Weatherbee v. Wojtyczka, 2011 ONCJ 432

Brampton Registry No. 323/10 DATE: 2011·VIII·03 CITATION: Weatherbee v. Wojtyczka , 2011 ONCJ 432 ONTARIO COURT OF JUSTICE BETWEEN: ANDREW STEPHEN WEATHERBEE, Applicant, — AND — SOPHIE ANNE WOJTYCZKA, Respondent. Before Justice Juliet C.

Baldock Heard on 27 July 2011 Reasons for Judgment released on 3 August 2011 CIVIL PROCEDURE — Motions — General — Need to claim relief — Failure to make claim — In long-running dispute over daughter (now 2½ years old), parties had agreed to interim order on access terms, including exchange site for child’s drop-off and pickup — Agreement would work until end of current summer but both parties now sought to vary those terms from and after September and had filed motions to that effect — Mother was child’s custodian and her home was child’s primary residence — Father had extensive access — In September, mother’s attendance at teachers college would affect her ability to arrive at exchange site on time and would incur day- care costs for child to which she wanted father to contribute — Father had grudgingly agreed to mid-week change in access that would free up mother from having to rush to exchange site but, at last minute, mother learned that she faced similar problem on Friday nights, whereby she would have to rush from school (in Toronto) to her home (in Brampton) to pick up child from day care to arrive at exchange site (midway between those cities) — Father (who lived in Toronto) would not agree to different exchange site nor to idea of picking up child directly from her day care — Technically, father was correct that this new issue was not included in mother’s motion material and would require new motion but prospect of scheduling hearing date before September would be almost impossible — Motion judge felt that adherence to father’s position would be cumbersome and costly process resulting in two related proceedings before this court instead of one — Judge chose to have one proceeding — Father could not have it both ways — Either exchange site or pickup time had to change — Because of his position about exchange site, father had to accept reality that mother might, with best of intentions, be unable to attend exchange site at appointed time on Friday nights, but left it open to him to pick up child from her day care, provided that he notified mother of his intention to do so at least 24 hours in advance.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Add-ons — Calculation of contribution — Consideration of any subsidies, benefits, etc . — In long-running dispute over daughter (now 2½ years old), parties had agreed to interim order on access terms — Agreement would work until end of current summer but both parties now sought to vary those terms from and after September and had filed motions to that effect — Mother was child’s custodian and her home was child’s primary residence — Father had extensive access — In September, mother’s attendance at teachers college would affect her ability to arrive at exchange site on time and would incur day-care costs for child to which she wanted father to contribute — Father, however, was returning for post- graduate degree at university where work as research or teaching assistant would result in significantly drop in income and in reduced ability to pay child support and extra expenses for next few years — Mother had applied for subsidy for day care but was currently on waiting list — Without subsidy, monthly cost of day care was $1,070, half of which mother’s parents undertook to pay — Father resisted her request that he contribute other half, arguing that subsection 7(3) of Child Support Guidelines required court to consider eligibility for any subsidy and that he should therefore only have to pay his share of subsidized amount — Motion judge rejected this argument — Judge found that there was no way to avoid day care costs and that mother had acted reasonably in applying for subsidy but that any approval of that subsidy was unlikely to happen during upcoming academic year — On information available so far, motion judge found that father’s ability to contribute to day care was limited to $350 per month and so ordered.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended], subsection 7(3) .

Todd C. Jenney ............................................................................... counsel for the applicant father Hugh M. Evans ........................................................................... counsel for the respondent mother [ 1 ] JUSTICE J.C.

BALDOCK:— The parties are the parents of Kaya Sophie-Marie Wojtyczka-Weatherbee, born on 17 November 2009 (“Kaya”), now two-and-a-half years old. [ 2 ] In February 2010, the applicant father commenced a claim for custody and other relief. [ 3 ] The parties have been in court numerous times on issues relating to access. [ 4 ] On 3 February 2011, the parties were, with the assistance of counsel, able to arrive at a final agreement regarding: • the name of the child; • adding the applicant father to the child’s birth registration; • excluding the mother’s paternal grandfather from having contact with the child; • providing a copy of the child’s health card to the applicant father; • access to medical and educational records and provision for emergency health care; • arrangements for the transfer of the child between the parties, both as to the location and as to who may attend ( i.e. , the parties only, except in unavoidable situations). [ 5 ] They also agreed that the applicant would pay the table amount of child support under the Child Support Guidelines , O.

