Court File and Parties

Ontario Court of Justice

Date: 2015-03-23

Court File No.: Red Lake, Ontario RL-FO-14-0005-00

Between:

Brent Gary Dick Applicant

— And —

Terrie-Lynn Hicks Respondent

Before: Justice Peter T. Bishop

Heard on: March 2, 2015

Reasons for Judgment released on: Thursday, April 23, 2015

Counsel:

• Gill D Rumstein, counsel for the applicant(s)
• Thomas J Carten, counsel for the respondent(s)

BISHOP J.:

The Original Order

[1] This matter comes before me by way of a Motion to Change the Final Order of April 22, 2010 as follows:

(1) The parties shall have joint custody of the children, Taylor Rose Dick, born March 19, 2002 and Mackenzie Shannon Dick, born on March 19, 2002, with their primary residence with Terrie-Lynn Hicks

(2) Brent Dick shall have reasonable and liberal access to the children as follows:

(a) Every second Wednesday from 4:00 p.m. until Sunday at 7:00 p.m.;

(b) Such further and other times as the parties may agree.

(3) The parties shall have the following holiday access schedule, which shall supersede the regular access as outlined in paragraph 2 above:

(a) One week of the Christmas holidays, with Brent Dick having the first week in even numbered years, and the last week in odd numbered years. Terrie-Lynn Hicks shall have the first week odd numbered years, and the last week in even numbered years. The party that does not have the children for the first week of the Christmas holidays, shall have the children in his/her care and control from Christmas day at noon until Boxing Day at 8:00 p.m. For the purpose of calculating the duration of the Christmas school break, the Christmas break begins at 3:30 p.m. on the last day of school and ends at 7:00 p.m. on the day before school recommences.

(b) Alternate March breaks, with Brent Dick having March break in odd numbered years and Terrie-Lynn Hicks having March break in even numbered years. March break shall commence at 3:30 p.m. on the last day of school and end at 7:00 p.m. on the Sunday before school recommences.

(c) Each party shall be entitled to 2 weeks of summer holidays, to be taken consecutively or non-consecutively. In odd numbered years, Brent Dick shall have first choice of which two weeks he wishes to utilize for summer holidays and communicate same to Terrie-Lynn on or before May 31, after which time, Terrie-Lynn Hicks shall communicate her choice for the summer holidays on or before June 15. In even number years, Terrie-Lynn shall have first choice of which two weeks she wishes to utilize for summer holidays and communicate same to Brent Dick on or before May 31, after which time, Brent Dick shall communicate his choice for the summer holidays on or before June 15.

(d) Each year Brent Dick shall be entitled to Father's day from 9:00 a.m. until 6:00 p.m., while Terrie-Lynn shall be entitled to Mother's Day from 9:00 a.m. until 6:00 p.m.

(e) Brent Dick shall have the children for the Thanksgiving weekend in odd numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m. while Terrie-Lynn shall have the children in even numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m.

(f) Brent Dick shall have the children for the Easter Break in even numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m., while Terrie-Lynn shall have the children in odd numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m.

(g) Brent Dick shall have the children for the May long weekend in odd numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m., while Terrie-Lynn shall have the children in even numbered years from Friday at 4:00 p.m. until Monday at 7:00 p.m.

(4) Brent Dick shall pay child support to Terrie-Lynn Hicks for the children, Taylor Rose Dick, born March 19, 2002 and Mackenzie Shannon Dick, born March 19, 2002, in the amount of $1,372.00 per month, payable in the amount of $633.23 on the 10th and 25th days of each month, commencing May 10, 2010 in accordance with the Tables under the Child Support Guidelines and Brent Dick's disclosed income for 2009 of $97,361.00.

(5) Terrie-Lynn Hicks shall be responsible for assuming the costs of the children's extra-curricular activities, which currently include summer day camp, figure skating, soccer and gymnastics, up to a $1,000 per year per child per annum. In the event that the cost of the activities exceeds $1,000.00 per child per annum, the parties shall equally share the costs. The parties shall mutually agree upon, in advance, any new activity that the children are to be enrolled in. Neither party shall unreasonable withhold their consent.

