S.S. v. S.K., 2013 ONCJ 432

COURT FILE NO. D40244/06 Citation: S.S. v. S.K. , 2013 ONCJ 432 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) S.S. ) ) ) EAMON B. NICHOLSON, for the APPLICANT ) APPLICANT ) ) - and - ) S.K. ) LAUREN ISRAEL, for the RESPONDENT RESPONDENT ) ) ) ) ) ) HEARD: AUGUST 1, 2013 JUSTICE S.B.

SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] The applicant (the father) and the respondent (the mother) have both brought motions to change the final order of Justice James Nevins, dated March 14, 2006 (the existing order). [ 2 ] The existing order grants the parents joint custody of their eight-year-old daughter (the child), with primary residence to the mother. It provides the father with a single overnight visit to the child on alternate weekends and alternate Sunday day access. It is silent with respect to child support.

[ 3 ] The father seeks multiple parenting orders, including an expansion of his access with the child to every weekend (for the full weekend), evening access and defined holiday time. He wants to have decision-making authority for the child’s extracurricular activities and Tamil classes and asks that he be entitled to arrange them near his home in Markham. The father is not seeking to change the order for joint custody, but does ask in his Change Information Form to eliminate the primary residence provision in the existing order. [ 4 ] The mother seeks a sole custody order.

She asks that the father’s access be changed so that he has a longer visit on alternate weekends and that the current day visit on alternate weekends be eliminated. She proposes instead a Wednesday evening visit. She also proposes a specified holiday schedule. She opposes many of the father’s parenting requests. [ 5 ] The mother seeks child support retroactive to August 1, 2008. The father opposes the court making any retroactive order and is prepared to pay ongoing child support based on his 2012 income. [ 6 ] The parties presented their direct evidence through affidavits and financial statements.

They each cross-examined the other and made submissions. Part Two – Background [ 7 ] The father is 48 years old. He is single and resides in Markham, Ontario in a home that he owns. The father is steadily employed as a Production Coordinator and earned $72,818 in 2012. [ 8 ] The mother is 40 years old. She lives with the child in Toronto, Ontario. The mother is single, but is involved in a serious relationship. [ 9 ] The parents were married on June 1, 2003 and separated on October 5, 2005. They have not divorced. [ 10 ] The father issued an Application for access on January 30, 2006.

At that time, he lived close to the mother in Toronto. The mother filed an Answer/Claim seeking custody, supervised access for the father and child support. [ 11 ] The case was resolved at the first court appearance on consent. This consent was incorporated into the existing court order. The parents both had the assistance of duty counsel before executing the consent. At that time, the mother withdrew her claim for child support. [ 12 ] The father paid child support to the mother up until the end of July of 2008.

That was when he bought his current home in Markham. [ 13 ] The father did not pay the mother child support from August 1, 2008 until April 30, 2011. [ 14 ] The father began paying the mother child support of $535 per month starting on May 1, 2011. [ 15 ] The parties never resumed cohabitation. Evidence was led that the family would go on some trips and activities together between 2008 and May of 2011 and the mother would sometimes stay at the father’s home with the child. The parties discussed reconciliation at various times between 2008 and 2011. [ 16 ] The father issued his motion to change on May 2, 2012.

Shortly after, he changed his monthly support payments to $617 per month.

[ 17 ] The mother filed her Response to Motion to Change and Claim on August 10, 2012. [ 18 ] On October 9, 2012, Justice Carole Curtis made a temporary order that the father pay child support to the mother in the sum of $615 per month, starting on November 1, 2012, based on his stated annual income of $67,208. This order was made without prejudice to the mother’s right to claim a different amount of income or a different start date. Justice Curtis also ordered that the father not discuss the mother, her family or partner with the child and not discuss where the child lives or her

schedule with the child. She also made a financial production order. [ 19 ] On March 8, 2013, Justice Curtis changed her temporary child support order, requiring the father to pay the mother $663 per month, starting on November 1, 2012, based on his income of $72,818 in 2012. This order was also made without prejudice to quantum and start date. [ 20 ] The father presently exercises access on alternate weekends from Saturdays at 11:30 a.m. until late on Sunday evening, and on alternate Sundays from noon until late in the evening. This access is different than that set out in the existing court order.

