Court File and Parties

COURT FILE NO.: D21093-15 DATE: 20171123 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Keisha Lagrandeur Applicant – and – Gaetan Lagrandeur Respondent

Counsel: George Fournier, for the Applicant Réjean Parisé, for the Respondent

HEARD: November 20, 2017

Reasons for Judgement

GAUTHIER, J

Reasons for Judgement

1The applicant and the respondent each brought a motion returnable on November 20, 2017.

2The applicant’s motion was for, among other things, the following relief:

1. An order varying the order made by Justice O’Neill dated June 11th, 2015 so as to provide the applicant sole custody of the children namely Noah Joel Lagrandeur, born August 25th, 2001 and Evan Scott Lagrandeur, born June 25, 2003;
2. An order granting the respondent access to the children namely Noah Joel Lagrandeur, born August 25th, 2001 and Evan Scott Lagrandeur, born June 25th, 2003 in accordance with the children’s wishes;
3. An order appointing the Office of the Children’s Lawyer;
4. An order varying paragraph 7 of the order made by Justice O’Neill dated June 11th, 2015 so as to require the respondent to pay child support for the children namely Noah Joel Lagrandeur, born August 25th, 2001 and Evan Scott Lagrandeur, born June 25th, 2003 in accordance with the child support guidelines and his level of income retroactive to October 1, 2015;
5. An order requiring the respondent to pay his proportionate share of section 7 expenses for the children retroactive to October 1st, 2015;
6. An order requiring the respondent to pay spousal support in accordance with the spousal support advisory guidelines and his level of income retroactive to October 1st, 2015.

3The respondent sought the following relief:

1. An order pursuant to rule 1(8) of the Family Law Rules that the applicant is not entitled to any further order of the court until the applicant complies with the order of November 26, 2015 of Justice R. Gordon;
2. An order pursuant to Rule 1(8.1) of the Family Law Rules that the applicant is not entitled to any further order of the court until the applicant complies with the 15 undertakings provided at her questioning on December 5, 2015;
3. An order that upon the applicant providing and complying with her undertakings, that the applicant re-attend the questioning which has been adjourned on December 2, 2015;
4. That the motion to vary the order of Justice O’Neill of June 11, 2015 which temporary order was made on a with prejudice basis, be dismissed for failure to demonstrate a material change in circumstance. In the event the motion proceeds, the respondent seeks a variation in the order with both children being in the respondent’s full time care and liberal access to the applicant.
5. That the court order that the Greater Sudbury Police Services enforce the custody and access provisions of the order of Justice O’Neill of June 11, 2015.

4At the hearing of the motion, the respondent abandoned this last claim for relief.

Facts and History of the Proceedings

Facts and History of the Proceedings

5The applicant and the respondent began to live together in 2000. Noah Joel Lagrandeur (“Noah”) was born on August 25, 2001. Evan Scott Lagrandeur (“Evan”) was born on June 25, 2003. Evan suffers from moderate to severe autism.

6The parties married on October 11, 2003, and separated on September 30, 2014. They both continued to occupy the matrimonial home until the applicant moved out on February 1, 2015. The respondent remained in the home until it sold. Both parties are employed.

7The parties’ matrimonial home was sold and proceeds were used to pay down debts.

8The applicant commenced proceedings on March 20, 2015, seeking, among other things, a divorce, custody of the children, child and spousal support, and equalization of the parties’ net family property.

9The parties had entered into a “week about” arrangement with the children. The applicant had secured new accommodation in downtown Sudbury. The respondent lived at his parents’ home until he purchased another residence in the fall of 2015.

10The shared custody arrangement continued until late 2015, at which time Noah refused to stay with the respondent or to visit with him. According to the applicant, Noah was upset that the respondent was involved in a romantic relationship with a woman, Ms. Prevost and that Ms. Prevost eventually moved in to the respondent’s home with her three children.

