Court File and Parties

Court File No.: Brampton 596/13 Date: 2020-04-01 Ontario Court of Justice

Between:

CARRIE ANN LAGACE Applicant

— AND —

RANDOLPH K. FROUDE Respondent

Before: Justice A.W.J. Sullivan

Heard on: January 30, 31, February 3, 4, 2020

Reasons for Judgment released on: April 1, 2020

Counsel:

• M. Neilly, counsel for the applicant, Carrie Ann LaGace
• Randolph K. Froude, on his own behalf

Reasons for Judgment

SULLIVAN, J.:

Introduction

[1] This is a decision of the trial in a Motion to Change commenced by Mr. Randolph Froude to the final Orders of J. Parent dated January 22, 2015, June 3, 2015, and October 21, 2014.

[2] This trial was held over 3.5 days from January 30, 2020 to February 4, 2020.

[3] The family in this case is as follows:

a) the applicant mother is Carrie Ann LaGace;

b) the respondent father is Randolph Keith Froude;

c) they are the parents of L., born […], 2012, age 8 years old.

Relief Sought

[4] In his Motion to Change, Mr. Froude seeks:

a) to change ongoing child support;

b) an adjustment retroactively to September 1, 2018, on the amount of child support he claims that he should have paid in past years; and

c) a change in the time-sharing schedule for L.

[5] The Applicant responded to the Motion to Change and made claims of her own, including a claim for sole custody from the joint legal custody order that is in place and for a variation in the time-sharing schedule. As well that there be a redetermination of Mr. Froude's income for resetting child support and to share extraordinary expenses such as glasses and braces.

Issues in This Trial

a) Is there a material change in circumstances that touches on L.'s best interest such that the current legal joint custody order and access/parenting time should change?

b) Has there been a material change in circumstances since the making of the final orders that impact Mr. Froude's obligation to pay child support in accordance with the order of Justice Parent dated June 3, 2015? He seeks a variation from July 1, 2018.

c) On this issue, in light of this family's situation since then, has there been a material change as a result of:

i. The father's change of employment situation and/or;

ii. The parties' decision to change the sharing of time in the summer months to an equal sharing arrangement (4 weeks each).

d) If there has been a material change in circumstances, what is the quantum of ongoing child support applicable in this case?

Preliminary Matters

[6] At the commencement of the trial, I asked the parties if they would agree to accept certain factual findings that supported temporary orders from a motion regarding interim relief regarding child support before Justice M. Cheung in her decision of May 21, 2019. The parties agreed to do so, and the facts accepted are outlined below.

[7] Additional evidence from each party that I consider relevant to the above-noted issues is reviewed below in this trial decision.

[8] In addition, the parties agreed that for the purpose of this trial that an order should go based on consent that: L.'s time between each household in the months of July and August shall be split equally and that monthly child support for these two months be set off between their respective incomes.

[9] There was also an agreement that there has been a material change affecting monthly child support to be paid by Mr. Froude given the loss of his job in 2017 that he held for several years and his new employment.

[10] What still is required to be decided from the evidence is Mr. Froude's annual income.

Accepted Facts

[11] The parties separated in April 2013, when L. was just 1 year of age. The first proceeding for this family commenced in April 2013 and remained before the court for over two years before all matters between the parties were resolved.

[12] As a result of that first proceeding, the court made the following orders, on consent of the parties:

a) On October 21, 2014, Justice L. Parent made a final order granting the parties joint custody of L., primary residence with the Applicant and summer access comprising of two non-consecutive weeks with each party. Clause 11 of this order speaks to a mechanism by which Mr. Froude's contribution to "before and aftercare" expenses will be calculated post-August 31, 2016.

b) On January 22, 2015, Justice L. Parent made a final order setting out terms for telephone access and the holiday access schedule. This final order governs how the parties would divide the following holidays: Easter, Halloween, L.'s Birthday, March Break, Thanksgiving, Family Day, Mother's Day, Father's Day, Christmas, and Labour Day.

c) On June 3, 2015, Justice L. Parent made a final order setting out a time-sharing schedule as follows:

i. L. will be with the Respondent on alternating weekends, from Friday afternoon at 3:30 p.m. (with the father retrieving L. from school or daycare) to the following Monday at 9:00 a.m. (with the father returning L. to school or daycare).

ii. Every Wednesday from 3:30 p.m. until the following Thursday at 9:00 a.m. (there was a provision for a change if the Applicant moved out of Caledon East, which she has not).

iii. On alternating Mondays from 3:30 p.m. until the following Tuesday at 9:00 a.m. (there was a provision for a change if the Applicant moved out of Caledon East, which she has not).

iv. Such further and other times as the parties may agree.

v. If the father relocates his place of residence to a location further away from where he then lived relative to where the mother lived, the access exchanges are to continue to take place in Caledon East, at a mutually agreed-upon location, unless the parties make alternate arrangements between themselves.

vi. The Respondent is to pay monthly child support in the amount of $1000, which amount was based upon his annual income of $120,000. If his income does not increase or decrease by more than 5% (i.e. stays within the range of $114,000 and $126,000), the Respondent would continue to pay this much.

vii. The Respondent to pay the sum of $200 per month towards s.7 expenses – namely, daycare, swimming and soccer – which was the amount calculated with reference to the Applicant's and Respondent's annual incomes of $35,284 and $120,000 respectively.

