Brown v. Brown, 2011 ONCJ 752

Sudbury Registry No. D227-06 DATE: 2011·XII·16 CITATION: Brown v. Brown , 2011 ONCJ 752 ONTARIO COURT OF JUSTICE BETWEEN: STEPHANIE HURST BROWN Applicant — AND — DANNI WILLIAM BROWN Respondent Before Justice André L. Guay Heard on 7 and 8 November 2011 Reasons for Judgment released on 16 December 2011 Liisa Parisé ................................................................................................ counsel for the applicant Darren L.M. Berlinguette ....................................................................... counsel for the respondent JUSTICE A.L.

GUAY: 1: INTRODUCTION [ 1 ] The application in this matter was filed on July 9, 2010. In it, Stephanie Hurst Brown (hereinafter known as the “Applicant”), sought sole custody and support for Owen Brown born April 2, 2004. Her husband, Danni Brown (hereinafter referred to as the “Respondent”), asked for the same relief. [ 2 ] The trial was held on November 7 and 8, 2011. At the outset, the parties filed Minutes of Settlement wherein they agreed to continue their “joint shared custody” of Owen on an alternating week basis.

The Minutes of Settlement (see exhibit 1) provided for terms of access, including summer access by both parents, as well as a proportional sharing of extraordinary expenses and mutual consultation with respect to issues affecting Owen. [ 3 ] This left two issues to be resolved, the first being ongoing child support and the second, the Applicant’s claim for retroactive child support and contribution from the Respondent for past daycare expenses. 2: BACKGROUND [ 4 ] The parties began cohabiting in 2001. They married in July 2003 and separated in December 2004 some eight months after Owen was born.

On December 1, 2004, the parties entered into a private separation agreement. This agreement provided for a division of their assets. In it, they also agreed to joint custody of Owen with his primary residence to remain that of his father. In that agreement, each party agreed to share Owen equally.

Added to the agreement, at the recommendation to the Respondent by a legal secretary he consulted, was the clause, “I expect no support payments from my spouse.” It was unclear if this referred only to child support, to child and spousal support or to spousal support only. [ 5 ] In the evidence, the Respondent maintained in his evidence that, notwithstanding their agreement, Owen’s mother was really more concerned with her own problems during the first two years of his life than with Owen’s needs.

He argued that while her grandparents provided most of Owen’s care when Owen was in her custody, he both worked and cared for Owen with his parents’ help during his alternating week with Owen. The Respondent also claimed that he was the parent responsible for taking Owen to his medical and dental appointments; he was critical of the Applicant for not doing so. [ 6 ] The Applicant had quite a different view of the situation.

She claimed that while her grandparents were Owen’s babysitters during her alternating week with him, she did what parents do and, in fact, even visited Owen when he was in the care of his paternal grandparents. The Applicant ascribes her failure to take Owen to his appointment when he was an infant to a severe lack of

financial resources. This stemmed from the fact that she was a struggling student during this period. The evidence established that the Respondent was clearly much better off financially than the Applicant during the period after their separation and that her lack of employment and other income made it difficult for her to parent Owen and attend school full-time. [ 7 ] In May 2006, the Applicant brought and then subsequently abandoned an application for joint custody of Owen with primary residence to her. She did so because she felt financially insecure and felt “bullied” by the Respondent and his lawyer.

While I do not think the Respondent or his lawyer “bullied” the Applicant, there is no doubt she felt intimidated by the adversarial process from the outset. From experience, I have found this to be a not uncommon reaction of many women engaged in litigation. To be sure, there are exceptions, but this is not one of them. What seems, however, to have been the result of this litigation was that the “week about” custody regime was more fully implemented by the parties.

The problem was with money. [ 8 ] In 2005, the Applicant returned to Cambrian College in Sudbury, where she obtained her geological engineering diploma. She subsequently returned that same year to Cambrian College to complete her diploma in geological engineering technology. These qualifications prepared her to work in the mining field. In 2006, the Applicant obtained a contract position with INCO (now Vale), where she remained employed until May, 2008.

While her work record indicated that she “quit” this position, it is clear from the evidence that she was forced to leave INCO and did so because of workplace harassment. [ 9 ] Soon thereafter, the Applicant obtained a position with another Sudbury-based mining company, Xstrata, but at a lower rate of remuneration. Her gross annual salary fell from $68,000.00 to that of $46,000.00. While employed by Xstrata, the Applicant suffered a serious back injury.