11On April 16, 2015, the applicant brought a motion for custody of the children, with the respondent to have access on his days off. The motion also was for child support, and extraordinary expenses, as well as spousal support. The motion material alleged that the shared custody arrangement had broken down by February or March 2015, as a result of the respondent’s work and resulting inability to be available for the children.

12The respondent delivered an answer on April 10, 2015. A case conference was held on June 4, 2015. The respondent delivered a notice of motion on June 5, 2015, seeking, among other things, joint and shared custody of the children. He was still in possession of the matrimonial home at that time.

13On June 11, 2015, a temporary order was made, on consent, as follows:

1. The parties shall have shared and joint custody of the two children Noah Joel Lagrandeur born August 25, 2001 and Evan Scott Lagrandeur born June 25, 2003. In the event that Gaetan Lagrandeur is working afternoon or night shift and so is not available to care for the boys, the boys are to be in their mother’s care otherwise the children shall alternate weeks with each parent.
2. Noah Joel Lagrandeur, born August 25, 2001 shall attend L’Horizon school.
3. Evan Scott Lagrandeur, born June 25, 2003 shall attend St. Benedict’s school.
4. Until the matrimonial home is sold, there shall be no spousal support on the basis that Gaetan Lagrandeur is living in said home and paying the carrying costs thereof until sale. Spousal support is reviewable upon sale of the home.
5. Gaetan Lagrandeur shall maintain his wife and children on his benefits plan as long as they are eligible and it is available through his employment.
6. Pensions will be valued and net family property statement prepared.
7. Gaetan Lagrandeur shall pay child support to Keisha Lagrandeur in the amount of $739.00 monthly and his proportionate share of section 7 expenses.
8. Gaetan Lagrandeur will facilitate Evan Scott Lagrandeur’s, born June 25, 2003 school transportation when Evan Scott Lagrandeur, born June 25, 2003 is with him by delivering him to catch the school bus at the corner of Lasalle and Notre Dame, starting September 2015.
9. All other issues adjourned to be brought back on 5 days’ notice.
10. That unless the support order is withdrawn from the Family Responsibility Office the Director of the Family Responsibility Office shall collect the support owing under the order and the Director shall pay the monies to the person to whom they are owed.
11. For as long as child support is paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.

14On November 16, 2015, the applicant brought a motion seeking an order that the children’s primary residence be with her, that certain high interest debts be paid out of the proceeds of sale of the matrimonial home, child support and spousal support, among other things.

15On November 26, 2015, two further temporary orders were made, on consent:

(i) The Parties agree to an order (temporary) with the following terms:

1. a. The issue of variation of child support and quarterly interim spousal support will be adjourned to a date when both parties lawyer are available to allow questioning on their recent financial statements December 2, 2015 at 10:30 a.m.
2. a. The request to vary temporary custody is adjourned, without prejudice, to the party’s position on the facts and the law relative to the variation of temporary custody under the Divorce Act. b. The adjournment is to allow the potential of the involvement of the Office of the Children’s Lawyer. c. After either the report of the Office of the Children’s Lawyer is received or notification that they will not become involved, either party may bring the matter back for determination.
3. The parties shall submit their applications for valuation of their employment pensions within 30 days.
4. Costs reserved to the court when dealing with the motions adjourned as a result of this consent.
5. That the Office of the Children’s Lawyer undertake children’s representation or a clinical assessment of the case and be appointed for that purpose pursuant to section.

(ii) The parties consent to an order on the following terms:

1. That each party shall attend with the Royal Bank of Canada to divide the line of credit responsibility equally and cause the other to be released from the one half they take responsibility for.
2. The funds in Trust with Parisé Law Office will be released to each party equally with the funds payable to the applicant being payable to Conroy Munro Law Office, In Trust.
3. The parties shall apply their portion of net proceeds to matrimonial debts and account to each other.

Dated: November 26, 2015.

16The November 26, 2015, orders were never taken out.

17The Office of the Children’s Lawyer declined to become involved.

18The parties underwent questioning on December 2, 2015. The applicant provided 15 undertakings to produce documentation.

