Court File and Parties

Court File No.: 283/07

Ontario Court of Justice

Applicant Counsel: Jonathan Wilson Z. Handysides

Respondent: Claudia Quintino (now known as Claudia Moore) R. Gordner

Corrected Endorsement

The Motions

[1] There are three motions before the Court within a Motion to Change brought by the Applicant to vary the access provisions of this Court's Order dated November 22, 2012. In general terms, these three motions request:

By the Applicant

1. A change in the access pick up location;
2. The involvement of a psychologist to assist the parties in understanding their child's views regarding access and to provide assistance in facilitating access taking place as ordered;
3. A change in the ongoing child support order and how an overpayment of child support should be repaid;

By the Respondent

4. The appointment of the Children's Lawyer by way of a s.112 investigation and report;
5. The Applicant to designate the Respondent as beneficiary in trust for the child of a life insurance policy owned by him, and
6. Leave to file an amended response to motion to change.

Facts

[2] The parties are the parents of one child, Isabella Savannah Quintino, born June 14, 2005 ("Bella" or "the child").

[3] On November 22, 2012, this Court gave effect to the parties' minutes of settlement by making an Order ("original Order") granting the Respondent custody of Bella and the Applicant extensive and detailed access. Both parties were living in Essex County at that time. The Order also provided that the Applicant pay child support to the Respondent in the amount of $580.00 per month based upon annual income of $62,636.00. Retroactive child support was ordered, fixed in the amount of $3,246.00 and made repayable at the rate of $100.00 per month.

[4] In March 2014, the Applicant was diagnosed with Hodgkin's Lymphoma. According to his Hematologist, the Applicant's life expectancy is now in the range of 18 months.

[5] The illness prevents the Applicant from continuing with his employment and since April 2014 he has received disability benefits.

[6] The parties agree; that for 2014 the Applicant's income for child support purposes was $37,343.00, for 2015 and ongoing it is $35,811.00 and that ongoing monthly child support from January 1, 2016 is to be $312.00 per month. The parties also agree that as of December 31, 2015, the Applicant overpaid child support in the amount of $6,288.00. The parties disagree on how this overpayment should be repaid.

[7] In October 2014, the Applicant remarried and moved to Dunnville, Ontario. This is the area where his wife works and has a large and supportive family to assist them. It is also near a hospital which provides the stem-cell transplant therapy which he has been undergoing.

[8] The drive from Dunnville to the Respondent's home is approximately four hours long.

[9] Access as ordered took place without major incident until earlier this year. Beginning in March 2015, the child started expressing her wish not to go for weekend and extended access at the Applicant's residence in Dunnville. The evidence of the parties is consistent that the child is at best reluctant and more often adamant about not wanting to attend this access. Many of the access visits provided for in the existing original Order have not taken place.

[10] The original Order provides that weekend and extended access start with the scheduled pick up at the Respondent's home. Access on Wednesday, which according to the Order is from 3:00 p.m. until 7:00 p.m., now starts with the pick up at Bella's school. The Applicant has been able to exercise access consistently on Wednesdays, though Bella often ducks her head in the car so that, according to the Respondent, none of her school friends see them. Because he has had success picking up Bella from school, he asks that all other access start with the pick up at that location, or another neutral one near the Respondent's home.

[11] The parties disagree about the reasons for Bella's change in attitude toward access with the Respondent. At this point in the proceeding, not much more will be said about the highly disputed evidence presented as to what might have led to the present circumstances. Wisely, the parties seek clinical investigation and therapeutic intervention at this time. It is the nature of the investigation and intervention that is in dispute.

[12] Another matter in dispute at this time pertains to a policy of group life insurance held by the Applicant.

[13] The Applicant has a group life insurance policy through Manulife. It has a face value of $46,000.00. According to his financial statement filed in this proceeding, the Applicant has a net worth of $2,937.52, not including the value of his child support overpayment.

