Court File and Parties
Date: March 16, 2020
Court File No.: D57183/12
Ontario Court of Justice
Between:
S.A.
Applicant
- and -
Y.M.
Respondent
Counsel:
- Ryan Manilla, for the Applicant
- Acting in Person, for the Respondent
Heard: March 12-13, 2020
Justice: S.B. Sherr
Reasons for Judgment
Part One – Introduction
[1] This was a focused trial of the parties' motions to change final parenting orders regarding their 10-year-old daughter (the child).
[2] The parties agreed on December 14, 2012 to an order for joint custody of the child, with primary residence of the child to the applicant (the mother) and specified parenting time between the respondent (the father) and the child (the 2012 order). The mother is now seeking sole custody of the child, together with changes to incidents of custody. On January 8, 2016, the parties agreed to change the father's parenting time with the child (the 2016 order). The mother is now seeking changes to the parenting schedule and parenting terms contained in the 2016 order.
[3] The father, in his motion to change, also seeks sole custody of the child and changes to incidents of custody, the parenting schedule and parenting terms contained in the operative final orders.
[4] The parties provided their direct evidence by affidavit and were cross-examined. The father called several witnesses, including his two sisters, the child's school principal and former vice-principal and a supervisor from the child's summer camp. A report prepared by the Office of the Children's Lawyer (the OCL), pursuant to section 112 of the Courts of Justice Act, was filed. No one sought to examine the clinical investigator (the CI) who prepared that report.
[5] The main issues for the court to determine are:
a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child with respect to where her primary residence should be?
b) If so, what order for primary residence is in the child's best interests?
c) Has there been a material change in circumstances affecting or likely to affect the best interests of the child with respect to how major decisions are made for her?
d) If so, what major decision-making orders are in the child's best interests?
e) Has there been a material change in circumstances affecting or likely to affect the best interests of the child with respect to the parenting schedule and parenting terms for her?
f) If so, what parenting schedule and parenting terms are in the child's best interests?
Part Two – Background Facts
[6] The mother is 36 years old. She is employed as an administrator at a Toronto hospital.
[7] The father is 35 years old. He graduated from the University of Guyana in Accounting. He has been employed in the field of Inventory Control and Logistics.
[8] The parties lived together from November 2008 until January 2012. They have not lived together since then.
[9] The parties are now both married to different partners. The father has a young child who lives with him and his wife.
[10] The parties have litigated on and off about the child for the past eight years.
[11] The litigation started in 2012. The 2012 order included the following terms:
a) Primary residence of the child to be with the mother.
b) The parties have joint custody of the child.
c) Parenting time with the father to take place on alternate weekends and holidays.
d) The father to pay the mother child support of $276 each month, based on his annual income of $32,600.
[12] The mother moved to change the 2012 order in 2015. The parties agreed to change the father's parenting time in the 2016 order. The joint custody, primary residence and support terms contained in the 2012 order were not changed. The father's parenting time now included alternate weekends from Fridays until Sundays, one-half of the March Break and Christmas Break and religious and summer holidays to be agreed upon. It also included the following terms:
a) The father is responsible for all transportation of the child on exchanges.
b) The access exchanges are to take place at a specified public location.
c) Only the parties and the child are to attend at the access exchanges.
[13] The mother issued her present motion to change on April 15, 2019.
[14] The mother also brought an urgent motion returnable on April 17, 2019 as the father had overheld the child. That motion was adjourned at the father's request with a term that the child be immediately returned to the mother. The father complied with the order.
[15] The motion returned before Justice Melanie Sager on May 2, 2019. The parties consented to orders that access exchanges be supervised by Brayden Supervision Services Inc. (Brayden) and that they comply with the terms of the 2016 order. At the father's request, a referral order was made, on consent, to the OCL.
[16] The father went straight from court that day to the child's school and asked to see her. It was not his parenting time. The school called the mother and the father was not permitted to see the child. The school principal testified that the father was upset by this.