Part Three – Credibility and review of contentious evidence [ 21 ] The parties gave conflicting evidence on many material points, including:

a) The father claimed that the mother has been neglectful towards the child, preferring her relationship with her boyfriend. He claimed that the mother removed the child from her Tamil class because the teacher questioned why her boyfriend was picking up the child instead of the father. The mother denied these allegations.

b) The mother claimed that the father has been controlling, demanding and emotionally abusive of her and the child. She claimed that this abuse has dramatically increased since the father learned about her relationship with her boyfriend in 2011. The father denied these allegations.

c) The father claimed that the parties were essentially together as a couple from 2008-2011 and the mother told him that she did not want child support from him. The mother denies this. She states that the father exaggerated the extent of their contact between 2008 and 2011. She said that they never reconciled, maintained separate residences and never had sexual relations. She says that she never agreed to forego child support. She said that the father would become furious and scream at her whenever she raised the topic.

d) The father claimed that the child spent every weekend with him prior to this court case. The mother denies this and deposed that the father often wouldn’t even exercise the access granted to him in the existing order.

e) The mother claims that the father returns the child late on Sunday evenings (9-9:30 p.m., often without feeding her dinner). The father did not deny the timing of his access, but denied failing to properly feed the child.

f) The mother claimed that the father has been exercising poor judgment with the child, including:

i) Involving her in the litigation. ii) Attempting to convince the child to move in with him, telling her that the schools in Markham are better and his home is better than the mother’s. iii) Criticizing the mother’s relationship with her boyfriend and her care of the child to the child.

iv) Forcing the child to write a letter for this trial to buttress his case. [ 22 ] Where the father’s evidence conflicted with the mother’s, I preferred the evidence of the mother. [ 23 ] In a rigorous cross-examination, the mother’s counsel was able to establish that the father either deliberately misstated or overstated many of his allegations against the mother.

He would often make bald accusations against her, with no corroboration, in an effort to place her in a bad light, [ 24 ] An example of this is the father’s allegation that the mother terminated the child’s Tamil lessons due to the teacher questioning why the mother’s boyfriend was picking up the child instead of the father. The father provided no corroboration of this allegation, or any detail about how he arrived at this conclusion. He claimed that he “might have” spoken to the teacher about this. He provided no evidence from the teacher.

The mother, on the other hand, produced an email, dated December 12, 2011, where she explained to the father that she was withdrawing the child from the after-school Tamil class because the child was coming home too tired. In her email, she said that she was prepared to send the child to a Sunday class instead. The father omitted this explanation in his evidence and instead tried to make the mother look petty. [ 25 ] Another example of this is the father’s reaction when he saw the child with the mother’s boyfriend in 2012 at the public library.

The father deposed that he could not accept a stranger picking up his child. It became clear in the evidence that the boyfriend was not a stranger to the father. They had attended together at the child’s birthday party and had even gone to lunch together. He knew that he was the mother’s boyfriend. [ 26 ] It is telling that despite the father’s purported grave concerns about the mother’s neglect of the child, he never reported her behaviour to the police or to a children’s aid society. [ 27 ] I found the father to often be evasive when answering difficult questions.

He would try to redirect the discussion to his own agenda. The mother answered questions openly and consistently. Her evidence was not seriously challenged during cross-examination. [ 28 ] It was evident that the father was inappropriately involving the child in the litigation and has ignored Justice Curtis’ order to refrain from doing so. The parties agreed to provide their direct evidence by affidavit. The father asked for the opportunity to provide additional oral evidence prior to his cross-examination.

He produced a letter dated July 22, 2013, that he said the child had written complaining about being mistreated by her mother and boyfriend. It was apparent that this letter had been dictated by the father and not written by a child of this age. Interestingly, the father had told no one about this letter; not the police, the Children’s Aid Society or even his own lawyer, prior to testifying. He certainly gave no notice of this letter to the mother. It was apparent to the court he was trying to ambush the mother and obtain a litigation advantage.

