Court File and Parties
Court File No.: Brampton 75-14 Date: March 31, 2017 Ontario Court of Justice
Between:
SOPHIA DUFFUS Applicant
— AND —
RAYMOND WALTERS Respondent
Before: Justice A.W.J. Sullivan
Decision on a Motion to Change commenced by Mr. Walters requesting a change to the child support and the access provisions of the order of Justice Parent dated July 30, 2014
Heard: February 10, 2017
Decision Released: March 31, 2017
Counsel
Sophia Duffus — Self-represented
Mr. Mark Trenholme — Counsel for the Respondent Raymond Walters
SULLIVAN J.:
Introduction
1This is the court's decision in a Motion to Change commenced by Mr. Walters in which he requests a change to the child support and access provisions of the order of Justice Parent, dated July 30, 2014. This Motion to Change can be located at tab one of Volume 2.
2With regards to access, Mr. Walters requests additional time with his son, Xavier Duffus Walters, born November 19, 2013 around holidays, birthdays and some weekend overnight access.
3Ms. Duffus, Xavier's mother, filed an amended Response to Motion to Change located at tab 3 of Volume 3, in which she asks this court to recalculate Mr. Walters' child support obligations for his son Xavier and to fix monthly child support. She argues that Mr. Walters' income had increased since the last order and that there is no valid reason for him not to be working.
4Ms. Duffus argues that in 2015 Mr. Walters' income increased to $48,857.55 from the 2014 level which was $33,727. She further argues that he no longer has support obligations for two children from a previous relationship.
5In regards to Mr. Walters' access to Xavier, Ms. Duffus suggests that access should be day access and proposes the following schedule:
(a) Every Tuesday and Thursday from 4 p.m. to 8 p.m. Pick-up from daycare and/or school and drop-off at a plaza located at Bovard and Worthington in Brampton Ontario near the McDonalds;
(b) Every other Saturday and Sunday from 9 a.m. to 6 p.m., pick-up and drop-off from the plaza at Bovard and Worthington in Brampton near the McDonalds; and
(c) Reasonable holiday and special occasion access as agreed upon between the parties from time to time.
Evidence Before the Court
6This matter came before the court for final arguments with affidavits filed by both parties. The principal affidavits considered by the court for Mr. Walters are located at tabs 2 and 12 of Volume 3. The affidavit at tab 12 contains financial disclosure as well as pictures of his apartment.
7Ms. Duffus filed an affidavit of December 29, 2016 located at tab 5 of Volume 3.
8This matter was fully argued on February 10, 2017.
Access Arguments
9In relation to Mr. Walters' request for additional time with Xavier, he argues that the current access that has been in place since the summer of 2016 has been working and that his son is older and enjoys his time with Mr. Walters.
10Mr. Walters did provide, in earlier pleadings, photos of his apartment which shows a neat and well-kept environment.
11Ms. Duffus, in her pleadings, does not argue against access but rather has some reservations regarding overnights. She did indicate to the court that communication with Mr. Walters has improved from the past. She felt that the use of a communication book between the parties would be of benefit. In her pleadings she does not argue against extended day access. Indeed, she has indicated that her son would benefit from time with Mr. Walters, provided that he is consistent and lives up to the obligations which he has argued in his pleadings that he wishes to do.
12It was pointed out that Mr. Walters, in the earlier stages of these proceedings, was arguing that he was emotionally unhealthy and therefore unable to work. When this was pointed out to Mr. Trenholme, Mr. Walters' lawyer, the court was informed that Mr. Walters was not relying on any medical evidence, nor was he putting this issue forward in relation to the reasons he is currently unemployed.
13Therefore, this evidence is not before the court in any reliable form in relation to his request for access. In other words, Mr. Walters had made the suggestion that he had medical difficulties when he initially argued to the court on his own in the face of the request for additional support, however he has not been able to provide any reliable evidence in this regard.
14When speaking to Ms. Duffus about access, the court did note that effectively there does not appear to be any reason for any restriction on overnight visits between her son and his father. The current access schedule has Xavier in Mr. Walters' care for up to 8 hours during the day and there have been no incidents. Of course, there are different parenting styles and skills which come with each parent's ability. Some parents have different disciplinary approaches or are better able to develop activities or preparing food for their children during access. Some of these experiences will be different than in Xavier's principal home with Ms. Duffus, however this should not stop expanded access from moving forward.
Mr. Walters' Income
15On this issue Ms. Duffus argues that Mr. Walters has not been able to prove why he has remained on social assistance for the length of time that he has been.
16She notes that Mr. Walters' job search presented as disclosure in this matter was the same job search provided by Mr. Walters when the matter was initially before the court in July 2014.
