Court File and Parties
Court File No.: D53787/11 Date: 2013-07-30
Ontario Court of Justice Toronto North Family Court
Between:
K.H. Applicant, Acting in Person
- and -
T.K.R. Respondent
Counsel: Daniel Boiani, for the Respondent
Heard: July 19, 2013
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] The parties are the parents of two children, ages 7 and 4 (the children). This trial was about what custody and access terms are in the best interests of the children and about the child support obligations of the applicant (the father).
[2] The father proposes that the court make a parallel-parenting order. He wants each parent to exercise "full parenting and guardianship rights independently of the other". He proposes that the respondent (the mother) be responsible for making religious and medical decisions and that he be responsible for making sports/extracurricular activity decisions. Regarding educational decisions, he seeks an order that the children go to school in the public school system and that the parents jointly determine any change.
[3] The mother seeks a final order for sole custody of the children.
[4] The parents made separate proposals for a parenting schedule and incidents of access. By closing submissions, they had agreed on many of these terms, the most important being that the father would have access on alternate weekends from Friday at 6:30 p.m. until Sunday evening. They also agreed that the access would extend until Monday evening if the Monday was a statutory holiday. The parents were also able to agree on most holiday times.
[5] The father's requests that the mother provide him with copies of the children's health cards and that he be listed as an emergency contact with the children's school weren't opposed by the mother.
[6] However, many parenting terms remained in dispute at the conclusion of the trial, including:
a) Decision-making.
b) Mid-week access (the mother suggested a Wednesday evening visit; the father seeks overnight access on Friday nights in the weeks he does not have full-weekend access).
c) Summer access (the father seeks four exclusive weeks for each parent – the mother two weeks for each parent).
d) Transportation arrangements (the father wants to share transportation on access visits; the mother wants the father to exchange the children at her residence on weekend visits and is prepared to meet him at the Yorkdale shopping mall for the proposed Wednesday visits).
e) Travel terms (the mother seeks to dispense with the father's consent if he does not consent to her traveling with the children outside of Canada or her obtaining passports for the children within 30 days of a request; the father seeks reciprocal terms - the mother does not agree with the father's request).
f) The necessity for police enforcement (the father seeks this and the mother opposes it).
g) The consequences of access breaches (the mother wants access to be in her discretion if the father does not comply with the access schedule on three consecutive occasions; the father opposes this request).
h) Telephone access (the father wants the mother to provide him with a direct line to speak to the children and the mother opposes this; the mother wants the father to facilitate telephone access when the children are with him).
i) The request of the father to be able to take the children to activities.
j) The request of the father to have the children on non-access times for special events.
[7] The mother also seeks orders for ongoing child support and for the father to pay his proportionate share of special expenses as defined in section 7 of the child support guidelines (the guidelines). She seeks to adjust the father's child support obligation as of January 1, 2013.
[8] The father challenges the validity of the special expenses claimed by the mother. He asks to eliminate his contribution to the children's childcare expenses, or in the alternative, to reduce his share to 5-10% of the total cost (it is presently 50% pursuant to a temporary order). He also asked the court to readjust a support arrears agreement he entered into with the mother on December 14, 2012, on the basis that the mathematical calculations used in reaching the agreement were wrong. The mother opposes this request.
[9] Lastly, the mother seeks a term that the parents first attempt to mediate any issue before returning to court, except in the event of an emergency requiring court intervention. The father opposes this request.
Part Two – Background Facts
[10] The father is 34 years old. He lives alone in Brampton, Ontario.[1] He has another child, age 13. That child has lived with his mother in Jamaica but is coming to Canada soon and will stay with the father for the balance of the summer.
[11] The father is employed as a financial aid advisor for a college and earned $46,413 in 2012. He filed a paystub for his pay period ending on May 18, 2013. His year-to-date income projects to an income of $47,376 in 2013.
[12] The mother is 32 years old. She is single and lives with the children in Scarborough, Ontario. The mother works part-time as a nurse and earns about $25,000 per annum.
[13] The parents never cohabited. They dated each other from 2001 to 2008.
[14] The children have always lived with the mother. The father's access has gradually increased since he started this case in 2011. He presently sees the children on alternate weekends and on Wednesday evenings.[2]
[15] The relationship between the parents has been marked by considerable conflict. They agree that their communication has been very poor. They have brought multiple motions in this case complaining about the other's conduct. They have frequently involved the police and the Children's Aid Society of Toronto (the society) in their dispute.
[16] Many efforts have been made to reduce this conflict. The case has been actively case-managed, multi-directional orders have been tried and the parents have engaged in mediation. The police station was used at times by the parents for access exchanges. Sadly, any progress in communication made by the parents is short-lived and quickly regresses.
[17] The children have been caught in the middle of this conflict. Both parents deposed that the children are distressed by this conflict. The mother has sought counseling for the children.
Part Three – Existing Court Orders
[18] The parents finalized certain parenting issues and agreed to other temporary parenting terms that were incorporated into a court order on December 14, 2012.