[17] On May 27, 2019, the parties consented to a temporary order by Justice Sager. The father's alternate weekend access was changed to Saturdays at 10:00 a.m. until a Monday morning drop off of the child at school. The parties also agreed to share summer access. The order provided that the parents shall allow and facilitate phone access by the child to the parent the child is not with as per her wishes.
[18] On July 31, 2019, the parties consented to a temporary order by Justice Sager, increasing the father's child support payments to $326 each month, based on his annual income of $36,247.
[19] The clinical investigator from the OCL filed her report dated September 11, 2019 but was unable to make any formal recommendations as the father withdrew from the process and refused to cooperate with her.
Part Three – Legal Considerations
3.1 Two-Step Test
[20] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child
[21] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
[22] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
[23] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.
[24] Worsening conflict can constitute a material change in circumstances affecting the best interests of the child. See: Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193, per Justice Robert Spence.
3.2 Best Interests
[25] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.
[26] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.
[27] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.
3.3 Joint Custody
[28] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
[29] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872.
[30] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.
[31] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb.
[32] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.
[33] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:
In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.
3.4 Access
[34] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[35] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
Part Four – Primary Residence
[36] The first issue for the court to determine is whether the father has met his onus to establish that there has been a material change in circumstances affecting or likely to affect the best interests of the child with respect to where her primary residence should be.
[37] The answer is no for the following reasons:
a) The child has had her primary residence with the mother since the parties separated in January 2012.
b) The child did not tell the CI from the OCL that she wanted to change her primary residence.
c) The mother has successfully met all of the physical, emotional and social needs of the child. The child is doing well in her primary care.
d) The school principal and former vice-principal both testified that they had no concerns with the child's attendance or academic performance.
e) The CI observed that the mother and her husband were very kind and tender in their interactions with the child. The child appeared to be very attached to them.
f) The CI observed that the mother's home is a nurturing and loving environment for the child.
[38] The father made a number of allegations against the mother that were not supported by the evidence, including:
a) He claimed that the mother was alienating the child against him. This is not the case. The mother ensures that each visit takes place, even when dealing with the father can be very challenging. The child enjoys a very good relationship with the father.
b) He alleged that the mother is not meeting the child's medical needs. He told the CI that he had taken the child to see a doctor to address a medical concern. However, when the CI asked him for a release to speak to the doctor, the father refused. The court draws an adverse inference against the father for his failure to cooperate with the CI's attempts to investigate his concerns. The father also provided no independent evidence of medical neglect of the child by the mother.
c) He alleged that the mother did not take the child to the dentist. The mother provided documentary evidence disproving this.
d) He alleged that the maternal grandmother is the primary caregiver of the child. He did not establish this. The mother works during the weekdays. She drops off the child with the maternal grandmother before school and the mother's husband picks the child up from the maternal grandmother after school. The mother returns home by 5 p.m. This is a normal and responsible arrangement.
e) He alleged that the mother does not involve the child in extra-curricular activities. The child is involved in swimming, gymnastics and taekwondo.
f) He complained that the mother would not give him the child's original health card. The mother pointed out that the father had refused to return the health card to her in the past and she had to obtain a duplicate card. She said that she photocopied the front and back of the health card for the father and he has been able to use this. This was a reasonable approach to take by the mother under the circumstances.
[39] The father called his two sisters as witnesses on his behalf. They were critical of the mother and blamed her for the conflict with the father. It quickly became apparent that they were very aligned and protective of the father. The father's older sister in particular was angry and combative in cross-examination. Neither sister had any criticism of the father. They both appeared to be unaware of the extent of the father's involvement with the police. The court placed little weight on their evidence.
[40] Since the required material change in circumstances has not been found, the court does not need to address the best interests of the child in respect of her primary residence. The court will not change the primary residence of the child.
Part Five – Major Decision-Making
5.1 Material Change in Circumstances
[41] The second issue for the court to determine is whether there has been a material change in circumstances affecting or likely to affect the best interests of the child with respect to how major decisions are made for her.
