Court File and Parties

Ontario Court of Justice

Date: August 22, 2018

Court File No.: D42581/06

Between:

Sara Velarde-Alvarez Applicant

— AND —

Ryan Sousa Respondent

Before: Justice Roselyn Zisman

Heard on: August 9, 2018

Reasons for Judgment released on: August 22, 2018

Counsel:

• Kimberly Paynter — counsel for the applicant
• Paul Cooper — counsel for the respondent

Reasons for Judgment

Zisman, J.:

Introduction and Background

[1] This is a Motion to Change by the Applicant (mother) to vary the Order of October 26, 2016 to seek primary residence with herself, a week about schedule, a set off with respect to child support and a proportionate sharing of any section 7 expenses. The Respondent (father) also filed a Motion to Change to dismiss the mother's Motion to Change and seeking an order for sole custody, access by the mother every Sunday, child support and that the mother pay 50% of any special expenses.

[2] The parties are the parents of the child Jose Antonio Sousa born July 5, 2004.

[3] The order that the parties seek to vary was made after a trial before myself, in which both parties were represented by counsel. That order of October 26, 2016 provides as follows:

1. joint custody of the child to continue with primary residence with the father;

2. the father shall have sole decision–making regarding any educational issues, he shall consult with the mother but if they disagree he shall make the final decision;

3. the child shall spend time with the mother from Sundays at 10:00 am to Tuesdays return to school with provisions regarding pick up if the mother was unable to pick the child up directly from school. Further the mother's access to occur only on Sundays if her travel time to the child's school exceeded 30 minutes. If the mother's work schedule changed an alternate week-end schedule from Fridays to Monday mornings to be implemented;

4. if there was a dispute regarding access, a motion to be schedule before me; and

5. the order was without prejudice to any future claim for child support.

[4] Neither parent brought a motion to vary the access order.

[5] The mother commenced her Motion to Change without counsel on January 18, 2018 with a first return date of March 8, 2018.

[6] The mother did not attend the first appearance court on March 8, 2018. However, counsel for the father attended and wished that the mother's Motion to Change not be dismissed but that a case conference date be set as he intended to serve and file a Response and a Motion to Change on behalf of his client.

[7] On May 15, 2018 the parties attended before me. The mother retained counsel (not counsel who attended on this motion) and it was agreed that the Motion to Change be set for a hearing based on written materials. A timetable for serving and filing materials was agreed upon. The parties also entered into a consent disclosure order with respect to financial information about the mother. The parties also agreed that the parties not discuss the court case or adult issues or speak about the other parent in a negative or derogatory fashion in front of the child or in his presence.

[8] Neither party objected to the motion being heard before me.

[9] The motions were heard by me on August 9th, 2018.

[10] Neither counsel had obtained a copy of the oral decision rendered on October 26, 2016. At the conclusion of the motion, I advised counsel that it was my intention to order a copy of the transcript of the oral reasons as the mother deposed that there had been a change in her immigration status since the trial that was contrary to my recollection and was one of the grounds her counsel argued met the test for a material change in circumstances.

Position of the Parties

[11] It is the mother's position that there has been a material change in circumstances since the order of October 26, 2018 based on the following:

1. at the time of the trial her immigration status was uncertain but she now has been granted permanent residency;

2. the child is now 14 years old and wishes to spend more time with her;

3. her financial circumstances are more stable, she is now residing with her boyfriend and she is better able to provide for the child; and

4. she has moved closer to the child's school.

[12] It is the position of the father that there has been no material change and the mother's Motion to Change should be dismissed.

[13] It is the position of the father that there has been a material change of circumstances with respect to his Motion to Change based on the following:

1. the parents are not able to communicate to the extent necessary to make joint decisions and he should be granted sole custody; and

2. the mother is not adhering to the outstanding access schedule which was based on the mother's employment schedule at the time of the trial.

[14] Both parents make allegations against the other with respect to parenting issues to bolster their positions with respect to changing the custody and access arrangements.

[15] The issue of child support is to be determined as an originating claim as contemplated in the outstanding order.