[19] Neither party sought to change the final orders (except to modify the travel terms) that were made on December 14, 2012. These orders will be incorporated into the final order of this court (with some minor adjustments to provide more clarity) to avoid the confusion that multiple orders may create. These final orders are as follows:
a) The father shall have permission to meet with any doctor, medical professional, teacher, leader, coach, principal or other professional who has contact with the children in order to obtain information about the children.
b) The father may attend at the children's sporting events and school or other extracurricular activities, without interference from the mother. Neither party shall communicate with the other during such events.
c) The mother shall provide the father with a schedule of extracurricular activities of the children as soon as they are enrolled in same.
d) Neither party is to discuss this litigation or talk negatively about the other party in front of the children.
e) Neither party shall remove, or shall help anyone else to remove the children from the Province of Ontario, without the consent of the other party. Such consent not to be unreasonably withheld provided that:
i) The party requesting travel with the children shall provide a detailed itinerary including, departure and return dates, flight numbers or other transportation plans, place of stay and emergency contact information.
ii) The travel will not unnecessarily interfere with the access schedule. However, reasonable interruptions can be made with a proposal for make-up access.
iii) Neither party shall deny a reasonable travel request and will provide notarized consents if requested.
[20] Temporary orders were made on December 24, 2012, including the following:
a) Temporary custody of the children to the mother.
b) Wednesday access for the father from 4:30 p.m. - 7:30 p.m.
c) Specified exchange arrangements.
d) Specified rules for changing access and granting make-up access.
e) Communication to be by email.
f) Specified rules about the mother bringing sports equipment to visits and permitting the father to participate in coaching the children's teams.
g) The right of the father to enroll the younger child in additional activities at his own cost.
h) The children to be educated in the public school system with the parents to jointly decide on any educational decision, subject to the mother's final say.
i) Child support of $697 per month, commencing on January 1, 2012, being the guideline table amount, based on the father's estimated annual income of $47,000.
j) The father to pay 50% of the children's special expenses, fixed at $300 per month, as of January 1, 2012.
[21] The order of December 24, 2012 supplemented these prior temporary parenting orders:
a) January 20, 2012 – the father was granted alternate weekend access from Saturdays at 11:00 a.m. until Sundays at 6 p.m.
b) April 13, 2012 – this order requires that neither party is to consume alcohol or drugs while the children are in their care and that the children are not to sleep in beds with other persons when with the father.
c) May 17, 2012 – the father's weekend access was extended until Mondays at 4 p.m., if the weekend fell on a statutory holiday. This order also granted the father access for one week in July and for one week in August, and the mother with one exclusive week with the children in the summer.
[22] The parents subsequently agreed (not part of a court order) that the father could start his weekend access on Friday evenings.
[23] The parents also agreed on December 14, 2012 that the father's child support arrears, inclusive of extraordinary expenses, would be fixed at $2,700 as of December 1, 2012, repayable at $50 per month.
Part Four – Parenting
4.1 The Father's Concerns
[24] The father believes that the mother is trying to exclude him from the children's lives and seeks a parallel-parenting order to ensure that this does not happen. His complaints about the mother can be summarized as follows:
a) She frequently denies him access. He set out multiple examples where he says that this happened in 2013.
b) She does not keep him informed of what is happening in the children's lives. For instance, she did not inform him of his daughter's recent dance recital.
c) She does not facilitate his telephone contact with the children.
d) She is inflexible about changing access times.
e) She will not make reasonable transportation arrangements with him.
f) She makes false complaints about him to the Toronto Children's Aid Society.
4.2 The Mother's Concerns
[25] The mother does not believe that a parallel-parenting order is in the children's best interests. She submits that the communication between the parents is poor and that the father will use a parallel-parenting order to disrupt her and the children. She submits that she has been the parent who has always made the major decisions for the children and has done so responsibly. She denies frustrating the father's access and deposes that she has tried her best to deal with the father, who she essentially describes as difficult and demanding.
[26] The mother set out multiple concerns about the father, including the following:
a) Until this case began, he exercised sporadic access to the children.
b) He cancels many visits, often with little notice.
c) He is constantly late dropping the children off and has over-held them.
d) He will not communicate with her about necessary changes to the access schedule.
e) He attends at the children's school outside of access times.
f) He is often verbally rude and abusive to her in front of the children.
g) He inundates her with emails and demands.
h) He unnecessarily involves the police in their disputes.
i) He pushed her on an access exchange in October of 2012 and chased after her in his car in March of 2013 and blocked-off her car.
j) He continues to smoke marijuana in front of the children.
k) He will not permit the children to have telephone access to her when they are with him.
4.3 The Evidence
[27] The evidence showed that the mother has been the parent who has primarily raised the children. They have always lived with her and have a close relationship with her. She has responsibly attended to their medical and academic needs. The father does not question that she makes good decisions for the children, other than he feels that she uses the sole custody label to exclude him from the children's lives.
[28] The court received little evidence about the nature of the father's relationship with the children from either parent.