He used the child as a tool to accomplish this with little regard to the position it placed her in. [ 29 ] The mother was asked about the letter. She said that she was aware of it, as her daughter had called her crying and apologizing saying that her father had forced her to write a letter saying bad things about her and her boyfriend. The mother said that she did not raise this issue at court as she felt that it would place the child in a difficult position with her father. It was the father who raised the issue and the mother was forced into responding to it.

One parent was child-focused, the other was not. [ 30 ] It also was very apparent in his cross-examination that the father was having inappropriate discussions with the child, contrary to the order of Justice Curtis. He conceded that he has made his negative feelings about the mother and her boyfriend known to the child. He told her that Markham schools were better than Toronto schools, extra-curricular activities were better in Markham and she would have a better home if she lived with him. He has clearly been recruiting the child and attempting to undermine her relationship with her mother.

He is also trying to sabotage the child’s relationship with the mother’s boyfriend. All of this has been confusing and distressing for the child. [ 31 ] The father provided no credible evidence that the mother is anything other than a caring and responsible parent. [ 32 ] Both parents filed email exchanges between them. The tone of the father’s emails was often demanding and condescending towards the mother, corroborating her evidence about how he treated her.

[33] The father also presented as rigid and controlling at times during his examination, supporting the mother’s evidence. Forexample:

a) When the parties were discussing reconciliation, he admitted that he made it clear to the mother that he wanted none of her friendsinvolved in her life.

b) He insisted that he had the right to know where his child was at all times.

c) He believed that he should have the right to pick up the child from school whenever the mother was working, even if the motherhad made alternative arrangements, and it wasn’t his access day. He testified, “She needs to contact me all of the time”. However, theevidence indicated that due to his work commitments, the father was rarely able to assist with pickups. The father also was insistent onreceiving 24 hours notice as to when the mother would be unavailable to pick up the child.

It became apparent to the court that thisrequest was more about control of the mother and her relationship with her boyfriend than about the best interests of the child. Part Four – Parenting 4.1 The legal framework [34]

Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. Itstates: A court shall not make an order under this Part that varies an order in respect of custodyor access made by a court in Ontario unless there has been a material change incircumstances that affects or is likely to affect the best interests of the child. [35] The Supreme Court of Canada decision in Gordon v. Goertz (1996) (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out atwo-stage process for the court to conduct in mobility cases.

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all therelevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 4.2 – Material change in circumstances [36] In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold conditionof establishing a material change in circumstances. The court says that the question is whether the previous order might have beendifferent had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:

a) of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

b) which materially affects the child; and

c) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [37] The onus of establishing the material change is on the person seeking the change. The change must have altered the child’s needsor the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v.Gray, 2008 SKCA 7 , 2008CarswellSask 10 (C.A.). If the material change cannot be established, the motion is to be dismissed. [38] The evidence indicates that up until the middle of 2011, the parents were able to make arrangements in the best interests of thechild.

They were reasonably flexible about access and the child was doing well. This changed when the father learned about the mother’srelationship with her boyfriend in 2011. The mother established that there have been material changes adversely affecting the bestinterests of the child including:

a) The father has increasingly been acting in an aggressive, controlling, intrusive and inappropriate manner towards her, and at times, thechild.

b) The father is using the joint custody label to inappropriately exert control over her and the child.

c) The father has been inappropriately undermining her and her boyfriend to the child, is actively recruiting the child to live with him

and has inappropriately involved the child in this litigation.

d) The child is suffering emotional distress due to the father’s behaviour. The father has undermined her sense of stability and security.

e) The father has moved a considerable distance from the mother and is claiming the right to arrange her extra-curricular activities andTamil classes in Markham.

f) The parties have exercised access regimes that are different than those contained in the existing order. The child was an infant whenthe existing order was made and her needs have changed. She now has her own friends and is involved in her community. [39] Once the threshold of a material change in circumstances affecting the best interests of the child is established, the court mustengage in a fresh inquiry as to what order is in the child’s best interests. 4.3 Custody [40] The Ontario Court of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J.

No. 275 sets out the followingprinciples in determining whether a joint custody order is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5.