Applicable Legal Principles with Respect to a Variation Regarding Custody and Access

[16] Section 29 of the Children's Law Reform Act provides that a court shall not make an order that varies an order with respect to custody or access unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[17] This is a two-step process:

1. First, the moving party must meet the threshold test of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

2. Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the Children's Law Reform Act. Both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[18] The requirement of a material change in circumstances cannot be an indirect route of appeal from the original order. The court cannot retry the case and assumes the correctness of the original order.

[19] Section 24 the Children's Law Reform Act ("CLRA") sets out that the court must make custody and access orders in the best interests of the child. Section 24 provides as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Application of Findings of Fact to the Applicable Law

[20] The reasons for the decision on October 26, 2016 were based on the following findings of fact:

1. although the previous order of January 24, 2007 provided that the mother have primary residence of the child, the child was spending almost if not equal time with the father;

2. the child had been placed in the temporary care of the father on February 19, 2016 with supervised access by the mother as the mother breached the court order requiring her to deposit the child's passport and had threatened to remove the child;

3. at the commencement of the mother's application in April 2015, she was facing imminent deportation. However, an affidavit sworn by Ms Bragina, an Inland enforcement officer with the Canadian Border Service Agency sworn January 25, 2016 deposed that the removal scheduled for December 2, 2015 was put on hold pending the outcome of the family court proceedings. Further, the parties confirmed at the court attendance on March 8, 2016 that the mother was no longer facing imminent deportation and on August 25, 2016 mother's counsel confirmed that the mother's humanitarian and compassionate application had been granted;

4. on May 17, 2016 the parties entered into a final consent for joint custody and a temporary without prejudice order for the mother's parenting time to be from Sundays at 10:00 am to Tuesdays drop off at school and other times as agreed upon. This schedule was based on the mother's work schedule. The mother did not adhere to this schedule;

5. the mother was found not to be a credible witness as she breached the court order regarding depositing the child's passport with the court, she attempted to mislead the school by presenting Minutes of Settlement stating that she had sole custody and she deposed that she was not working and it was subsequently discovered she was working;

6. the mother was found not to be child focused with examples regarding the mother returning the child late to school, moving further away from his school, arguing in front of the child and generally not providing a stable environment;

7. the father was found to be child focused, was meeting all of the child's needs and he had organized a stable home environment for the child. There was a close relationship between the child and his step-sibling that also resided in the father's care. The father had been monitored by the Children's Aid Society who found him to be a capable parent and supported his claim for custody;

8. the mother moved her residence without advising the father who found out from his son about the move;

9. both parties agreed and enrolled the child in a new school and then without ever attending at the school the mother raised issues as to why the child should not attend that school. On the first day of school the mother started to argue with the father in front of the child; and

10. the mother provided no evidence as to her living arrangements and the distance of her home to the child's new school. The mother was found to be "in flux" with respect to her employment as her work schedule was flexible and varied. She had a vague future plan with respect to taking a real estate course. As a result the outstanding temporary access order was continued as it was based on the mother's current work schedule with the proviso that either party could return to court for a further order if the mother's work schedule changed.

[21] Based on the oral reasons that are the basis of the order made on October 26, 2016, I find that the mother has not met the threshold test upon her to prove that, since the last custody and access order was made, there has been a material change in circumstances that affects or is likely to affect the best interests of the child for the following reasons:

1. the mother's immigration status had already been determined at the time of the trial and contrary to her statements that she was facing deportation she had already been granted permanent residency. Therefore at the trial, the mother's residency in Canada was secure;

2. although at time of the trial the child was 12 years old and he is now 14 years old, the fact that he is now older is not in and of itself significant. It is not disputed by the father that the child wishes to spend more time with the mother as he is only spending about 2 days a month with her. The text messages by the child attached to the father's affidavit indicate that the child is disappointed that he is not spending full days with the mother. The mother explains that she is unable to spend more time with him due to her employment but she will try. It is also not disputed that the mother has not been exercising the access that was granted to her namely, from Sundays to Tuesdays. There is no basis to find that the child should spend more time with the mother when she is not even exercising the access granted to her;

3. although the mother deposes that her financial situation has now improved, this does not impact the child as previously she was not required to pay any child support;

