Botting v. Arbogast, 2011 ONCJ 815

Brantford Registry No. F131/05T DATE: 2011·XII·09 CITATION: Botting v. Arbogast , 2011 ONCJ 815 ONTARIO COURT OF JUSTICE BETWEEN: MATTHEW DAVID BOTTING, Applicant — AND — JO-ANNA HELGA MAY ARBOGAST, Respondent Before Justice Lawrence P. Thibideau Trial heard on 19 and 22 September 2011 Reasons for Judgment released on 9 December 2011 Paul Vandervet ............................................................................ counsel for the applicant father Lisa A. DeLong ..................................................................... counsel for the respondent mother [ 1 ] JUSTICE L.P.

THIBIDEAU:— By a motion to change dated the 18th of March 2010, the respondent mother requested changes to the order of Justice Gethin B. Edward dated 3rd November 2005 as follows: (

a) a more restrictive access regime for the applicant father (

b) guideline support in accord with the income of father going back to the year 2006 (

c) expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, related to activities, karate, swimming lessons, Mad Science and summer camp, along with a subsequent request for medical expense contribution. In his response to change, the applicant father sought: (

a) less than guideline support to be paid (

b) shared custody regime (

c) any change in guideline support to commence as of May 1st 2010 (

d) increased time with the child (

e) payment of arrears, if any, on a

schedule set by the court. [ 2 ] The parties have one biological child together, Tristian Ethan Botting, born the 9th of August 2010, who by the order of November 3rd, 2005 was placed in custody of the respondent mother. The order was arrived at pursuant to minutes of settlement filed. 1: CUSTODY ISSUES [ 3 ] The order of 3rd November 2005 was in fact the status quo at the time of trial except that father’s Tuesday access was changed to Wednesday alternative week access by agreement because of the father’s work responsibilities. Mother resides in Brantford and has done so since separation.

Father has resided in a number of residences since separation — Mt. Hope, Hamilton and Stoney Creek, Ontario, the last being for some two and a half years. With respect to the custody-access issues, the following represent positions of the parents. Each parent puts the position that they have a better plan for the care of this child, who is now 11 years of age. Specifically each focuses on the educational needs of this child who is particularly deficient in learning ability with respect to writing and reading in particular.

Father believes that mother has ignored the learning issues and has focused unnecessarily on extracurricular activities taking away from educational needs. Mother puts the position that the status quo represents the best plan for this child, paying attention to academic needs but also focusing on socialization by way of extracurricular activities in order to build confidence and skills. [ 4 ] The unfortunate result is that both parents have implemented non-co-ordinated separate plans for upgrading academic skills.

Primarily, mother works within the school system advocating and obtaining for her son an individual education plan that has been in place for over two years. In addition, Tristian has been engaged with Lansdowne Children’s Centre primarily through mother’s engagement, since early 2006. [ 5 ] On the other hand father has engaged independent tutoring in Stoney Creek Ontario, which takes place on one day of each of the weekends the child is with father in Stoney Creek.

Father wishes to increase the tutoring and move the child to a Stoney Creek school within father’s residence catchment area focusing on the academic issues.

[ 6 ] Father’s view that mother does not pay sufficient attention to the academic issues and learning issues for Tristian is not borne out in fact. It is clear from the material filed, both from the Grand Erie School Board and Coronation School as well as Lansdowne Children’s Centre in Brantford, mother has recognized the issues and made a concerted effort to address them.

In fact, it is clear that, while Tristian’s progress in school is not ideal, there has been a gradual improvement in his functioning, particularly with respect to reading and writing over the period of time that he has been involved with his individual education plan and the remedial program at Lansdowne. This is not to say that father’s enrolment of Tristian in a tutoring program is incidental or superfluous. It is not.

However, it is incorrect to characterize mother as either uninterested or ineffective. [ 7 ] It is also clear from the material that an underlying factor with respect to Tristian’s difficulties is his lack of confidence, problematic attention skills and fine motor co-ordination in the upper body. Both parents are to be commended for their concern for and intervention with respect to the academic issues. Mother has a more rounded approach to the various difficulties that Tristian is experiencing as he develops at school and in the community.

The amount of time that mother has Tristian involved with karate, swimming and summer camp is not excessive considering his circumstances. Being involved in learning to swim and being involved in a disciplined martial art, such as karate, appears to conform to this child’s psychological and physical needs. Father’s concern that karate may result in an aggressive child is reasonable in theory, but is not applicable to Tristian who demonstrates introvert traits with lack of self confidence.

