Court File and Parties

File No.: D46328/08

Date: 2016-05-03

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Marleen Davis, Applicant (mother)

And: Garfield Davis, Respondent (father)

Before: Justice Robert J. Spence

Trial Heard: January 20 and April 28, 2016

Reasons for Judgment Released: May 3, 2016

Counsel:

• Ms. Dorothea Dadson, for the applicant, mother
• Mr. Usman Sadiq, for the respondent, father

Introduction

[1] The father's change motion seeks a change to a number of final orders, specifically:

1. An expansion of access to the younger two children, ages 6 and 4 years, including overnight access;
2. A reduction in his child support obligation, including both table support and section 7 support, both pursuant to the Child Support Guidelines ("Guidelines"); and
3. A termination of his spousal support obligation.

[2] By way of cross-motion, the mother is seeking:

1. Father's access to the younger two children to be supervised;
2. A continuation of the father's table and section 7 Guidelines child support obligation, based on an imputed income of $55,796;
3. A continuation of the father's spousal support obligation; and
4. An order removing the father's name from the Registered Education Savings Plans ("RESP") for the children.

Father's Access

[3] I turn first to the access issue. The order of this court dated July 29, 2009 provided for access to the now 6 year-old child K., as follows:

1. Reasonable access on reasonable notice, but not less than 3 hours of access on Saturdays, unless otherwise agreed to by the parties; and
2. Reasonable and generous telephone access.

[4] K. was a 3-week old baby at the time that access order was made.

[5] I note that the order provided for the same access provisions to the two oldest children; but because those children are now 17 and almost 20 years old, they are not the subject of this proceeding insofar as access is concerned.[1]

[6] The youngest child, N., was born December 16, 2011 and, accordingly, he was not the subject of that earlier access order. In fact, although the mother was granted final custody of N., by a later order dated April 22, 2013, it appears that no access order was ever made in respect of N.

[7] Because of that, the father's request to "change" an access order in respect of N. is technically improperly brought, as the request for access to N. ought to have been brought by an initiating application pursuant to Rule 8 of the Family Law Rules ("Rules").

[8] However, pursuant to Rule 2, and the court's obligation to deal with cases "justly", it would be unfair to simply dismiss the father's request to deal with the access issue for N. and to require him to begin again with an originating application.

[9] Instead, I earlier advised the parties that I would treat father's change motion in respect of the child K. as also an originating application to determine his access for the child N.

[10] The test for changing a final order of access is different than the test for an initiating proceeding.

[11] The test for changing a final order is set out in section 29 of the Children's Law Reform Act ("Act"), namely, whether there has been a "material change in circumstances since the making of the final order that affects or is likely to affect the best interests of the child".

[12] This is the test which applies to K.

[13] Under section 24(1) of the Act, the test on an initiating application for access is strictly what is in the "best interests" of the child at the time of the making of the access order.

[14] This is the test which applies to N.

[15] Therefore the legal tests for the two children in this case are different.

[16] The thrust of the father's position can be summarized as follows:

1. The mother has engaged in a pattern of denying his access on a regular basis.
2. The mother is attempting to marginalize the father's involvement in the children's lives by failing to keep him informed of important events in their lives, such as graduations, medical and dental appointments, and so on.
3. The mother has allowed the father to see the children only twice during the entire 2015 year.

[17] The thrust of mother's position that access should be supervised can be summarized as follows:

1. In the past several years since access has been in place, the father has not taken advantage of his available access, seeing the children only very sporadically.
2. The father has never exercised overnight access.
3. Both of the younger children have been diagnosed with Autism Spectrum Disorder ("ASD"); additionally, K. has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), and they require very specialized and educated care from whoever is their caregiver on any given occasion, even for short periods of time.
4. Mother asserts that the behaviours and diets of the children are things that the father knows little about and that he would be unable to address any problems which would inevitably arise during access visits, even during short periods of unsupervised community access.

[18] Both parents had, at various times in this proceeding, filed affidavits in the court record.[2] The respective evidence of both parents was tested on cross-examination. I do not propose to go through their evidence in detail.

[19] Father's obligation on the change motion was to establish a material change in circumstances since the 2009 order. However, much of his evidence was directed to complaining about the mother's interference with his desire to exercise access to the children. He also testified that at no time during any of his access with the children did he experience either of the two children engaging in tantrums or any other form of behavioural difficulties that he was unable to manage.

