ONTARIO

SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: FC-08-378
DATE: 2012-02-27

B E T W E E N:

Brian Ranger

Unrepresented

Applicant

• and -

Jo Ann Baguioro

Unrepresented

Respondent

Lack J.

1The applicant Brian Ranger has brought a motion to change provisions in existing orders dealing with his access to his son Jacob Bryce Baguioro, born December 30, 2003.

Prior Access Orders

2On October 21, 2005 after a trial, Lane J. granted custody of Jacob to his mother, Jo Ann Baguioro. Mr. Ranger was granted access to Jacob as follows: on alternate weekends from Friday at 6:15 p.m. to Sunday at 4:30 p.m.; Friday the following week from 6:15 p.m. to 8:00 p.m.; for two weeks each summer; on Father’s Day; for 5 days during the ten-day Christmas/New Year holiday; statutory holidays on a rotating basis; and telephone access on Tuesdays and Thursdays for 15 minutes.

3Although the order of October 21, 2005 did not specifically state that Jacob was to be in the care of the mother Jo Ann Baguioro during the balance of the ten-day Christmas/New Year holiday period not assigned to the father, it is implicit in the order that was to be the case.

4On February 28, 2008 Mr. Ranger brought a motion to change the access order. By then, the parties had changed the alternate Friday evening access to access alternate Wednesdays for one hour and forty-five minutes. Mr. Ranger sought a change so that in addition to the alternate weekend access, he would also have access every Tuesday at 6:00 p.m. to Thursday at the beginning of school. He also sought to eliminate transfers taking place at the Supervised Access Centre.

5On April 22, 2008 an order was made, on consent, adding the Family Day statutory holiday to the list of holidays in the access rotation.

6The motion to change was heard October 30, 2008 by MacDougall J. On consent, he varied the alternate weekend access to extend it to start on Friday at 3:00 p.m., with pick-up from the child’s school, until Sunday at 6:00 p.m. On a “not on consent” basis, he varied the father’s alternate Wednesday visits to weekly ones from 4:00 p.m. until 8:00 p.m., with the child being picked up at the mother’s home.

7On September 25, 2009 Mr. Ranger brought a motion to change the access provisions in the two prior orders. He seeks to have alternate weekend access to Jacob from Wednesday after school to Sunday at 8:00 p.m. and the following Wednesday and Thursday overnight. In addition, he seeks to share the care of Jacob with the respondent over the summer months of July and August on an alternating two-week basis. It is this motion to change that is before me.

These Proceedings

8The parties have attended the usual conferences. On April 29, 2010 a case conference was held. The presiding judge ordered, on a temporary basis: “The father by himself alone will be entitled to attend any school trips or special events at the school (with the school’s consent of course).”

9Mr. Ranger brought a motion for temporary relief which was heard on October 4, 2010. The mother did not appear. The motion judge ordered that commencing October 13, 2010 the father would have additional access mid-week overnight from after school Wednesday until return to school Thursday morning every week. He also ordered that the father, his wife, stepdaughter and Jacob’s paternal grandparents could attend activities and/or special events, concerts, plays, barbecues, fairs, etc. at his school, provided that they sit distant from the mother and had no communication or contact with her. The father was also permitted to chaperon field trips or excursions, if the opportunity arose, but not if the mother had already made arrangements with the school to be the chaperon for that event.

10On October 19, 2010 the mother brought a motion to set aside the order of October 4, 2010 on the basis that she had not been served with notice of the motion. There was a dispute between the parties over whether she had in fact been served. In any event, on December 9, 2010 an order was made setting aside the temporary order of October 4, 2010.

Orders Made at Various Case Conferences

11At a case conference on June 10, 2008 Scott J. made an order giving the father access to various sources of information respecting Jacob, such as school and medical records. She also made an order that the parents would communicate respecting Jacob by e-mail. There was no issue at trial that these provisions would continue to apply.