17Indeed, a review of the continuing record at Volume 1 tab 8 has the exact same job search that was presented by Mr. Walters in this matter before the court today.
18Ms. Duffus further notes that Mr. Walters was working for Daniels Healthcare as a route driver. Mr. Walters has been driving trucks for a living. She argues that there is no evidence to suggest he cannot do so today. As well, there is no medical evidence presented to support why he may not be employed.
19Mr. Walters presented as Exhibit "E" to his December 19, 2016, affidavit located at tab 2 of Volume 3, a letter from Daniels Healthcare, dated November 30, 2015, indicating that Mr. Walters' position was terminated due to the elimination of the position.
20The court pointed out to Mr. Walters that the record of employment file at Exhibit "F" to his affidavit indicates that his employment ended with Daniels Healthcare Canada Limited for reasons of "dismissal." This created some confusion for the court. Dismissal might also mean dismissal for cause or loss of employment.
21Mr. Walters did find new employment with Shred-it Canada Limited.
22The letter from this employer was filed as Exhibit "L" to an earlier affidavit of Mr. Walters dated June 24, 2016. This is located at tab 12 of Volume 2. This letter is undated but signed by a Shayne Rivers, Service Manager. The letter states the following:
Please be advised that Raymond Walters was supposed to start work with us, but due to circumstances surrounding his custody dispute with this child informed me that he would not be able to work here.
23In Mr. Walters' affidavit filed on August 30, 2016 he indicates that he quit this job as he was not allowed the allotted time off to "represent his son" in this custody case. He further indicated that he had medical issues because of difficulties in the earlier separation from Ms. Duffus, which predates the current order and therefore cannot be considered at this time as a material change.
24During the argument for the Motion to Change, the court was direct with Mr. Walters that this letter, and the surrounding reasons for not following through with the employment offered by Shred-It, did not help him with why he is not employed now. This upset Mr. Walters during the hearing. This was not the court's intention but rather the court wanted to be as direct and open and transparent and wanted to provide Mr. Walters with an opportunity to explain the circumstances surrounding why he could not follow through with that employment.
25Mr. Walters, through counsel, argued that he currently continues to look for employment but is unable to find the same kind and that his only source of income is that of Ontario Works. Proof of Mr. Walters being on Ontario Works' social assistance was provided.
Tests on the Motion to Change
Changes to Child Support Orders
26The moving party only has to show a change in circumstances (not a material change) within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available (subsection 37 (2.1) of the Family Law Act) to successfully change a child support order. Section 14 of the Child Support Guidelines sets out the circumstances that must be proven in order to warrant a variation in a child support order:
14. Circumstances for variation. — For the purposes of subsection 37(2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
In the case of an order made under the Act, the coming into force of subsection 33(11) of the Act.
27The burden of proof lies upon the moving party, on a balance of probabilities, to establish a change in circumstances that would result in a different order. Jardine-Hynds v. Grant, 2009 ONCJ 133.
28The coming into force of the Child Support Guidelines created an automatic right to change pre-existing orders. Wright v. Zaver, 24 R.F.L. (5th) 207 (Ont. C.A.).
Changes to Custody/Access Orders
Final Orders
29Under section 29 of the Children's Law Reform Act (CLRA), the court may change a final custody/access order if there is a material change of circumstances affecting the best interests of the child. This is a two-step process:
a) The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.
b) Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.
Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen, 38 R.F.L (4th) 96 (Ont. Gen. Div.).
30The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett, 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).
31Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal, 26 R.F.L. (5th) 433 (Ont. C.A.).
32The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 Sask. 10 (CA).
33In order to determine if the conditions for a variation exist, the change of circumstances must be material as opposed to trivial or insignificant. Hickey v. Hickey, [1999] 2 S.C.R. 518.
34In the decision, Zolaturiuk v. Johansen, the court said that "material" does not mean "major" and that if an order is not working and needs to be clarified or fine-tuned, this can be material. In Zinck v. Fraser, 2006 NSCA 14 , 22 R.F.L. (6th) 334 (N.S.C.A.), the court found that on-going conflict and actions running contrary to the spirit of the custody order were enough to constitute a material change in circumstances.
Discussion and Findings
35Considering the above facts and the law, this court finds that there has been a material change since the order of Justice Parent, dated July 30, 2014 as it pertains to the access arrangements between Mr. Walters and his son Xavier. The court, however, does not find that there has been a material change that would support a change to the current order in relation to a decrease from the amount of child support found in Justice Parent's order.