4. at the trial there was a finding that the mother was "in flux" as the nature of her employment was not clear and she had no fixed employment schedule. However, at this time the mother's employment is still not clear and I find that she is still "in flux". The information about the name of her employers as set out in her affidavit and financial statement differs from the names of her employers in the Equifax report that was filed. The mother did not provide any evidence with respect to her hours of employment o which appear to be variable. She also did not provide any evidence of her rate of pay;

5. although she deposes that her living arrangements are now stable as she is living with her boyfriend and closer to the child's school, this change has not impacted the child as she still continues not to exercise the parenting time that was granted to her;

6. although the mother did not raise concerns about the father's parenting as a material change in circumstances, she does raise those concerns in her affidavit especially the issue of the child's school attendance. Based on the affidavit evidence filed, I find that there is no basis for any concerns about the father's parenting ability. The father continues to provide the child with a stable environment and is meeting all of the child's needs. For example, there is evidence that child was arriving late for school and missing classes. As the child takes the bus to school, the father was not aware that he was skipping classes. Once the father found this out, he grounded the child, took his cell phone away and required that he attend summer school. In other words he acted as a responsible parent; and

7. I find that the previous concerns about the mother's ability to meet the child's needs and to provide a stable environment with consistent routines continue to persist.

[22] With respect to the father's Motion to Change, I find that the father has met the threshold test upon him to prove that, since the last custody and access order was made, there has been a material change in circumstances that affects or is likely to affect the best interests of the child for the following reasons:

1. it was the father's position at the trial that the joint custody order continue as he was hopeful that since the mother's immigration issues had been resolved that the parties could co-parent and maintain a reasonable level of communication. Unfortunately over the last two years that has not happened;

2. at the trial there was an issue with respect to which school the child should attend and although the joint custody order was continued the father was given the ability to make final decisions regarding educational issues. There are now disputes about the mother enrolling the child in extra-curricular activities and discussing these with the child without involving the father. The child is aware of the conflict between his parents and one parent needs to be the decision maker;

3. the parents are not able to jointly make decisions with respect to imposing consequences on the child. For example, when the father grounds the child he still permits the mother to have access but the mother then lets the child go out. If he takes the child's phone away as a punishment, the mother asks for it to be returned; and

4. the mother is not adhering to the access order. The access order was based on the mother's employment schedule at the time of the trial. But almost immediately after the trial, the mother advised the father that she couldn't follow the access order due to her employment. When the father attempted to negotiate a different schedule, the mother then told him she was not working. As a result there is no schedule and the mother makes plans with the child without advising him.

[23] Having found that the father has met the onus on him of demonstrating that there has been a material change of circumstances, the court is required to consider what parenting arrangements are now in the child's best interests.

[24] I find for the reasons outlined earlier, there is no basis to change the primary residence of the child being with the father. The father continues to be the parent who is best able to make decisions that are in the child's best interests. The mother remains unable to provide a stable and consistent environment for the child. The mother's life continues to be in flux despite her position that she now has a stable residence and secure employment.

[25] The mother offered no reasonable explanation as to why she was not exercising the parenting time that had been ordered in the outstanding court order.

[26] It was only in response to a question from the bench that the mother advised of her present work schedule. Even though it was not in her affidavit, the court must rely on this information as it is impossible for the court or the father to propose any access schedule without this information. The mother stated that she had a permanent schedule from Wednesdays to Sundays from 11:00 am to 4:00 p.m. The mother provided no evidence as to when she began this schedule and this raises further questions as to why the mother would not have advised the father of this schedule whenever it began and then why she has been unable to exercise consistent access.

[27] The joint custody order has been in place for many years but is not workable. The court did not interfere with the parties' consent for the joint custody order to continue at the trial as the father hoped with the threat of deportation resolved and the end of the litigation that the parties could co-operate and communicate with each other.

[28] However, there has been no improvement in the level of communication or co-operation. The mother is discussing the court proceedings and involving the child in adult matters. Although the child is now 14 years old, the parenting issues should be determined by the parents and not through the child.

[29] The father requested that the mother only communicate with him through text messages something the mother generally refuses to do. But there needs to be a method by which the parents communicate and it is important that there be a written record as the mother in the past changes her mind about agreements that were made.

[30] The mother wishes joint custody but has never accepted the responsibilities that come with it.

[31] The father recognises the close relationship between the mother and the child despite the limited time the mother spends with the child. He has been flexible with respect to access when the mother indicated she could not adhere to the court ordered access schedule even when the mother refused to agree to a new schedule.