12As I have noted, on October 4, 2010 Salmers J. made an order in Ms Baguioro’s absence that was subsequently set aside. Despite the fact that the order was set aside, Ms Baguioro takes no objection to the father, his wife, his step-daughter and Jacob’s grandmother attending special events at Jacob’s school with notice to the mother. That provision will be incorporated into the final order herein.

The Evidence at Trial

13Brian Ranger testified at trial. He has been with his current wife Jeanette since February 2004. She has a teen-aged daughter who lives with them and attends high school. His mother Barbara also lives in the household. He testified about his close relationship with Jacob and his wish to spend more time with his son. He said that one of the reasons that his family moved to Whitby, close to Ms Baguioro’s home, was so that he would be close by. He talked about the things he and Jacob do together. He has enrolled Jacob in such activities as skating, soccer and karate. In the summer, as a family, they take Jacob to their trailer in a park in an adjacent municipality where they have a great deal of fun. He talked about the close relationship Jacob has with each member of his family. Mr. Ranger said that he has tried to educate himself about how to communicate civilly with Jacob’s mother over access. For the most part, they do not have difficulties. However, Ms Baguioro has consistently been resistant to giving him more access to Jacob. It was his evidence that whenever he begins proceedings to get more access, problems resume in their relationship. He admitted that there have been occasions when the mother has accommodated him by agreeing to increased time. He admitted that he has never been denied his access.

14Darlene Dzura testified on behalf of Mr. Ranger. Her son attends school with Jacob and they are good friends. It was her evidence that her son plays with Jacob at the Ranger home. She referred to it as a loving, safe environment.

15April Sago also testified. Her daughter is a close friend of Mr. Ranger’s step-daughter. She referred to Mr. Ranger’s relationship with Jacob as loving and caring.

16Shawn Ricketts has a trailer in the park where the Ranger family spends time in the summer. He has observed the father-son relationship between Mr. Ranger and Jacob and he calls it close. He said that he has no concerns about the interaction.

17Cheryl Littlejohn also testified. She has 4 children. They also summer at the trailer park. Her children spend time with Jacob there. She said that Jacob is happy, well-behaved and well-mannered. She said that she trusts the care that Mr. Ranger provides to Jacob and her children when they are interacting.

18Jeanette Ranger testified. She said that the communication between her husband and Ms Baguioro broke down when he asked for more access. She said that she loves Jacob. She perceived that Jacob liked the overnight access when it occurred after the order of October 4, 2010 and that he was disappointed when it stopped. She said that she can change her work schedule to accommodate increased access to Jacob. She testified about an incident at the school where she was not allowed to go on an apple picking excursion. She admitted that it was because someone at the school said that since it was not in the court order it could not take place.

19Mr. Ranger’s mother Barbara Ranger testified. She has lived with her son since December 2004. She is retired. She testified about the breakdown in communication between Mr. Ranger and Ms Baguioro after the request for more access. She said that the breakdown in communication affects Jacob. She said that when his mother and father are at the same events Jacob is less likely to interact with his father, for example, at karate. She perceived that he was disappointed when the overnight access was cancelled. She said that Jacob loves any kind of games. On cross-examination she was asked if she had a confrontation with Jacob’s nanny over his school bag once when she picked up Jacob at school. She said that she asked for his homework and when she met resistance from the nanny, the teacher intervened, so she said to forget it. She said that she did not think that Jacob knew that anything had happened.

20Ms Baguioro testified. She is married to Paul Thompson. They have been together for 6 years. They have a child Alexandra – Jacob’s younger sister. Ms Baguioro testified that she sees Mr. Ranger’s request for increased access to Jacob as a response to her request for financial disclosure. She testified that she has always adhered to the access order. She has never denied Mr. Ranger access. At times, she has agreed to additional access to accommodate special or unusual circumstances. Ms Baguioro testified that she is opposed to Mr. Ranger’s request for increased access. She testified about Jacob’s close relationship with his sister. They attend the same school together. The children have a regular and set routine. She acknowledges that Jacob enjoys his visits with his father. However, the mid-week overnight access, while the temporary order was in effect, interfered with Jacob’s routine and upset him. One of Ms Baguioro’s main complaints about Mr. Ranger is that he fails to tell her things. She gave a number of examples. She said that she found out about his change of residence from the school principal. Likewise she was not told ahead of time that Jeanette was planning on going to the apple picking excursion at school. Mr. Ranger has enrolled Jacob in a number of extracurricular activities without discussing them ahead of time with her. One such activity was Tai Kwon Do. Once Jacob had been enrolled in it, he liked it, so she now takes him even when it falls on non-access times.