19On August 2, 2016, a settlement conference was held. At that time, the applicant had new counsel. The presiding judge made a notation to the effect that new counsel was to communicate with the applicant’s former counsel to obtain her file, and getting the documents necessary for the applicant to fulfill her undertakings.

20The applicant brought the motion, which is now before the court, on August 8, 2017, and, the respondent brought his motion on August 15, 2017. On the original return date of August 17, 2017, the matter was adjourned to August 31, 2017. As indicated at the beginning of these reasons, the motions were ultimately argued on November 20, 2017.

The Applicant’s Position

The Applicant’s Position

21Although the applicant had agreed to the shared parenting arrangement in June, 2015, the 50-50 arrangement did not ever exist. From the very outset, the children spent a minimum of two days during the respondent’s week of care with the applicant. The respondent’s hours of work and his work rotation schedule did not allow for the full sharing of time as the parties had agreed.

22In addition, the children, and in particular Noah, have had great difficulty in dealing with the fact that the respondent is in a new intimate relationship with another woman. In fact, the respondent’s new partner and her three children now reside with the respondent. Noah has refused to go back to his father’s residence and has been in the applicant’s primary care since October of 2015. For his part, Evan is only spending extended weekends with the respondent and lives primarily with the applicant and Noah.

23The applicant has encouraged the boys to spend time with the respondent, however the boys are reluctant to do so. In addition to the difficulty they have with the respondent’s new partner, they have reacted negatively to the respondent’s complaints to them that the applicant is to blame for his financial restrictions and that he is paying her too much money.

24Notwithstanding the status quo, the respondent enrolled Evan in a school in Hanmer close to where he lives, but a significant distance from the applicant’s residence. He did so without consulting or obtaining the applicant’s consent.

25The applicant proposes that both children be in her care and custody as this would serve their best interests. Alternatively, she would agree to a joint custody order for Evan, provided Evan’s primary residence be with her. Noah, however, should be in the applicant’s sole custody for the purpose of making decisions for him. Noah does not communicate with the respondent whatsoever.

26The respondent should be paying child support in accordance with the Child Support Guidelines and should have been doing so since August 2016, which is when both children no longer spent alternating weeks with the respondent.

27The respondent should be ordered to pay his proportionate share of the children’s extraordinary expenses, which total $9,846 for the years 2016 and 2017.

28The respondent should be paying spousal support. The June 2015 order provided that no spousal support was to be paid because the respondent was occupying the matrimonial home and was paying all of the carrying costs of the home. Spousal support was to be revisited once the home was sold, which occurred on September 30, 2015.

29The parties had agreed and the court ordered that the parties were to attend at the Royal Bank in order to divide the line of credit responsibility and to cause each of the parties to be released from the joint liability. Although the applicant made attempts to sever the line of credit and assume her share releasing the respondent, she was not able to do so. As a result of the marital debt, the bank refused to allow the applicant to put the line of credit or her share thereof in her name alone.

The Respondent’s Position

The Respondent’s Position

30The applicant did not accept, from the beginning, the shared custody arrangement which was agreed upon.

31The applicant has undermined the relationship between the respondent and the children. She has actively sought to prevent a real implementation of what was agreed to and ordered on June 11, 2015.

32The applicant shared her animosity toward the respondent’s new partner with Noah and Evan. She has manipulated the boys and alienated them from the respondent. She has told them untruths and Noah, in particular, has lashed out at the respondent as a result. Noah, and to some extent Evan as well, are attempting to please the applicant by not complying with the terms of the June 2015 order.

33Noah has not been following the June 2015 order since August 2016.

34Evan began staying at the applicant’s home during part of the respondent’s parenting time, as of June 2016. The existing situation is that Evan spends time with the respondent every weekend. Evan is now comfortable with the respondent’s new partner and her children. Evan’s failure to comply with the June 2015 order is to prevent the applicant from being upset.