(6) Brent Dick shall provide his Notice of Assessment and/or Reassessment by May 31st of each year. Child support shall be adjusted as of June 1st, if applicable. So long as there are section 7 expenses, Terrie-Lynn Hicks shall provide her Notices of Assessment and/or Reassessment by May 31st of each year in order that the parties may determine their proportionate share towards the section 7 expenses.

(7) The parties shall pay proportionate to their incomes any extra ordinary expenses, including child care costs, and uncovered dental or medical costs. Brent Dick's disclosed 2009 income is $97,361.00 and Terrie-Lynn Hicks disclosed 2009 income is $40,724.00. Brent Dick's proportionate share is 71% and Terrie-Lynn Hicks proportionate share is 29%.

(8) Brent Dick shall maintain Ontario Health Insurance and extended health plan coverage for the children for so long as they are entitled to such coverage as dependents. In the event that Terrie-Lynn Hicks has a plan available to her through her current place of employment or future employment, Terrie-Lynn Hicks shall maintain Ontario Health Insurance and extended health plan coverage for the children for so long as they are entitled to such coverage as dependents.

(9) Brent Dick shall pay retroactive child support from January 1, 2006 to April, 2010 in the amount of $5,000.00. Brent shall make monthly payments towards the outstanding retroactive child support in the amount of $250.00 per month commencing May 1, 2010 and each month thereafter until the retroactive support has been paid in full.

(10) There shall be no order as to costs.

(11) A Support Deduction Order shall issue.

(12) Unless the Order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office and the amounts owing under the Order shall be paid to the Family Responsibility Office, who shall pay them to the person to whom they are owed. Payments are to be made to: Family Responsibility Office, P.O. Box 2204, Station "P", Toronto, ON M5S 3E9.

This Order bears post judgement interest at the rate of 2% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Evidence of Brent Gary Dick

[2] The Applicant and Respondent are the father and mother of the children, Mackenzie Shannon Dick, born March 19, 2002 and Taylor Rose Dick, born March 19, 2002.

[3] In September of 2014 the parties agreed that joint custody would continue with the parties having the children one week on one week off, with the exchange of the children to take place on Mondays instead of Wednesdays.

[4] The father remarried on August 29, 2009 and has a son with his wife Burgundy Veal. He pools his resources with Ms. Veal and she manages the money.

[5] Ms. Hicks has entered into a new relationship with Marc Pinette.

[6] It was the father's understanding that Mr. Pinette's son lives at Hicks/Pinette residence. Ms. Hicks is opposed to the Monday-Monday exchange and wants to return to Wednesday-Wednesday as there would be more meaningful time with the children's father.

[7] In the past, the father was employed as an underground heavy equipment operator working seven days on and seven days off with alternating night shifts.

[8] He first learned that Ms. Hicks wanted to change the Monday schedule back to Wednesday at the settlement conference.

[9] He has two night shifts per month and has arranged for the girls to stay with his wife.

[10] He is concerned about the mother leaving town and not telling him where she is going with the girls.

[11] He admits that he did not advise the mother of changes in his income as it was fluctuating. He did exchange the 2010 assessment on June 11, 2011 by text message.

[12] He is not now receiving the same amount of income as at the time of separation as he no longer earns 300 hours of overtime per month and his bonus has been reduced.

[13] In 2011 he worked as a development miner where he had large bonus payments (dependent on ore production) and large over time income as a result of that scheduling.

[14] He earns approximately $87,109.00 per annum. He has no control over the scheduling change and has worked seven shifts on and four off, then it was changed to four on and five off and five on and four off with no overtime. Currently there is a seven to seven schedule with no built in overtime. He works on the Campbell side of the GoldCorp site and has no overtime opportunities.

[15] In 2000 he suffered a back injury which was reinjured in 2014. Last year he spent three days in emergency at the hospital and described his injury as a ruptured bulging disc. His physician Dr. Orth recommended a change in his position from remote mucking to a fork lift operator. The whole bonus schedule of the mine has fluctuated and changed as he is no longer a development miner doing exploration.