[29] The evidence revealed a chronic inability of the parents to communicate effectively with each other and to insulate the children from their conflict. They acknowledged having confrontations in front of the children, who are distressed by the conflict. Each blamed the other for the conflict and showed little insight or took any responsibility for the harm that they are each clearly causing their children by their behaviour.
[30] The Children's Aid Society of Toronto has been involved with the parents. The court was provided with a letter from them dated August 7, 2012. It states in part:
A referral was received regarding adult conflict in your children's presence. I have completed my assessment and confirmed risk of emotional harm due to conflict regarding custody and access………I would like to encourage you to continue to provide protective care of your children. This includes that they are not exposed to any form of adult conflict……Please note that a record of my involvement with your family has been added to a provincial database containing information regarding families' involvement with any Children's Aid Society in the province.
[31] The parents appear to have learned little from the society intervention. Their conflict has intensified and often involves the police. An example is the attempted access exchange on March 22, 2013 that was to take place at the police station. The mother says that the father was not there and left. The father says that he was there and the mother did not attend. The father does not deny what subsequently happened, which was that the mother returned home to find the father waiting for her. Fearful of a confrontation she drove away with the children and the father chased her down with his vehicle, blocked her car with his and refused to let her leave. The police had to intervene. From the father's perspective, he couldn't understand why the mother wouldn't simply give him the children. He did not acknowledge anything troubling with this behavior.
[32] The evidence establishes that the mother is sometimes difficult in facilitating access. If the father is unable to comply with the letter of the court order, she will deny the visit. For instance, the father coaches college basketball, games are on the weekends, and at times he is unable to exercise a full weekend's access. The mother's response is to deny any access on that weekend.
[33] The mother has also not complied with court orders. When she moved to Scarborough in May of 2013, access exchanges became more difficult. She did try to make alternate arrangements, but when the father would not compromise with her, her approach was to deny access rather than moving to court to change the order.
[34] That said, the father's evidence about the mother's access denials was often over-stated and misrepresentative. It was clear that he was often equally (at the very least) at fault for many of the visits not happening. For example, the father deposed that the mother had denied him access on the weekend of February 22, 2013. He deposed that he had to attend a funeral and the mother did not respond to his emails. The mother filed emails showing that she was trying to contact him and find out when he would be coming, but he didn't respond in a timely way. The father rationalized that he was distracted by the funeral.
[35] The father deposed that he was denied access again on February 27, 2013 and was informed by the mother that "as she has sole custody, access is at her discretion". If true, this statement would be of great concern to the court. However, the allegation was proven false. The father confirmed he hadn't spoken to the mother and the emails filed showed that no such statement was ever made. This damaged the father's credibility.
[36] The evidence showed that the father is generally unwilling to compromise with any change to the schedule suggested by the mother. He often ignores her requests or does not respond promptly. When asked at one time by the mother's counsel why he wouldn't make a requested change, he answered, "It didn't work for me". When asked why it didn't work for him, he just repeated his answer, and said, "I wish to leave it at that".
[37] The mother led evidence that the father can be demanding and unyielding. She also testified that he gets angry and can be abusive when frustrated. She described an incident where he angrily went through the garbage at her home (in front of the children) because he believed she had thrown out clothing he gave to the children. She described how when they met at a park in May of 2013, they became engaged in a heated conversation and the father refused to give her back their son. I found this evidence credible based on the evidence (including the evidence of the car-chase incident) and my observation of the father. During cross-examination, he was often argumentative, frustrated, and at times, struggling to control his anger. He often dealt with difficult questions by asking aggressive questions of the mother's counsel.
[38] The evidence revealed that the father is cancelling many of his scheduled visits, often giving the mother little notice of his cancellations and disrupting her plans. He often returns the children late. He has missed several of the recent Wednesday visits and explained that his schedule makes it very difficult to come to them.
[39] It was very informative to the court that the father rarely mentioned his children during the trial. His focus was on his rights. I learned very little about his relationship with these children or who the children are. He showed little recognition that parenting is not just about parental rights - that parenting is primarily about obligations and responsibilities, including a parent's responsibility to protect his or her children from adult conflict. The father has failed the children in this regard. He has been confrontational in front of the children, involves the police and focuses on his grievances.
[40] The mother also devoted little time in her evidence to the children and focused on her complaints about the father. Her evidence also showed little insight into her role in this conflict. The mother's rigid approach exacerbates the conflict and feeds into the father's belief that he is the aggrieved party. It also exposes the children to unnecessary conflict and contributes to placing them at risk of emotional harm. She is also failing her children.
[41] Simply put, the parents are involved in a power struggle that has little to do with the children.
[42] When considering the parenting requests of the parents, I must determine what orders are in the best interests of the children pursuant to section 24 of the Children's Law Reform Act, and consider the applicable factors set out in subsection 24 (2). I have done that. I have also considered that children should have maximum contact with both parents, provided that such an order is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[43] Very importantly in this case, it is in the best interests of these children to construct an order that has the best chance of protecting them from adult conflict – in essence, to protect them from their own parents. It is the adult conflict which poses the greatest risk of interfering with the children's sense of safety and stability and their emotional, mental and physical development.