35The boys’ refusal to spend the court ordered time with the respondent is a direct result of the applicant’s manipulation and alienation. The applicant is not complying with the terms of the order as she is encouraging Noah, in particular, but also Evan to some extent, to not comply. The applicant is in breach of the June 2015 order.

36The applicant has failed to comply with the November 26, 2015, order by not obtaining the release regarding the joint line of credit.

37The applicant did not comply with her December 2, 2015, undertakings. Those undertakings have been outstanding for almost two years. Just before court opened on November 20, 2017, the applicant’s counsel provided the respondent’s counsel with an envelope purporting to provide the documentation undertaken to be produced. Counsel did not have an opportunity to review the contents of the envelope, and therefore is unable to advise whether the undertakings, or any of them, have been complied with.

38By virtue of her failure to comply with court orders, and her failure to fulfill her undertakings in a timely manner, the applicant should be disentitled from asking the court for any relief. The respondent relies on rule 1(8.1) of the Family Law Rules.

39Finally, the respondent submits that the court has no jurisdiction to vary the interim order because it is an order made under the Divorce Act, and is not subject to variation. The respondent relies on two cases: (a) Brooks v. Brooks, [1998] O.J. No.3186 and (b) Innocente v. Innocente, 2014 ONSC 7082.

Analysis and Conclusion

Analysis and Conclusion

40I begin with the applicant’s request to vary the parenting arrangement that was ordered on June 11, 2015 and the very last of the respondent’s submissions regarding the jurisdiction of the court to vary a temporary custody order made under the Divorce Act.

41Section 17 of the Divorce Act does not contemplate variation of an interim custody order made under section 16(2) of the Divorce Act.

Section 17 of the Act gives the court authority to vary a “custody order’. A “custody order’ as defined in s. 2(1) means an order under s. 16(1), which deals with final custody and access orders. Therefore it follows, as noted in Brooks v. Brooks, [1998] O.J. No. 3186 (Ont. C.A.) at para.41, that the power to vary a custody or access order under the Divorce Act does not extend to an interim order made under s. 16(2).

42Similarly, Wilson v. Bedard, 2016 ONSC 2653, at para. 42 noted that “[t]he court of Appeal, in Brooks v. Brooks, [1998] O. J. No. 3186, 39 R.F.L. (4th) 187 (Ont. C.A.), has stated that the power to vary a custody order under s. 17(1)(b) is limited to s. 16(1) custody orders, ie final orders and not interim orders of custody made under s. 16(2).”

43The above however, does not mean that there is no jurisdiction to vary an interim custody order made under the Divorce Act.

44The case law has consistently recognized that courts have jurisdiction to vary interim orders, even if the relevant statute is silent as to that issue.

45The case of Stannard v. Stannard, 123 A.R. 27, at paras. 6-9, said this:

…the absence of a provision in the Divorce Act authorizing variation of an interim support order does not necessitate drawing the conclusion that the court does not have the jurisdiction to order a variation of an interim support order.

Rather than examining the issue from the perspective of why Parliament remained silent as to variation of an interim order, I think it useful to ask, “Why did Parliament, in s. 17, provide expressly for variation of a final support order?....

Surely the answer lies in this: In the absence of a provision such as is now found in s. 17(1), the final order for support would, like any other judgment of a Court, not be subject to review, alteration, or variation. (See hals. (4th ed., 1975), para. 556.) hence, in order to ensure that a final support order may be varied in what Parliament considered (in s. 17(4)) to be appropriate circumstances, it was necessary to provide expressly for the power to vary such an order.

No such rule of law applies to interlocutory orders in any action. They are always subject to review, alteration, or variation. Hence, it was unnecessary for Parliament to include in the Divorce Act a portion [sic] that an interim support order may be varied.

46The two cases relied upon by the respondent do not stand for the proposition put forward by him.

47Brooks v. Brooks had to do with competing jurisdictions (Ontario and Manitoba). It is widely cited for this issue and the need to avoid “forum shopping”. At no point, however, did the case undermine the authority of a Superior court to make a variation of an interim order. The requested order could not be made simply because Manitoba was the court of competent jurisdiction.