Access
36Over the course of this file being before the court, which has now been since the spring of 2016, access between Xavier and his father has increased. In July 2016 an access order was put in place that saw access between Xavier and his father each Tuesday and Thursday evening from 4 p.m. to 8 p.m. as well as every other Saturday and Sunday daytime access from 9 a.m. to 4 p.m. Pick-up and drop-off occurred at the McDonalds and the return to McDonalds and/or pick-up from daycare.
37In July 2016 the court also ordered that Mr. Walters was to pay child support commencing July 1, 2016 in the amount of $433 based on his 2015 income of $48,875. This amount of support was higher than existed in 2014 as it was based on Mr. Walters' income in 2015 while he was employed by Daniels Healthcare.
38In reviewing the access with the parents, it is clear that it has moved forward in a progressive and positive way. Although there are differences between the applicant and the respondent, none of these have spilled over into major disputes between the parties that would require involvement of outside resources.
39Ms. Duffus was direct with the court in that she recognized that although she has different parenting skills than Mr. Walters, access has been beneficial to her son. She herself as encouraged this, both in her submissions and her pleadings before the court. She did have some initial reservations regarding Mr. Walters stepping up and in particular the state of affairs in relation to his apartment. These have been clarified to some degree. Communication during pick-up and drop-off has generally been civil. Further, the court, in its discussion with Ms. Duffus on this issue, pointed out that Mr. Walters, during the significant day access that he has had with Xavier, effectively is playing a parenting role during this time and increasing that to overnight is a logical next step unless there is significant and cogent reasons not to. There is nothing from the evidence before the court presently that would block overnight access.
40Therefore, it is this court's decision that Mr. Walters should have overnight access every other weekend access. Further details are outlined in the Order section below.
Change in Child Support
41In terms of Mr. Walters' current employment situation, there is evidence that regrettably he was laid off from his employment with Daniels Healthcare. Mr. Walters had worked with Daniels Healthcare from March 17, 2015, to November 20, 2015. He was able to earn a good living with Daniels Healthcare and took advantage of all opportunities for overtime. Regrettably, as pointed out in Exhibit "E" to Mr. Walters' affidavit of December 19, 2016, his position was eliminated at Daniels Healthcare although the record of employment indicates dismissal. This caused some confusion to the court. The court accepts that Mr. Walters was laid off. The record of employment with Daniels Healthcare would have permitted Mr. Walters to obtain employment insurance.
42As Mr. Walters puts it in paragraph 11 of his December 19, 2016 affidavit, he found employment with Shred-It and started to work as a probationary worker and during this time he had asked for some flexibility with his work schedule to address issues dealing with his access to his son at court. He testified that he expected to continue working at Shred-It but instead he received a letter that he attached to his earlier pleadings as noted above. This letter causes some confusion as the way it is written as it appears that Mr. Walters chose not to continue working and indeed his record of employment presented indicates that he quit.
43It is undisputed that Mr. Walters has a DC driver's license that allows him to operate most vehicles under a certain weight. He does not have a driver's license that allows him to drive transport trailers. He has however worked as a truck driver for different companies for about eight years. He has no violations or criminal record.
44It was pointed out that in these proceedings, when requested to show his job search he effectively filed the same job search that was before the court in 2014. When this was pointed out the court indicated to all that to some extent Mr. Walters might have used this list to follow up with companies for current jobs. Ms. Duffus argued that if that was the case the notations as to who he spoke to at different companies and dates are not current but rather are the same notations from 2014 which does not show any current attempts to leave resumes with names of company officers and recent dates.
45In terms of any medical obstacles to employment, this was not pursued by Mr. Walters in this Motion to Change. The court therefore had no evidence that would indicate that Mr. Walters is unemployable.
46It is accepted that he is on Ontario Works.
47At the time of this court's July 2016 order, the best evidence available to the court was Mr. Walters' 2015 income tax which was $48,857.
48As noted above, this was a combination of his work with overtime, employment insurance and Ontario Works.
49This court is prepared to reduce Mr. Walters' support payments obligation for six months from the date of his losing employment with Daniels Healthcare as he was laid off.
50Although Mr. Walters might not have provided an up-to-date and current and accurate job search, he did not hide the fact that he did find work with Shred-It Inc. The problem with the information provided by that company for ending his employment, is that it does not support Mr. Walters as he quit.
51At best, he might have asked for certain dispensation and time to deal with litigation which was his choice. Possibly this was not available to the company to provide and therefore they did not have flexibility with his employment with them. It appears that Mr. Walters had employment after losing his job with Daniels Healthcare and he walked away from this. The fact that he found this job with Shred-It shows that he is capable of finding employment. There is no evidence that he is unhealthy and cannot work. The court is prepared to provide a period of time and understanding that Mr. Walters, after losing his employment with Daniels Healthcare, needed some time to find new employment. No evidence was presented that the state of the economy is such that the jobs that Mr. Walters can fulfill are sparse.