[44] It is with these considerations in mind that I approached the respective parenting requests of the parents.
4.4 Parallel-Parenting vs. Sole Custody
4.4.1 Legal Considerations
[45] Parallel-parenting orders can take the form of "divided parallel parenting", where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, "full parallel parenting", where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel, 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451.
[46] Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:
a) One parent is unjustifiably excluding the other from the children's lives and can't be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly, 2007 CarswellOnt 8271; Garrow v. Woycheshen, 2008 ONCJ 686; Madott v. Macorig, 2010 ONSC 5458; Cooke v. Cooke, 2012 NSSC 73; Bushell v. Griffiths, 2013 CarswellNS 240 (N.S.S.C.); and Izyuk v. Bilousov, supra (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).
b) Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v. Romany, 2011 ONSC 2850; Scervino v. Scervino, 2011 ONSC 4246. In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas, [2006] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic, 32 R.F.L. (6th) 23 (Ont C.A.).
[47] In Baker-Warren v. Denault, 2009 NSSC 59, the court held that a parallel-parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child.
[48] Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See: Roy v. Roy, 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159; and Graham v. Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff'd at 2008 ONCA 260 (where the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the "children in the middle of conflict every few days" and "the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict").
[49] In V.K. v. T.S., 2012 ONSC 4305, Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:
a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.
b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.
c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.
d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.
e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.
f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.
[50] I would add four more considerations that I believe are relevant to a parallel-parenting analysis.
[51] The first consideration is for the court to evaluate the likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.
[52] The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child's playoff hockey game?
[53] It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order – a battleground that will create more conflict and instability for the children.
[54] The third consideration is the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.
[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 outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents.[3] With parents who sincerely want to be involved with their children for their children's benefit, such an 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 asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.[4]
[58] All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.
[59] Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a "full parallel-parenting model" order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.
4.4.2 Discussion
[60] The father has proposed a hybrid of the "full parallel-parenting model" and the "divided parallel-parenting model". He asks for: full parenting and guardianship rights independent of the mother, final decision-making authority for sports and extracurricular activities and joint decision responsibility for educational decisions.
[61] The factors in favour of the father's proposal are:
a) The mother has been rigid at times in facilitating his time with the children.[5]
b) The mother has not always kept him informed about what is happening with the children.
c) The father is very sports-oriented. He has coached youth basketball teams and currently is the assistant coach of the women's basketball team where he works. He has a lot to offer the children in this area.
d) The parents agree that the children should attend public school and neither have strong religious convictions.
[62] However, the factors in favour of the father's proposal are far outweighed by the factors against it, being:
a) The father has been a major contributor to the family conflict. When he doesn't get his own way, he can be controlling, demanding and, at times, threatening.
b) The father can be unreliable, as evidenced by his frequent cancellation of visits with little notice.
c) The mother has been the children's primary caregiver. Aside from her dealings with the father, she has made responsible decisions for the children.
d) There is a real possibility of a spillover effect with respect to decision-making - that the parties will disagree about whose sphere of decision-making a decision will fall under.
e) It is likely that the parents will have conflict over scheduling activities and appointments, since their communication is so poor. The children would likely be caught in the middle of these conflicts.
f) The geographic distance between the parents is too far to make such an order practical, particularly given their level of conflict. The problems associated with the geographic distance between the parents (such as arranging access exchanges and lateness for visits) have been a major contributor to the conflict.
g) The conflict between the parents is far too high to make the father's proposal workable. If the father is granted decision-making over extracurricular activities, the evidence indicates that this will just create more opportunity for conflict. The parents cannot even coordinate exchange arrangements consistently, let alone adding the burden of the father making arrangements and imposing the obligation upon the mother of getting the children to his chosen activities.
h) The father appeared to be more focused on his rights than on the best interests of the children. It is interesting to note that the temporary orders provided the father with significant participatory rights with the children and it appears that he has rarely exercised them. It appeared to the court that his request for a parallel-parenting order was more about asserting control and winning (or not letting the mother win) than about his desire to become more involved in decision-making. There is a real risk in this case that a parallel-parenting order will have the adverse effect of escalating the conflict between the parties.
[63] It is important that the father remain informed about the children and not be marginalized as a parent by the mother. The court order will provide that the father is to be consulted on all major decisions about the children. He will have the right to contact service providers (including schools) for the children directly. The mother shall sign all directions to permit this to happen. The father shall be entitled to attend any school events to which parents are invited and arrange parent-teacher meetings at separate times from the mother.
[64] The order will also create a mechanism so that the father is not denied access during any weekend he cannot exercise access for the full weekend, provided that he gives adequate notice to the mother.
[65] These orders will ensure that the father is kept informed about the children and allow him to participate in their lives. However, it is in the best interests of the children that one person be responsible for making major decisions concerning them. The mother will be granted custody of the children.