48At para. 40, the court said the following:

Section 17(1)(b) gives a court of competent jurisdiction power to make an order varying, rescinding or suspending a custody order, on the application of either or both “former spouses”. In December 1996, Mr. and Mrs. Brooks were not former spouses. They did not become former spouses until December 11, 1997. Further, s. 17(5) requires a change in “the condition, needs or other circumstances of the child of the marriage occurring since the making of the custody order …”There were no such changes following the issuance of the interim custody order in the Manitoba divorce proceeding in December 1996. The Ontario “variation” occurred eight days after the Manitoba interim custody order was issued. This is not an issue of jurisdiction but of entitlement to a variation.

“Custody order” is defined in s. 2(1) of the Divorce Act to mean an order made under s.16(1) of the Divorce Act. The power to vary a “custody order” under s.17(1)(b) of the Divorce Act is limited by that definition to a s.16(1) order of custody; it does not extend to an interim order for custody made under s.16(2). In December 1996, the Manitoba Queen’s Bench (Family Division) has made an interim custody order under s.16(2) of the Divorce Act. At that time, the Manitoba court had not made a final (s.16(1) custody order. Thus, in my view, the Ontario Court (General Division) was not “a court of competent jurisdiction”, as referred to in s.17(2) of the Divorce Act, to vary Mercier A.C.J.’s December 11, 1996 interim custody order. If that order was to be varied, the motion to do so should have been brought in Manitoba under its rules for the variation of ex parte interim custody orders.

49There is nothing in the case that suggests a departure from the well-established principle, that an interim order can, under appropriate circumstances, be varied.

50In the Innocente v. Innocente case, the issue was whether the court had jurisdiction to make an interim variation of a final order and whether or not a variation of an interim order (made in the context of a motion to change a final order) could be made. In that case, I concluded that, although variation of interim orders should be an infrequent event, available only (i) to prevent undue hardship; (ii) to prevent incongruity or absurdity, and (iii) where there is a pressing and immediate urgency), “it is not beyond the jurisdiction of a Superior court, where the circumstances justify it.” (para.55)

51Additionally, the Superior court retains a parens patriae jurisdiction to deal with the custody of children by virtue of the Courts of Justice Act which confers on the court the same parens patriae jurisdiction as was vested in the court of Chancery in England. The parens patriae jurisdiction is to be exercised in the best interests of children.

52The issue before me is not one of jurisdiction, or the court’s authority, but rather, entitlement to the relief sought.

53The reality is that Noah and Evan are essentially in the sole care of the applicant and they have been for some time. The respondent did not seek to enforce the terms of the June 11, 2015 order until responding to the applicant’s motion to vary the said order.

54There is no dispute that the boys are not in the care of the respondent on a “week about” basis, as was contemplated by the June, 2015 order. In fact, Noah has not been at the respondent’s home, except for a few sporadic visits since October 2015 (according to the applicant), or August 2016 (according to the respondent). Evan has not been residing with the respondent, as contemplated by the June 2015 order since the summer of 2016.

55To not vary the order to reflect the reality of the custodial situation would result in an incongruity. The existing order does not reflect the facts, it has not for some time, and therefore it is no longer appropriate for it to be in effect.

56The respondent lays the blame for the failure of the contemplated joint parenting arrangement at the applicant’s feet. On the evidence before me, I am unable to determine whether or not the applicant has actively sought to frustrate the June 2015 order. Only a trial or a parenting assessment might assist in that regard.

57I am not prepared on the evidence before me to make a finding pursuant to rule 1(8) of the Family Law Rules that the applicant has failed to obey the June 11, 2015 order as to the parenting arrangement for the children.

58Given the age of the children, the reality is that they will likely be the ones governing the decisions around access and where they want to live.

59I have, on the consent of counsel, made an order for the involvement of the Office of the Children’s Lawyers and it is my hope that there will be some assistance from that office.