No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise theymust be able to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. [41] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too manyissues affecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260, Roy v. Roy CanLII 15619 (ON CA),[2006] O.J. No. 1872 (Ont. C.A.). [42] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict.

A standard ofperfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235 , 2005 CarswellOnt 3209(OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so thatthe best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON S.C.). [43] Recently, in K.H. v. T.K.R., 2013 ONCJ 418 (an analysis of a request for a parallel-parenting order), I wrote that courtsshould assess the dynamics of a family when determining if a parallel-parenting order is appropriate.

Particularly, the court shouldexamine if the granting of such an order is more or less likely to expose the child to parental conflict and if a parent is seeking the orderas a mechanism to inappropriately control the other parent. The comments that I made in paragraphs 55-57 of that decision are just asapplicable to a joint custody analysis. They read as follows: [55] The fourth consideration is about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents’ conflict. [56] A parallel-parenting order can be a useful tool for settlement.

The risks associated with it (as set out above) may be outweighedby the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where bothparties are fully engaged as parents. With parents who sincerely want to be involved with their children for their children’s benefit, suchan order will likely have the benefit of de-escalating conflict.

The children, in such cases, will receive the benefit of two involved parents. [57] However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of assertingcontrol over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests oftheir children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster.

It can become aspringboard for that parent to assert control and make the lives of their former partner and children much more difficult. [44] Ultimately, the court must decide if a joint custody order is in the child’s best interests and consider the factors set out insubsection 24 (2) of the Act in reaching this decision. I have done this. [45] It is in the best interests of the child that the mother be awarded sole custody. The father has abused the joint custody label to

control and dominate the mother and the child. It is in the child’s best interests to stop this and to construct clear boundaries for the father. [ 46 ] The father has exercised very poor judgment. He has let his jealousy of the mother’s boyfriend affect his behaviour. He is actively undermining the stability of the child’s relationship with the mother and her boyfriend. He has been recruiting the child to live with him.

This has been confusing and destabilizing for the child who loves both parents and wants to please her father. [ 47 ] The father has breached Justice Curtis’ order of Oct 9, 2012 prohibiting him from discussing with the child the mother, her family or partner, where the child lives or her schedule. Serious questions are raised about his judgment and behaviour when he cannot behave appropriately with the child, even when the prohibited behaviour is clearly spelled out in a court order. [ 48 ] The father shows little insight into how his behaviour has adversely affected his child.

He cannot be trusted to make good decisions for her. [ 49 ] Many of the orders requested by the father appear to be more about his needs and not the child’s. He wants the child with him every weekend and on one night during the week. He shows no concern about the mother having any weekend time with the child. He wants all of the child’s activities to be arranged by him close to his home in Markham, as well as her Tamil classes. This is despite the fact that the child is settled into her community in Toronto and this is where her friends and activities are presently located.

He does not take into account the travel time the child would have to go through going back and forth between Markham and Toronto (about a 30 minute drive in good conditions). He also wants the child to be available for telephone calls every night between 6:00 p.m and 8:30 p.m., having little regard for the mother’s or the child’s schedule. [ 50 ] The court finds credible the mother’s evidence that she and the child are very wary about upsetting the father – that he becomes verbally abusive when they do not comply with his expectations.

This is not appropriate communication for a joint custody order. [ 51 ] The evidence indicated that the mother is making responsible decisions for the child and is parenting her appropriately. The child had a very good report card (although the father complained that she could do better). The report card describes her as a smart, engaged and social child. [ 52 ] The mother will be granted sole custody of the child. The court will be granting the father the rights of information set out in subsection 20 (5) in the Act, and no more.

This subsection provides that the entitlement to access to a child includes the same right as a parent to make inquiries and to be given information as to the health, education and welfare of a child. [ 53 ] The incidents of custody requested by the father in his motion to change are dismissed. A clear message needs to be sent to him that his behaviour has been inappropriate and that he is not to interfere with the mother’s life and her ability to make decisions about the child. The mother is a responsible parent. She will decide who the child can spend time with.