Such a discipline may be quite beneficial to the diagnosed upper extremity motor coordination difficulties that Tristian has. [ 8 ] In mother’s care Tristian’s attendance at school is at least average and his late to school record is exemplary. Homework completion is also noted as excellent. Virtually all school attendances are from mother’s home, not fathers. [ 9 ] Father is concerned that the Lansdowne program focuses too much on computer and typing skills to the detriment of development of better writing skills. Thus, his engagement of a tutor independent of any program in Brantford.

This is not an accurate assessment of the Lansdowne program. In the Lansdowne Children’s Centre occupational therapy update report of November 16, 2009, it was made clear that Lansdowne would focus on the keyboard computer skills functioning, but it was important that at school he continued to be accommodated with respect to written output needs along with recommendations with how those needs could be met in the school.

Between Lansdowne and the school system, there is a two-pronged approach to the motor skills development issue that has been a concern since senior kindergarten. [ 10 ] Both parents were concerned about the amount of travel time the child experiences travelling between Brantford and Stoney Creek. A one-way trip is approximately 35 minutes on average. Father’s solution is to have the child reside primarily with him, in residence with mother on weekends.

Mother’s solution is to maintain the status quo and to accommodate father by adding to weekend access and taking away any midweek access to lessen interference with school programs and extracurricular activities. The alternative position of father is to have longer midweek access to increase his time with the child.

However, this would have the obvious complication of travel back to Brantford in order to have the child attend school. [ 11 ] On balance, mother’s plan is more acceptable than father’s for the following reasons. [ 12 ] Mother’s plan represents a status quo that was originally agreed to by the parents six years ago. The child has specific assessed educational deficiencies that are not the result of parenting of either father or mother.

Mother has consistently addressed his issues in a holistic way, being an effective advocate for her son in the educational system, obtaining community service provider assistance through Lansdowne and engaging Tristian in the community in activities compatible with his abilities and needs. Father’s approach, as he explained it in court, would result in an almost constant emphasis on a daily basis on academic skills in a narrowly focused way. [ 13 ] It is also not in the best interests of this child to have a co-parenting regime by way of joint custody.

A contest between parents that risks overloading this child with remedial programs is to be avoided. One parent must have final say with respect to what involvement this child will have with remedial programs. Continuation of sole custody is also indicated by the fact that father has not demonstrated any real substantial change in circumstance warranting a change in custody.

Subjectively, he may feel he has the better plan, but objective overview demonstrates that mother’s broader focus is more appropriate for Tristian. [ 14 ] Father asserts that mother should not have primary residence and custody of the child because of prior involvement with the children’s aid society and at least one police occurrence with respect to domestic violence.

More specifically, father takes the position that these are serious questions that should be addressed and considered when determining primary residence of the child and the child’s best interests. [ 15 ] The uncontroverted evidence at trial was that there was children’s aid society involvement in 2004 and a brief involvement after the custody order of the 3rd November 2005. Mother asserts, and it is not contradicted, that society involvement terminated in 2006. There was a police occurrence approximately two years ago with respect to a dispute between mother and her long- term partner of some seven years.

That did not lead to criminal charges and was resolved with the assistance of counselling. It is noteworthy that none of this history was sufficient cause for concern to father to commence his own court action to seek the relief he now seeks. His case and claims for relief were only put to the court after mother had commenced her motion to change on the 18th of March 2010.

There is no evidence from any independent source that any of this history, such as it is, has had any detrimental effect on Tristian. [ 16 ] Finally, mother’s care program involves a continuation of the heavy involvement that the maternal grandmother has had in the care of the child before separation. She continues to be the primary alternate care provider for Tristian when mother is working. Father’s plan would have his new spouse take over that role.

There is no demonstrated reason for a break from the old care pattern. [ 17 ] As Tristian gets older and his school work becomes more difficult, the greater concern is to accommodate his academic shortcomings. The during-the-week access for father will become increasingly problematic for that reason alone. However, there is no reason to shorten the time that Tristian spends with his father on an ongoing basis. The solution is to maintain the same involvement with father but to take into account the effect that midweek access will continue to have on Tristian’s schooling. The solution is to delete

the midweek access entirely. The accommodation would be to give to father increased weekend access in odd-numbered months of the year (January, March, May, etcetera ) of each year for the first three consecutive full weekends of each such month. To make this adjustment for every month of the year would impair Tristian’s involvement with his extracurricular activities which are appropriate for him for the reasons indicated. This commences immediately. 2: CHILD SUPPORT 2.1: Guideline Child Support [ 18 ] Mother provided formal notice to change guideline child support on the 18th of March 2010.