[66] It is also in the best interests of the children that the order provides clear rules and boundaries for the parents. The parents will be expected to comply with them. These rules and boundaries will be reflected in the orders below.
4.5 Mid-Week Access
[67] The mid-week access has been a major source of conflict between the parents. They both have had difficulty coordinating their schedules to make it work. This is exacerbated by the distance between them. It is difficult for the father to travel from Brampton to Scarborough in heavy mid-week traffic.
[68] The father acknowledged that the Wednesday access was problematic. He proposed having a visit on Friday overnights in his non-access weekend.
[69] I will eliminate the Wednesday visits due to the stress they have placed on the parents and the children. The father's request for overnight access on Friday nights in his non-access weekend will not be granted. This decision has nothing to do with the amount of parenting time the father should have with the children. It is in the best interests of the children to reduce the number of times that the parents have to deal with one another. Ideally, the court would have preferred to make an order where the parents had no direct contact, by ordering pickups at school on Friday and a return to school by the father on Mondays. Unfortunately, the distance between the parents and the timing of their work schedules does not permit such an order being made. The additional visits suggested by the father just increase the risk of exposing the children to conflict. This is not best for the children. It is also in the best interests of the children that they have some uninterrupted weekends with the mother without having to anticipate the risk of parental conflict during access exchanges.
[70] I will require the mother to provide the father with a full schedule of all of the children's extracurricular activities. She shall also be required to promptly notify him of any changes to these schedules. The father will be permitted to attend and spend time with the children during these activities, whether or not it is his regularly-scheduled access time.
4.6 Transportation Arrangements
[71] The parents originally lived close together in Etobicoke and transportation of the children was not a serious issue. That has changed and it has become a significant source of conflict between the parents. Both of them have been inflexible about accommodating the other's schedule.
[72] It is not in the best interests of the children to have the exchanges at shopping malls as the parents, through miscommunication, often do not properly coordinate the visit. Police stations are also not ideal for access exchanges. The children are only receiving the message that the exchanges are unsafe. The visits should take place at the parents' homes. The parents should park at the foot of the driveway and the children should be sent out, on time.
[73] The parents should share the responsibility of transportation. They both made the decision to move further away from the other. The father should pick up the children at the start of the visit from the mother's home and the mother should pick up the children at the end of the visit from the father's home. An exception will be if the mother is required to work when it is her time to pick up the children. If this is going to be the case, she should provide the father with at least 48 hours notice by email and he will be required to return the children on those occasions. Another exception will be if the father elects not to exercise his full access period. If this happens, the father shall be responsible for returning the children to the mother's home.
[74] The mother shall pick up the children on the Sunday evenings at 7 p.m. This is earlier than the 7:30 p.m. time requested by the father. The mother will need to drive from Brampton to Toronto and prepare the children for school the next morning. The earlier pick up time is in the children's best interests.
4.7 Summer Access
[75] The summer is a good time to facilitate and consolidate the father's relationship with the children. The existing order provides him with one week in July and one week in August. That order was made when the court was building up his time with the children. It can be expanded at this point. Block times of access will have the additional benefit of reducing the exchanges between the parents and limiting their contact with one another during the summer.
[76] The father indicated to the court that he hasn't been permitted any extended summer access yet this year by the mother. This order will provide that in 2013, the children shall spend the balance of the summer with each parent on a week-on, week-off schedule. Starting in 2014, the children shall spend alternate two-week blocks of time with each parent.
4.8 Police Enforcement
[77] The father was insistent that he requires police enforcement of this order. He did not meet his onus of showing that this was in the best interests of the children. The evidence indicated that he often missed visits or was late on exchanges. It showed that he often contributed to the communication breakdown that resulted in the missed visit. He is far too ready to involve the police to assert his perceived denial of rights. This needs to stop as it only escalates the conflict. I repeat my comments made in Klinkhammer v. Dolan and Tulk, 2009 ONCJ 630 where I wrote at paragraph 61:
This is not a case for a police enforcement order. It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. See: Allen v. Grenier and Hamilton-Wentworth Regional Police, [1997] O.J. No. 1198 (Ont. Fam. Ct.).
4.9 Telephone Access
[78] An order will go that each parent is to facilitate the children having telephone access with the other parent when the children are with them. I will not require the mother to obtain a direct number for the father to contact the children.
4.10 Special Occasions and Additional Access
[79] The mother's counsel wisely submitted that ordinarily we want orders to have some flexibility, but in a high-conflict case such as this, flexibility is only creating more opportunity for conflict, and it might be better for there to be a little less flexibility in the order.
[80] This order will provide that each party may have the children on two days per year when they are otherwise supposed to be with the other parent, if there is a special event such as a wedding or family gathering. The parent must give the other parent at least thirty days notice of the change by email.
[81] The father shall not exercise access to the children other than at the times provided in this order, or upon agreement with the mother. Specifically, this means that he is not to visit them at school.
[82] There are to be no other changes to the schedule without the written consent of the other parent or unless the mother produces a doctor's letter that a child is too ill to exercise access on any weekend, in which case a make-up visit will be arranged for the following weekend.
