Tapsell v. Vyse, 2015 ONCJ 572

File No: 291/05 Citation: Tapsell v. Vyse , 2015 ONCJ 572 ENDORSEMENT Applicant (Moving Party): Tammy Lynn Tapsell Respondent: Timothy Brian Vyse Date: September 28, 2015 ________________________________________________________________ The matter before the court today for trial is the Applicant’s motion to change an order of this court dated May 25, 2007 respecting table support for Dalton Timothy Vyse, February 28, 1995. Both Ms. Tapsell and Mr. Vyse represented themselves in this motion. By way of background, the parties separated in 2005. Issues between them were immediately brought before the court.

They settled the originating application on May 25, 2007 wherein the parties had joint custody but Dalton’s permanent residence was with the Respondent. Table support was fixed at $341 monthly payable by the Applicant to the Respondent. Their custody/access agreement lasted only a year after which they were back before the court and have been almost annually since. The 2008 motion to change clearly showed this was a “high conflict file”. There is not much difference today. The factual details behind the Applicant’s motion are fairly straightforward.

It was determined in 2007 that Dalton’s relationship with his father was stronger than with his mother. In the result, he primarily resided with the Respondent. However, their relationship became strained over the years for any number of reasons – not the least of which was his father’s rigid attitude. They had a falling-out early in 2011 as a result of which Dalton came to stay with his mother. He remained between February 1 st and August 31 st , 2011. At that time, he only brought his clothes with him. He left the rest of his personal possessions at the father’s residence.

The mother’s residence was only a one bedroom apartment. Dalton became dismayed with the fact he did not have a room of his own and moved back to his father’s. There was another falling-out in March of 2012 as a result of which Dalton returned to his mother’s between April 1 st and July 31 st , 2012. He was still dismayed he did not have his own room and moved back early in August of 2012. On this occasion, Dalton only brought his clothes, nothing else. It is clear that even though he returned to live with his father on these two occasions, their relationship had not improved.

Shortly after he moved out of his mother’s apartment in 2012, she told him she would purchase accommodations that would allow him his independent personal space. In late September of 2012, Dalton told his mother he would move into her residence permanently. On October 2, 2012, his mother helped him move all of his personal possessions from his father’s to her residence. As a result of Dalton’s several moves, the Applicant asked the court to make changes to her support obligation. On September 14, 2012, she secured an order suspending her support obligation in the months Dalton resided with her in 2011 and 2012.

On April 25, 2013, the Applicant issued the motion to change at issue today. She asked that her support obligation be terminated for the months in 2011 and 2012 that Dalton stayed with her and asked that the Respondent pay her table support for those same months. She asked that her support obligation be terminated permanently as at October 1, 2012 and that the Respondent pay support thereafter. The Respondent answered alleging Dalton was still his “charge” for the two time periods in 2011 and 2012; and, he asks for a finding that Dalton withdrew from parental control as at October 1, 2012.

As to Dalton personally between 2011 and presently, he was a student at Central Elgin Collegiate until January of 2013 when hetransferred into a specialized program at Fanshawe Community College where he would secure the balance of his high school credits anda few Community College credits. He graduated from that program in January of 2014 with his high school certificate and two Collegecredits. Dalton experienced behavioral issues while at Central Elgin.

On the evidence I heard, all were related to the deterioration of hisrelationship with his father; notwithstanding the Respondent’s protests to the contrary and his efforts to blame his son. Following his graduation, the Applicant acknowledges Dalton presented as lazy and had to be pushed toward deciding whether to goback to College or find work. Dalton chose to look for work. In May of 2014, he was hired by a “temp agency” but let go in May of 2014for not showing up to work on time.

He then went to work at a local grocery store full time until February of 2015 when he returned tothe temp agency where he remains to date.

Obligation to Support The obligation to support a child flows from s. 31(1) of the Family Law Act, S.O. 2009, c. 11 which reads as follows: “Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program ofeducation, to the extent that the parent is capable of doing.” The obligation to support is based on a child’s dependency; however, parents are given a statutory defence to the obligation to supportunder s. 31(2) which reads: “The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parentalcontrol.” A child’s “minority” ends at his attaining the age of 18.

The rationale for a different age in subsection 31(2) is that at the age of 16,children are afforded greater freedom due to personal rights under different Provincial statutes and may no longer be entitled toprotection under child welfare legislation. In the broader circumstances of this case, Dalton’s statutory right to support ended on February 1, 2014 – the first day of the monthfollowing graduation.

Dalton does not fit the definition of an adult child who continues to be entitled to support due to an inability towithdraw from parental control as he is physically capable of working and he is not attending post-secondary schooling. As to who is obligated to pay to support Dalton during his minority or while at school, I am of the view the Applicant’s sole obligationcontinued from the 2007 order to September 30, 2012.