21Gerald Huxter testified. He is the principal at Jacob’s school. Jacob appears, on his evidence, to be a child who is doing well. Mr. Huxter said that Ms Baguioro obviously loves her son and is interested in what he is doing. He said that she is supportive and complimentary of the school staff. Because Jacob is picked up after school for access visits, the principal is aware of the terms of the court order. He said that he had no issues with Mr. Ranger’s conduct, with the exception that occasionally he has other people pick up Jacob.

22Ms Baguioro’s spouse, Paul Thompson, testified. He described Jacob as a sensitive, kind and loving child. Mr. Thompson said that he loves Jacob very much and is very close to him. He considers him to be his son. He said that Jacob has a close relationship with his sister. He described the children’s routine. He said that Jacob is also close to his wife’s large, extended family. They all get together often. Mr. Thompson gave examples of how his wife has accommodated changes to the access schedule for special or unusual occasions. He noted that because Mr. Ranger’s access intervenes, his family has never been able to have a 2-week uninterrupted summer vacation. He said that Mr. Ranger insists on not altering his access. He feels it would be in Jacob’s best interests if the family could take a summer vacation. He also thinks that Jacob would benefit if Mr. Ranger would exercise his telephone access, which he does not. Mr. Thompson said that the Wednesday overnight access, while it was taking place, was a big disruption to Jacob’s schedule. He said that Jacob did not want to stay overnight, however, he never heard him say that he was afraid that his father would take him away. He said that even when Jacob has cried and been reluctant to go on access visits, he has gone.

23Abegail Carlos testified. She has worked as the nanny in the Baguioro-Thompson household for the past two and a half years. She testified about Jacob and Alexandra’s day. She walks them to and from school each day and takes lunch to them. After school they have a regular routine. She sees Mr. Thompson as a loving father and Ms Baguioro as a loving mother. The children are well-provided for. She also testified about the close relationship the family has to Ms Baguioro’s extended family. She said that when Jacob returns from access visits he is tired and it is hard to get him back on track. About half of the time Mr. Ranger’s mother or wife pick up Jacob for the access. Ms Carlos does not perceive that Jacob does much reading or any homework at his father’s home. Mr. Ranger has only telephoned Jacob once that she knows of. She said that sometimes Jacob does not want to go on the visits; sometimes he does. He goes. She said that he does not want the sleepovers. She described an incident that took place at the school on October 30 when Barbara Ranger came to pick up Jacob. Mrs. Ranger grabbed Jacob’s school bag from her. There was a tugging match. The teacher intervened and told them to go to another room. Mrs. Ranger raised her voice. This took place in Jacob’s presence. She agreed that Mr. Ranger is always polite and respectful to her in their dealings.

The Law

24A motion to change is not the time to rehash the evidence that was heard at the time that the initial custody and access order was made. 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 Persaud v. Garcia-Persaud, 2009 ONCA 782 (Ont. C.A.) at paragraph 2.

25A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) at paragraph 13.

26The party bringing the motion to change bears the burden of establishing a material change in circumstances as a threshold issue. The court hearing the variation application is required to assume that the order is correct and can only consider the change in circumstances since the order was made: see King v. Mongrain, 2009 ONCA 486 (Ont. C. A.).

27Once the applicant has discharged the burden of showing a material change in circumstances, both parents bear the evidentiary burden of demonstrating where the best interests of the child lie. Section 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C12 mandates that on the inquiry it is the best interests of the child that govern in accordance with criteria set out in ss. 23(2), (3) and (4).