However, it is clear mother sought an increase in support from father before that time. For instance, there was a four-way meeting in June of 2009. There was a discussion in June of 2008 between the parents where father acknowledged guideline support should be increased but wanted to negotiate a comprehensive package. It is clear that the order of 3rd November 2005 intended that there be a re-assessment of guideline child support yearly based upon any change of income of father.

The order required father to give notice of change of employment and to provide financial information about the previous year by the first of June of each commencing in 2006. There is no evidence before the court that there was some arrangement or agreement, tacit or expressed, that mother was to forego any increase in child support to which she was entitled. [ 19 ] At the time of the agreement, father’s income was approximately $50,000 and mother’s income was approximately $47,000. In the years 2007-2010, mother’s income hovered slightly less than what she was earning at the time the agreement was signed.

Father’s income, except for the year 2009 as a result of a strike at his place of employment, had increased substantially from 2008 to 2010, to the $70,000 a year mark. However, again because of labour issues, his 2011 estimated income is approximately $35,400. Mother seeks a change in guideline support as of January 1st 2007. Father takes the position that any retroactive support order should take effect only as of January 1st, 2009, as a result of the four-way meeting in June of 2009. [ 20 ] Father has not put forward an “undue hardship” argument in accordance with the child support guidelines.

He does now have another child with his current spouse. Mother does not explain why she did not request in a timely manner an increase in child support; she received the court-ordered income information from father on a timely annual basis. There is no explanation given for mother’s delay in seeking an increase in guideline support, it is not asserted that anything said or done by the payor father contributed to the delay. He asserts that the first time that she sought an increase was in April of 2009 when she retained a lawyer in order to pursue a change in child support.

It is obvious there must have been correspondence between lawyers before the meeting that took place in June of 2009 in order to set it up. Informal discussions occurred in 2008. The amount of child support ordered to be paid was $400 a month and that sum was paid in accordance with the order from the commencement date of the 1st of November 2005. It is not a nominal sum. [ 21 ] The scheme for adjusting guideline child support set out in the order, agreed to by the parties, was that the previous year’s income would result in a change of support on the 1st of June of each year following the income earning year.

This should continue to be followed so that there is continuity now and in the future. Negotiations commenced after June 1st, 2008.

In all of these circumstances, the appropriate date for commencement of changed guideline support is June 1, 2008. [ 22 ] Father’s income is as follows: 2007 $65,267 2008 $73,920 2009 $59,203 2010 $70,943 2011 $35,400 (estimated) [ 23 ] Paragraph 4 of the order of the 3rd of November 2005 with respect to guideline child support is deleted and the following substituted therefore: The applicant father shall pay to the respondent mother guideline child support for one child as follows: (

a) For the year 2008, the sum of $604 a month commencing June 1st ’08 terminating May 1st ’09. Based upon the father’s 2007 income of $65,267; (

b) For the year 2009, the sum of $672 a month commencing June 1st ’09, terminating May 1st ’10. Based upon the father’s 2008 income of $73,920; (

c) For the year 2010, the sum of $550 a month commencing June 1st ’10, terminating May 1st ’11. Based upon the father’s 2009 income of $59,203; (

d) For the year 2011, the sum of $654 a month commencing June 1st ’11, terminating May 1st ’12.

Based upon the father’s 2010 income of $70,943. [ 24 ] The amount of guideline child support payable shall be reviewed and changed on June 1st of each year commencing in the year 2012 based upon the annual income of the payor father in the previous year. [ 25 ] All arrears of guideline support created by the order of the 3rd of November 2005 or this order amending such order shall be paid by the application father to the respondent mother at that rate of $200 a month commencing on the 1st day of January 2012 and terminating on the 1st day of May 2012 and thereafter at the rate of $300 a month until fully paid. 2.2:

Section 7 Expenses [ 26 ] Mother claims

section 7 extraordinary expenses for the years 2009 to present with respect to ongoing expenses for involvement in karate, swimming lessons, day camp during the summer for one week and a science enrichment program after school.

