Court of Appeal for Ontario

Date: 2025-04-14
Docket: COA-24-CV-0209
Coram: E.E. Gillese, S. Gomery, R. Pomerance JJ.A.

Between:
Karen Diaz (Bol), Applicant/Appellant
and
Brent Bol, Respondent/Respondent in Appeal

Karen Diaz, self-represented
Brent Bol, self-represented

Heard: April 8, 2025

On appeal from the order of Justice L. Fryer of the Superior Court of Justice, dated January 24, 2024.

Reasons for Decision

Background

[1] This is an appeal from an order made January 24, 2024 (“the Order”) arising from a motion to vary brought in family law litigation (the “Motion”).

[2] The appellant and respondent are parents to two children. In 2013, the court made various temporary orders dealing with parenting and support issues. The order for parenting time was a final order but was reviewable in five years. In 2019, Mr. Bol, the respondent, brought the Motion, seeking to increase his parenting time. Ms. Diaz, the appellant, opposed the Motion. In addition to the matter of parenting time, the parties also litigated the matters governed by the temporary orders.

[3] The motion judge gave comprehensive reasons dealing with all of the issues the parties raised on the Motion. She issued the Order which contains 32 separate, detailed provisions. The appellant challenges 20 of those provisions on this appeal.

[4] We see no basis for appellate intervention and, accordingly, dismiss the appeal.

Analysis

[5] The appellant raises one legal issue on appeal: she contends that there was no material change in circumstance that would permit the motion judge to revisit the parenting schedule. We disagree. The motion judge found a material change on two bases: 1) that the children were 10 years older than they were at the time of the original order; and 2) that the children had been consistently asking for more time with the respondent. These amount to a material change in circumstance. The motion judge made no error in reconsidering the parties’ parenting time, particularly as the order in that regard had been made reviewable in five years and the five-year period had expired.

[6] Apart from her argument on material change in circumstance, the appellant did not demonstrate any error in the motion judge’s legal analysis or identify any palpable and overriding error in the motion judge’s factual findings. The appellant is, in essence, seeking to relitigate the issues she raised on the Motion.

[7] The appellant sought to have this court set aside the new parenting schedule imposed by the motion judge. We see no basis for appellate intervention. It was clear on the evidence that the parties had difficulty communicating with one another. The motion judge simplified the parenting schedule “so that the parties do not continue to waste time and energy on endless modifications and scheduling disputes”. Based on the best interests of the children, the motion judge directed that the children spend full alternate weeks with each parent. This would avoid the disruptions caused by inter-week transfers. The motion judge also affirmed the holiday schedule proposed by the respondent. These provisions introduced greater certainty and stability for the parties and, most importantly, for the children.

[8] On the issue of child support, the motion judge considered the increase in the respondent’s annual income since the time of the temporary order. She also considered the capital gains accruing to him due to the sale of a property. The appellant argues the motion judge erred in failing to include the full amount of the capital gain in the respondent’s income. We see no such error; the motion judge’s approach is consistent with the case law. As she observed, the objective was to determine the proper quantum of child support, not redistribute wealth as between the parties. She accomplished that by including 50 percent of the adjusted and grossed up capital gain in the respondent’s income.

[9] Further, the motion judge made no error in imputing income to the appellant, having found her to be underemployed. The appellant declined additional work hours as an American Sign Language interpreter so she could “be available for the children, to clean the house, do grocery shopping, walk the dog, etc”. The motion judge observed this was not a luxury the appellant could afford, given her obligation to contribute to the financial care of the children.

[10] On the issue of costs below, the appellant argues the motion judge erred in requiring her to pay the respondent costs in the amount of $10,000, to be deducted from amounts otherwise owed by him for child support. This was a discretionary decision that is entitled to deference. The motion judge applied the correct legal principles and concluded that, while the parties had enjoyed mixed success, the respondent was successful on the central issue, which was the amount of his parenting time.

[11] The appellant argues that the costs award should reflect her success on the issue of whether the children should receive vaccines. The motion judge found, and we agree, that neither party was successful on that issue. The appellant opposed vaccinations for the children while the respondent sought them. The motion judge found the children sufficiently intelligent and mature to make their own decisions on this matter. She ordered that the children be “entitled to receive vaccines per their wishes” and that the children obtain “continuing medical advice with respect to the vaccines from their family doctor without interference or influence from either parent”. It cannot be said that the appellant succeeded on the issue of vaccinations.

[12] Finally, we dismiss the appellant’s motion to introduce fresh evidence on appeal. The proposed evidence is a continuation and repetition of the evidence led in the court below. Its admission would not assist in resolving the issues raised on appeal: Duwyn v. Ross, 2024 ONCA 637, at para. 4; Cuthbert v. Nolis, 2024 ONCA 21, at para. 20.

Disposition

[13] For the above reasons, the appeal is dismissed with costs to the respondent fixed at $1,500.00 all inclusive.

E.E. Gillese J.A.
S. Gomery J.A.
R. Pomerance J.A.