[32] I find that the father is the parent best able to make decisions about the child and although he should advise the mother of any such decisions if they do not agree he should make all final decisions.

[33] With respect to the issue of the mother's access, the mother's present work schedule would accommodate access to her from Sundays at 6:00 p.m. to Tuesdays return to school. However, as this is similar to the previously ordered access schedule that the mother did not adhere to, there needs to be some mechanism in place that requires the mother to not simply make alternate arrangements with the child or not advise the father of changes to her schedule. The father deposed that he is prepared to be flexible but is concerned about the mother making plans with the child without his knowledge.

[34] Further, there are concerns about the child attending school on time when he is with the mother. But the mother has indicated that as she has a car she can drive him to school.

[35] The requirement of the mother adhering to a consistent access schedule is important for the benefit of the child. In view of concerns about the child not attending school or being late, it is important that the mother ensure that he is not kept up late on her access evenings and she ensure that he arrives at school on time. If the mother is unable to ensure that she abides by the access schedule and if she continues to work on week-ends it may be that her access only occur during the holidays.

Child Support

[36] The father deposed that at the trial he did not seek child support from the mother as her immigration status had just been resolved and the mother was working co-operatively with him with respect to the child's expenses and in particular regarding his soccer expenses. However, after the trial the mother ceased contributing to the soccer expenses and she appeared to be working steadily. The mother was telling the father that she could not afford to pay child support but then she had bought a new car. The father is raising the child as a single parent and paying for all of his expenses and now is seeking that the mother contribute.

[37] Details about the mother's employment and her income remain unclear.

[38] The mother acknowledged that she has not provided all of the disclosure she consented to provide pursuant to the disclosure order of May 15, 2018.

[39] The mother's financial statement sworn July 26, 2018 indicates that she expects to earn about $24,000. She presently works for 2 fragrance companies and deposes that it is on a contract basis. No proof of any contact was submitted. From the invoices she presented it appears she is working on a freelance basis but there is no explanation as to the employment arrangements or her rate of pay. Based on the invoices she presented from April to June 2018 from the 2 companies she provides services to, her total income was $3,688 or $14,752 per year.

[40] The mother did not provide her 2016 Notices of Assessment but her short form tax return indicates she was self-employed as a cleaner and earned $14,500 gross and $10,044.92 net but no information was provided as to her deductions. She was also in receipt of Ontario Works of $4,000. The mother has not filed her 2017 tax return and did not provide any proof of her 2017 income such as a T-4 slip. Her financial statement indicates that she earned $16,800 to $19,200 last year, which would be 2017. The mother has also not provided her complete bank statements.

[41] The Equifax report filed indicates her present employers are different employers than her financial statement or her affidavit. The terms of the previous access order were based on the fact the mother was working as a server on Friday and Saturday evenings. The father deposes that the mother worked as a server in restaurant and has a cash component to her income.

[42] The mother has been evasive as to her income and I draw an adverse inference from her failure to provide the court ordered financial disclosure. However, it is almost impossible to determine her actual income based on the lack of disclosure and the lack of clarity and details with respect to her actual employment.

[43] In determining the mother's income, it was submitted by father's counsel that the court should impute mother's income to be $42,714. The mother purchased a new car in 2017 and based on the mother's financial statement she incurs total car expenses of $850.00 per month or $10,200 yearly. It is therefore submitted that it is unlikely that she would have obtained financing if her income was only $14,000 to $16,000 as alleged by the mother and that she must have some undisclosed income. Counsel submitted that the mother should not pay more for her car expenses that her child. Based only on the car loan of $390.00 per month, father's counsel submits this amount would equate to a yearly income an income of $42,714.

[44] I find that although the mother's income is unclear, that it is unlikely given her education and employment background that she earns in the range of $42,000. Basing the mother's child support obligation on her the amount of her loan is not a principled approach for imputing income to the mother.

[45] However, based on the mother's financial statement she incurs total yearly expenses of $28,669.08. If she is only earning $24,000 then I find that she is meeting the excess of $4,669.08 through undisclosed income. If that income is grossed up, her total income for child support purposes would be $29,990 with a child support obligation of $256 per month.