Reg. 391/97, as amended, to be varied “from time to time as appropriate”. No specific sum was mentioned, but the applicant currently pays $367.00 per month based on his declared income of $40,000.00. [ 6 ] The parties also agreed to a temporary order setting out terms with respect to access. Both parties now seek to vary those access terms and have filed motions that are the subject of this ruling. [ 7 ] Following counsels’ arguments, there was agreement with respect to summer access for 2011. I therefore deal only with the requested changes to the regular access

schedule and holiday and summer access from and after September 2011. [ 8 ] Kaya has continued to have her primary residence with the respondent mother, who has been at home full time to care for her. The applicant father has had extensive access, which, since 3 February 2011, has been as follows: (

a) alternate weekends from Fridays at 6:00 p.m. to Sunday at 7:30 p.m. (extended to Monday at the same time if it is a long weekend); (

b) Saturdays from 9:00 a.m. to 7:30 p.m.; (

c) alternate Tuesdays (being the Tuesday following a Saturday access) from 5:30 p.m. to 8:00 p.m. (which the parties changed to Wednesdays); and (

d) alternate Thursdays (being the Thursday following a full access weekend) from 5:30 p.m. to 8:00 p.m. [ 9 ] The mother has now made arrangements to attend Teachers College, which she anticipates will have an impact on her ability to be at the agreed transfer location (the Williams Cafe on Dixon Road in Malton) by the time previously agreed to. She will also incur day-care costs for Kaya. [ 10 ] The applicant father has elected to return to university on a full-time basis to obtain a Ph.D. in physics.

He will be working as a research or teaching assistant but this will significantly reduce his income, and thereby his ability to contribute to Kaya’s support and extra expenses, for the next few years. [ 11 ] The applicant father therefore seeks a reduction in child support, while the respondent mother seeks a contribution to day- care costs.

ACCESS [ 12 ] The applicant father has agreed, albeit reluctantly, to change the Wednesday access to Tuesday as the respondent mother expects to be in Toronto on Wednesdays as part of her training and this would not permit her to return to Brampton, pick up Kaya from day care and arrive at the Williams Café in time for the applicant to collect the child. [ 13 ] The respondent mother has also asked for an adjustment to the Friday pick-up time as she now believes she will have to be in Toronto on Fridays as well as Wednesdays. This request provoked lengthy argument.

Counsel for the father maintains that, as this relief was not included in the respondent mother’s notice of motion, it should not be considered by the court. The mother’s counsel argued that the respondent mother only just became aware of the requirement for her to attend classes in Toronto and it was too late to include the issue in her motion material that had already been filed. [ 14 ] Although the applicant did not receive advance notice of this issue, to require a new motion and another court date prior to September would be difficult, if not impossible, to

schedule and, in my view, would only serve to delay matters. [ 15 ] There is a logistical problem for which common sense dictates a timely solution. [ 16 ] Both parents have elected to pursue their educational goals. In the long term, they can reasonably expect to enjoy rewarding careers and a comfortable level of income. This will benefit both parents and Kaya.

[ 17 ] In the short term, however, sacrifices have to be made. Each parent will suffer the effects of reduced resources in terms of both time and money. The current objective is to minimize the overall impact on their child. This requires a degree of flexibility on the part of both parents. Neither of them should be pursuing his or her goals to the detriment of the other.

There are costs associated with their endeavours but these have to be shared, with Kaya’s best interests the primary concern. [ 18 ] The father is adamant that the final terms of the order of 3 February 2011 cannot be changed on an interim motion. He argues that a separate motion to change would have to be brought. Although he is technically correct, it would, in my view, be a cumbersome and costly process and would result in two related proceedings before the court instead of one. [ 19 ] His particular concern is to maintain the transfer location, being the Williams Café in Malton.

This was selected to accommodate the fact that he resides in Toronto and the respondent mother lives in Brampton. [ 20 ] It is patently ridiculous to ignore the reality of the situation, which is that, on Fridays under the present regime, the mother will have to travel at the end of her school day from her school in Toronto to Brampton to collect Kaya, and then drive the child half way back to Toronto by 5:30 p.m. to meet the applicant at the transfer location. [ 21 ] The applicant cannot have it both ways.

Either the location or the pick-up time has to change. [ 22 ] Given his position with respect to the location, he will have to accept the fact that the respondent mother may, with the best of intentions, be unable to attend at the appointed time. [ 23 ] It is not yet known exactly what time the respondent’s classes will end on Fridays but the mother must be given sufficient time to make the trip, given variable traffic and weather conditions. [ 24 ] The applicant has the option of picking up Kaya directly from her day care but, as he has declined that proposal, the pick- up time on Fridays has to be adjusted, unless the respondent mother is available earlier. [ 25 ] The other major area of disagreement is with respect to the cost of day care. [ 26 ] The mother has applied for a subsidy but is currently on a waiting list.