[20] He also testified that he had educated himself about ASD through the internet, identifying the Geneva Centre for Autism as one specific source of information. He specifically testified that he took an "online" course offered by the Geneva Centre to educate himself about autism.

[21] While he acknowledged not knowing as much as the mother about autism, he testified that the mother rarely if ever involved him with the children's medical appointments so that, in his view, it was the mother who was at fault for his own lack of knowledge.

[22] Mother testified that she has allowed father to have access to the medical records of both of the younger children.

[23] She testified that father has been very inconsistent in exercising his access. Apart from the two younger children, there has been a substantial breakdown in the relationship between the 19 year-old[3] daughter, Ke., and the father.

[24] Ke. testified at this trial. Ke. said that her father has exercised access only 3 times during 2015.

[25] Ke. testified in a similar vein as her mother regarding father's lack of understanding of autism in general. She also testified to father's inability to control his temper, as witnessed by herself personally.

[26] Ke.'s evidence in chief addressed extensively the needs of the two younger children and Ke.'s observed inability by the father to appropriately meet those needs, based on her own observations, as well as her understanding of the needs of her siblings.

[27] She talked about the father's anger and his propensity for physical violence, including one occasion when the father slapped her when she did not immediately obey his instructions.

[28] Much of her evidence in chief was devoted to incidents pointing to father's demonstrated lack of desire to be actively involved, in a consistent and supportive manner, in the lives of the children.

[29] On cross-examination, almost none of these areas of Ke.'s evidence were tested by father's counsel. Ke. was adamant that her evidence in chief was prepared without consulting her mother or, indeed, without any input or influence from her mother.

[30] When she was asked on cross-examination if she was angry with her father, she said that she was not angry; rather, she was "disappointed" because of his "lack of presence" in her life.

[31] Ke. impressed the court as straight-forward and believable.

[32] There is no doubt from the evidence that both of the younger children have very significant and special needs. Without going into extensive detail about those needs, it is clear from the evidence that they require constant, educated and understanding attention from whoever might be their caregiver at any given time.

[33] The mother, in particular, has demonstrated that she is actively invested in the lives of both her younger children and that much of her time is taken up with caring for them. She has spent much time educating herself about their needs and in learning how to address those needs in the most effective way possible.

[34] I am not satisfied that the father has any meaningful education or understanding about how to care for the two younger children on an ongoing basis. Despite his claim to have taken an "online" course from Geneva, the father produced no evidence whatsoever that he did this. In fact, the mother's evidence is that Geneva does not offer online courses of the kind described by father. In the face of this contradictory evidence, I prefer mother's evidence over father's, particularly when it is considered in the context of all the evidence in this trial, including the evidence of Ke.

[35] When he was asked in cross-examination how he would deal with K. or N. if they experienced temper tantrums, or other behavioural difficulties while he was caring for them, he said he would simply tell them to "relax". Given the special needs of the children, this response reveals a lack of insight and understanding into the children's needs.

[36] The father believes the mother has pushed him out of the lives of the children. Both the mother and Ke. deny this, specifically asserting that they always wanted the father to be more involved in the lives of the children, including the life of Ke. herself.

[37] It seems to the court, that given the very extensive demands placed on the mother in caring for the two younger children, any parent in such a situation would welcome real support offered by the other parent. It strikes the court as unlikely that the mother would push the father away when it would be in her own best interests – as well as the best interests of the two younger children – to have a second supportive parent in the picture, and this would more likely occur only if the father had demonstrated his unwillingness to be an actively involved parent.

[38] On the evidence, I accept the overall thrust of the mother's evidence, as corroborated in the essentially unchallenged evidence of Ke., that the father simply has not made himself available over the years to be an active and nurturing parent to the children.

[39] While I am prepared to accept that he would prefer to spend more time with the children, on the facts of this case, spending more time would be very hard work for him because he would first have to learn how to spend that time in a constructive, meaningful and supportive way for the two younger children. This will require effort on his part – real effort.

[40] As I noted earlier, the original access order applicable to K. was made on July 29, 2009. It provided for:

reasonable access on reasonable notice but not less than 3 hours of access on Saturdays, unless otherwise agree to by the parties

[41] I find that a combination of three factors has given rise to a material change in circumstances since the date of that order.