[42] The answer to this question is yes, for the following reasons:
a) The conflict between the parties has significantly increased since the 2016 order was made. There has been continual involvement by the police and the Children's Aid Society of Toronto (the society) with the parties. Multiple police incident reports were filed at trial about their domestic disputes. As I observed in paragraph 114 of T.M.B.-P. v. B.P.G., 2018 ONCJ 435:
Families that require constant intervention by Children's Aid Societies and the police due to high conflict are poor candidates for joint custody or parallel parenting orders.
b) The parties made multiple allegations about the other's character and conduct at trial. The mother is afraid of the father. The father feels that the mother is trying to take the child away from him and have him put in jail. There must be a modicum of trust and respect between parents for joint custody to work. There is none here.
c) The parties have a very limited ability to communicate effectively with each other about the best interests of the child. A review of the correspondence filed by the parties indicates that the father can be insulting when he doesn't get his own way. The mother feels beleaguered by the father and reasonably wants to minimize her contact with him.
d) The CI observed that both parents have behaved unreasonably with each other, and the level of conflict has created an extremely toxic parenting situation. The CI did not feel that joint custody should continue.
e) The CI wrote that the child made it very clear to her that she has been negatively impacted by the conflict between her parents.
[43] This is not a case where a joint custody order is required to prevent a power imbalance or to preserve the father's relationship with the child.
[44] The father complained that the mother had impeded his ability to obtain school information about the child. He alleged that she didn't let the school know he existed. However, the evidence from the school principal was that the mother has the father listed as a secondary contact and that she had signed all necessary documents to permit the father to obtain information about the child from the school. The principal testified that she had prepared documentation about the child for the father, at his request, a long time ago, but understood that he hadn't picked it up.
[45] Despite her concerns about the father, the mother has ensured that the child regularly sees him and that the father can obtain whatever information he wants about her. The father has been able to enjoy a positive relationship with the child.
[46] The order for joint custody is no longer in the child's best interests and will be changed.
5.2 Best Interests of the Child
[47] The third issue for the court to determine is what major decision-making orders are in the child's best interests.
[48] The evidence informs the court that it is in the best interests of the child that the mother be given an order for sole custody for the following reasons:
a) The mother has always been the child's primary caregiver.
b) The child has had her primary residence with the mother since the parties' separation.
c) The mother is the parent who has worked most closely with the child's school and service providers. She has done this effectively.
d) The mother has made responsible decisions for the child.
e) The child was described by the CI as a well-adjusted child who is doing well academically and socially and is functioning well in her mother's primary care.
f) The mother has provided the child with stability, security and continuity of care.
g) The mother has arranged a doctor and dentist for the child that shouldn't be changed.
h) The CI observed that the mother was more open to feedback and easier to communicate with than the father. The mother has shown that she is capable of making child-focused decisions that are in the best interests of the child.
[49] The evidence indicates that the father has a confrontational personality and often has difficulty working with professionals. He is suspicious of professionals and can attribute motives to them that don't exist. At trial, he consistently externalized blame for his conflicts onto the professionals. At no point did he ever take responsibility for his own actions. It became apparent to the court why the mother is so reluctant to engage with him. There were many examples of this conduct and attitude, including:
a) The father unilaterally terminated the OCL's Investigation and Report. This was a critical process for the court to obtain independent evidence about the child – not just the allegations of the parents and aligned witnesses. The father sabotaged this process. He refused to sign important consents for the CI to investigate his concerns. He claimed that the CI was biased and everything she wrote in her report were lies (even though the CI made very positive observations about his interaction with the child). At other times, he claimed that he hadn't read the report. He later said he only scanned the report. He told the court that he complained to the Director of the OCL about the CI.
b) The father claimed that the police officers at 42 Division in Toronto have been mistreating him over the years. They had been called multiple times to respond to incidents between the parties. He felt that the police officers at this Division were against him because of his Muslim faith. He claimed that they often lied in their occurrence reports. He said that he plans to do something about this after the trial ends.
c) The father asked to change the society worker dealing with the parties as he was dissatisfied with how she was handling his complaints about the mother. He testified that he wanted someone who was more professional and who would interview the child.