The unsubsidized cost is $1,070.00 per month. Her parents have generously undertaken to pay half the cost. The mother is seeking the remaining 50 percent from the father. [ 27 ] The applicant’s counsel argues that the mother was not timely in making her application for the subsidy and that, had she done so at the earliest opportunity, she would have been approved for the benefit earlier.

He further argues that subsection 7(3) of the Child Support Guidelines requires the court to consider, among other things, the eligibility for any benefit and that the father should therefore only have to pay his share of the subsidized amount. [ 28 ] The applicant further argues that he should be paying less by way of child support on his reduced income, which he estimates will be approximately $16,000.00. [ 29 ] The mother acknowledges the onus on her to apply for the day-care subsidy as soon as possible but cites the delay in obtaining her tax documents due to a recent national postal interruption as the reason that she was unable to make her application earlier. [ 30 ] The respondent mother’s counsel argues that income in the range of $40,000.00 should be attributed to the father as he has a demonstrated ability to earn that level of income. [ 31 ] No new material has been filed with respect to the applicant’s income, either current or expected.

Given that there is no set figure in the current order but only an obligation to adjust in accordance with the guidelines, I decline to make any new order today save and except with respect to the payment of day care. [ 32 ] Clearly, the day care is essential to the mother’s ability to attend school to further her education and eventually to become self-sufficient.

She currently resides with her parents and her only source of funds is the child tax credit, support received from the applicant and her OSAP (Ontario Student Assistance Programme) funds for tuition and related costs. [ 33 ] One can only hope that the mother’s application for day-care subsidy is granted but it appears that this is unlikely to happen during the upcoming academic year. The cost must be met.

I find that overall the mother has acted reasonably in applying for the subsidy but that her eligibility to receive the benefit has not yet been established, only her eligibility to apply. [ 34 ] The cost must therefore be shared. There is no material before the court to provide any breakdown of the OSAP funding.

It is therefore not known whether any living expenses were included. [ 35 ] The respondent’s costs are modest, given that she resides with her parents, but they should not be required to shoulder the child’s expenses beyond what they have offered. [ 36 ] Accordingly, the applicant must contribute to such costs. I find, on the information currently available, that the applicant’s ability to do so is limited to $350.00 a month.

If, by paying his contribution to the day-care facility he is entitled to any tax benefit, he should be able to claim it. [ 37 ] The respondent has also asked that she have weekend time with the child now that she will not be home during the week. I find this to be a reasonable request. Kaya should have the opportunity to spend weekends with both parents. [ 38 ] The order that I now make may require some adjustment when the parents have their timetables and a clearer picture of their respective finances. [ 39 ] For these reasons, I make the following order:

1. The applicant’s access to the child Kaya Sophie-Marie Wojtyczka-Weather​bee, born on 17 November 2009, as set out in paragraph 14 of the order of 3 February 2011 is hereby varied. 2. During the academic year, commencing in September 2011 and continuing so long as the respondent mother is attending school on a full-time basis, the applicant’s weekday access shall take place on Tuesdays from 5:30 p.m. to 8:00 p.m. 3. The applicant’s weekend time with the child shall be as follows: (

a) alternate weekends from Fridays at 6:30 p.m. to Sundays at 8:00 p.m., extended, (

i) to Monday at the same time if it falls on a statutory holiday and (ii) to commence on Thursday at 6:30 p.m. if the Friday falls on a statutory holiday. (

b) at his option, the applicant may pick up the child from her day care between 5:00 p.m. and 5:30 p.m. provided that he notifies the mother of his intention to do so at least 24 hours in advance. 4. All access transfers shall otherwise take place at the Williams Café on Dixon Road in accordance with paragraph 9 of the order of 3 February 2011. 5. The parties shall communicate with each other and co-operate and shall be flexible in making adjustments to the access

schedule having regard to: • any health issues affecting the child or either parent; • the parties’ respective schedules (work and/or school); • special or unforeseen events; • traffic and weather conditions affecting travel; and • any other circumstances outside their control. 6. Each party shall, as soon as it is available, provide the other with a copy of his or her timetable or

schedule of classes or other school or work-related commitments. 7. The parties shall at least 14 days prior to the return date, serve and file: (

a) an updated sworn financial statement; (

b) proof of income for the period from 1 January 2011 to 31 August 2011; and (

c) evidence with respect to income (received or expected) from 1 September 2011, including any OSAP award. 8. The applicant shall, on a temporary and “without prejudice” basis, commencing on 1 September 2011, pay to the respondent towards anticipated day-care costs, the sum of $350.00 per month. 9. The issues of, (

a) ongoing child support; (

b) section 7 expenses; and (

c) Custody, are adjourned to 28 November 2011 in courtroom 202 at 10:00 a.m. for settlement conference.