[13] Despite the existence of the court orders, the parties continued to experience conflict and disagreement on how to proceed with respect to issues relating to L.

[14] The Children's Aid Society (Peel Children's Aid Society) then became involved with this family. The parties were referred to the George Hull Centre for Family Group Conferencing, in order to reduce the level of conflict and mediate their disputes around the custody and access issues. That intervention, although not successful in helping the parties resolve all of their disagreements, did achieve one change in the parties' schedule for L.: the parties agreed that, during the summer months, the parties would share L.'s time equally between them, with each parent having 4 weeks over the summertime, in a week-about arrangement.

[15] Thus, L.'s time with each party has been shared equally during the summers of 2017 and 2018, and 2019 on a week-about basis.

[16] Although this is a deviation from the order of Justice Parent dated October 21, 2014, it is done with the consent of the parties. This is also what the parties wish to continue doing going forward.

[17] Aside from this deviation for the months of July and August, the time-sharing schedule has remained in accordance with the orders of Justice Parent dated January 22, 2015, and June 3, 2015.

[18] For many years, the Respondent, Mr. Froude, has worked as a sales representative. Until March 2017, he worked for Harting Inc. In addition to his income from Harting Inc., the Respondent earned a small amount of income each year working shifts as a volunteer fire fighter for the Town of Caledon. The amount of $120,000 per year was the level of income the parties agreed, and Justice Parent found in 2015 that the Respondent made this in total over a year, combining the two sources of income.

[19] On March 10, 2017, the Respondent was terminated for "legitimate business reasons" (i.e. for lack of sales) from his regular employment at Harting Inc. where he had worked for several years as a sales representative. He was given two weeks' pay in lieu of notice. In total, in 2017, the Respondent earned $25,652.01 from Harting Inc.

[20] In 2017, he worked for a period from September 1, 2017 to November 20, 2017 (11 weeks) at Helukabel Canada Inc. as a sales representative. In total, at this company, he made $16,415.29 before he was again terminated for lack of sales.

[21] In 2017, the Respondent also earned EI income of $11,979 and income as a volunteer firefighter of $3,320.06.

[22] Outside of the time frames that the Respondent worked for Harting Inc. and for Helukabel in 2017, the Respondent was unemployed.

[23] In 2018, the Respondent worked from February 23, 2018 until June 13, 2018, as a sales representative for Xtronics Inc. During that time, he earned $9,334.02. The basis of that employment contract was commission-based, with a guarantee by Xtronics of $3500/month commission payment or 70% of the commission paid to Xtronics, whichever is the higher. That employment relationship ended on June 13, 2018.

[24] In 2018, the Respondent also earned EI income of $6,516 and income as a volunteer firefighter $4,922.49.

[25] At the end of 2018, in December, the Respondent entered into a contract to act as local sales representative for JIE USA Inc. employed via FeMA Motion, his brother-in-law's company, with earnings based solely on commission. He did not earn any income in 2018 as a result of this new employment.

[26] As at the date of the motion before J. Cheung, April 17, 2019, the Respondent had yet to earn any income from this employment. In submissions, the Respondent advised that he soon expected to receive his first commission cheque in the mail that would represent his earnings for the last several months of work, totalling $380.

Preliminary Agreement of Parties at Trial Based on the Above Accepted Facts

[27] The parties agreed that for the purpose of this trial an order should go based on consent that:

a) L.'s time between each household in the months of July and August shall be split equally. Based on this summertime sharing, that child support will be set off between the parties for these two months only.

b) There was also an agreement that there was a material change given Mr. Froude's loss of his job that he held for several years and this will adjust the support owed.

[28] At trial, I noted that in Mr. Froude's Motion to Change he seeks a retroactive adjustment in his monthly child support commencing July 1, 2018, and this is the timeframe that I will consider.

Issues Conceded to at the End of Evidence Being Heard That No Longer Need to Be Decided

[29] Ms. LaGace discontinued her request for sole custody and removed this as an issue for trial. She explained that she misunderstood the forms used in these matters, as she was self-represented when she filed her documents. She opposes Mr. Froude's request for split parenting of L. She is content to have the joint legal custody order remain in place as stated in J. Parent's order.

[30] I have taken note of these concessions in my consideration below of the relevant law and facts that I have considered to the issues remaining to be decided in this trial which are:

a) Whether there exists a material change such that the weekly parenting/access schedule should be changed to split custody, and if so, should there be a section 9 set off in child support, section 7 expenses.

b) What is Mr. Froude's income from September 1, 2018, and 2019 to set his monthly child support.

Relevant Law Regarding Material Change Regarding Custody and the Parenting Schedule

[31] Under section 29 of the CLRA, the court may change a final custody/access order if there is a material change of circumstances affecting the best interests of the child. This is a two-step process:

a) The moving party must first meet the threshold requirement 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 have not 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.

b) 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 the circumstances in section 24 of the CLRA. In this fresh inquiry, 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. See: Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen (1998), 38 R.F.L (4th) 96 (Ont. Gen. Div.).

[32] The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett, (1989), 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).

[33] Variation of a final order for custody or access is a two-part process. The Ontario Court of Appeal in P. v. G.-P., 2009 ONCA 782, made it clear that a material change must be established first, before any variation or evidence about "best interests" is considered.

[34] As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional, and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.

[35] Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.).

[36] The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 Sask 10 (CA).

[37] In order to determine if the conditions for a variation exists, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, [1999] 2 S.C.R. 518.