Analysis

Increased Access to Father

28Mr. Ranger grounds this motion to change on comments MacDougall J. made on October 30, 2008 when he said: “So, I’m just taking it – just basically I’m going [to] make a note saying considering between now and next year and it’s open for further review…”: see Transcript of October 30, 2008, Exhibit 2. In his endorsement, MacDougall J. wrote: “I agree with the mother that for the next year – given the child’s age mid-week overnight access appears to be a big change at this time.”

29As I see it, Justice MacDougall intended that the matter could be reviewed after a year, not that it would necessarily be reviewed or that a change would be made.

30Jacob has been in the principal care of his mother since his birth. Since the previous orders were made, Mr. Ranger has consistently exercised access. The evidence establishes that Jacob enjoys the access. The evidence establishes that Jacob is well-cared for by both parents. He is loved by both parents and by both families. He is doing well. That is the result of the existing custody/access arrangement. It is working. Time has passed. The evidence does not establish that Jacob’s enjoyment of the access, the passage of time or anything else has altered Jacob’s needs or the ability of his parents to meet those needs.

31What the father is seeking here under the guise of increased access is really joint custody in relation to the amount of time Jacob would spend with him. The father seeks a radical departure for Jacob from life as he has known it on no other basis than the father’s own wants and desires.

32The applicant father has failed to meet the threshold of showing that there has been a material change in circumstances. For that reason, the father’s motion to change is dismissed.

Vacation Period with Mother in Summer

33The mother raised the issue of summer access. The order of MacDougall J. had, I think, the unforeseen consequence of impeding Jacob from having even a one-week period of uninterrupted vacation with his mother, step-father and sister because of the weekly Wednesday access, which Mr. Ranger has refused to alter to accommodate vacation. Unforeseen consequences are a material change in circumstances. It is in Jacob’s best interests to have a holiday period with his mother as he does with his father. I am therefore varying the existing order to provide that the mother may have a 2-week period for vacation each summer when access shall be suspended. The mother is to give the father 60 days notice of the selected period.

Transportation for Access

34The issue of who should transport Jacob for access visits has been a bone of contention between the parties. Recently, the father has been providing the transportation. Usually it is the access-exercising parent who is responsible for providing the transportation to and from visits. There is no reason, on the evidence, why the father should not continue to provide transportation.

35The mother takes exception to the father’s wife or mother substituting for the father in transporting Jacob for visits. In my view, they should be permitted to do so, but only if the father is unable to do so, provided that the mother is advised in advance of the arrangement.

Child Support

36The trial management endorsement of October 26, 2010 listed a review of child support as an issue to be tried.

37The order of October 21, 2005 provided that the father was to pay child support for Jacob of $266 per month beginning November 1, 2005 based on his annual income of $30,000. He was ordered to provide copies of his Notice of Assessment from Revenue Canada to the mother and to the Family Responsibility Office no later than July 15, 2006 and every year thereafter on July 15. His basic child support obligation was to be adjusted effective September 1, 2006 and on every September 1 thereafter to reflect the Child Support Guideline amount for his reported income. Also, he was ordered to pay extraordinary child support for Jacob’s childcare expenses in the amount of $300 monthly commencing December 1, 2005. Ms Baguioro was to provide a copy of her Income Tax Return and Notice of Assessment to Mr. Ranger no later than July 15, 2006 and thereafter each year by July 15 to verify her childcare expenses. If there was any change in the childcare arrangement Ms Baguioro was to inform Mr. Ranger forthwith.

38On October 4, 2010 Salmers J. made a “without prejudice” order that payment of ongoing child support (including s. 7 expenses) and enforcement of arrears were both suspended. This order was made at the hearing of the motion, which Ms Baguioro did not attend. As I previously noted, she said that she had not been served with notice of this motion. She moved to set the order aside on the grounds of lack of notice.