60In the interim and until the parties are ready for trial, a further temporary order should be made reflecting the actual custodial arrangement. The parties should continue to have joint custody, but the primary residence of Noah and Evan will be with the applicant. The time the children spend with the respondent will be determined by them. It will be a term of the order that the applicant actively encourage the boys to have contact with their father. The applicant and the respondent should consider some counselling for the children and perhaps for themselves as well.

61I turn now to the issue of child support. The respondent has been paying child support, based on his 2014 income and based on a shared custody arrangement, in the amount of $739 per month. He was also to pay his proportionate share of section 7 expenses.

62As the children have been in the de facto care and custody of the applicant only, at least since August 2016, it is appropriate that the respondent pay child support in accordance with the child support guidelines, based on his current income which, according to the most recent financial statement is $120,180. For two children, the guideline support is $1,661 per month. I will make an order to that effect.

63The applicant’s notice of motion requests a variation of child support, effective October 2015, however the affidavit in support of the motion suggests that the child support should be retroactive to August 2016.

64The child support will be payable on the first day of every month effective August 1, 2017. The issue of retroactive child support for the period from either October 2015 or August 2016 shall be left to the trial judge.

65The respondent shall continue to be responsible for payment of his share of the children’s s. 7 expenses. There appears to be an issue with what is properly a section 7 expense, however, neither counsel made any submissions on that issue. Therefore the issue of what are appropriate section 7 expenses will be left to the trial judge.

66The applicant’s motion was also for spousal support however, no submissions were made in that regard. The issue of spousal support is adjourned without date to be brought back on 7 days’ notice.

67I turn now to the respondent’s motion. The respondent took the position that the applicant was not entitled to any of the relief she sought as she had failed to comply with the order of November 26, 2015 regarding the division of the Royal Bank line of credit.

68The applicant did partially comply with the order, in that she did attend at the bank and attempt to effect a division of the responsibility for the line of credit and a mutual release. Her material explains her failure to be able to assume one half of the debt and secure a release in favour of the respondent.

69I do not find that the applicant wilfully disregarded the order or wilfully failed to comply with it. Rather, she attempted to comply and was refused by the bank. In these circumstances, it would not be appropriate to invoke the provisions of rule 1(8) and disentitle the applicant from the relief that I have found appropriate to grant.

70Likewise, the applicant’s failure to fulfill her undertakings should not, in the circumstances of this case, disentitle her to the relief she sought and which I have found appropriate to grant. There is no evidence of repeated requests for fulfillment of the undertakings, or evidence of any prejudice to the respondent occasioned by the applicant’s delinquencies in regard to her undertakings.

71As indicated earlier in these reasons, there may now (albeit after an inordinate delay) have been partial or complete fulfillment of the undertakings given by the applicant. If not, there will be an order that she comply within 30 days of this Order.

Order to Go

Order to Go

1. Paragraph 1 of the June 11, 2015 order is amended to provide that the primary residence of Noah and Evan shall be with the applicant. Paragraph 1 is further amended to provide that the access to be exercised by the respondent shall be governed by the wishes of Noah and Evan.
2. The applicant shall actively encourage the children to have contact with the respondent.
3. The respondent shall pay child support for the children Noah and Evan, in the amount of $1,661 per month, effective August 1, 2017, and on the 1st of every following month, until further order of the court. The child support is in accordance with the Federal Child Support Guidelines, and is based on the respondent’s estimated annual income of $120,180.
4. The effective date of the child support is without prejudice to the applicant seeking an earlier effective date, at trial.
5. The issue of section 7 expenses is adjourned to the trial judge.
6. The issue of spousal support is adjourned without date, returnable on 7 days’ notice.
7. The respondent shall fulfill her undertakings given on December 2, 2015, within 30 days of this ruling.
8. In the event that the parties cannot agree on costs, they shall communicate with the trial coordinator within 10 days of today’s date, to secure a date and time to argue costs, failing which they will be presumed to have settled the issue of costs.

The Honourable Madam Justice L.L. Gauthier