Is There a Material Change in Circumstances?

[38] Ms. LaGace argues that Mr. Froude has not made out a material change in circumstances in this matter.

[39] Mr. Froude in support of his motion to change called two principal witnesses in addition to himself.

[40] The first was a social worker from the Peel Children's Aid Society, Mr. Lax Limaye, and the second his wife, Allison Froude.

[41] Overall the evidence provided by Mr. Limaye showed the attempts of Peel Children's Aid Society, as well as the local OPP domestic unit in the Caledon area, to assist in the ongoing conflict between the parties since the date of the last order.

[42] Peel Children's Aid worked with the family for some two years. Its file closed in the summer of 2019 during which there were improvements in communication between the parties.

[43] Examples of PCAS intervention ranged from pick-up and drop-off difficulties, summer holiday scheduling, travel details and complaints from each parent to CASP, some of which I touch on below.

[44] None of the difficulties caused CASP to bring the file to court. I did not receive direct evidence from the OPP at trial regarding its assistance to the family.

[45] Overall the evidence from Mr. Limaye showed a dedicated social worker that was attempting to have the family communicate better for the sake of their son and lessen tensions.

[46] At the end of the day this evidence did not necessarily support a material change as the family has had difficulty in communication from the start. I received no independent direct testimony at trial from any 3rd party source: teachers, police, doctors, that indicate L.'s care in each household is of serious concern. When asked, Mr. Limaye testified that both Mr. Froude and Ms. LaGace were good loving parents.

[47] I heard that at least on one occasion there was a meeting between the Ontario Provincial Police domestic unit, the parents and the CASP. This was after several interventions by the police over disputes in the community.

[48] While the OPP have been in contact with the family for several years, no charges came from this. The OPP have been assisting the family with their communication. Apparently, the family and their disputes are well known to the local OPP unit.

[49] Mr. Froude did testify, as did his wife Allison Froude, that exchanges were particularly troublesome. Apparently more so when the maternal grandparents were involved. Mr. Froude testified that the grandfather on one occasion needed to be restrained and he felt that on another occasion in an exchange it was going to come to blows. They testified that often parties each videotaped the other and on one occasion Allison's phone was knocked from her hand.

[50] On another occasion it was testified to that Ms. LaGace rushed towards Allison Froude during an exchange, removed L.'s backpack and took out of it what they argue was prescribed medication, depriving L. of this while starting a visit at their place.

[51] Allison Froude testified around several areas of difficulties that they have experienced over the course of this order in caring for L. When Mr. Froude testified, he spoke of the same issues and echoed much of what his wife said as follows:

[52] Both sides of the family live in the Caledon area north of Brampton. Therefore, they run into each other in the community when out shopping or on a bike ride. At times when she and Mr. Froude are in the community and might see L. with either his mother or his grandmother, L. is redirected away from them. It is suggested that either he is not permitted to wave to them if they passed each other on the street or if they run into L. and his grandmother at a local coffee shop, often L. would be redirected to the washroom when they are present to avoid contact.

[53] Both Mr. and Mrs. Froude testified that often, some 23 times, that the court ordered Facetime/Skype access did not happen or when it did happen there were intentional background distractions, from their perspective, such that it could not happen.

[54] The family is currently using a local coffee shop for exchanges located at Highway 9 and Airport Rd. This each claim is working out without incident, however, Mr. and Mrs. Froude argue that there is no goodwill to have L. start visits early when it is apparent that either of them have arrived to pick him up and are waiting in the parking lot.

[55] Around L.'s medical needs and eyeglasses, I heard the following: when L. started wearing glasses, they did not travel with him from his mother's home to Mr. Froude's home. Mrs. Froude testified that his glasses were not travelling with him between each household and they were required to obtain their own pair. It appears that this issue has been resolved and that he currently has eyeglasses that he wears full-time. I heard, however, about poor communication and coordination around his eye testing and fulfilling of his prescription.

[56] I also heard in evidence that on several occasions prescribed medication for L. was denied to their home. It was suggested that at least on one occasion Ms. LaGace intentionally removed the medication from L.'s backpack during an exchange. Mr. and Mrs. Froude testified that this has happened 8 to 10 times over the course of 2 years between 2016 and 17.

[57] When Ms. LaGace testified, she reviewed how she was the one to fill her son's prescriptions and has always provided the necessary medication and denied the allegations that she denied this to Mr. Froude.

[58] Ms. LaGace also explained what steps she took to address and obtain treatment for L. when he had lice and when he contracted a worm parasite while on a playdate at Lego Land. She explained how she brought L. to a walk-in clinic and shaved his head and advised Mr. Froude to obtain and treat L. as well.

[59] When the parasite infection was discovered, she acted as soon as she found out and had L. see Dr. Tata and purchased the necessary medication for L. This was in response to Mr. Froude's testimony that she did not treat L. for these needs in a timely fashion and only informed him at the last moment or after the fact when it came to the parasite.

[60] Additionally, Mrs. Froude claimed that a respiratory mask that L. was using at one point to assist an inhaler that he was prescribed was denied to them. When questioned about this, they were able to obtain one from the pharmacy for about $30 and this is not something L. requires presently.

[61] I also heard that L. has some specific needs with his sleeping pattern and reading/education but the poor communication between each household is causing a lack of coordination in having these addressed in a smooth and timely manner.