[42] The first factor is the birth of N. in 2011, so that there is now a second special needs child in the picture.

[43] Second is the evidence before this court that the father failed to exercise access to K. in a consistent and appropriate manner.

[44] And the third factor is that the father failed to properly educate himself about K.'s special needs, which would have allowed him to implement the correct tools for dealing with the children's special needs.

[45] On the basis of this change in circumstances, I conclude that it is in K.'s best interests for access to be supervised until certain conditions are met, which I will set out below.

[46] I also conclude that it would be in the best interests of N. to spend time with his father in the same way as his brother K. In my view it would be difficult to explain to either child why father's access to one of them is different than his access to the other child.

[47] Furthermore, because N. also has similar special needs, N.'s best interests require that father be able to demonstrate a consistent pattern of visitation, and a demonstrated ability and willingness to educate himself about N.'s needs before access should then begin to move into the community.

Order for Access

[48] Accordingly, although the legal tests for access to the two children are different, I conclude that the appropriate order ought to be the same for both. For each of K. and N., my order is as follows:

1. Father shall have up to two hours each week of supervised access, either at Access for Parents and Children Ontario ("APCO"), or some other mutually agreed upon access facility.

2. Any fees payable by APCO or the other mutually agreed upon facility shall be borne solely by the father.

3. The mother shall cooperate fully to ensure that all necessary steps are taken to help facilitate the implementation of father's access.

4. Supervised access shall continue for a period of not less than six months, unless the parties otherwise agree, in writing, to a different form of access. Any agreed-upon written changes may be in either "hard" form or by email, text or other electronic means.

5. Father shall not be at liberty to bring a motion to change this access order until:

   a. He has demonstrated a consistent pattern of attending all scheduled supervised access visits for a period of not less than six months;

   b. He has produced, and served on the mother, the notes of the access supervisor(s) for all of his visits;

   c. The notes of the access centre reveal an overall positive pattern of interaction between the father and the children, as well as a demonstrated ability by the father to address any behavioural or other physical or emotional needs of the children, as revealed during the course of the access visits;

   d. He has produced, and served on the mother, documentary evidence of the completion of a recognized education program of autism for children; and

   e. Following the satisfaction of a. to d. herein, he has provided mother with a written proposal for the gradual expansion and liberalization of access to the children, which the mother has either rejected, or failed to respond to with a reasonable proposal of her own.

Support Issues

[49] I turn next to the financial matters.

[50] At the conclusion of the evidentiary portion of the trial, the parties reached a consent to resolve two aspects of the support issues, as follows:

1. Based on father's 2015 income in the amount of $55,796, the table amount of child support for four children, payable by father to mother shall be $1,278 per month. This is a variation of the child support order dated June 17, 2013, which required the father to pay table support to the mother in the amount of $1,412 per month. This variation shall take effect commencing June 1, 2015, the date requested by father in his motion to change.

2. The final order dated May 11, 2010, requiring father to pay spousal support to mother in the amount of $400 per month, shall be terminated, effective June 1, 2015, the date requested by father in his motion to change.

[51] In calculating all the changes to father's support obligation as set out in these reasons, he shall be given credit for any amounts paid by him over and above the aforesaid amounts since June 1, 2015.

[52] Following that consent, the only financial issue left unresolved was whether the father ought to pay section 7 expenses pursuant to the Guidelines and, if so, how much he ought to pay.

[53] Section 7 of the Guidelines provides [my emphasis]:

Special or Extraordinary Expenses

7 (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:

• (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

• (b) that portion of the medical and dental insurance premiums attributable to the child;

• (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

• (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

• (e) expenses for post-secondary education; and

• (f) extraordinary expenses for extracurricular activities.

Definition of "Extraordinary Expenses"

(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.

Sharing of Expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[54] The order of this court dated June 17, 2013 was reached on consent of the parties. That order obligated father to pay $9,000 as his share of section 7 expenses for Ke.'s brace and oral surgery. Although there was a suggestion in this trial that the father was now challenging that obligation, his motion to change requested a change in his financial obligations from June 1, 2015. Accordingly, that $9,000 obligation remains in force.