While this injury in 2008 initially seemed to have resolved itself, it re-emerged in 2009 making it impossible for her to return to her job. [ 10 ] In his original response to the application of the Applicant, the Respondent basically accused her of being shiftless. He alleged that not only was she unable to hold down permanent employment but that she could not successfully complete a course of study. A review, however, of the Applicant’s employment and medical history reveals that the Respondent was very much mistaken about the Applicant’s educational and job performance.

He seems to have come to a very negative attitude about her character, including her ability to parent Owen and her commitment to him. [ 11 ] The Applicant’s contract with Xstrata came to an end in December 2008. Rather than being offered full-time employment with the company as originally promised, she was laid off because of the downturn in the market for nickel and precious metals. While her physiotherapy reports suggested that she had resolved the injury she suffered to her back when lifting core sample trays at Xstrata, this was not so. Her injury made her return to work impossible. Dr. Mitra and Dr.

Bahmann, who attended to her medical problems, diagnosed her injury as “thoracic disc syndrome”. [ 12 ] In 2009, the Applicant reluctantly applied for and received social assistance. She testified how she had found this emotionally difficult to do, given her propensity to keep herself employed. She found her need to accept social assistance humiliating. Combined with her employment insurance benefits, her total income for 2009 amounted to $24,309.00. By the end of June 2010, and, notwithstanding her ongoing back and other medical problems, the Applicant did manage to secure employment with SGS Canada.

Unfortunately, because of her deteriorating physical condition, she was forced to go on sick leave in the fall of 2011. [ 13 ] The Applicant is not a physically large person. One must, however, credit her with a strong determination to work and the ability to work through chronic pain. It is of note that when the Applicant was receiving welfare assistance, she had very little money to contribute to Owen’s care. She received only $550.00 per month from social assistance. This was all she had to provide shelter, food and clothing for herself and Owen.

It was during this period that she asked the Respondent for assistance. He refused telling her that she would “not get a damn thing” from him. I believe that the Applicant’s evidence was credible on this point. [ 14 ] In her present application, the Applicant alleged that the Respondent had not given her any money to help with daycare costs. This matter was raised at trial where it was established that in 2006 the Respondent did pay some $937.00 toward Owen’s daycare costs. In that same year, the Applicant paid roughly $2,600.00 for Owen’s day care costs. During this period, both of the parties were working.

In the 2007 - 2008 period, the Applicant ended up paying daycare costs for Owen in the approximate amount of $2,700.00. No daycare costs were incurred by her in 2009 as a result of her unemployment. [ 15 ] Daycare costs were again incurred for Owen when the Applicant returned to work for SGS Canada in August 2010. These costs amounted to $30.00 a day (roughly $600.00 a month). Daycare costs incurred by the Applicant for Owen in 2010 amounted to approximately $3,000.00. Similar costs were incurred in 2011, ending when the Applicant stopped work at the beginning of November.

This means, then, that she incurred daycare costs of approximately $6,000.00 for daycare services in 2011 while she worked for SGS Canada. [ 16 ] Taking into account the work history of the parties, it is clear that the Applicant and the Respondent incurred similar daycare costs for Owen in the 2007 - 2008 period. Few other daycare costs were incurred from the end of 2008 until August 2010, when the Applicant returned to work at SGS Canada.

While the daycare obligations of the parties were a “wash”, so to speak, in 2007 and 2008, there was nevertheless a $20,000.00 gap in their gross annual incomes in that period. The Respondent earned approximately $65,000.00 annually, while the Applicant earned $45,000.00 in this period. For the period between the latter part of August 2010 until December 2010, the parties’ incomes remained disparate, with the Respondent earning roughly $69,000.00 while the Applicant earned $16,500.00. The situation did not much improve in 2011 as the Applicant’s financial statement shows (see tab 5 of the Trial Record).

By the end of 2011, the Applicant will have earned roughly $22,000.00, as opposed to a projected salary of $69,000.00 for the Respondent. [ 17 ] In light of the evidence, I have concluded the Applicant has a valid claim for the extraordinary expense of child care during the period between 2008 and 2011. Considering the Applicant’s childcare expenses for the periods when she was employed in the years 2008, 2010 and 2011, I would fix the Respondent’s obligation with respect to daycare costs actually incurred by the Applicant during this period at $4,800.00.