[46] With respect to the child's special expenses, the child is a talented soccer player and plays at a high level. Soccer is important to him and keeps him busy in a positive way and teaches him important skills such as team work and discipline. As both parents are concerned about him not associating with the wrong crowd, encouraging and making his participation in soccer financially feasible is in his best interests.

[47] The mother had agreed that she pay her share of the soccer expenses of $900 but to date the mother has only paid $500 and owes $400. The mother did not dispute that she had agreed to pay this amount and still owed the father $400.

[48] On an ongoing basis, the father seeks that the mother pay 50% of the child's soccer expenses. The mother proposes that the parties share the ongoing expenses on a proportionate basis. The father has not filed a financial statement so it is not possible to determine his proportionate share of the expense. However, given the lack of evidence about the mother's actual income, if such expenses were shared on a proportionate basis, there would be ongoing disputes about the proportionate sharing.

[49] In order to ensure that the child continues to play soccer I find that the past practice of the parties to share this expense equally should continue. However, if the father seeks that the mother contribute to any other expenses, they must exchange copies of their respective Notices of Assessment and expenses will be shared in proportion to their respective incomes with the mother's share to be based on not less than an income of $29,990.

Conclusion

[50] There will be an order as follows:

1. The Motion to Change by the Applicant to change the order of October 26, 2016 is dismissed.

2. The Motion to Change by the Respondent to change the order of October 26, 2016 is granted as follows:

   a) The Respondent shall have sole custody of the child Jose Antonio Sousa born July 5, 2004.

   b) The Respondent shall advise the Applicant in writing of any major decisions with respect to the child. The Applicant shall advise the Respondent of her opinion about the decision within 14 days. The Respondent shall consider her opinion but he shall make the final decision.

   c) The Applicant shall have access to the child, based on her current employment schedule, from Sundays at 6:00 p.m. to Tuesdays return to school. The Applicant shall ensure that the child attends school on a consistent basis. If she is unable to do so on a consistent basis, as determined by the Respondent, her access shall only be on Sundays and Tuesdays from 6:00 p.m. to 8:30 p.m. with pick and delivery to and from the Respondent's home.

   d) The Applicant shall provide the Respondent with proof of her employment schedule if she seeks a change in the current access order. If the parties are unable to agree to change the schedule, either party may apply to the court. Any changes must be in writing and on the consent of both parties.

   e) The Applicant shall have such further reasonable access only on reasonable notice to the Respondent and only upon his prior agreement.

   f) The Applicant shall not make access arrangements directly with the child.

   g) The Applicant shall have reasonable telephone access or communication through social media with the child.

   h) The parties shall communicate by text message to exchange information about the child and regarding any changes to the access schedule. The parties shall ensure that all texts are written in a respectful and child focused manner.

   i) Neither party shall speak disparagingly about the other parent to the child or in his presence. Neither party shall involve the child in adult issues.

3. Based on an imputed income of $29,990 and based on the Child Support Guidelines for one child, the Applicant shall pay to the Respondent child support of $256.00 per month as of March 1, 2018 being the commencement of the Respondent's Motion to Change.

4. The Applicant shall pay to the Respondent $400.00 within 30 days, being her outstanding share of the child's soccer expenses. The parties shall equally share all of the child's future soccer expenses. The Respondent shall provide the Applicant with proof of any such expenses and the Applicant shall pay half of those expenses within 30 days.

5. The parties shall share all other special expenses in accordance with their respective incomes. If the Respondent is requesting that the Applicant contribute to any future expenses, he shall consult with the Applicant prior to incurring the expense and the Applicant's consent shall not be unreasonably withheld. The parties shall exchange proof of their respective incomes to determine their respective share of the expense except the Applicant's share shall be based on an income of not less than $29,990.

6. As the successful party, the Respondent is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for Respondent shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for Applicant shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Respondent's costs submissions. All submissions to be filed with the trial co-ordinator.

Released: August 22, 2018

Signed: Justice Roselyn Zisman

Footnotes

[1] Gordon v. Goertz, [1996] 2 S.C.R. 27

[2] Docherty v. Beckett, 21 R.F.L. (3d) 92

[3] The transcript of the oral reasons was reviewed and is now placed in the court file.