[62] The first is around his educational needs. Mr. and Mrs. Froude both testified about how they work with L. as his teachers to address his difficulty in reading and recognition of words.

[63] Mrs. Froude testified that while in University she tutored other individuals and has always enjoyed this. She is assisting Mr. Froude with L.'s homework on a nightly basis and is keeping track of his progress in a communication book with the school. I was shown an example of these notebook entries which was marked as Exhibit 3 in the trial.

[64] Mrs. Froude described how L. is capable of remembering the stories from the books when he sees the pictures associated with the text, but he frequently struggles with the text and he is unable to recognize the words. She felt that the communication book between each household did not reflect accurately this difficulty and that there were little or no entries from L.'s mom that accurately reflected L.'s difficulties.

[65] Mrs. Froude explained that she helps L. about 70% of time with his homework and Mr. Froude the balance. She enjoys this and often when they drop L. off at school, she has a quick conversation with L.'s teacher in the morning who is on yard duty. She described how L.'s teacher is encouraging of him when she and the teacher talk about his progress and that L.'s teacher will openly congratulate him in public for his efforts and progress.

[66] Allison Froude also testified that she was not permitted to attend any of the school meetings with her husband regarding L.'s educational development despite the work that she is doing with him at their home.

[67] From the overall evidence I heard at this trial, it became apparent that there were a number of ad hoc decisions and suggestions from the CASP around what could and could not be done between the family and in the community based on the work that was being done between the family and the CASP and to a lesser extent the OPP. This was, I find, a contributing factor in the difficult and disjointed communication that evolved between the parents since the last order.

[68] Examples of this are around Mr. Froude's complaint that he cannot attend L.'s community activities. When questioned about this he testified that he was, it appears, following guidelines from the CASP to lessen tension between the family and not a direction in a court order.

[69] Ms. LaGace in her testimony suggested that scheduling and enrolling L. became an issue between them such that CASP suggest they enroll L. in separate activities on their times so that L. would get to them. It was not her position that Mr. Froude could not attend and testified that in the past since the Order they had done so together.

[70] Ms. LaGace also relied on community officials when having communication difficulties with Mr. Froude. This I heard happened when she asked for assistance from the OPP when Mr. Froude's flight times changed at the last moment for a trip he took with L. and his wife to Newfoundland in the summer to visit the paternal extended family. Exhibit 21 email exchange regarding this in July 2018. Mr. Froude testified that this happened on more than one occasion over minor issues. Ms. LaGace testified that it was more to do with Mr. Froude refusing to provide details of his itinerary for this work/vacation trip.

[71] I heard testimony from both sides about the struggles around the issue of information sharing when it comes to vacation or day trips and how each interprets their current order in this regard. In the end I find these issues not to be serious but rather a control issue between each side based on a lack of trust between them both.

[72] Mr. and Mrs. Froude complained that Ms. LaGace apparently knows what their moves are in the community or trips from her gaining information on social media sites that they have chatted on or from common friends. Mr. Froude admitted that he has held back information as he feels when things are discussed/disclosed with Ms. LaGace, he is threatened with OPP involvement or fears that he will be denied time with L.

[73] Through questioning of Mr. Froude, I find that this mistrust has led to poor decisions on the part of Mr. Froude not to share information with Ms. LaGace which in turn caused her to doubt his judgment and parenting ability. Examples of this occurred when Mr. Froude admitted that he was not forthcoming with information to Ms. LaGace around two events. One was when L. burnt a small portion of hair when he stood too close to a bonfire while visiting Mr. Froude. The other is more serious and had to do with a car accident in which L. was in Mr. Froude's SUV. Neither were hurt and Mr. Froude was not at fault, however, his vehicle was damaged such that it needed to be replaced. Mr. Froude testified his insurance would not repair the SUV because of the frame being damaged and the age of the SUV. I received a string of email exchanges regarding these events which I have considered.

[74] When questioned why he did not inform Ms. LaGace sooner and to the details, he admitted that he felt he would be denied access, or this would be reduced in some fashion.

[75] Mr. Froude in turn complained that just recently L. burnt a finger on a glue gun and Ms. LaGace did not inform him in a timely fashion. Another example is that he was not aware that L. did not pass a swimming course that he was taking.

[76] I heard from both sides that initially the parties were to keep each other informed through a written communication book. This was set out in the Order under review. This now has evolved to emails. Both sides filed a number of email exchanges dealing with the several areas of parenting and incidents that they testified to at this trial. I have considered this evidence and will not comment on each, but I have highlighted some in this decision as examples of their difficulties.

[77] Mrs. Froude in her testimony also noted that L.'s school had a tracking system in which the parents were to update L.'s teachers when he completed a particular reading assignment.

[78] Both Mrs. and Mr. Froude felt that Ms. LaGace is not doing this as thoroughly as needed and that she is slow in cooperating with them regarding further testing of L.'s educational and social development.

[79] On this issue I did not receive any direct medical evidence or an assessment of L.'s educational/developmental needs. I did receive, on consent, a report from Dr. Hurst dated April 19, 2018, Exhibit 5. L.'s family doctor, Dr. Tita, referred L. to Dr. Hurst who is a pediatric specialist to assess L.'s overall needs at this point in his development.

[80] This report indicates that L. has no deficits in his neo-development / orientation / gross motor development. Pre-academic learning, visual fine motor – no deficits.

[81] Linguistically, L. has difficulties with complex sentences and sequential ordering of tasks.