[16] He doesn't see any changes in the foreseeable future and produced a 2014 Workers Compensation Claim form which was denied.

[17] In 2013 he received an inheritance from his mother's estate which was reported as income in the amount of $59,688.53 which was his share of his mother's deferred profit sharing plan with Sun Life. This was a one-time occurrence and he also received further inheritance which was not taxable in the amount $160,000.00 to $190,000.00.

[18] Pursuant to the existing order, Ms. Hicks agreed to pay the first $1000.00 of extra ordinary expense activities for each child for a total of $2000.00 per annum.

[19] Initially, Taylor had subscribed to recreational dance but in 2012 decided to move to competitive dance. Taylor relinquished her position because she did not want to engage in fund raising. The child Mackenzie went on to competitive dancing and has been invited to various competitions. It is the father's view that this type of extra-curricular activity has improved the girls' self-esteem, team building and made them more outgoing. The cost of this activity is approximately $1800.00 per year or $3500.00 for both children if there is no fund raising.

[20] In the 2014-2015 year the father has paid $1400.00 for Mackenzie's competitive dancing. His is also proven other incidental expenses including track suits, weekend dance competitions and travel costs.

[21] Ms. Veal has contributed approximately $1,863.00 to the household expenses.

[22] He continues to pay child support pursuant to the existing order.

[23] In cross examination he admitted that he stated that he has talked to the children about what they would like as they are of an the age to understand. If the exchange is Monday to Monday he would receive the children approximately 6:00 p.m. but on a Wednesday/Wednesday exchange he would be working much more and have less time with the children.

[24] He confirmed that he has signed up for overtime at GoldCorp but has been working light duty.

[25] He has significant legal expenses as a result of this litigation and did take his wife and children to Jamaica for a one week holiday which cost approximately $9000.00 to $10,000.00. He used part of his inheritance to fund this holiday.

[26] He believes that Ms. Hicks should pay for some of the competitive dancing cost for Mackenzie.

[27] Mr. Dick and Ms. Veal incur approximately $1800.00 per month in daycare costs for their new son.

Evidence of Terrie-Lynn Hicks

[28] Ms. Hicks is thirty four years of age, lives in Balmertown with her husband Marc Pinette.

[29] In September of 2014 she and Mr. Dick agreed to have a one week on one week off parenting schedule. There were some initial adjustments for Taylor as she forgot things but that has resolved itself.

[30] She is concerned about not knowing Mr. Dick's work schedule and wants the children to have quality time with him as night shift becomes a problem.

[31] She expressed a concern about the girls texting their Dad when they are at her house as this upsets her.

[32] She is somewhat resistant to giving her whereabouts with the children all of the time as it appears that he is trying to keep an eye on her.

[33] Another issue was summer access in 2013 as he tacked his visits on to weekends which resulted in her not getting a two week block all at once.

[34] Ms. Hicks works at the Red Lake Margaret Cochenour Memorial Hospital and at the Red Lake IGA and has a combined income of approximately $43,824.00 per annum.

[35] Her partner Marc Pinette assists with household expenses. He works at GoldCorp as a miner and earns approximately $149,966.00 per annum.

[36] Mr. Pinette pays approximately one-half of the mortgage and has a truck payment approximately $600.00 and child support for other children approximately $990.00. He also has a loan for other commitments which he pays $333.00 per month.

[37] Ms. Hicks sold the former matrimonial home and purchased a new home in September of 2014. That home required a new furnace and she put some money away for the girls and paid some legal bills and paid off the mortgage on her previous home.

[38] She finds now with two households, and sharing custody she is not able to provide all the things that she used to for the girls.

[39] She received no notice of an income change from Mr. Dick nor did she know about his job situation at GoldCorp.

[40] With respect to Mackenzie's competitive dance program she expected Mr. Dick to cover the extra costs.

Evidence in Cross Examination

[41] She conceded that if a Monday to Monday custody arrangement were in place the girls would lose two hours two times per month. She further confirmed that she wanted to change it to Wednesday - Wednesday because he brought her back to court.