4.11 Dispensing with Travel Consent
[83] The parents reached a final agreement on travel arrangements on December 14, 2012. Neither party met their onus of establishing that it is in the best interests of the children to change the terms of that order. This said, the parents are cautioned that the financial consequences of being unreasonable in facilitating travel for the other parent will likely be severe if the other parent has to come to court to obtain permission to travel.
4.12 Consequences of Missed Visits
[84] The mother asks that access be in her discretion if the father misses three consecutive visits. This relief is too draconian and not in the best interests of the children. If the father regularly misses access, the mother's remedy is to return to court to change the order.
Part Five – Child Support
5.1 Table Support
[85] The mother asks that the court fix the guideline table amount of child support based on the father's projected earnings for 2013, as reflected in his most current paystub. This paystub indicates that the father is on pace to earn $47,376 in 2013.
[86] The father asks that the guideline table amount be calculated based on his 2012 income, being $46,413.
[87] Courts generally use the most current income information available in assessing support. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109. The father shall pay the guideline table amount for two children at an income of $47,376 per annum. This amount is $704 per month. It is appropriate to start this payment as of January 1, 2013.
5.2 Section 7 Guideline Expenses
[88] The mother seeks the father's proportionate contribution to the following expenses:
a) Swimming - $18.75 per month
b) Gymnastics - $64.25 per month
c) Hockey - $33.50 per month
d) Child care - $585.00 per month - $300 per month during the summer.
[89] The court was satisfied on a balance of probabilities that these expenses are being incurred.
[90] The court finds the mother's child care claim to be a special expense as defined in clause 7 (1) (a) of the guidelines. It is reasonable and necessary for the mother to have child care in place for the children when she is working. The amounts claimed are reasonable.
[91] Subsection 7 (3) of the guidelines states that in determining the amount of an expense referred to in subsection 7 (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. This will be done in this case even though the mother indicates that she will not be claiming any tax credit or deduction related to this expense (she submits that she obtains a discount from the child care provider by not reporting this expense to Revenue Canada). Whether the mother claims the credit or expense is her choice. The payor is only required to pay the after-tax amount of the expense. See: Ramm v. Rice, [2012] N.W.T.J. No. 82 (NTSC); D.L. v. F.K., [1998] N.W.T.J. No. 42 (NTSC).[6]
[92] The father challenges whether the claimed extracurricular activities are section 7 expenses – he says that they are not extraordinary and should be covered by the guideline table amount. This argument would likely have merit if the mother earned the same amount of income as him. However, the court must consider that she only earns $25,000 per annum.
[93] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 77 O.R. (3d) 601 (Ont. C.A.).
[94] Unlike section 3 of the guidelines which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines, including clause 1(a), which reads as follows:
1(a) "to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;"
[95] The relevant provisions of the guidelines read as follows:
- (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
(f) extraordinary expenses for extracurricular activities.
The guidelines define "extraordinary" as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account;
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
[96] The first step for the court to consider is whether the cost of the extracurricular activities is more than the mother can be reasonably expected to afford, taking into account her income and the table amount of child support she receives. I find that is the case. The mother earns a very modest income.
[97] Even if I had found that the mother could reasonably have covered some or all of these expenses, I would have found them to be extraordinary expenses (applying the second step for the court to consider in clause (b) of subsection 7(1.1) of the guidelines) as the nature and number of expenses are reasonable in relation to the mother's income and the children's needs. Further, these costs are very difficult for her to cover alone, taking into account her income and the table amount of child support that she receives.
[98] The final step for the court to consider under subsection 7 (1) of the guidelines is whether the extraordinary expenses are reasonable and necessary. The court finds that they are. Both parents value extracurricular activities for the children. In this case, it is particularly important that they have this outlet from their parents' conflict and the opportunity for socialization with their peers. The cost of the programs and the number of programs are reasonable.
[99] It is the net cost of these activities that must be considered as the mother is entitled to claim the Ontario Fitness Tax Credit for the children.
[100] Subsection 7 (2) of the guidelines states that the guiding principle in determining the amount of a special expense is that the expense is shared by the parents or spouses in proportion to their respective incomes.
[101] A software analysis shows that the father's proportionate share of the special expenses is 64.41%. The software analysis further shows that the father's proportionate contribution to these expenses, after taking into account any available tax credit or deduction related to the expenses is $384 per month. The father has asked the court to reduce his proportionate contribution to these expenses.
[102] The court examined the father's financial statement and found little in it to justify a deviation from the guiding principle of proportionate contribution, except for one factor. The father deposed that he pays between $200-300 per month for his child who lives in Jamaica (although he provided no documentation in support). He also cares for the child when he comes to Canada. Due to this additional support obligation, the court finds it fair to reduce the father's share of the existing special expenses to $300 per month.
[103] Since the temporary order already provides for the father paying special expenses of $300 per month, it is unnecessary to adjust the start date for these payments.