[55] For the years 2014 and 2015, the special expenses arise primarily from special therapies for the children – for speech, language and physical therapies. Those dollar amounts were not contested. There is also a small portion of expenses which pertain to schooling programs which I conclude were "extraordinary" pursuant to that definition from section 7, set out above.

[56] The total section 7 amounts for 2014 and 2015 were:

• 2014 - $9,445
• 2015 - $11,094

[57] The amount estimated for 2016 is $18,070.

[58] None of these dollar amounts were seriously contested by the father. Instead, the father's argument was that these expenditures were not "necessary" and, in any event, not within the "means" of the father.

[59] Almost all of these expenses pertained to various professionally recommended therapies for the children. It was demonstrable from the evidence that the mother has been a very active advocate for addressing the special needs of her children, including exhausting all available subsidies and grants.[4] She has worked very diligently to provide her children with the kinds of therapies that various places such as Holland Bloorview Kids Rehabilitation Hospital have recommended for her children.

[60] In my view, none of the claimed section 7 expenses could be characterized as superfluous. I conclude that all of those expenses fall within the definition of "necessary".

"Means" of the Parties

[61] As to the mother's "means", the mother is unable to be employed outside the home given the constant demands of the children, including hospital and medical appointments and other appointments for various therapies, and so forth.

[62] In addition she had breast surgery a few years ago and she has severe nerve damage in her hand. She also broke her leg in 2012 while running after K. Her leg was broken in three places, and her ankle was dislocated. She spent several days in the hospital; and, today, she is unable to stand for prolonged periods of time, and she requires ongoing physiotherapy to strengthen her leg.

[63] Mother is in receipt of social assistance. Her ability to contribute to section 7 expenses is nil.

[64] In accordance with the "guiding principle" set out in section 7(2) of the Guidelines for sharing section 7 expenses, father's contribution to those expenses would be 100%, subject to the court's discretion to order otherwise.

[65] The father argues that if 100% of the section 7 expenses were allocated to him, that would be an unreasonable outcome for someone with an annual income of $55,796. However, in addressing the "means" of the father, in my view it is important to consider his total household income.

[66] In Raftus v. Raftus, 1998 NSCA 75, 37 R.F.L. (4th) 59 (N.S.C.A.), Madam Justice Bateman had the following to say in the consideration of a party's means to contribute toward section 7 expenses, at paragraph 30 [my emphasis]:

30 The Court should first ask whether the expense fits within s. 7(1)(f). If not, the inquiry ends. If, on the other hand, the expense is "extraordinary", the Court must determine whether it is a reasonable and necessary expense. I acknowledge that the concept of the parties' joint incomes is hypothetical, in the sense that they are not living together. In my view, however, the further consideration of whether the expense is "reasonable", in the context of the broader concept of the parents' "means", brings into play the realities of their separated status and the particular financial benefits or constraints that the separation may occasion. It is at this point that the Court will take into account the additional burden that the separation may put upon resources which would be otherwise adequate to handle the expense if the family was intact. When assessing the reasonableness of the "extraordinary" expense taking into account the means of the parties, the judge will consider factors such as capital, income distribution, debt load, third party resources which impact upon a parent's ability to pay, access costs, obligations to pay spousal or other child support orders, spousal support received and any other relevant factors.

[67] In considering father's ability to pay, his means will include the "third party resources" which, in this case, are the resources available from his spouse. See also D.J.K. v. C.J.K., 2006 BCPC 326, 27 R.F.L. (6th) 196 (B.C. Prov. Ct.).

[68] In cross-examination it was revealed that his common law spouse of approximately the past two years is a registered nurse. It was suggested in cross-examination that she might have an income of $80,000-$90,000 per year. When the father was specifically asked to confirm this income, he said he had no idea what her income is.

[69] I find that response to be disingenuous. Most spouses will know how much their partner earns – if not the exact figure, then certainly the approximate amount. For father to state otherwise, strikes the court as stonewalling, suggesting to the court that he simply does not want his spouse's income to be considered in this case.

[70] To be clear, the obligation to pay child support is not that of the father's spouse. Rather, it is the additional resources made available by his spouse which must be factored into the father's overall means to contribute to his own child support obligation.