[42] Her view is that the texting from the father to the girls is excessive when they are at her place and it's her time and they should not be texting with their Dad.

[43] She did not complain about Mr. Dick tacking days on to weekends and did not make it an issue until trial.

[44] She acknowledged that the father has paid $1372.00 per month even though there has been a fifty-fifty custody arrangement since September 2014.

[45] Ms. Hicks earns approximately $41,000.00 from her hospital employment and $2000.00 per annum from her IGA employment.

[46] With respect to Mr. Pinette's contributions he pays the hydro, the phone, meals outside of the home, vacation and estimated that he paid $400.00 to $500.00 per month in addition to one-half of the mortgage and later stated that he would probably contributes $1500.00 per month towards the household expenses.

[47] Her family unit had a vacation in Mexico which cost approximately $5000.00.

[48] After reviewing her financial statement she claimed a deficit of approximately $2000.00 per month but wasn't sure how much Mr. Pinette paid and conceded that the expenses were over inflated.

[49] With respect to the extra ordinary expenses she would pay the $2000.00 if she could afford it but at the current time that was not possible.

Submissions of Mr. Dick

[50] Mr. Dick's submission is that he has been completely forthcoming and not exaggerated his expenses whereas Ms. Hicks doesn't really know how much Mr. Pinette is contributing. There was actually no supported evidence as to what Mr. Pinette was putting into the family relationship proven by any documentation.

[51] It is proposed that if the parties were to maintain the same lifestyle with their income there should be a set-off.

[52] It was estimated that the household income for the Hicks/Pinette union is between $160,000.00 to $170,000.00 per annum, where the household income for Dick/Veal is approximately $120,000.00 per annum.

[53] With respect to arrears owing by Mr. Dick it is acknowledged that he does owe arrears but it would be unfair to average including the inheritance from Sun Life for at the time of his mother's death.

[54] Mr. Dick's job has changed and his injury has been documented and confirmed by Dr. Orth's medical opinion. This injury will prevent him from any heavy work and therefore he is relegated to light-duty employment with less income.

[55] The existing variation clause in the current order would allow the parties to benefit from any increase or decrease in income.

[56] He submits that the extra ordinary expenses should be payable proportionally to the income of each party that would be fair and equitable.

[57] It is Mr. Dick's view that the Wednesday – Wednesday exchange is simply vengeful and was brought on after he returned the matter to court.

Submissions of Ms. Hicks

[58] Ms. Hicks submits that the transition day should be Wednesday because in the previous order in 2010 it was Wednesday to Sunday when the father was on a week off. Also, the father works Monday and Tuesday and the children will not have full time with him.

[59] Ms. Hicks believes that it is not necessary and unreasonable to require a travel itinerary if the parties are travelling overnight to destinations within the District of Kenora.

[60] Ms. Hicks wants to limit communication with frequent text messages upsetting to her household.

[61] The mother wishes to average all of the respondents' income over the last three years including the taxable benefit from his mother's deferred pension plan. In other words the $59,688.00 Sun Life benefit as well the CPP Death Benefit should be included in the income during the father's 2013 taxation year.

[62] The father did not disclose his fluctuating income and therefore Ms. Hicks was not aware of any significant change in income and the onus was clearly on Mr. Dick.

Decision

[63] Having heard all of the evidence and reviewing the documentation I am finding there has been a material change in the circumstances to vary the order with respect to child support extra ordinary expenses and in the exchange timing.

[64] In that regard, the parties shall continue to have joint custody of the children and the physical exchange will take place on Monday to Monday. This is in the best interests of the children. The evidence is that the mother was simply taking the Wednesday exchange position to punish the father as she was taken back to court. The Monday to Monday exchange is working well and the children are benefiting. The Wednesday to Wednesday exchange would not result in any less meaningful time with the father as Monday to Monday flows into the weekend so that long holiday weekends could be shared without any loss of benefit for either party. The Monday to Monday exchange was agreed upon in September of 2014 and there are only two night shifts per month where the children would not have full time with the father but be with his current spouse.