Karate expense recurs monthly. The others are less expensive. In addition, mother claims for prescription drugs and dental care not covered by insurance benefits for 2010 and 2011. [ 27 ] In generic situations, the swimming lessons and the karate might be considered not extraordinary, covered by the substantial monthly child support payments being made. However, it is clear from the evidence at trial and acknowledged by both parents that Tristian suffers from lack of confidence, significant fine motor skill impairment and a need to develop self discipline. In the particular circumstances of this child, all of the items for extracurricular activities requested by mother are

section 7 extraordinary expenses focusing on this child’s ongoing needs. The prescription drug and dental care costs are obviously

section 7 expenses without further comment. Considering the combined incomes of the parents none of the

section 7 expenses claimed by mother are excessive. Despite the fact there has been little consultation or negotiation between parents historically, those expenses are also reasonably necessary. [ 28 ] The father’s position that he was willing to pay for expenses, provided there was consultation and consent, is disingenuous. He paid nothing with respect to obvious

section 7 expenses as requested, prescription drugs and dental care. The after- school enrichment program, for a child having great difficulty in school, was of minimal cost and was not contributed to by father. Father used the same argument with respect to the obvious requirement that he increase his guideline support payments in accordance with his income from at least the middle of 2009 to present and has not done so.

That track record makes it entirely understandable that mother proceeded on her own for reasonable activity involvement for the child to meet his needs. [ 29 ] Conversely, father began a program of tutoring without involvement of mother even though she had sole custody of the child, keeping in mind that father does not claim reimbursement of the cost of tutoring from mother in this action. [ 30 ] Father’s income has already been determined by the court in accordance with paragraph 22 herein.

Mother’s income for the relevant time period is as follows: 2009 $46,360 2010 $46,482 2011 $46,500 (estimated) [ 31 ] Notionally, based upon their respective incomes father is responsible for 56 percent of the 2009

section 7 expenses paid by mother, 60 percent of the 2010 expenses and 43 percent of the actual and projected 2011 expenses, with incomes calculated for the actual year the expense was incurred. There would be a shift in the ratio of expenses to be paid by mother and father if the

section 7 expenses were calculated on a percentage basis for a fiscal year in keeping with the calculation of guideline support — June 1st of each calendar year to May 31st of each calendar year. [ 32 ] Father also has the expense with respect to transportation of the child to and from his residence in Stoney Creek from mother’s residence in Brantford. Father has a track record of paying independently for the tutoring that takes place while Tristian is in his home. [ 33 ] Based upon the foregoing considerations, the percentage that each parent should pay with respect to the

section 7 extraordinary expenses incurred by mother from January 1st 2009 to May 31st, 2012 should be 50 percent. Thereafter the percentage would follow the ratio of the respective incomes of the parents for the year preceding, commencing with an adjustment on June 1st 2012 based upon the ratios for incomes earned in the year 2011. [ 34 ] The proper amounts for the

section 7 expenses to be shared are as follows: 2009 Karate $189.00 Swimming lessons $60.00 Day camp for one week $28500 Mad Science program $89.00 TOTAL $623.00 2010 Karate $856.00 Swimming lessons $120.00 Day camp for one week $299.00 Mad Science program $98.00 Prescriptions $115.69 Dental care $90.04 TOTAL $1,578.73 2011 Karate $781.00 Day camp for one week $299.00 Mad Science program $98.00 Prescriptions $149.76 Dental care $118.52 TOTAL $1,446.28 and any other prescriptions and dental care costs to December 31st, 2011 for which mother provides father with receipts for expense. [ 35 ] The total amount owing as of the date of this order payable by father to mother is 50 percent of $3,648.01, or $1,824.01. [ 36 ] In determining whether or not the amount owing for

section 7 expenses should be ordered to be paid over time, like guideline support arrears, the following is relevant. Father’s financial statement shows some discretionary spending. Mother has taken

out a loan, repayable with interest, to cover child expenses not paid. The amount owing for

section 7 expenses will be paid on a forthwith basis. [ 37 ] In future, neither parent may add to any activity cost or other cost that would add to

section 7 expenses to be shared between the parents without notifying the other parent of the nature of the activity and the cost of the activity, and obtaining consent for such activity and cost before making a

section 7 claim, consent not to be unreasonably withheld. The existing expenses for existing activities as set out in this order are exempt from this requirement. [ 38 ] Support deduction order to issue. [ 39 ] Order to go in accord with the terms of this judgment. Either party is at liberty to make submissions in writing with respect to costs within 14 days of the date of this judgment. Dated at Brantford, Ontario This 9th day of December, 2011 Justice Lawrence P. Thibideau