[71] To father's credit, he has found a way to pay his court-ordered child and spousal support obligations. And he appears to have done so without incurring any debt, other than what he says is a debt to a "friend" in the amount of $9,000, about which no evidence was offered in this trial.

[72] For some reason, the mother never pursued the section 7 expenses for 2014 until she cross-claimed against the father following the commencement of his motion to change in July 2015.

[73] In my view, it would be an unreasonable burden to impose on the father what would amount to a retroactive, previously-unclaimed sum for special expenses for 2014 in the amount of $9,445, apart from any amounts that may have been previously paid by the father. I exercise my discretion by declining to do so.

[74] However, for 2015 and forward, I will require the father to pay all of the claimed section 7 expenses, as set out above. As I stated, those expenses are not only necessary and in the best interests of the children but, also, they are within father's means, taking into account the third party resources from his spouse.

[75] Furthermore, the father's means have now improved as a result of the order which I am now making, terminating spousal support and reducing the amount of table support for the four children, effective June 1, 2015.

[76] Accordingly, I fix the total amount of section 7 expenses for 2015 and 2016 in the amount of $29,164, less a credit to the father for any amounts paid by him in respect of those expenses. Effective June 1, 2016 the father shall pay those section 7 expenses at the rate of $2,000 per month until fully paid.

[77] Commencing January 1, 2017, the father's obligation to pay toward the section 7 expenses shall be fixed at $18,000 per year, or $1,500 per month.

[78] Commencing in 2017, no later than June 1 of each year that mother is claiming section 7 expenses, she shall provide the father with a fully organized and documented list of all section 7 expenses she has incurred for the benefit of the children. This list shall be organized in such a way to disclose, not only the actual expenses, but also the details in respect of those expenses, and any supporting documents which demonstrate that these expenses were necessary and in the best interests of the children.

[79] Subject to the following, the parties shall agree to adjust the father's obligation toward the payment of section 7 expenses each year, based on mother's disclosure, and based on any material changes in income for each of the parties.

[80] In the particular financial circumstances of these parties, the father shall not be obligated to pay in excess of $18,000 annually for section 7 expenses for the children apart from medical/dental/therapy expenses for the children, unless he otherwise consents to that obligation, in writing, or further court order. This cap in father's obligation is subject to the father's income remaining substantially at or near his current income level, namely, $55,796.

Registered Education Savings Plans

[81] Finally, I turn to mother's request that father's name be removed from the children's RESPs. The mother's evidence is that the father has failed to cooperate by signing the necessary paperwork to allow Ke. to access those registered funds for education purposes. The father has not provided the court with any justifiable reason for refusing to cooperate.

[82] These funds are necessary for the children to maximize the financial resources available for their respective educational programs.

[83] Rather than failing to cooperate, the father ought to be fully cooperating so that his children can access these financial resources for their education. Father's failure to cooperate further informs the court about the level of his sincerity when it comes to acting in the best interests of his children.

[84] The father does not appear to be in any way involved in any of the children's educational programs.

[85] Accordingly, my order is that the father's name be removed from the RESP policies, bearing account numbers: 6803056, 103799542, 103860834 and 6803060. In the event the financial institutions which hold these registered policies are not prepared to proceed unilaterally in respect of this order, the father shall forthwith cooperate by signing any necessary paperwork to implement the removal of his name from these policies. The court will look with considerable disapproval on any action by the father which demonstrates his unwillingness to fully cooperate in this regard.

[86] Should either party seek costs, they may do so in writing, submissions not to exceed three pages in length, double-spaced, excluding any offers to settle or bill of costs.

Justice Robert J. Spence

May 3, 2016

Footnotes

[1] Although they both continue to be entitled to child support

[2] I had ordered both parties to file affidavits constituting their respective evidence in chief. Mother did so; father did not, despite the court having subsequently granted him an adjournment for late filing. At the outset of the trial, father sought an adjournment, which the court denied given the length of time the matter had been ongoing. Nevertheless, the record contained an earlier affidavit from the father which he filed at the time of his motion to change and which assisted the court in understanding his evidence in chief.

[3] Ke. is turning 20 years of age later this month.

[4] For example, mother was able to source out funding for the children from Presidents Choice Financial Children's Charity in the amount of $1,495 for K.'s Applied Behavioural Analysis, and a further $800 from Jennifer Ashleigh Children's Charity.