[14] The Applicant wants $20,000.00 of the death benefit to be available to his wife to pay for his funeral expenses. The issue between the parties is now how the remaining $26,000.00 of the death benefit should be paid.

Decision

Clinical Investigation and Therapeutic Intervention:

[15] The parties agree that Dr. Reuben Schnayer be jointly retained and paid by them to provide what they called open intervention to assess and determine why the child is reluctant to attend at regular access visits. That is, Dr. Schnayer is to attempt to determine the child's views and preferences regarding access along with her reasons for them. Dr. Schnayer is a child psychologist with vast experience in dealing with children involved in custody and access disputes. He is available to begin his involvement with the parties and child immediately. The parties also agree that the psychologist is to provide a report on his findings and recommendations.

[16] The Respondent does not want an Order made at this time that requires either the child or her to participate in ongoing counselling or follow Dr. Schnayer's other recommendations. She argues that to require counselling until access is restored as requested by the Applicant:

1. could bind Dr. Schnayer indefinitely;
2. would force the mother to attend. She does not want to be forced to participate. She argues by analogy that pursuant to CLRA s.30 a person is not forced to attend for an assessment under, rather, if they do not participate, an adverse inference may be drawn against them by the Court; and
3. would usurp the Court's role in determining, after the clinical determination of the child's views and preferences and reasons therefore, what next steps, if any, should be taken in the child's best interests.

[17] I agree that an Order should not be made which has the potential of requiring the parties to continue in counselling until access is resumed in accordance with the final order of November 22, 2012. The motion to change before the Court is to alter the original Order. The issue before the Court is whether the original Order remains in the best interests of the child.[1] To give effect to the Applicant's request that counselling continue until access resumes would presume at this stage that the original Order ought not be changed. The analysis of what parenting regime is now in the child's best interest must await the determination of the motion to change on the merits.

[18] I also agree that requiring the Respondent to follow Dr. Schnayer's recommendations without the Court first being asked to determine in the context of this contested case, whether these recommendations are in the child's best interests is a form of delegation for which no authority has been provided: Strobridge v. Strobridge (1994), 4 R.F.L. (4th) 169 (Ont. C.A.) at para 39.

[19] This is not to say, however, that the Respondent should not be directed to participate in the work to be undertaken by Dr. Schnayer. She has tacitly acknowledged that it is in the best interests of the child that there be an investigation of the child's views and preferences. This investigation may require the Respondent to participate in the investigation as directed by Dr. Schnayer. The Respondent should be required to do so. The consequences of her refusal, should that be the case, will be dealt with on the basis of the record that is then put before the Court.

[20] What is clear is that the investigation must take place and recommendations provided. If the parties agree with Dr. Schnayer's recommendations – including counselling – they will no doubt follow them. If there is a dispute, then the issue will be determined quickly in the context of a best interests analysis.

[21] The referral to Dr. Schnayer shall be as follows:

1. The parties shall forthwith retain Dr. Schnayer to:

   • a) provide an open intervention[2] to determine and assess the child's views and preferences regarding access with the Applicant;
   • b) Dr. Schnayer is to provide a report (or reports) on the written request of either counsel or direction of the Court regarding the open intervention and recommendations which may include but are not limited to, how access can be resumed in accordance with the original Order of November 22, 2012.

2. Dr. Schnayer's costs shall be shared equally and paid in a timely manner by both parties.

[22] The parties are at liberty to return any issues regarding the progress of the open intervention or dispute about Dr. Schnayer's recommendation to the Court on an expedited basis.

Appointment of Children's Lawyer

[23] The Respondent asks that the Children's Lawyer be requested to conduct a C.J.A. s.112 investigation and report. The reason for this request was originally premised on the position of the Applicant that the intervention of Dr. Schnayer be on a closed basis, such that no information would be forthcoming from him. This is no longer the case. Dr. Schnayer's intervention will be on an open basis: reports will be provided.