[82] The evidence I received, as it is, shows that L. is struggling with recognition of words but has no assessed learning disability. Linked with this is the other issue that L.'s sleeping pattern is that he does not sleep the whole night or at times ever in his own bed and co-sleeps with each side of the family.

[83] Dr. Hurst's recommendations from this assessment was that L. would benefit from Art Therapy, a strict sleep hygiene (Magnesium supplement) and the Empower program at school. No formal diagnosis of ADHD was made, but behaviour modification was recommended.

[84] When Mr. Froude testified and in his submissions in support of why the current parenting/access schedule should change, he argued that it was his feeling that if a week about schedule were put in place the above co-sleeping issue and possibly L.'s educational needs would be better addressed. He also suggested that this schedule created less opportunity for conflict between the parents.

[85] When Mr. Froude was questioned about what evidence there was to link a change in his schedule to these issues and how one might improve the other, Mr. Froude agreed that this was his opinion without other evidence to support this assertion.

[86] I heard from both sides that L. is in the Empowerment program at his school to assist him and that they attended together a school meeting after Dr. Hurst's assessment.

[87] Ms. LaGace testified that communication has traditionally been weak between them. Multiple counselling or Family Group Conference sessions did not improve things and she felt might have, at times, muddled affairs as each interpreted differently what was said or accomplished at these sessions.

[88] Ms. LaGace agreed that they have cooperated around the big medical / educational needs of L. Examples she gave were around L.'s appointments and treatment regarding his hernia, hip joint, an MRI, allergy testing and his assessment with Dr. Hurst and follow up at L.'s school to date.

[89] After the testimony from both parents, I was not clear what they are doing collectively to address L.'s sleeping issues. I heard that Mr. Froude has made an appointment with a service in their area known for its work with youth with emotional health issues via the DFCAS. Ms. LaGace was thinking of a service close to her work.

[90] A final issue that Mr. Froude raised in his Motion to Change is that he argues that he should either not have to contribute to L.'s care via monthly child support or at best that there is a set off between the parents.

[91] This he argues should occur whether or not I find a material change and/or change the parenting schedule to a 50/50 split as he asks. He argues that as things stand now with the current order and considering the parties' consent to split July and August, that he meets the test in section 9 of the Child Support Guidelines such that I now have discretion to change the support between the parents.

Is There a Material Change in Circumstances Such That the Custody/Access Orders Be Changed?

[92] When I consider all the evidence as a whole, only some of which I have outlined above, I find that Mr. Froude has not made out a material change such that the custody/access provisions in J. Parent's orders should be changed other than what the parties have agreed to.

[93] Each complains about the others' poor communication as noted above. Some issues raised are not that relevant, some touch on each other's parenting ability. Yes, there are several and continuous irritants between each other, but none rise to the level that the Supreme Court has directed:

Requirement 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 have not 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. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[94] The central feature in my reasoning is that the evidence received does not reveal either parent's ability to meet L.'s needs such that the order requires a change to meet those needs.

[95] Yes, both parents struggle in communication, but at the end of the day L.'s needs are being addressed. No reputable third-party evidence was provided to suggest otherwise. I am not saying this is always required to change custody but without this type of evidence it requires the parent, in my opinion, seeking to change custody to provide to the court evidence that clearly indicates in a measurable fashion that a child's needs are not being addressed, rather than their perception of this.

[96] Granted in this matter there are times when each parent is upset with the other with how they don't share information in a timely fashion. As noted in submissions poor communication was present at the time of in J. Parent's earlier Orders under consideration in this trial. This is not new, nor has it escalated such that L.'s needs are not being addressed from the evidence received.

[97] L.'s needs are emerging as he grows older. An assessment has been done and work is being followed up with at home and at school. The parents need to know, after far too many years of litigation, to put aside their differences, fears or insecurities in this situation and better focus on L.'s needs. The evidence shows that they can and do actually do this. It is the litigation and positioning within the litigation that is interfering with what they both know is required to be done to care and love L. separately and together at times.

[98] I also in this trial had some opportunity to assess each parent. They were not hostile to each other and actually civil and authentic when giving their testimony. On occasion they even exhibited humour and smiled. I mention this as this is the basis on which to grow and develop their parenting of L. for years to come. It is obvious he is loved by both parents. I am certain he knows this and will always remember and recall with warmth, as time passes and in his adult life, all the large but mainly the everyday small things that are done for him.

[99] I also wish to mention that I recognized the care, assistance and love that Allison Froude shows L. as a stepmom. He has also gained from this and Mrs. Froude has not attempted to replace L.'s mom from the evidence I heard.

[100] On the issue of Mrs. Froude being L.'s stepmom, I heard nothing negative to be said by Ms. LaGace in terms of the care L. receives overall and how Mrs. Froude performs this role. This is, although indirect evidence, positive.

[101] Therefore, the current orders will not change other than what the parties have consented to, which is:

a) the venue for exchanges Highway 9 and Airport Rd;

b) emails to be the primary method of communication between them both regarding L.'s needs. I will add a communication protocol to this in the order.

c) Equal splitting of July and August of each year and a set off in income to fix monthly child support for these two months only.

Determination of Mr. Froude's Income

[102] I will now address the issue of whether support should be adjusted pursuant to section 9 of the Child Support Guidelines given the above decision and consent.