I have done this by calculating the daycare costs incurred by the Applicant for Owen at $30.00 per day times the number of months the Applicant used daycare services, including 12 months in 2008, 5 months in 2010 and 10 months in

2011. I have pro-rated the cost of daycare services used by the Applicant on a 60%/40 % basis in favour of the Applicant.

In arriving ata figure of $4,800.00, I have also considered, as indicated above, daycare payments respectively made by the parties in 2006 and 2007, itbeing clear that such costs were not incurred by the Applicant either in 2009 (for 12 months) or in 2010 (for 7 months). 3: RETROACTIVE CHILD SUPPORT [18] Having considered the evidence, I find as a fact that the Respondent was very much aware that the Applicant was facingfinancial difficulty during a good part of the period after the separation occurred at the end of 2004.

He knew or ought to have knownthat she had returned to school in 2005 (he explained that she lacked the stamina, and will or ability to complete a course of study duringthis period) and that, as a result of her application for child support in 2006, her requests for gas money in 2009 and her request forfinancial disclosure from him in 2006, that the Applicant was experiencing financial distress. It is also clear from the evidence that theRespondent took steps to claim all the tax advantages of parenting Owen, leaving it to the Applicant to fight for her fair share of thesebenefits.

While the Respondent may have provided Owen with dental services, it was also apparent that he took care of this aspect ofOwen’s care because he was the parent with access to the employment benefits required to pay for such services. These expenditures didnot leave him out of pocket, being a part of his employment package. The evidence further demonstrates that in the Respondent’s mind,he was Owen’s only capable parent and he provided Owen with what Owen needed financially.

This, in effect, left Owen with a poorlevel of care (financially at least) during those alternating weekly periods he was in his mother’s care between 2008 and 2011. Havingfailed to obtain financial assistance from the Respondent for Owen’s care, the Applicant did everything in her power to provide herselffor Owen’s needs, including his daycare costs. She went as far as to take a cashier’s job for a month in 2009 in order to help hermaintain both herself and Owen. [19] To her obvious financial difficulties and, consequently, Owen’s, the Respondent turned a blind eye.

He failed to realizethat his obligation to support Owen did not cease with the support he provided to Owen during the alternate weeks in which Owen was inhis care. While the Respondent may not have known the exact degree of the Applicant’s financial need, one must conclude that he hadto have been aware of it unless he was wilfully blind to the situation presenting itself to him on a regular basis throughout this period. 4: THE QUADROLOGY [20] In the quadrology decided by the Supreme Court of Canada in 2006 — see D.B.S. v. S.R.G. et al., 2006 SCC 37, [2006] 2S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta.

L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L.(6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976 — the court looked at the question of retroactive support in the context of aparent’s obligation to support his or her children. The Court noted that parents have an obligation to support their children commensuratewith their income and that this obligation exists independently of any statute or court order.

The Court noted that trial courts have thepower to make original orders for “retroactive child support” in appropriate circumstances under both federal and provincial family lawlegislation. [21] In D.B.S. v. S.R.G. et al., the Court called on trial courts to take a holistic view of child support claims and to weigh anumber of factors in making their decisions.

Some of the factors noted for consideration were conduct on the part of the parent payingthe support, the present and past circumstances of the child at relevant times, whether hardship to the payor would result if a retroactivesupport order were made and, lastly, whether a retroactive order was consistent with the legislation being applied in the circumstances ofa given case.

Absent fraudulent or misleading conduct, the Court felt that the eligible period for calculating child support arrears oughtnot be more than 3 years. [22] In reviewing the basic principles applicable to retroactive support, the Court cited the case of Paras v. Paras, (ON CA), [1971] 1 O.R. 130, 14 D.L.R. (3d) 546, 2 R.F.L. 328, [1970] O.J. No. 1630, 1970 Cars​well​Ont 133, where theOntario Court of Appeal discussed the core principles underlying the support obligation of parents.

These, that court noted, includedchild support being the right of the child, that right surviving a breakdown of his or her parents’ marriage. Another core principle, thatCourt stated, was the fact that child support should provide children with the same standard of living that they enjoyed when their parentswere together, the quantum of support owing being based on the income of the payor parent. At paragraph [41] of its decision, theSupreme Court of Canada further quoted Appeal Justice Arthur Kelly in Paras v.