[24] The Respondent also argues that the Children's Lawyer would be able to secure information from collateral sources such as school officials, extended family members and the Children's Aid Society, and in a high conflict case, this is necessary. With respect, the Children's Lawyer investigator is not the only person who could obtain this information. The parties are at liberty to marshal this evidence themselves.

[25] I find that requesting the appointment of the Children's Lawyer to conduct a s.112 investigation and report is not warranted at this time. A s.112 report is not an expert report, but a fact-finding one. While the investigator is able to make recommendation, this has already been provided for within the scope of Dr. Schnayer's retainer. The tasks to be undertaken by Dr. Schnayer are going to be intrusive and time consuming for the child and the parties. I see no need to compound this by requesting a second and similar investigation.

Access Pick-up from School

[26] I find that it would be premature to order that the child be picked up from school or some other location other than the mother's home at this time. Dr. Schnayer is about to begin his investigation. I am not able to find on the evidence that the best interests of the child will be served by changing the pick-up location. Even on the Applicant's evidence, pick-up from the school on Wednesdays is met with some resistance on the part of the child. More information is needed to understand whether the pick-up location is a significant factor affecting the child's views and preferences. This request may be renewed once a report (or reports) from Dr. Schnayer have been provided.

Amend Answer

[27] On consent, the Respondent's amended Form 15B: Response to Motion to Change may be filed.

Ongoing Child Support

[28] On consent, an Order will go providing that commencing January 1, 2016 and the first day of each month thereafter the Applicant shall pay to the Respondent for the support of the child, the amount of $312.00 based upon his 2015 income for child support purposes of $35,811.00 and Child Support Guidelines clause 3(1)(a).

Overpayment of Child Support

[29] Also on consent, an Order will go providing that the Applicant's overpayment of child support to and including December 31, 2015, is fixed in the amount of $6,288.00.

[30] The Applicant requests that the overpayment be repaid by the Respondent at an amount equal to his ongoing child support obligation. The net effect is that the Respondent would not be receiving funds each month for approximately the next 20 months.

[31] The Respondent requests that the repayment be by way of a credit of $100.00 per month against ongoing support. This would see the overpayment repaid over an approximately 62 month period.

[32] The issue was argued on the basis that their respective proposals were the appropriate way to account for the overpayment. Counsel did not address the jurisdiction of this Court to order the repayment of an admitted overpayment of child support. As well counsel did not provide case law or articulate principles upon which this exercise of discretion should be based.

[33] In assessing the appropriate fashion in which the repayment obligation is to be made, I take into account the financial circumstances of the parties, the hardship that may be occasioned by a repayment schedule on the parties and the child, and the steps taken by the parties while the overpayment was accumulating.

[34] The evidence discloses the following:

1. The Applicant has the financial means to pay the ongoing child support without reduction. This is presumed having regard to the Child Support Guidelines;
2. The Applicant did not claim that he suffered financial hardship during the period the overpayment accumulated;
3. The Applicant has known since April 2014 that his income was reduced for child support purposes and did not act until just recently to have the support recalculated;
4. The Respondent's life expectancy is now approximately 18 months. The ongoing child support Order will bind the Applicant's estate, pursuant to FLA ss. 34(4); and
5. The Respondent's income is approximately $15,000.00 to $20,000.00 per year. Her husband is employed full-time for Canada Border Services Agency. She and her husband have approximately $10,000.00 in equity in their $380,000.00 home.

[35] Having regard to these circumstances in relation to the factors set out, I find that the Applicant should be credited with the amount of $160.00 per month toward ongoing child support. The intent is that the net monthly payment to be made by the Applicant to the Respondent on account of child support is $152.00 per month. Should the Applicant die before the overpayment is repaid, the amount then outstanding will accrue to the benefit of the Applicant's estate.