[65] With respect to texting, this is a modern way of life and communication. I will not prohibit either party from texting their children when in the care of the other parent as that would be unenforceable. The parties must take a reasonable approach to this form of communication. Similarly, with respect to notifying the other of impending holidays, each party shall notify the other of any time that the children are going to be on an extended holiday or overnight within the District of Kenora. Paragraph 2 (a) and (b) of the Order of April 22, 2010 shall be amended accordingly.

[66] The father has proven a material change in his circumstances in his income and it fluctuates and there is no foreseeable change in his income, or bonus or overtime schedule due to his physical disability. The existing order of April 22, 2010 is crafted so that any changes can be automatically adjusted upwards or downwards which would benefit each parent and the children.

[67] With respect to on-going child support, I fix the on-going support based on the father's 2014 income. The father should be paying one-half the table amount on an income of $89,387.00 or one-half of $1,281.00 being $640.50 payable $320.25 on the 10th and 25th day of each month commencing April 1, 2015. Paragraph 4 of the Order of April 22, 2010 shall be amended accordingly.

[68] With respect to the arrears in child support, I include the Sun Life death benefit for that year only namely 2013. With interest his 2013 income is $103,477.00 plus $60,938.00 for a total of 164,415.00. It will be inequitable and unfair to average Mr. Dick's income for the previous three years as this is a onetime occurrence. That combined income of employment and profit sharing benefit for 2014 will be used to calculate the arrears owing as follows:

Calculation of the Arrears (Including the 2013 Death Benefit)

• May to December 2010 - $1,500 (payable) - $1,372.00 (paid) x 8 = $1,024.00
• January to December 2011 - $1,675 (payable) - $1,372.00 (paid) x 12 = $3,636.00
• January to December 2012 - $1,585 (payable) - $1,372.00 (paid) x 12 = $2,556.00
• January to December 2013 - $2,181 (payable) - $1,372.00 (paid) x 12 = $9,708.00
• January to September 2014 - $1,286 (payable) - $1,372.00 (paid) x 9 = ($774.00)
• October to December 2014 - $654 (payable) - $1,371.00 (paid) x 3 = ($2,151.00)
• January to February 2015 - $654 (payable) - $1,371.00 (paid) x 2 = ($1,434.00)

TOTAL: $12,565.00

[69] From the $12,565.00 there must be deducted the overpayment of February, March and April as he has continued to pay $1,371.00 but should only be paying one-half of that or $680.00 which results in a further credit of $2,040.00 so that the arrears effective today are $10,525.00.

[70] With respect to the extra ordinary section 7 expenses, I am of the view that an equitable way to address these expenditures that should be proportional to the income of the parties namely Mr. Dick and Ms. Hicks. Mr. Dick's income is $89,387.00 with Ms. Hicks' income approximately $44,000.00 per year; on proportional bases Mr. Dick shall pay 67.3% and Ms. Hicks $37.2%. Paragraph 5 of the order of April 22, 2010 shall be amended accordingly.

[71] Pursuant to the order of April 22, 2010, Ms. Hicks should be paying $2,000.00 for the extra ordinary expenses up to the date of this variation and Mr. Dick should reimburse her for any amounts paid in excess of that for the years 2011, 2012 and 2013 which is 50% of $1,312.82 or $656.41.

[72] I am finding that the father has not reimbursed the mother for 50% of the expenses in excess of the $2,000.00 or $656.41. This will be added to the support arrears owing by the father to the mother or $11,181.41 which shall be payable forthwith.

[73] A support deduction order shall issue.

[74] All support payments shall be payable to the Director of the Family Responsibility Office who shall pay them to the person to whom they are owed.

[75] Unless this order is withdrawn from the Director's Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[76] The parties shall exchange copies of the T1 annual income tax and benefit forms with all slips and schedules in those of assessments by June 1st of each year. Automatic recalculation of child support based on the set up method shall take place as of June 1st of each year.

[77] This order bears post-judgment interest at the rate of 2.0% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

[78] If costs are an issue I will receive submissions.

Released: April 23, 2015

Signed: "Justice Peter T. Bishop"