[103] I have considered the calculations/access calendars provided by both parties in this regard, Exhibits 17 and 18 to this trial. I also consider the arguments and the jurisprudence on this issue and conclude that Mr. Froude has not met the threshold of 40% of parenting even with the splitting of July and August each year given that there is, in the existing orders, fixed drop-off times stipulated.

[104] I say this as I am persuaded by the method and adopt the thinking and J. Czutrin in L.L. v. M.C., 2013 ONSC 1801, and the court in Maulsaid at par 20; Barnes v. Carmount, 2011 ONSC 3925, [2011] O.J. No.3717, at par 43:

… If there is a fixed, drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent.

[105] Based on this approach I accept the calculations provided by Ms. LaGace in Exhibit 18 that calculates Mr. Froude's time with L. including the summer to be 35.1%.

[106] This does not affect the consent that the parties have agreed to in sharing L.'s time equally between each home and set-off monthly child support for the July and August summer months, see R.G.C. v C.LC., 2014 ONSC 2100.

[107] As noted above in this decision, it is conceded that Mr. Froude's layoff from his long-standing work with Harting created a material change in circumstances.

[108] This I agree with. I also noted in the trial how emotionally difficult it is for any worker to be impacted by the loss of work after years in one field or working with one employer as Mr. Froude had for some 12 years.

[109] The issue now is setting Mr. Froude's income levels from July 2018 and 2019 in order to reset his monthly child support and adjust any arrears owing through FRO. A Director's Statement from FRO was entered as Exhibit 20 in this trial. As of the date of this statement 12/12/19 Mr. Froude's arrears owing was $9,163. He did not contest the accuracy of the Director's Statement.

[110] On behalf of Ms. LaGace it was conceded that the best evidence was a combination of the facts as found by Justice Cheung in her May 2019 decision and the evidence provided in this trial. Ms. LaGace noted that some of Mr. Froude's information as set out in his two filed financial statements, Exhibits 14 and 15 to this trial, were not an accurate picture of his current income.

[111] Mr. Froude was questioned about some of his costs and why he did not list a business banking account that remained open but inactive. He answered questions about his job searches – Exhibit 15 – and attempts at work with local companies such as a groundskeeper (Leisure Time) and as a sales manager for a local coffee roasting company (Hockley Valley Roasters). This company folded.

[112] Mr. Froude testified that he was willing to take any reasonable position but agreed, however, that he did turn down a job with the outdoor/sport supply store SAIL in their hunting department. The job paid $23,000 per year and required much driving but then came along the position with Helukabel from which he was let go for lack of meeting sale targets.

[113] I accept that he made a concerted and real effort to find employment and in the general field of sales that he had worked in for years.

[114] On May 1, 2019, he was offered and accepted employment as National Sales Manager for FeMa Motion, a company that has sales and distribution of precision gearbox components. This job requires some travel for which Mr. Froude testified he must pay for. He provided a letter from Peter Iversen, dated August 5, 2019 indicating a projected salary of $48,000 per year from which he is to pay from both business and travel expenses.

[115] When questioned further regarding these costs from his salary, Mr. Froude did not have any documentation to support this requirement to provide to the Court as a baseline to estimate this suggested annual deduction from his salary. He did testify of travelling to Dorval and Laval, Quebec, to meet customers since being employed, as well as a trip to Newfoundland which was part vacation and part travel.

[116] Mr. Froude testified that he sees this position with FeMa as a good opportunity and he intends to push hard to increase sales and FeMA's profitability which he hopes to share in.

[117] Mr. Froude did provide payroll deduction stubs outlining gross sales to date. Exhibit 11 to this trial. These span the period of June 2019 to the end of November 2019, a 6-month period of time from his engagement letter/start date with FeMa of May 1, 2019. These pay stubs vary in gross amounts earned by Mr. Froude per month.

[118] Each pay stub is for a month with 12 pay periods in a year. Each has indicated the total gross amount earned and the standard remittance that FeMa Motion is to make to the government for income taxes, CPP and EI. It lists Mr. Randolph Froude as the employee and reads as most pay stubs as a person fully employed with a company and not a contractor that can for tax purposes deduct expenses.

[119] I received no evidence in this regard from Mr. Froude or an accountant on his behalf that he actually has the above-noted costs or that he is able to deduct these. I therefore cannot accept this submission by Mr. Froude. See:

The onus to prove the validity of a deduction including carrying and interest charges and Schedule 111 deductions lies on the payor: see Pollitt v. Pollitt, 2010 ONSC 1617 at paragraph 128; Haras v. Camp, 2018 ONSC 3456.

When a taxpayer seeks to claim employment expenses to reduce their taxes, they must file a T2200 Declaration of Conditions of Employment. Court drew an adverse interest against the party for his failure to produce this. Haras v. Camp, 2018 ONSC 3456.

[120] What I am left with is averaging the current pay stubs to arrive at a 12-month annual salary from which Mr. Froude is to pay child support from June 1, 2019 onwards. He will have to disclose annually his income tax assessment in the early part of each year by March or so to reset support at that point as set out in the Guidelines.

[121] Turning to his reported earnings for 6 months, these fluctuate between a low of $3,196 gross to a high of $6,957. The median is approximately $5,076.50 per month or shy of $61,000 per year. Other factors that I have considered is that he has just started with this company and is learning the product that he is selling. However, Mr. Froude has many years' experience in sales and understanding the culture and the workings of companies. He has earned as high as $120,000 over several years when he was employed with Harting, which shows his ability and given his health, age and his attitude to be successful with FeMa Motion, setting his salary at $65,000 at this stage is reasonable, fair and balanced.