d) The father had confrontations with Brayden staff. Its managing director wrote to the father's lawyer on May 9, 2019. She said that when she explained to the father that he could not have his sister exchange the child on his behalf, he became very angry, raised his voice and made derogatory claims about their business and threatened to complain to the judge. In September 2019, the father advised Brayden that he was dissatisfied with its services and would no longer pay for the supervised exchanges. The father claimed at trial that these people were lying. The father's relationship with Brayden has improved since the mother agreed to pay 50% of the cost. He said at trial that they are doing an amazing job.
e) The father had a confrontation with the staff at the child's camp in July 2019. The camp's supervisor called the police due to the father's behaviour. The camp supervisor testified that she was afraid for the staff and the children at the camp.
f) When faced with contradictions between his trial evidence and prior affidavit evidence, the father blamed his previous lawyer, who he felt had done nothing for him and had "put him in this situation". When asked whether he had read his prior affidavits, the father answered that he hadn't carefully looked at them – he just signed what his lawyer had put in front of him.
g) The father sent an inappropriate, abusive and racist email to the mother's lawyer in May 2019. There is no need to set out the details – the email is an exhibit to a trial affidavit filed by the mother. The father could not even admit at trial that it was inappropriate for him to have sent this email.
[50] There were other examples of the father's poor behaviour, including:
a) The father improperly overheld the child on April 15, 2019 for three days. The father refused to let the mother speak to the child, didn't take the child to school and told the mother that he was enrolling the child in a different school. These actions understandably frightened the mother who was afraid for the safety of the child.
b) After agreeing to comply with the court order after the May 2, 2019 court appearance, the father attended at the child's school and asked to see the child, even though it wasn't his parenting time. This appeared to be an attempt to escalate the conflict and to show the mother that he could do what he chose.
[51] This independent evidence supports a sole custody order in favour of the mother. It also provides strong corroboration for the mother's evidence that the father's behaviour and communication with her is often abusive and threatening. She described how she started with telephone contact with the father and had to stop this because of his conduct. They texted for a while and she had to stop this. Now, she only communicates with him by email.
[52] This evidence demonstrates that the father has very poor judgment and difficulties in managing his anger. Many of his inappropriate behaviours happen in the child's presence. The court has considered this inability to act as a responsible parent in making its decision.
[53] This evidence supports the observations of the CI who wrote the following about the father:
a) The father's failure to cooperate with the report seems to be the most recent episode in a pattern where he first becomes angry and irrational, and then refuses to cooperate with professionals and other third parties who are trying to help the family. On several occasions he has resorted to threatening and insulting behaviour.
b) It is clear that the father genuinely adores his daughter but he seems to be incapable of appropriately advocating for himself and presenting himself as a rational parent who is capable of making child focused decisions that are in the best interests of his daughter.
c) The concerns expressed by the father could either not be verified or were unfounded.
[54] The father's confrontational behaviour is particularly concerning as it has taken place when he knows that the eyes of the court are upon him and he should be on his best behaviour.
[55] This is a case where a very clear order for decision-making is in the child's best interests. School personnel, service providers, camp personnel and extra-curricular activity instructors for the child need to know who will make the decisions for her and what the boundaries are for the father, as the evidence indicates that he is likely to aggressively test those boundaries with them.
[56] An order will be made that the mother shall have sole custody of the child. The mother proposed, in her draft order, very reasonable terms of consultation on major decisions with the father and terms to allow the father to obtain information about the child. The father did not oppose these terms and they will be ordered, with minor modifications for clarity.
Part Six – The Father's Parenting Time and Terms
6.1 Material Change in Circumstances
[57] The fourth issue for the court to determine is whether there has been a material change in circumstances affecting or likely to affect the best interests of the child with respect to the parenting schedule and parenting terms.