Life Insurance Beneficiary Designation

[36] The respondent asks for an order requiring the applicant to "list the respondent on his life insurance policy through the Manulife … in trust for the child."

[37] The jurisdiction on the Ontario Court of Justice to make the order requested is limited. This court may only make the beneficiary designation requested "for the provision of necessities or to prevent the dependent from becoming or continuing to be a public charge": FLA cl. 34(1)(i) and ss.34(2).

[38] The cases cited by counsel demonstrate that to ground an order on this ss. 34(2) exception, the case must involve needs and requirements of an imminent and emergent nature: see also Justice Cohen's decision in Shulist v. Shulist, 2006 ONCJ 574 para. 20.

[39] Although:

• a) the Respondent is clearly entitled to support for the child and will be for a number of years; and
• b) the Applicant's life expectancy is approximately 18 months and his estate will not be able to provide child support for more than a few months after his death,

which circumstances favour making the order requested, the evidence does not demonstrate that the child is at present, nor is she at risk of becoming a public charge or that she requires the designation to provide necessities.

[40] Despite these compelling facts, this court is constrained from ordering a life insurance beneficiary designation except in the limited situation prescribed by the Act, which has not been demonstrated on the evidence. This request must therefore be dismissed.

Order

[41] For these reasons an order shall issue on the motions before the court as follows:

1. The parties shall forthwith retain Dr. Reuben Schnayer to:

   • a) provide an open intervention to determine and assess the child's views and preferences regarding access with the Applicant;
   • b) provide a report (or reports) on the written request of either counsel or direction of the Court regarding the open intervention and recommendations which may include but are not limited to, how access can be resumed in accordance with the original Order of November 22, 2012; and
   • c) Any dispute regarding the implementation of the recommendations may be address in court on an expedited basis.

2. Dr. Schnayer's costs shall be shared equally and paid in a timely manner by both parties.

3. The respondent's request for an order appointing the Children's Lawyer to complete a s. 112 investigation and report is dismissed.

4. The applicant's request for an order varying the order of this court dated November 22, 2012 by allowing for all access visits to begin by retrieving the child directly from school or other neutral location, on other than mid-week access, is dismissed with leave to renew the motion following the receipt of a report or reports from Dr. Reuben Schnayer.

5. The Respondent's amended Form 15B: Response to Motion to Change may be filed.

6. The order of this court dated November 22, 2012 shall be varied by rescinding paragraph 11 and replacing it with the following: "Commencing on January 1, 2016 and the first day of each month thereafter the Applicant shall pay to the Respondent for the support of the child, Isabella Savannah Quintino, born June 14, 2005, the amount of $312.00 based upon his 2015 income for child support purposes of $35,811.00 and Ontario Child Support Guidelines clause 3(1)(a)."

7. As of December 31, 2015, the Applicant has overpaid child support pursuant to the Order of this court dated November 22, 2012 in the amount of $6,288.00.

8. Commencing the first day of January 2016 and on the first day of each subsequent month until the overpayment of $6,288.00 has been accounted for the Applicant shall be credited with the amount of $160.00 per month against his court ordered child support obligation. Should the Applicant die before the overpayment is repaid, the amount then outstanding will accrue to the benefit of the Applicant's estate.

9. The respondent's request for an order requiring the applicant to "list the respondent on his life insurance policy through the Manulife … in trust for the child" is dismissed.

[42] The motion to change is returnable January 20, 2016 at 9:30 AM in courtroom 4 to report on the progress of the open investigation and determine next steps and dates.

"original signed and released"

Barry M. Tobin Justice

Heard: December 21, 2015

Released: January 4, 2016

Correction Explanation

April 7, 2016: Paragraph 41(1)(a) was amended as follows:

(a) provide an open intervention to determine and assess the child's views and preferences regarding access with the Applicant.

Footnotes

[1] It is common ground that there has been a material change in circumstances.

[2] This is the phrase used by the parties which counsel advised was coined by Dr. Schnayer.