[122] This set Mr. Froude's monthly child support per the Guidelines as of June 1, 2019, at $605 per month for L.

[123] With regards to the retroactive adjustment of monthly support from the time Mr. Froude requested in his Motion to Change, July 1, 2018, to his employment noted above with FeMa, May 1, 2019, the following facts were consented to:

a) In 2018, the Respondent worked from February 23, 2018, until June 13, 2018, as a sales representative for Xtronics Inc. During that time, he earned $9,334.02. The basis of that employment contract was commission-based, with a guarantee by Xtronics of $3500/month commission payment or 70% of the commission paid to Xtronics, whichever is the higher. That employment relationship ended on June 13, 2018.

b) In 2018, the Respondent also earned EI income of $6,516 and income as a volunteer firefighter $4,922.49.

c) At the end of 2018, in December, the Respondent entered into a contract to act as local sales representative for JIE USA Inc. employed via FeMa Motion, his brother-in-law's company, with earnings based solely on commission. He did not earn any income in 2018 as a result of this new employment.

[124] I accept these facts.

[125] When assessing a payor's request for retroactive adjustment to monthly child support, the following is the law that I have applied to the facts:

Subsection 37(2.1) of the Family Law Act provides the test for changing a child support order as follows:

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6

The prerequisite to any variation of an existing support order is a finding that there has been a change in circumstances since the making of that order that would result in a different child support order.

To ascertain whether a change in circumstances has occurred, a court must consider whether the change advanced was "material" – meaning a change that, "if known at the time, would likely have resulted in different terms" – and a change with some degree of continuity, and not merely a temporary set of circumstances.

The Ontario Court of Appeal applied DBS principles in Gray v. Rizzi, 2016 ONCA 152. Where a payor seeks a retroactive decrease in support, the D.B.S. factors – such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant (par. 51). Absent exceptional circumstances, the factors the Supreme Court of Canada identified in D.B.S. provide useful guidance to a court faced with a request to reduce child support based upon a payor's material decline in income. Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply (Gray, par. 54).

The court in Gray applied the process set out in Corcios v. Burgos as follows:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

[58] A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."

Gray, par. 60: The following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

In Gray, the court considered how the retroactive award should be calculated once it is decided there should be an adjustment in pars. 61-64 as follows:

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[126] From the above it is conceded that Mr. Froude met the material change part of the above test.

[127] His obligation to pay support is established in an existing order that is being reviewed in this decision.

[128] I find he did not wait too long before commencing his Motion to Change and he was attempting to pay the existing order with some direct telebank deposit to FRO and diversion with scattered employment as noted above in late 2107. In mid-2018 there was a concentrated period of non-payments between May 2018 to Aug 2019.

[129] I have considered the facts as accepted on consent that between July 1, 2018, to May 31, 2019, Mr. Froude's circumstances were such that he was looking for work but that he was unable to pay the ordered support at the original level such that his monthly amounts should be reduced retroactively but not rescinded.

[130] His payment history as produced in this trial shows a level of historical compliance with payments and he testified that it was FRO that told him to get on with his Motion to Change when he was struggling.

[131] I have also considered whether a retroactive adjustment would require Ms. LaGace to repay out of pocket to Mr. Froude any overpayment, and I conclude that this will not be the case. However, the arrears he owes will be adjusted down based on the new amount he owes per month.

[132] As noted above payments could be suspended if the evidence showed that a payor temporarily had a rough patch but could or would get back to the previous level of earnings quickly. This I find was not supported by the facts for the retroactive time I am considering, July 1, 2018 to May 31, 2019.

[133] As for the best evidence of what income Mr. Froude had for this period of time, it is as set out in the accepted facts noted above: $20,772. This income level sets his monthly support payment for L. based on the Guidelines for the period commencing July 1, 2018 to May 31, 2019, to be $176 per month.

[134] FRO will make the adjustment to its current arrears table. This will create a lower amount of arrears owing which will still need to be paid at the end of the day. I reviewed Mr. Froude's financial statements and living arrangements. He lives in a home with his wife. The home is owned by them. They both have income and contribute to their needs. The above child support obligations are only Mr. Froude's based on his income. However, he does benefit from a joint income overall and has some room in his budget to pay $50 per month towards the arrears owing. He should obtain from FRO its revised calculation (Directors Statement) of the total arrears he owes after this decision to track his payments and to know when this obligation is paid down, provided he does not miss future payments.

Final Order Based on My Findings Above

Justice Parent's Final Orders are changed as follows:

1. October 21, 2014 Order – Communication

The October 21, 2014 Order is changed as follows: only paragraph 1 (i) replaced with:

a. The parties shall regularly communicate by email exchanges.

b. Both parties are to follow this communication and behaviour protocols as it forms part of the terms of this order.