[58] The court finds that there has been the required material change in circumstances due to the following reasons:
a) The increased level of conflict between the parents since the 2016 order.
b) The exposure of the child to the conflict and the need to protect her from it.
c) The father overholding the child in April 2019 without cause.
d) The father's increasing confrontational behaviour and the need to protect the mother and the child from this.
e) The need to provide clarity and boundaries regarding the father's parenting time with the child.
f) The child's wish to spend more time with the father.
6.2 Best Interests
[59] The fifth and final issue is what parenting time schedule and parenting terms are in the child's best interests.
[60] The father asked for an increase in his parenting time with the child. He would like to pick up the child from school on Friday afternoons and return her to school on Monday mornings. He would also like to have mid-week parenting time with her. The father wants unfettered telephone and Skype access with the child. The father sees no need for Brayden to act any longer as supervisor on exchanges.
[61] The mother asks that the parenting schedule set out in the existing temporary order (Saturdays to Monday mornings) continue. She worries that the father will not regularly pick up the child from school on Friday afternoons. She proposed a robust holiday schedule that the father did not oppose and will be ordered.
[62] The mother wants to continue using Brayden to supervise the exchanges and will pay for 50% of the cost.
[63] The mother is opposed to unrestricted telephone calls and Skype contact between the father and the child as she says that the father uses this as an opportunity to verbally abuse and denigrate her.
[64] The mother seeks police enforcement of the parenting orders.
[65] The court has considered that the child loves the father and enjoys spending time with him and his extended family. The CI observed that she is very comfortable in his home.
[66] The child was described by witnesses as a happy, well-adjusted girl. The father deserves a share of the credit for her positive development.
[67] The father's two sisters also expressed how much they love the child and enjoy her company.
[68] Due to the father's confrontational conduct, it is in the child's best interests to set strict boundaries around his parenting time to ensure that she gets the best of the father, while insulating her as much as possible from adult conflict. It is also important to ensure that the mother, being the child's primary caregiver, is physically and emotionally safe.
[69] It is in the child's best interests to restrict the parents' direct engagement with one another.
[70] The parties changed the days of the father's weekend parenting time to reduce their engagement with one another in the temporary order of Justice Sager dated May 27, 2019. One of the exchanges is now at the child's school. This was a good idea.
[71] The court finds that it is in the child's best interests to have both weekend exchanges at the child's school for the following reasons:
a) This will reduce the engagement and conflict between the parties and the risk of the child's exposure to this conflict.
b) It will provide the child with two additional overnights with the father and the paternal family each month. This is consistent with her wish to have more time with her father.
c) The parties are of modest means and the use of a private access service is expensive.
[72] The evidence indicates that either the father or a family member have consistently brought the child to school on Monday mornings since the temporary order was made. The father has a lot of family support and the evidence indicates he should be able to ensure that the child is picked up and dropped off on time at the school.
[73] If the child's school is closed when an access exchange is to take place, the parties shall use Brayden to supervise the exchanges. The evidence indicates that the access exchanges through Brayden have significantly reduced parental conflict.
[74] In order to reduce the number of exchanges and the potential for adult conflict in front of the child, the court will not order mid-week visits. This is similar to the approach taken by the Ontario Court of Appeal in Wreggitt v. Belanger, supra.
[75] The court will not make an order for telephone or Skype access for the father. The father has not acted appropriately in this regard in the past – for example, buying the child a cell phone in the summer of 2019 and telling her to keep it secret from her mother. The court does not trust the father at this point to act appropriately when he communicates with the child. If the father can show that he can act responsibly over a period of time, perhaps telephone or Skype access can be ordered in the future.
[76] An order will be made that the father is not to contact the child outside the parenting time set out in this decision, without the mother's prior written consent. Otherwise, history has shown that the father will abuse this privilege and expose the child to unnecessary conflict.
[77] The court seriously considered the mother's request for a police enforcement clause. It was frightening for her when the father unjustifiably overheld the child in April 2019. There is a legitimate concern that the father will do this again when he becomes upset.
