Penney v. Gould, 2011 ONCJ 84

Dryden Registry No. FO-01-000064-03 DATE: 2011·II·22 CITATION: Penney v. Gould , 2011 ONCJ 84 ONTARIO COURT OF JUSTICE BETWEEN: LAIRD DANIEL PENNEY, Applicant, — AND — CONNIE MARIE GOULD, Respondent. Before Justice Peter T. Bishop Heard on 7 February 2011 Reasons for Judgment released on 22 February 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended]. Family Law Act , R.S.O. 1990, c. F-3 [as amended], clause 34(1) ( e ).

Applicant, Laird Daniel Penney ............................................................................ on his own behalf Respondent, Connie Marie Gould ......................................................................... on her own behalf [ 1 ] JUSTICE P.T. BISHOP:— This matter comes before me by way of a motion to change the order of Madam Justice A.

Catherine Everett of the Manitoba Queen’s Bench, Family Division, dated 24 August 2010. 1: BACKGROUND [ 2 ] The applicant (father) and the respondent (mother) are the parents of two children, Kreigan Elizabeth Penney (date of birth, 3 April 1992) and Shelby Marie Penney (date of birth, 16 November 1993). [ 3 ] The parties entered into a separation agreement dated 12 April 1999 with the relevant paragraphs being as follows: 2.

Custody and Access The parties shall have joint custody of the children of the marriage, namely Kreigan Elizabeth Penney, born April 3, 1992, and Shelby Marie Penney, born on November 16, 1993, with the primary residence and day-to-day care of the children to be with the mother. The parties agree that Scott McKean, born on January 12, 1982, and Ashley Victoria McKean, born on June 1, 1983, are not children of the marriage for purposes of the Divorce Act and the parties further agree that the husband has not stood in loco parentis to these two individuals.

The husband shall have access to the children as follows: (

i) Christmas — commencing in 1999, the wife shall have access to the children from December 21, 1999 to January 2, 2000 and in alternating years thereafter. In the event that both parties are in the same community or close geographically, they shall share the Christmas period with the Christmas Eve, Christmas Day period being with the primary parent.

(ii) Easter — from Thursday before Good Friday until Easter Monday to commence 2000 and to continue alternating years thereafter. (iii) March break — if the husband and wife are living in the same community from Wednesday of March break until Sunday of March break. If the husband and wife are living in separate communities more then 100 km, apart, alternating March breaks from the first Saturday until Sunday of March break. (iv) Labour Day and Thanksgiving Day — from the Friday night of each holiday weekend until Monday to commence 1999 and to continue alternating years thereafter. (

v) Summer holidays — regular visiting

schedule plus one full week of holidays between June 1st and the beginning of school, which may include the Labour Day weekend visit. (vi) General access — alternating weekends and in the week which is not a weekend visit for the husband, he shall have two evening visits with the children on Wednesday and Thursday evening. (vii) In the event that the wife fails to provide the children for access as set out in this schedule, the husband shall be entitled to compensatory access for the period of time missed. (viii) The parties agree that either party will notify the other forty eight hours in advance of any cancellation of access. 3.

Support The husband shall pay to the wife for the support of the children Kreigan Elizabeth Penney, born on April 3, 1992, and Shelby Marie Penney, born on November 16, 1993, the sum of $446.00 per month commencing on May 1, 1999 and payable on the 1st day of each month thereafter. The income of the husband is $26,470.00. The husband shall pay this amount until one of the following events occurs: (

i) the child ceases to reside with the wife; (ii) the child becomes 19 years of age and ceases to be in full-time attendance at an educational institution (iii) the child ceases to be dependant as defined under the Family Law Act ; (iv) the child marries; (

v) the child dies. The husband shall pay support to the wife in the sum of $76.00 per month for a further period of one year from the date of the signing of this agreement. At the end of one year, this support payment will terminate. The parties agree that no event, no matter how catastrophic, unexpected or difficult, will allow an application to be made to continue or increase this support. The wife waives and forever releases any interest she has in spousal support as of the termination date of this agreement.

The parties agree that the wife shall withdraw the enforcement of support from the Family Responsibility Office and that the husband shall ensure regular delivery of the bi-monthly cheques. To assist in recognition of changes to support, each party shall provide to the other a copy of their income tax return by June 1st of each year. In addition, the wife shall be entitled to review the personal pilot’s log of the husband to calculate hours that he has worked.

This review shall occur on thirty days notice. [ 4 ] The child, Shelby Marie Penney (Shelby), left the care of the mother on or about 1 July 2010 and moved to Winnipeg, Manitoba to live with her father. [ 5 ] The child Kreigan Elizabeth Penney (Kreigan) remained in the care of the mother. [ 6 ] In September of 2010, Shelby wished to continue her schooling in Dryden, Ontario and moved in with Diane and Normand Bergeron with the consent of the father over the objections of the mother. [ 7 ] The father brought a variation application in the Court of Queen’s Bench, Manitoba, which resulted in his being ordered to pay $1,003.00 per month in child support to the mother on an income of $72,114.00 per annum.

The request for change in custody and variation of support was abandoned as the child Shelby returned to Dryden, Ontario to complete her schooling. [ 8 ] The father commenced this court application to change custody and to regularize child support for Shelby to ensure that she receives the benefit of his child support payments and to apportion support obligation with her mother. [ 9 ] The father’s annual income is $72,114.00 and the mother’s is $22,200.00. 2: ISSUES [ 10 ] Who should be the recipient of the child support payable from the father — either the Bergerons or the child Shelby? [ 11 ] Should the mother repay the father or the Bergerons for child support paid by the father and retained by the mother but not used for the child’s support and what is the retroactive date to commence that repayment — either 1 January 2011(mother) or 1 July 2010 (father)? [ 12 ] A determination on ongoing support for Kreigan pursuant to the legislation or separation agreement. 3: EVIDENCE OF THE APPLICANT [ 13 ] The father’s evidence was that the mother was unreasonable with respect to discipline for Shelby and she contacted him

wishing to move to Winnipeg, Manitoba which occurred in July of 2010. [ 14 ] Shelby was resident in Dryden at the time of the move and decided to return to Dryden to complete her secondary school education and has been living with her boyfriend’s parents since September of 2010. [ 15 ] The father has continued to pay child support pursuant to the Child Support Guidelines , O.