52On a go-forward basis, however, the court does not see why Mr. Walters cannot find employment at least at an income level midway between what he was earning in 2014 and what he earned in 2015.
53In addition, in the order of Justice Parent dated July 30, 2014 it indicates that the support at that time set at $220 was less than the support table amount because Mr. Walters was supporting two children from a previous relationship. In this Motion to Change, Ms. Duffus argued that this responsibility no longer exists today. The court received no reply to this by Mr. Walters and therefore has no evidence to the contrary.
54Therefore, the court imputes an income to Mr. Walters based on the fact that he has been working as a short-haul light transport truck driver for eight years according to his evidence. There is no criminal record or health reasons why he cannot find a job as a driver and indeed had located employment with Shred-It but quit this employment.
55Based on the evidence presented at the time of Justice Parent's order, Mr. Walters was earning $33,606 doing the same work and in 2015 just prior to the commencement of his Motion to Change he was earning $40,875. Therefore, the evidence is available for the court to average and to impute an annual income to Mr. Walters in the amount of $37,240 per year and the details of the order below will reflect his support payments for one child at this level.
Final Order
56Paragraphs 5, 8, 9, and 10 of the July 30, 2014 order of Justice Parent are changed as follows:
Access Order
1. The respondent, Raymond Walters, shall have access to the child, Xavier Lorenzo Duffus–Walters, born November 19, 2013 as follows:
(a) every other weekend commencing April 8, 2017 from Saturday at 10:30 a.m. through to Sunday at 6 p.m.
(b) each week on Wednesday from 4 p.m. to 8 p.m. commencing April 12, 2017.
2. All pick-ups and drop-offs shall be as follows: pick-up from daycare and/or school while school is in and return drop-off at the McDonalds at the corner of Bovard and Worthington in Brampton Ontario.
3. If Xavier's overnight access with his father falls on Mother's Day weekend, Xavier shall return home on Saturday at 7 p.m. and be with his mother on Mother's Day.
4. If Xavier does not have his overnight weekend access with his father during Father's Day weekend, Xavier shall spend Father's Day with his father from 10 a.m. through to 7 p.m.
5. Commencing in the summer of 2017, Xavier shall spend one week (7 days) in both July and August with his father. This means one week in July and another week in August of each year. These are not to be consecutive weeks, back to back, unless otherwise agreed to by the parties. Mr. Walters shall provide to Ms. Duffus in writing March 1 of each year the proposed summer access time with his son. Ms. Duffus shall confirm within 15 days whether these proposed dates are agreeable and if not suggest other dates.
6. The applicant and the respondent shall discuss how to share Xavier's Christmas holidays so that Xavier spends time with his father on either Christmas Eve and/or Christmas Day and or Boxing Day and sometime around New Year's Day.
7. Both the applicant and the respondent shall provide any change to their address and phone numbers either before or within one week of this occurring.
8. If Xavier needs emergency medical care while with one parent, that parent shall promptly attend to Xavier's needs and notify the other of this emergency medical attention forthwith.
9. The applicant, Ms. Duffus, shall provide to the respondent father the name and address and telephone number of Xavier's doctor as well as any updates to Xavier's daycare and school and Mr. Walters shall be noted as an emergency contact person.
10. Mr. Walters has the right to ask for and receive information from the professionals providing services to his son in relation to any health and educational needs. Mr. Walters has the ability to obtain directly from Xavier school any school calendar and attend any school events.
57The child support order of Justice Parent dated July 30, 2014, paragraph 9 is changed as follows:
Child Support Order
1. Commencing December 1, 2015, Mr. Walters shall pay child support to the applicant Ms. Duffus for one child in the amount of $186 on the first of each month, based on an imputed income of $23,300.
2. Commencing June 1, 2016, the respondent Mr. Walters shall pay child support to the applicant Ms. Duffus for their one child Xavier in the amount of $327 per month, on the first of each month, based on an imputed annual income to Mr. Walters of $37,240.
3. A Support Deduction order shall issue.
58If Xavier is to be participating in extracurricular activities which might be scheduled on Mr. Walters' access times, the parties must first agree to this activity if it is expected that Xavier will attend during Mr. Walters' time and in addition if it is expected that Mr. Walters will contribute towards any activity.
59Mr. Trenholme shall take out this order within 30 days of today's date. Prior approval of the draft is waived.
Released: March 31, 2017
Justice A.W.J. Sullivan