She is free to have a relationship with another man and introduce the child to any person she chooses without any interference from the father. 4.4 Access [ 54 ] The court must determine what access terms are in the child’s best interests and consider the factors set out in subsection 24 (2) of the Act. I have done this. [ 55 ] It is not in dispute that the father and child love one another.

If the father acts appropriately, it is in the child’s best interests to spend meaningful and significant time with him. [ 56 ] The mother’s access proposal was far more child-focused than the father’s and provides for the child to spend this meaningful and significant time with him. The court agrees with the mother that it is in the child’s best interests to have weekend time with her. This will also afford the child the opportunity to spend time with her friends near her home on weekends. [ 57 ] The court will, for the most part, adopt the mother’s access plan set out in her trial affidavit.

Some adjustments to her proposal will be made for the sake of clarity and to provide consistent return dates for the child before a school week begins. It is unacceptable that the father is returning the child home between 9 and 9:30 p.m. on the evening before the school week begins. The court will also simplify the sharing of statutory holidays by granting the additional day to the father, if it is already his access weekend.

Additional terms will be included in the order to avoid any confusion about summer access times. [ 58 ] The father has sought a term that the child not be removed more than 100 km. from the Greater Toronto Area, without the consent of the other parent, except for a vacation. He has also asked for travel terms.

Given his close relationship with the child, it is in her best interests to grant these requests, with some minor modifications. [ 59 ] The other incidents of access requested by the father in his motion to change, not encompassed by the mother’s proposal (many of the holiday requests were similar), are dismissed as not being in the child’s best interests and in many instances, as being too intrusive (such as the telephone access set out above). [ 60 ] This access order will provide the father with more time with the child than is set out in the existing order.

While he won’t be seeing the child every weekend, he will be spending extended periods of time with her and will also have mid-week visits. It is this court’s hope that these reasons for decision will help him recognize the stress that he has inappropriately caused the child and that he will stop this behaviour and focus on being a supportive parent. If he is unable to do so, he is cautioned that this court may have to place further restrictions on his contact with the child to protect her emotional welfare.

Part Five – Child support [ 61 ] The mother seeks the Child Support Guideline (the guideline) table amount of child support, based on the father’s income, retroactive to August 1, 2008. This is the date when the father stopped paying child support (until he resumed making payments in May

of 2011). [ 62 ] The mother is not seeking any current or retroactive contribution by the father to the special expenses of the child as defined in

section 7 of the guidelines. [ 63 ] The father asks the court to only order ongoing child support. [ 64 ] The father’s income since 2008 has been as follows: 2008 $64,980 2009 $65,000 2010 $66,300 2011 $67,208 2012 $72,818 [ 65 ] The father did not provide any of his complete income tax returns, his 2012 notice of assessment (he did provide his 2012 T4 statement) or proof of his 2013 income, such as pay stubs, despite being required to do so by the Family Law Rules .

He is fortunate that the mother did not ask to fix his 2013 income at an amount higher than his 2012 income to assess his ongoing support obligations. [ 66 ] The guideline table amount for one child at an income of $72,818 per annum is $663 per month, and that will be the father’s ongoing child support obligation. [ 67 ] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised: 1.

Reasonable excuse for why support not considered earlier. 2. Conduct of the payor parent. 3. Circumstances of the child. 4. Hardship occasioned by the retroactive order. [ 68 ] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it.

The payor’s interest in certainty must be balanced with the need for fairness and flexibility. [ 69 ] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility ( D.B.S . ,par. 5 ). [ 70 ] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached.

Once that has been done the payor can no longer assume that the status quo is fair ( D.B.S. , par. 121 ). [ 71 ] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. ( D.B.S., par.123).

Delay [ 72 ] The mother did not make her claim for retroactive support until she filed her Answer/Claim on August 10, 2012. I accept her evidence that she broached the subject of child support with the father shortly after August 1, 2008, once they had decided not to reconcile. It appears that the mother did not aggressively pursue the support issue with the father.

[ 73 ] It is unlikely that the mother would have even brought the support issue to court if the father hadn’t issued his motion to change. The mother explained that the parties had a traditional Indian marriage, where the wife is expected to obey the husband, so that when the father said he wasn’t going to pay child support, she was expected to accept this. She said that the father would become verbally abusive to her whenever she raised the issue and she wanted to make peace with him, both for her sake and the sake of the child.