5.3 Arrears Adjustment
[104] The parents were able to reach a comprehensive settlement of claims for support arrears and for retroactive support as of December 1, 2012. This agreement was incorporated into the court order dated December 24, 2012. The father said that he asked that this agreement be made temporary, as he wanted to obtain his notices of assessment for 2011 and 2012 before finalizing the issue. He sought an adjustment to these arrears at trial, because his 2012 income of $46,312 was slightly less than the $47,000 used in the agreement. However, at trial it became evident that he actually slightly underpaid his 2011 child support based on his income. The minor underpayment in 2011 and minor overpayment in 2012 were very close.
[105] There was no evidentiary basis to adjust the arrears order.
[106] There will be some additional support arrears created by this order. The father may repay these arrears at the rate of $50 per month, starting on August 1, 2013.
Part Six – Other Terms
[107] The mother seeks an order that the parties first attempt to mediate any issue in dispute before being permitted to return to court. Her desire for such an order is understandable. This litigation is financially and emotionally draining on this family. It is always better if the parents can fairly resolve issues themselves. However, the court is not prepared to make mediation a pre-condition to returning to court. Based on the past behaviour of the parents, the court is concerned that this condition may be used as a delay tactic in dealing with any enforcement of the order. The court encourages the parents to first mediate any issue, but it is not in the best interests of the children to require this.
[108] The parents are also encouraged to obtain individual counseling to better understand their roles in the parental conflict and to learn better strategies to work with one another. If they don't learn such strategies soon, they may cause irreparable damage to their children.
[109] The court is not prepared to grant the remainder of the parenting requests made by the parties (such as creating a mechanism to change access, the request for the father to refrain from drug usage and the requirement that the mother bring sports equipment to events) as they either haven't worked in the past or were not justified by the evidence.
[110] To avoid any confusion, the court emphasizes that this will be a comprehensive final order and the parenting terms contained in the temporary orders will no longer have any effect.
Part Seven – Conclusion
[111] Final orders will go on the following terms:
a) All existing parenting orders are terminated.
b) The mother will have custody of the children.
c) The mother shall consult the father about any major decision concerning the children.
d) The father shall have permission to meet with any doctor, medical professional, teacher, leader, coach, principal or other professional who has contact with the children in order to obtain information about the children. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this.
e) The father shall be given notice of any school events to which parents are invited and be permitted to attend. He shall also be permitted to arrange and attend at parent-teacher meetings, at different times than the mother.
f) The mother shall provide the father with the schedules of extracurricular activities of the children as soon as they are enrolled in same, and promptly notify him of any changes to these schedules.
g) The father may attend at the children's extracurricular activities, without interference from the mother. Neither party shall communicate with the other during such events.
h) The father shall be listed as an emergency contact with any school or any service provider (such as doctors, dentists, camps or counselors) for the children.
i) The mother shall provide the father with copies of the children's health cards.
j) The father shall have access on alternate weekends from Fridays at 6:30 p.m. until Sundays at 7:00 p.m. The access shall extend until Mondays at the same times, if the Monday is a statutory holiday. The mother will have the children ready for the visit by 5:30 p.m., so that if the father arrives earlier than 6:30 p.m., he will be able to take the children.
k) The father shall notify the mother by email, no later than the Wednesday before the access weekend, whether he will only be able to take the children for part of the weekend. If he does this, the mother will permit the father to take the children for that portion of the weekend. If the father fails to confirm the abbreviated weekend as set out, the mother will be entitled to cancel the access on that weekend. To be clear, there is no requirement for the father to confirm when he is taking the children for the entire weekend. The notice provision also does not apply if the father is merely late to pick up the children on Friday evenings – the visit shall still take place.
l) Each parent shall have the children with them for one-half of the winter school break. The father shall have the children with him from December 25th at noon until 6 p.m. on the Sunday preceding the children's return to school in odd-numbered years and from Friday at 6:30 p.m. on the children's last day of school before the winter school break commences, until noon on December 25th in even-numbered years. The children will be with the mother at the opposite times.
m) The children shall spend the entire March school break with the father, from 6:30 p.m. on the Friday preceding the commencement of the March school break until Sunday at 7:00 p.m. at the conclusion of the March school break, in even-numbered years. The children shall spend these times with the mother in odd-numbered years.
n) The children shall spend every Mother's Day with the mother from 10:00 a.m. onward, if they would otherwise be with the father, and every Father's Day from 10:00 a.m. until 7 p.m., if they would otherwise be with the mother.
o) All other statutory holidays shall be shared in accordance with the regular weekend access schedule.
p) Summer access:
i) In 2013 – the children shall spend until August 4, 2013 at 7 p.m. with the mother; from August 4, 2013 at 7 p.m. until August 11, 2013 at 7 p.m. with the father; from August 11, 2013 at 7 p.m. until August 18, 2013 at 7 p.m. with the mother; from August 18, 2013 at 7 p.m. until August 25, 2013 at 7 p.m. with the father; and from August 25, 2013 at 7 p.m. until September 6, 2013 with the mother. At that point, the regular weekend access schedule shall resume.