39On December 9, 2010 while Ms Baguioro’s motion to set aside the order of October 4, 2010 was pending, the parties attended mediation. There, they entered into a consent to change the order of October 4, 2010 to provide: “the applicant shall pay final child support in the amount of $180 per month commencing December 1, 2010 – the above award is made in accordance with the Child Support Guidelines if the child is under the age of majority and is based on the following facts which are agreed to by each of the parties: parties did not provide financial disclosure and applicant stated his employment insurance income verbally during mediation – annual income of the payor is $21,000 – support table amount for 1 child is $180. He is currently receiving employment insurance. Commencing 2010 applicant will provide the respondent with his income tax return and notice of assessment for the previous year by June 1 of each year so that the child support can be adjusted by July 1st if required. When the applicant finds employment he will notify the respondent within 10 days, in writing, with details such as, name of the employer, job description, work hours, hourly wages and/or salary.”

40On the same day, December 9, 2010, Corkery J. made an order in accordance with that consent. It was a “temporary order”. At the same time, the order of Salmers J. dated October 4, 2010 was set aside.

41Each party raised the issue of child support arrears and ongoing child support as an issue at trial.

42Financial disclosure between the parties requires a comment. The evidence established that neither party fulfilled his/her obligations under the court order of October 21, 2005 to make financial disclosure to the other on an ongoing basis.

43In these proceedings, neither party made the financial disclosure that the rules and ongoing case management orders mandated. I never saw a copy of an Income Tax Return from either of them. Notices of Assessment were filed, but Mr. Ranger never filed his 2010 Notice of Assessment and Ms Baguioro never filed her 2009 or 2010 Notice of Assessment. I am simply left to do the best I can with what I have been provided with.

44The first issue is each party’s request for a retroactive variation of the child support. These proceedings began in September 2009. Neither party offered any evidence which would justify a change in the amount of child support for the period before the motion to change was begun: See D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; and Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.)

45Mr. Ranger submits that there should be a retroactive variation of his child support in respect to s. 7 expenses starting in September 2009 because Jacob began attending school full-time then. Mr. Ranger’s focus here is on the childcare expenses.

46The childcare in September 2009 and following has been provided by a nanny who lives in Ms Baguioro’s home. She is paid a weekly salary, plus room and board. Ms Baguioro filed evidence to show that taking into account what Revenue Canada attributes as the monetary value of the room and board, the nanny would be deemed to receive income of $1794 per month. I accept that figure. The nanny provides care for 2 children, so no more than half of that amount is attributable to Jacob’s care. Also the nanny does some light housekeeping duties, not generally included in childcare costs. I apportion 30% of her remuneration to the provision of those services and 70% to childcare or $1,255.80. If that amount is allocated equally to the 2 children, the cost of Jacob’s childcare is $627.90 per month. There is no tax benefit to Ms Baguioro for the childcare because she is essentially self-employed through her own company. Judging from her 2008 Notice of Assessment, her declared income is nominal. As I noted, she did not file her 2009 or 2010 Notice of Assessment. However, she did concede that her income is approximately $60,000 per year. I accept that. Mr. Ranger’s income in 2009 was $35,887.

47Using those figures, Mr. Ranger should have paid child support for Jacob of $332 per month beginning in September 2009 being the Guideline Child Support based on his income. If the cost of Jacob’s nanny is apportioned between Ms Baguioro and Mr. Ranger on a monthly basis proportionate to their incomes, Mr. Ranger’s share starting September 1, 2009 should have been $235.00 per month for s.7 expenses. Therefore, there will be a retroactive variation of the child support for Jacob to reflect these figures starting September 1, 2009.

48Mr. Ranger seeks a retroactive variation in child support for 2010 because he lost his job in May 2010. In fact, he quit his job. He did so because, according to him, he injured his back on the job. He testified that he made a claim for Worker’s Compensation but it was denied. I find that his income for 2010 was $16,770.35 from employment (letter from his employer, Exhibit 9) and $11,910 employment insurance, for a total of $28,680.35. Ms Baguioro’s income and childcare expenses remained the same in 2010.