Reg. 391/97, as amended, and Justice Everett’s order of 24 August 2010. [ 16 ] The mother has kept the child support for Shelby and has not forwarded any funds to the Bergerons or to Shelby. [ 17 ] Kreigan is no longer in attendance at school full time. She lives with the mother and her present spouse, has a part-time job at Wal-Mart working twenty-five to thirty hours per week at the minimum wage and does not contribute to living expenses at home. 4: EVIDENCE OF DIANE BERGERON [ 18 ] Ms. Bergeron has known Shelby for two years as she and her son are in a dating relationship. Shelby told Ms.

Bergeron that an ultimatum was given by her mother either to live by her rules or to find another place to live. Diane and Normand Bergeron agreed that Shelby could live at their house and she has done so since September of 2010. Initially, Ms. Bergeron had signing authority with the high school to write notes in case of illness and to receive documentation concerning school activities. This authority was revoked by the mother. [ 19 ] The Bergerons have received no support for Shelby nor are they seeking support. Ms.

Bergeron has had no contact with the mother except for one meeting in September of 2010 to discuss living arrangements. [ 20 ] The father gives Shelby spending money and purchases some personal care products from time to time. 5: EVIDENCE OF THE RESPONDENT [ 21 ] Ms. Gould described the discipline problems that she had with Shelby.

She tried grounding, which did not work, and is distraught about Shelby’s not living with her, Kreigan, and her present spouse and objects to her living in the same home as her boyfriend. [ 22 ] She describes Shelby as being defiant and she does not know what to do to rectify the situation. [ 23 ] She confirmed receiving support from the father for Shelby and Kreigan and paid some of Shelby’s sport debts and incidentals in the approximate amount of $500.00.

She has not forwarded any support payments to Shelby or the Bergerons. [ 24 ] Her biggest concern is that Shelby is and will remain estranged from the rest of her family. [ 25 ] Kreigan is not yet enrolled in a post-secondary educational institution but is working part-time at Wal-Mart either twenty- five to thirty-five hours per week at the minimum wage. 6: DECISION [ 26 ] Having heard all of the evidence, I am finding that there has been a material change in the circumstances since signing the separation agreement in 1999 and since the support order of Justice Everett of 24 August 2010. [ 27 ] Effective 1 July 2010, Shelby changed residences, with the father directing her care and control and I order that the mother and father shall have joint custody of Shelby Marie Penney with her primary residence being with the father and her day-to-day care being with the father or Diane and Normand Bergeron. [ 28 ] The father has continued to pay support to the mother pursuant to Justice Everett’s order.

Since 1 July 2010, all support for Shelby has been retained by the mother. She retired approximately $500.00 in sport debts relating to Shelby and other incidentals. [ 29 ] The father’s support payments for Shelby shall be payable to the Diane and Normand Bergeron as they have day-to-day care and control over her. Pursuant to clause 34(1) (

e) of the Family Law Act , R.S.O. 1990, c. F-3, as amended, I fix lump-sum retroactive child support in the amount of $3,000.00 for Shelby payable forthwith by the mother to Diane Bergeron and Normand Bergeron. I am satisfied that the Bergerons will retain an appropriate amount for their expenses for Shelby and will dispense appropriate funds directly to the child through purchases and allowance for her needs. [ 30 ] With respect to Kreigan, she is essentially self-supporting, living at home, contributing no expenses and earning approximately $1,000.00 per month.

Effective 1 February 2011, support payable by the father to the mother for Kreigan is terminated.

This issue can be re-addressed and varied if Kreigan enrols in a full-time educational institution in September of 2011 or there is a material change in the circumstances. [ 31 ] The reality of the situation is that Diane and Normand Bergeron have day-to-day care and control of Shelby and I order that Diane and Normand Bergeron shall be provided with school records, including report cards, and shall have authority to sign notes on behalf of Shelby and be advised and informed of all educational school activities on her behalf.

Both parents shall also be provided with report cards and all other school related information about Shelby. Neither the father nor the mother shall revoke this authority without a further order of the court. A certified copy of this order is good and sufficient authority for the Dryden High School and the Keewatin-

Patricia District School Board to act in this matter. [ 32 ] The mother has an income of approximately $22,000.00 per annum and the table amount for one child is $188.00 per month. I order that the mother pay Diane Bergeron and Normand Bergeron child support in the amount of $188.00 per month commencing on 1 February 2011 and payable on the first day of each month thereafter until further order of the court. [ 33 ] The father shall pay Diane Bergeron and Normand Bergeron child support in the amount of $473.00 per month commencing on 1 February 2011 and payable on the first day of each month thereafter.

The table amount for one child with the father’s income is $681.00. I have apportioned the amount payable by the mother and father.

Essentially, both the mother and father are paying their respective share of child support for Shelby. [ 34 ] A support deduction order shall issue. [ 35 ] Unless the order is withdrawn from the Director’s office, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. [ 36 ] This order bears post-judgment interest at the rate of 3% per year effective from the date of this order.

Where there is a default in payment, the payment in default shall bear interest only from the date of default. [ 37 ] There will be no order as to costs.