Paras, supra, where he noted: The legal basis of child maintenance is the parents’ mutual obligation to support their children according to their need. That obligationshould be borne by the parents in proportion to their respective incomes and ability to pay. [23] The Supreme Court observed that when the Federal Child Support Guidelines, SOR/97-175 came into effect in the springof 1997, they provided a “simplified way” for parents and the courts to quantify child support obligations.

The implication of theapproach taken by the Child Support Guidelines was described by the Court as “profound.” “Except for situations of shared custody”the Court noted “a parent’s increased income would not only increase his share of the child support burden but also it will increase thetotal amount of support owed.” “The underlying theory of the Guidelines”, the Court observed “was that the support obligation itselfshould fluctuate depending on a parent’s income” (see paragraph 45 of the decision). [24] The Court found that the Guideline regime created a new model for determining child support – one which went beyondthe prior model based on “pure needs- based criteria” (see paragraph 47 of the decision). [25] At paragraph 58 of its decision, the Court noted that under the Guidelines regime, a payor parent was obliged to disclosehis income not more than once a year upon request by the recipient parent.

This rule also applied, the Court stated, where parents sharecustody, “as both of their incomes are relevant in determining the amount of child support due” (see paragraph 58). [26] In the present case, it is clear that the Applicant did not disclose her financial circumstances to the Respondent. It is myview, however, that after 2007, it was patently clear to anyone in the Respondent’s position that the Applicant’s financial circumstances

were difficult if not desperate. What else can be inferred from the fact that she had to ask the Respondent on more than one occasion for gas money so she could take their son to his Scout and other meetings? [ 27 ] The fact that children were the subject of applications for retroactive support, the Court noted in D.B.S. v.

S.R.G. et al. , “must remain a primary significance in a court’s analysis.” When considering reasonable arrangements for child support, the courts would have reference to Child Support Guidelines. “Because of this,” the Court stated, (see paragraph 77 of the decision), “a payor parent who adheres to a separation agreement that has not been endorsed by the court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a payor parent acting pursuant to a court order.” [ 28 ] I note that in the present case the parents did enter into a handwritten separation agreement in December 2004.

At that time, and by his own admission, the Respondent seemed to have had some access to legal advice. The Applicant, however, did not. That advice was what led to the inclusion of the statement regarding “no payment of support” in the agreement shortly prior to its execution by the parties. 5: APPLICATION OF THE PRINCIPLES ENUNCIATED IN DBS v. SRG et al [ 29 ] In analyzing the factors enumerated by the Court in D.B.S. v. S.R.G. et al. , (see

section 5.3 of the decision), I am of the view that an order for retroactive child support should be made in this matter dating back to 2009, the year in which the Applicant had to apply for employment insurance benefits and social assistance. The period of retroactivity should continue until November 1, 2011, taking into account the employment secured by the Applicant during that period (i.e. August 1, 2010 – November 1, 2011).

It is clear that the Respondent’s income during this period was in the average range of $67,500.00 annually, while the Applicant’s income averaged $47,000.00 annually. [ 30 ] On a gross annual income of $67,500.00 the Child Support Guidelines provide that child support for one child would be in the monthly amount of $624.00.

Giving, then, consideration to the expenses the Respondent did assume for Owen’s care and his lack of specific information about the Applicant’s financial circumstances as well as the evidence received in this matter, I will order that commencing January 1, 2009, and ending October 31, 2011, the Respondent’s financial obligation to support Owen be fixed at $300.00 per month. This will result in child support arrears of $10,500.00.

In arriving at this figure, I have taken into account the financial circumstances of the Respondent, including the order with respect to childcare costs and his ability to pay the amount being ordered. [ 31 ] The Respondent alleged that he was not asked to contribute to Owen’s support earlier and did not realize he needed to do so.

Given the disparity in the incomes of the Applicant and the Respondent and the circumstances surrounding the Applicant’s precipitous exit from the matrimonial home, her return to school, her application for child support in 2006 (together with her reasons for abandoning same), her request to the Respondent for monetary assistance on a number of occasions, I do not find that the Applicant’s present request for retroactive child support should be rejected for reasons of delay.