She felt that the father would make their lives unbearable if she pushed the support issue too hard. She said that she did not feel strong enough to stand up to him. The mother testified that when the father sought expanded parenting rights, she felt that it was finally time to do this. [ 74 ] The court found the mother’s evidence credible, but also finds that there were other factors involved in her decision not to pursue support. The evidence showed that the parties were frequently discussing reconciliation between 2008 and 2011. They went on several trips together as a family unit.

The mother went as far as exploring the child’s registration in Markham schools in 2009 and 2011. It is unlikely that the mother would have been actively seeking child support from the father during the times that reconciliation appeared to be imminent. [ 75 ] The father’s evidence that the mother told him that she never wanted child support from him was not credible. He was aware that the mother was struggling financially and needed support. The mother also produced an email dated July 15, 2011 pleading with the father to send her support cheques.

This email did not appear like it was the first time that she had requested support from him. Blameworthy conduct [ 76 ] D.B.S. defines blameworthy conduct as the payor preferring his or her own interests to those of the child (par. 106). The father certainly has done this. He testified that he was aware of his child support obligations and the child’s need for support, yet he paid nothing for almost three years. The mother paid the entire cost of the child’s day-care during this time. The father was able to make a $40,000 down-payment for a home and has lived comfortably while the mother has struggled to get by.

The father has been able to obtain a significant financial advantage at the expense of the mother and the child. [ 77 ] The father has engaged in blameworthy conduct. Circumstances of the child [ 78 ] The child has been adversely affected by the father’s failure to pay child support. The child and the mother live in a crowded one- bedroom apartment (that the father has the gall to criticize). The mother has been unable to afford better accommodation directly due to the father’s failure to pay adequate child support.

Undue hardship [ 79 ] While the payment of a retroactive award will create some discomfort for the father, he has the ability to pay it. The equity in his home has increased since 2008 (his financial statement reflects a $9,000 increase in equity – likely a very conservative estimate). If necessary, the father can refinance his mortgage and pay the arrears that will be created by this order. [ 80 ] There will be an order for retroactive support. Start Date [ 81 ] Once a court decides to make a retroactive award, it must then determine the amount.

There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor’s deficient obligations during that time. The four D.B.S. factors set out above impact on how the court will exercise its discretion. [ 82 ] The court accepts the mother’s evidence that she orally broached the topic of child support with the father, on occasion, after he stopped paying support in August of 2008.

However, the court also finds that at times, the mother was not actively pursuing child support because the parents were planning to reconcile.

[ 83 ] It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor, subject to the exception for blameworthy conduct ( D.B.S. par. 125 ). Formal notice of the mother’s claim was made on August 10, 2012. Balancing all of the evidentiary and legal considerations set out above, the support order will be made retroactive for three years prior to the date formal notice was given to the father. The order will begin on September 1, 2009.

Credits [ 84 ] The father claimed that he paid for many of the child’s expenses during the time he wasn’t paying formal child support. Aside from providing a hotel receipt for one trip to Niagara Falls, he provided no corroborative evidence.

The court accepts the mother’s evidence that the father paid her no child support from August 1, 2008 until April 30, 2011. [ 85 ] The father has paid the mother the following amounts for child support since September 1, 2009: 2009 $0 2010 $0 2011 $4,280 2012 $7,060 2013 $4,920 Total $16,260 [ 86 ] Set out below are the guideline table amounts of child support that the father should have paid to the mother, based on his annual income, since September 1, 2009.