2. Communication and Behaviour Protocols

The parties shall abide by these principles in their relationship with each other and their contact with L. (the child):

a. They shall refrain absolutely from denigrating each other or members of each other's household or families in the presence or within earshot of the child;

b. They shall not question the child about the other party's personal life and activities;

c. They shall not video or audio record the child for the purpose of recording statements or discussions about the other party, members of their household or family, or other parenting issues;

d. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of the child and from involving the child in any manner in conflicts which may arise between the parties;

e. They shall not use the child to pass messages or documentation on to each other;

f. They shall encourage the child to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the child and the other parent;

g. Neither party shall discuss with L., or with another party in the presence of L., present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any financial issues relating to the parties or L., or regarding conflict between the parties relating to parenting issues;

h. The party shall communicate about L. by email. Each party will respond promptly by return email to the email of the other. The parties shall exchange information about the child, including notice of any scheduled medical or counselling appointments, report cards, behavioural concerns, upcoming activities, and any request for changes in the parenting schedule.

i. All emails between the parties regarding the child shall not be deleted, nor shall they be forwarded to third parties other than lawyers, without the other parent's consent.

j. Emails shall be brief, respectful, related solely about L., with no reference to either of the parties or their activities. The parties shall not email/text each other excessively.

k. The parties shall share all documents pertaining to the child by scanning or photographing the document and then sending it to the other parent by email. The parties shall not rely on the child to transport documents between them.

l. If one party requests information or a temporary change by email/text, the other party shall respond within 48 hours. Requests made giving less than 48 hours' notice shall be responded to as soon as possible. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, an email shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.

m. Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say "I no longer wish to discuss this," and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by email.

3. October 21, 2014 Order – Summer Schedule

J. Parent's October 21, 2014 Final Order is changed as follows: only paragraph 2 is replaced with:

a) During the summer as defined by July and August, L.'s time between each household shall be split equally on a week about basis unless other time periods agreed to in and confirmed by email. The parties shall arrange each other by May 1st who is to commence this rotation.

b) Based on this summertime sharing, child support will be set off between the parties for these two months only.

4. June 3, 2015 Order – Exchange Venue

J. Parent's June 3, 2015 Final Order, paragraph 1 regarding exchange venue for all access visits is changed to read:

a) the venue for access exchanges is to be Highway 9 and Airport Rd. (coffee shop).

5. Monthly Child Support

J. Parent's Final Order of June 3, 2015, paragraphs 5 and 6 only are changed to read:

a) Commencing July 1, 2018, Mr. R. Froude shall pay monthly child support to Ms. C. LaGace for 1 child, L. born […], 2012, in the amount of $176 based on an annual income to be $20,772.

b) Commencing June 1, 2019, Mr. R. Froude shall pay monthly child support to Ms. C. LaGace for 1 child, L. born […], 2012, in the amount of $605 based on an annual income to be $65,000.

c) For the 2 months of July and August of each year commencing in the summer of 2020 and each year thereafter until the order is changed, the parties will set off monthly child support for these 2 months only considering their respective incomes using the income tax disclosure that they must provide to each other at the start of each year to establish monthly child support from Mr. Froude and any future section 7 expenses not already set out in this order that they would need to agree on. To commence this process and for the purposes of the summer 2020, Mr. Froude's line 150 income for 2019 has been established in this order to be $65,000.

6. Section 7 Costs

a) Commencing June 1, 2019, Mr. Froude shall pay to Ms. C. LaGace $100 in section 7 payments for L.'s daycare cost. Future section 7 costs must be agreed to between the parties and shared proportionate to their respective annual incomes before such cost are incurred if they are intended to be shared. The parties will need to agree to in writing a method to disclose the cost for such future agreed to section 7 expenses, examples of which may be, therapy, dental or educational cost, and disclosure of the paid receipts once the agreed to cost is incurred.

b) The current section 7 cost, as set out above in this order, and any future agreed to section 7 expenses, are to be registered with FRO for the tracking of Mr. Froude's payments and enforcement purposes.

7. Arrears Payment

Commencing April 1, 2020, Mr. Froude shall pay to Ms. LaGace $50 per month to pay down in full any arrears that exist given this final order (parties to obtain from FRO the revised Director's Statement for their records regarding arrears owed).

8. Support Deduction Order

A Support Deduction Order shall issue.

[135] Note the standard annual income tax disclosure and interest charges clauses are to be included in the final draft of this Order.

[136] Mr. M. Neilly, on behalf of both parties, shall have approved draft order emailed to my assistant for issuance.

Costs

[137] Regarding Costs, if this issue cannot be settled between the parties, a party that wishes to make submissions regarding cost shall serve the other within 30 days of the date of this order and that other party will have 30 days to respond. Both to follow these directions:

Submissions and law (cites only) to be no greater than 2 pages attaching a bill of costs and signed offers to settle that predate the trial. All to be filed via 14B motion to be directed to my attention. FILING OF SUCH WILL NOT BE DONE BEFORE JUNE 15, 2020 GIVEN COVID-19 PROTOCOLS AT COURT REGARDING EMERGENCY MATTERS ONLY.

Concluding Remarks

[138] Finally, I note that this decision was finalized and released in the first three weeks of the COVID-19 health crisis in Ontario. I want to thank the OCJ judges' assistants on the 6th floor of the Brampton Courthouse for their professional support during this difficult time to the Court and the public that the Court serves.

[139] This situation has not lessened for me how important the issues in this trial are for Mr. Froude and Ms. LaGace. However, I imagine that you both have reflected and paused over the past few weeks as to the central importance of L. to you, and you both to him, and possibly, as well, how you will work and cooperate for his future well-being. I want to believe that many parents across the Province of Ontario, during the past few days, have done just so regarding their children.

Released: April 1, 2020

Justice A.W.J. Sullivan