If there was delay in this case, the Respondent’s conduct went a long way in contributing to it. [ 32 ] With respect to the factor of the Respondent’s conduct, I note that his attitude toward his son’s support needs is best reflected in his Answer and the support position taken by him. While not deceitful or fraudulent, his conduct was not consistent with concern for the welfare of his son in the periods his son resided with the Applicant. The Respondent’s financial circumstances throughout were good. They got better when he began co-habiting with his current partner.

They presently have a combined income in excess of $160,000.00. The Respondent’s income at the time of separation placed him in a stronger position to negotiate the support terms of separation from the Applicant.

His application for a passport for Owen testified to his aggressive stance toward the Applicant and her role in Owen’s life as does the fact that he imposed on her a number of parenting decisions without obtaining her consent until after the fact. [ 33 ] The past circumstances of the child indicate that while in the Applicant’s care, the child was forced to live on a diet utilizing food obtained from a local food bank. During a lengthy period in 2009, Owen and the Applicant lived on a monthly income of approximately $550.00 from Ontario Works.

Once again, illness has forced the Applicant to terminate her employment. Her time and consequently the child’s time of need is far from over. But for the generosity of the Applicant’s grandparents, Owen would have been forced, as a very young child, to travel to the outlying areas of the City of Greater Sudbury on public transportation during the winter months, while the Respondent was enjoying an affluent lifestyle.

While the Respondent was undoubtedly concerned about meeting his son’s needs when his son was residing with him, he undeniably turned a blind eye to the financial circumstances faced by his son a number of times over the past few years.

This was not because he was unable to help with those needs, but because he took a very negative view of the Applicant and let his feelings of contempt for her blind himself to his duty to support his son when his son was in her care. [ 34 ] In making the order for retroactive support, I considered whether any hardship might be occasioned to the Respondent by a retroactive award of child support.

In light of his annual income and the fact that his partner also enjoys a healthy income, I do not find that any hardship will be visited on the Respondent by making a retroactive support order. [ 35 ] In determining the amount of retroactive child support, I looked at what the Respondent would have paid pursuant to the Child Support Guidelines if he were paying full Guideline support and I considered the fact that he was providing for his son on an alternate weekly basis. I also took into consideration the fact that during certain times after separation, the Applicant did have adequate income.

During those periods, she had a corresponding obligation to help maintain Owen. As a result, I came to the conclusion that $300.00 per month was the appropriate level at which to retroactively fix the Respondent’s support obligation to Owen. [ 36 ] So as to minimize stress on the Respondent, I will direct that this retroactive support be repaid in monthly instalments of $300.00 commencing on December 1, 2011. Here, I am mindful of the Supreme Court’s comment in paragraph 116 of DBS v.

SRG et al (see above), where the Court encouraged trial judges to “attempt to craft the retroactive award in a way that minimizes hardship.”

6: ORDER FOR ONGOING CHILD SUPPORT [ 37 ] The Respondent’s evidence established that in 2010, his gross annual income was $69,000.00. The Guidelines amount of child support for one child on a gross annual income of $69,000.00 is $638.00 a month. Effective December 1, 2011, I am ordering the Respondent to pay the sum of $500.00 per month to the Applicant for the support of Owen Brown born April 2, 2004. In making this order, I am again taking into account the care being provided by the Respondent to his son on an alternate weekly basis.

I am also considering the Applicant’s poor health as well as her ability, should she be unable to return to full-time employment, to apply for financial assistance under the Ontario Disabilities Support Program. This was discussed with her during the trial. She indicated that while she had refrained from making such an application over the last few years, such an application would be made by her if required. In that event, she would receive further supplementary financial assistance with respect to Owen’s care.

Lastly, on making the ongoing order for child support, I have borne in mind the greatly varying standards of living in the Applicant’s and Respondent’s households as well as the principle that child support should, where appropriate, continue to reflect the financial prosperity of the parent paying child support. 7: COSTS [ 38 ] The matter of costs was briefly discussed at the conclusion of the trial, but I asked the parties to wait until the trial had ended and my decision was handed down before the matter of costs was addressed.

Unless, therefore, the parties can agree to a cost order (which should be an order enforceable by the Family Responsibility Office), I will direct them to obtain a date from the trial coordinator to argue the matter of costs before me. Released: 16 December 2011 Signed: “Justice André L. Guay”