The arrears created by this order are $14,221, calculated as follows: 2009 - 4 months at $601 per month $2,404 2010 - 12 months at $613 per month $7,365 2011 - 12 months at $621 per month $7,452 2012 - 12 months at $663 per month $7,956 2013 - 8 months at $663 per month $5,304 Total accrued support $30,481 Less credits set out in paragraph 48 above ($16,260) Arrears owing $14,221 Part Six - Conclusion [ 87 ] Final orders will go on the following terms:

a) The order of Justice Nevins dated March 14, 2006 shall be changed by terminating it and replacing it with the terms of this order.

b) The mother shall have sole custody of the child.

c) The father shall have the rights to information about the child contained in subsection 20 (5) of the Act.

d) Starting on Friday August 9 th , 2013, the father shall have access to the child on alternate weekends from Fridays after school until Sundays at 7 p.m., extending until Mondays at 7 p.m. if his access weekend is followed by a statutory holiday.

e) Starting on Wednesday, August 14 th , 2013, the father shall have access to the child on each Wednesday from 6:00 p.m. until 8:00 p.m.

f) Holiday times with the child shall be shared as follows:

i) Winter school break – The child shall spend the first half of the break with the father in odd-numbered years, from 3:30 p.m. on the child’s last day of school in December, and the second half of the break with the father, ending at 7:00 p.m. on the day before the child returns to school, in even-numbered years.

The child shall spend the other halves of the break with the mother. ii) March school break – The child shall spend the first half of the break with the father in odd-numbered years from 3:30 p.m. on the child’s last day of school, and the second half of the break with the father, ending at 7:00 p.m. on the day before the child returns to school, in even-numbered years.

The child shall spend the other halves of the break with the mother. iii) Halloween – The child shall spend Halloween with the father in odd-numbered years from 3:30 p.m. until 9:00 p.m., and with the mother in even-numbered years at the same times, if the child would otherwise be scheduled to be with the other parent. iv) Summer – starting in 2014 , each party shall be entitled to spend one exclusive week with the child in each of July and August. The father shall have priority in choosing his week for the month of July and the mother will have priority in choosing her week for the month of August.

The parties shall advise the other what week they will choose in the months they have priority by May 15 th each year. The mother will then notify the father of what week she will choose in July and the father will notify the mother of what week she will choose in August by May 30 th of each year.

v) Mother’s Day and Father’s Day – The child will be with the father on Father’s Day from 10:00 a.m. until 7 p.m. and with the mother during these times on Mother’s Day, if the child would otherwise be scheduled to be with the other parent.

g) The access exchanges, other than those stated to take place at school, shall take place in the lobby of the mother’s apartment.

h) The mother shall not move the child’s residence more than 100 kilometers outside of the Greater Toronto Area without the written consent of the father, or prior court order.

i) Each parent may take the child outside of the Province of Ontario, when the child is not in school, for up to one week. The vacationing parent shall give to the other parent a minimum of 30 days written notice prior to the date of departure of his or her intention to travel and provide particulars of the child’s travel arrangements such as the place where the child will stay, dates of departure and return, airline, airport and a contact telephone number where the child can be reached. Where necessary, the non-traveling parent shall provide the traveling parent with all relevant documentation and consents to facilitate the travel arrangements.

j) The holiday access set out above shall take priority over the regular access schedule.

k) The father shall pay the mother child support retroactive to September 1, 2009 as set out in paragraph 86 above and be credited with the payments as calculated in paragraph 85 above. Child support arrears shall be fixed in the sum of $14,221 as of August 1, 2013. They shall be paid within 60 days.

l) The father shall pay ongoing child support to the mother in the sum of $663 per month starting on September 1, 2013. This is the guideline table amount for one child based on the father’s income of $72, 818 per annum.

m) The father shall provide the mother by June 30 th with copies of his complete income tax returns, notices of assessment and his most recent pay stub. It is anticipated that child support will then be adjusted in accordance with his income for the prior year.

n) A support deduction order shall issue.

o) The Family Responsibility Office is requested to amend their records to be in accordance with the terms of this order.

p) The balance of the father’s motion to change is dismisse. [ 88 ] If either party wishes to seek costs, they shall serve and file written submissions by August 20, 2013. The other party will then have until September 3, 2013 to serve and file a written response to these submissions. The written submissions are not to exceed 3 pages, not including any offer to settle or bill of costs. The submissions should be filed at the trial coordinator’s office on the second floor of the courthouse. [ 89 ] I thank counsel for their professional presentation of this case. ___________________________ Justice S.B. Sherr Released: August 7, 2013