urge to consider that she currently pays no rent. The Applicant does not desire to reside with her mother. She does so out of necessity and charity. She does so because she cannot afford to do so otherwise. She does so because she has received no support from the Respondent over the past year since separation. She does so on a temporary basis.
Conclusion – child support
[40] On this interim motion I have decided to order full guideline child support based on the Respondent’s income of $103,000, without a reduction under section 9 for the reasons that follow:
a) I am not satisfied that the Respondent has achieved the parenting time 40% threshold determined by calculating it over a year;
b) holistically, the children reside primarily with the Applicant and it is she who pays for the lion’s share of the children’s needs;
c) the Applicant is the parent that shoulders parental responsibility during school;
d) this court will not promote overholding children to achieve the 40% threshold;
e) there is no evidence of increased costs as a result of the parenting arrangement;
f) in conducting a comparison of the needs and means of each parent, based on the limited evidence available, the Applicant has the greater need and bears the majority of the children’s costs;
g) the Respondent has not provided disclosure of all of his income; and
h) this is a temporary order subject to adjustment following trial.
[41] For all of the reasons, aforementioned, commencing August 1, 2023 and on the first of every month thereafter, the Respondent shall pay guideline child support to the Applicant in the amount of $1,967 based on an income of $103,000.
Spousal Support
[42] While the Applicant may have a non-compensatory spousal support entitlement, there is, with the Respondent paying full guideline child support, insufficient funds to pay spousal support. Pursuant to the Spousal Support Guidelines, with the Applicant imputed an income of $42,737 and the Respondent an income of $103,000, the low, medium and high ranges of spousal support are zero.
School
[43] As stated, the children have always been in private school. Commencing in 2015, the children were enrolled at the Toronto Waldorf School. For the 2022/2023 school year, the children attended a private school, Kindred Spirits Day School. The Applicant was able to achieve a significant subsidy from Kindred Spirits Day School as she worked there last year.
[44] The Applicant desires for the children to return to Toronto Waldorf School. The Respondent opposes the idea preferring that they be enrolled in public school.
[45] I have struggled with this issue.
[46] The children reside with the Applicant most of the time. The parties live 30 minutes from each other. The Respondent resides in Thornhill and the Applicant in Nobleton. Accordingly, it is in the best interests of the children, if they are to be enrolled in public school, to do so in the Applicant’s catchment area and that is the public school in Nobleton. However, the Applicant is only temporarily residing with her mother in Nobleton. If I do not approve of the children being enrolled in Toronto Waldorf School, it is very likely they will have to change schools four times in four years:
2022/2023 - Toronto Waldorf School 2023/2024 - Kindred Spirits Day School 2024/2025 - Nobleton Public School; and 2025/2026 - unknown.
As teachers these parents must appreciate how challenging this will be for the children.
[47] The Respondent, before separation, was in support of the children attending the Toronto Waldorf School. However, the cost of that school was born by the Applicant’s extended family.
[48] The cost of the Toronto Waldorf School, after the subsidy, is just over $45,000 per year for the three children. This is not a reasonable and necessary expense given the parties incomes. Sadly, the children shall be enrolled in Nobleton Public School in the catchment area of the Applicant. If the Applicant, however, is able to obtain funding from her family, as was historical, that would permit the children to attend Toronto Waldorf School this would be in their best interests.
ORDER
This is a temporary Order.
This Order is made pursuant to the Divorce Act.
The Applicant and the Respondent shall name the party opposite as beneficiary, in trust for the children, of any life insurance policy available through their employment.
The Applicant and the Respondent shall maintain the children on any medical and dental benefit plan available through their employment.
Commencing August 1, 2023, and on the first of every month thereafter, the Respondent shall pay guideline child support to the Applicant for the three children in the amount of $1,967 based on an annual income of $103,000.
The parties shall share all reasonable and necessary section 7 expenses apportioned as follows: Applicant 33% Respondent 67%.
SDO to issue.
The children shall be enrolled in Nobleton Public School. If the Applicant’s extended family is willing to continue to provide private school funding, the children shall be enrolled in Toronto Waldorf School.
If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Applicant shall serve written submissions on the Respondent and file them electronically, through the Trial Coordinator, within 20 days of this decision being released. The Respondent shall serve written submissions on the Applicant and file them electronically, through the Trial Coordinator, within 10 days of receipt of the Applicant’s submissions. Submissions shall be limited to three pages exclusive of the Bill of Costs and Offers to Settle. There shall be no right of Reply.
Justice G.A. MacPherson
Released: August 30, 2024.