[78] However, the court will not make this order at this time. In Mackie v. Crowther, 2019 ONSC 6431, Justice Alex Pazaratz wrote the following about police enforcement orders at paragraph 14:
a) If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?
b) Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between warring parents than to have police officers descend on an already inflamed situation.
c) Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with "bad guys." No child wants to think of their parent as being a "bad guy." And no parent should place a child in such an emotionally conflicted position.
d) If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.
[79] The court, in determining the mother's police enforcement request has also considered that the father has not overheld the child since the April 2019 incident. For the child's sake, the court wants to give the father the opportunity to prove that he can conduct exchanges in a responsible manner.
[80] The court will not make a police enforcement order at this time. However, the court wants to make it very clear to the father that if he unjustifiably overholds the child again, there will be serious consequences, including a possible reduction or even suspension of his parenting time with the child. The court hopes it never has to make such an order.
Part Seven – Child Support
[81] The mother, in her motion to change, sought an increase in child support from the father based on his annual income set out in his 2018 income tax return from the date of her motion to change.
[82] During his cross-examination, the father agreed to this claim. The father said that he wasn't working at this time as he wanted to concentrate on this case. He told the court it would be easy for him to get a job and he agreed to pay support at this level.
[83] In their trial affidavits, both parties raised an issue about support arrears. The mother also claimed special expenses for the first time pursuant to section 7 of the Child Support Guidelines (the guidelines). She did not claim this in her motion to change. At the outset of the hearing, the parties agreed that the court would not deal with these issues.
Part Eight – Conclusion
[84] A final order shall go changing the 2012 and 2016 orders as follows:
a) The parenting terms in the 2012 and 2016 orders are terminated.
b) The mother shall have sole custody of the child.
c) The mother shall consult in writing with the father before making any major decisions regarding the child.
d) The mother shall advise the father in writing about any major decisions regarding the child.
e) The parties shall restrict their communication to email and shall communicate in a respectful manner at all times.
f) The child shall primarily live with the mother.
g) The father shall have parenting time with the child on alternate weekends from Friday pick-up after school until he returns the child to school on Monday morning. If the Monday falls on a long holiday weekend, the father shall return the child to school on Tuesday morning.
h) The child shall spend half the March Break with each parent. For clarity, this does not include the additional two weeks when school has been ordered closed by the Ontario Government from March 23 to April 5 this year and will not include any additional times that the Ontario Government closes school due to the COVID-19 virus.
i) The child shall spend half the Winter School Break with each parent.
j) The child shall spend the first two weeks of July and August each year with the father and the balance of the summer with the mother.
k) The child shall spend Father's Day with the father if it would otherwise be the mother's weekend with the child. He will have the child from 10:00 a.m. on Father's Day and return the child to school on Monday morning.
l) The child shall spend Mother's Day with the mother if it would otherwise be the father's weekend from the child. She will have the child from 10:00 a.m. on Mother's Day and return the child to school on Monday morning.
m) The holiday schedule will take priority to the regular access schedule.
n) The father is to have no contact with the child outside of the terms of this order without the mother's prior written consent.
o) All exchanges that do not take place at the child's school shall be supervised by Brayden at a location it determines. The parties shall follow Brayden's rules and directions about who can be present at the exchanges. The parties can choose an alternate third-party supervisor, on these terms, provided that they both agree to this in writing.
p) The parties shall each pay 50% of the costs of the access supervisor.
q) On consent, the father shall pay the mother child support of $326 each month, on the 15th day of each month, starting on April 15, 2019. This is the guideline table amount for one child based on an annual income of $36,247, as agreed to by the father.
r) The father shall be credited with any support paid since April 15, 2019, but only as reflected in the records of the Director of the Family Responsibility Office.
s) A support deduction order shall issue.
t) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
[85] If either party seeks their costs, they shall serve and file their written costs submissions by March 30, 2020. The other party will then have until April 10, 2020 to respond (not to make their own costs submissions). The costs submissions shall not exceed three pages, not including any offer to settle or bill of costs. The costs submissions should be delivered or faxed to the trial coordinator's office on the second floor of the courthouse.
Released: March 16, 2020
Justice S. B. Sherr