ii) Starting in 2014 – the children shall spend July 1 at 7 p.m. until July 15 at 7 p.m. and August 1 at 7 p.m. until August 16 at 7 p.m. with the father and July 15 at 7 p.m. until August 1 at 7 p.m. and August 16 at 7 p.m. until September 1 (and longer if it is her ordinary weekday time) with the mother. The regular access schedule shall resume at that point and the father will have the children for the first weekend after September 1st.
q) Each party may have the children on two days per year when they are otherwise supposed to be with the other parent if there is a special event, such as a wedding or family gathering. The parent must give the other at least 30 days notice of the change by email and the other parent shall accommodate this.
r) The father shall not exercise access to the children, other than at the times provided for in this order, unless otherwise agreed to by the mother. Specifically, this means that he is not to visit the children at school.
s) The parents shall facilitate the children having telephone contact with the other parent when they are in their care.
t) The parents may agree on further and other access.
u) The holiday access schedules set out above shall take priority over the ordinary access schedule.
v) The parents are not to change this schedule without the consent of the other parent. The only exception is if a child is too ill to exercise access on the father's weekend, in which case the mother must provide the father with a doctor's note evidencing this. If a visit is cancelled for this reason, it shall be made up on the following weekend.
w) Transportation:
i) The parents shall share the responsibility of transportation of the children on access exchanges. The father shall pick up the children at the start of the visit from the mother's home and the mother shall pick up the children at the end of the visit from the father's home.
ii) The parent picking up the children is to wait at the bottom of the driveway of the other parent and the other parent shall have the children ready on time to send out.
iii) If the mother is required to work when it is her time to pick up the children, and she provides the father with at least 48 hours notice by email, the father shall return the children to the mother's home at the end of the visit.
iv) If the father chooses not to exercise his entire access period, he shall be required to deliver the children to the mother's home.
x) Travel:
Neither party shall remove, or shall help anyone else to remove the children from the Province of Ontario, without the consent of the other party. Such consent not to be unreasonably withheld provided that:
a. The party requesting travel with the children shall provide a detailed itinerary, including departure and return dates, flight numbers or other transportation plans, place of stay and emergency contact information.
b. The travel will not unnecessarily interfere with the access schedule. However, reasonable interruptions can be made with a proposal for make-up access.
c. Neither party shall deny a reasonable travel request and will provide notarized consents if requested.
y) Neither party is to discuss this litigation or talk negatively about the other party in front of the children.
z) The parents shall communicate by email and shall respond to all time-sensitive emails concerning the children within 12 hours. The father shall ensure that his mobile phone is capable of sending and receiving email.
aa) The father shall pay the mother the guideline table amount of child support for two children based on his income of $47,376 per annum, being $704 per month, starting on January 1, 2013.
bb) The father shall also pay the mother the sum of $300 per month for his share of section 7 special expenses (being childcare, swimming, hockey and gymnastics). These payments shall be paid on the first day of each month.
cc) These support orders take priority over the temporary support orders (with the exception of paragraph 2 of the December 24, 2012 order that fixes the arrears up until December 1, 2012) and the Family Responsibility Office is asked to adjust their records accordingly.
dd) The father may pay the existing support arrears and any arrears created by this order at the rate of $50 per month starting on September 1, 2013.
ee) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any lottery or prize winnings, or any government source (such as HST or income tax refunds).
ff) The parents shall exchange their complete income tax returns and notices of assessment, and the mother shall provide the father with all receipts for special expenses by June 30th of each year. The parties are expected to annually adjust child support in accordance with the guidelines.
gg) A support deduction order shall issue.
[112] The software calculation showing how the father's contribution to the special expenses was calculated is attached to this decision. The parties will have 7 days from the date of this order to make any submissions about inaccuracies in the software calculation (such as figures being inputted incorrectly). Any submissions should be in writing, on notice to the other party, and be delivered to the trial coordinator's office on the second floor of the courthouse. If submissions are made, the other party will then have 7 days to serve and file their written response.
[113] 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.
Justice S.B. Sherr
Released: July 30, 2013
Footnotes
[1] The father moved to Brampton from Toronto in March of 2011.
[2] He is supposed to see the children on Wednesday evenings but has missed many of these visits. This will be discussed in more detail below.
[3] Many of these advantages are lost once the case has to be tried.
[4] The parents described in paragraphs 56 and 57 are on the opposite ends of a spectrum. The court needs to assess where the parents, in the case before it, fall within this spectrum.
[5] While the mother can be difficult and uncompromising at times, her behaviour in this case falls well-short of being parental alienation. She has agreed to access extensions that weren't ordered and is prepared to grant mid-week access, even though the father did not seek this access in his closing submissions.
[6] To the contrary see: Mundle v. Mundle, [2001] N.S.J. No. 111 (NSCS). While I appreciate that the payor obtains the benefit of a discounted child care cost, and the reality is that many people deal with child care providers in cash, the courts should not be condoning the recipient's complicity in tax avoidance by the child care provider. The court prefers to follow the Northwest Territory line of cases.