49Using those figures, Mr. Ranger should have paid child support for Jacob of $254 per month beginning in 2010 being the Guideline Child Support based on his income. If the cost of Jacob’s nanny is apportioned between Ms Baguioro and Mr. Ranger on a monthly basis proportionate to their incomes, Mr. Ranger’s share starting January 1, 2010 should have been $203.07 per month for s.7 expenses. Therefore, there will be a retroactive variation of the child support for Jacob to reflect these figures starting January 1, 2010.

50All that is known about Mr. Ranger’s 2011 income is that he was receiving employment insurance of $397 per week. Income at that rate amounts to roughly $21,000 per year, as noted in the consent that the parties signed. The cost of the nanny remains the same, as does Ms Baguioro’s income. Using those figures, Mr. Ranger should have paid child support for Jacob of $180 per month beginning in 2011 being the Guideline Child Support based on his income. If the cost of Jacob’s nanny is apportioned between Mr. Ranger and Ms Baguioro on a monthly basis in proportion to their incomes, Mr. Ranger’s share for 2011 should have been $162.78 per month as s.7 expenses. Therefore, there will be a retroactive variation of the child support for Jacob to reflect these figures starting January 1, 2011.

51Mr. Ranger should, of course, receive credit for the period starting September 1, 2009 for any payments of support that he has made.

52The parties shall in the future make financial disclosure to one another. As well, Mr. Ranger shall notify Ms Baguioro when he obtains employment in accordance with the order of December 9, 2010.

53Mr. Ranger sought reimbursement from Ms Baguioro for the costs of extracurricular activities in which he enrolled Jacob during his access visits. He is not entitled to receive child support for Jacob. Therefore, he is not entitled to receive reimbursement for these costs unless prior to incurring them he and Ms Baguioro had agreed to share in them. On the evidence, there were no such costs that she agreed to share in that she has not paid.

Vexatious Litigant

54The trial management endorsement in this matter shows that one of the issues to be tried is whether the father is a continuous or vexatious litigant. The mother seeks an order that the father be required to obtain permission before making a future motion to change.

55The litigation between these parties to date consists of the original application which was heard by Lane J. That was followed by the father’s motion to change which was heard by MacDougall J. and which resulted in a variation in the access. The order provided that an application for a review could be made. That was followed by the father’s present motion to change. It is unfortunate that so many court attendances were required prior to trial. However, the majority of them are simply part of the regime mandated by the rules for a case to become “trial ready”. There is nothing in the record of any of these proceedings to suggest that the father is a continuous or vexatious litigant, as the meaning of that term has evolved in the case law: see Dyce v. Lyons-Batstone, 2012 ONSC 490 (S.C.J.). The claim by the mother for that finding is therefore dismissed.

Costs

56Each party seeks costs in this proceeding. Costs, if they are ordered, generally follow the event, which means that costs, if they are ordered, generally are not awarded to an unsuccessful litigant, unless the successful litigant’s conduct of the litigation merits censure.

57Ms Baguioro has been substantially successful in these proceedings. She was not represented at trial by counsel and that limits the amount of costs that can be ordered. She was, however, represented by counsel in these proceedings until April 10, 2010. She incurred legal expenses of $6,500. She seeks an order for costs in that amount. Mr. Ranger, the unsuccessful litigant, knew this litigation could result in an award of costs. In his closing submissions he sought an award of $2,500 in costs, which is an indication not only of his knowledge but also of his expectations as an unrepresented litigant. In the circumstances, taking into account the importance of this litigation to the parties, the result, the expectations of the unsuccessful party, the numerous court attendances and what Ms Baguioro incurred in legal expenses which were not inappropriate amounts, I find that an award of costs to her on a partial indemnity basis of $4,000 is merited.

Final Order

58The effect of the litigation between these parties, over time, is that now the custody, access and support arrangements that relate to Jacob are in a number of court orders. Because of that, anyone trying to understand what the existing arrangements are would face considerable difficulties. Therefore, I have decided to re-state all of the provisions that will apply hereafter, including those provisions which reflect this judgment. The judgment to be taken out will contain the following:

(Orders 1–20 reproduced exactly as in the original text.)

M. L. Lack J.

Released: February 27, 2012

OSHAWA COURT FILE NO.: FC-08-378