In the two time periods in 2011 and 2012, Dalton never exhibited a clear intent to completely remove himself from his father’s charge.That is evidenced by his decision to only bring his clothing and his unwillingness to commit to remain with his mother if she spent themoney needed to obtain a larger residence. In the result, I am of the view the Respondent had no obligation to pay support in those two periods. It is also clear that the Applicant’sobligation to pay table support continued even as Dalton resided with her.

However, there are issues of fairness respecting her obligationin these two time periods that will be addressed below. As to the Respondent’s claim that Dalton withdrew from parental control, it is clear in my mind that his claim cannot succeed. The primary reason is that to succeed, Dalton must choose to withdraw from the control of both parents. Further, as the cases direct, theevidence must show a child’s rejection of both physical and financial dependency in favour of independency. A decision to livesomewhere other than under either parent’s roof is not enough on its own: Martin v.

Taylor, 2008 CarswellOnt 595. The choice ofphysical and financial independency should be clear: Fugueiredo v. Fugueiredo, (ON SC), 33 R.F.L. (3d) 72. It is clear Dalton made neither of the choices described above and in the result, the Respondent’s cross-motion seeking a finding ofwithdrawal from parental control is dismissed. To be clear, the Applicant’s obligation to pay support continued to and including September 30, 2012 and the Respondent never becameobligated to pay in that same time period.

However, I do not intend to set aside the suspension of the Applicant’s support obligation ordered on September 14, 2012. The fact that Dalton chose to leave one home for the other is the by-product of the high level of conflict between the parties over theyears. Both are equally at fault and one should not be required to solely bear the cost of the child’s decisions. Both parents incurred a cost each time Dalton decided to change residence. The Respondent’s was to maintain a place for him if he choseto return; the Applicant’s was to feed him.

When I consider the meager financial evidence before me, the costs to both parents appear tooffset. Further, considering the clean hands rule, it would be wholly unfair to lift the suspension and create a debt owing by the Applicantto the Respondent. Even the Respondent does not dispute that as at October 1, 2012, Dalton chose to permanently leave his father’s residence and move inwith his mother. In so doing, his dependency transferred from the father to mother.

In the result, it is clear that the Applicant’s May, 2007 support obligation must terminate as at September 30, 2012 and the Respondent’snew obligation commence as at October 1, 2012. The only form of support sought is table support. The question is at what monthly amount? The Respondent, after several orders, finally disclosed his income for 2011, 2012 and 2013. At the Trial Management Conference heldon May 9 and May 23, 2014, the Respondent was ordered to serve and file proof of 2014 income to date together with his most recentpay stub. A hearing date was set but later cancelled by both parties.

A new date was not agreed to until August of 2015. The Respondent did not file anything identifying his 2014 income. He did not file a pay stub. He attended trial today without any proofof his 2015 income to date or his 2014 income. In his evidence, he claimed to have no recollection what his income was in 2014 or whathe made weekly at his present job. The Respondent has changed jobs frequently.

He made $44,000.00 at an automotive plant in 2011; $12, 400.00 in 2012 where thereduction was caused by a back injury but he did not disclose disability income received; $32,830.00 in 2013 at a different job than hehad in 2012. All he could (or would) tell me, after being pressured by me, is that he is manager of operations with his present employer and that he ispaid $28.24 per hour and works a 40 hour week. This is enough to allow me to fix his monthly obligation. If his hourly wage is multiplied by 40 hours and then by 52 weeks in the year, Ifind he grosses $58, 740.00 annually.

The Applicant seeks costs based on her lost time at work over four court attendances. To receive costs, a lay litigant must demonstratethat he or she devoted time and effort to do the work ordinarily done by lawyer and that as a result, he or she incurred an opportunity costby foregoing remunerative activity: Mustang Investigations v. Ironside, 2010 ONSC 3444 , 103 O.R. (3d) 633 Ont. Div. Ct. The Applicant has not met that onus. She is, however, entitled to out of pocket expenses without additional explanation. Order For the reasons set out above, a final order shall issue as follows: 1.

The suspension order dated September 14, 2012 for the periods February 1, 2011 to August 31, 2011 and April 1, 2012 to July 31,2012 is continued indefinitely. 2. The Applicant’s support obligation described in the May 25, 2007 order is terminated effective as at September 30, 2012. 3. Commencing October 1, 2012, and on the first day of each month thereafter, the Respondent shall pay to the Applicant for the tablesupport for one child the monthly sum of $527.00 based on the Respondent’s annual income of $58.740.00. 4.

The Respondent’s obligation to pay support hereunder shall terminate effective as at January 31, 2014. 5. The Respondent shall pay to the Applicant her out of pocket expenses of $220.00, payable forthwith. 6. A Support Deduction Order shall issue. ________________________________ Justice M.P. O’Dea