NEWMARKET COURT FILE NO.: FC-10-36107-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeffrey Schill
Applicant
– and –
Christie Joy Schill
Respondent
Kevin D. Zaldin, for the Applicant
Charles Baker, for the Respondent
HEARD: May 24, 25 and 28, 2012
McDermot J.
Introduction
[1]
Introduction
Jeffrey and Christie Schill, the Applicant and Respondent in this proceeding, separated in May, 2008 after seven years of marriage. They have two children; the eldest is their daughter, Jadyn, who is nine years of age and their younger child, Austin, is seven. To all intents and purposes, their separation appeared to be amicable. The parties came to an agreement between themselves and reduced it to a separation agreement which was drafted by Ms. Schill. She eventually moved out of the home with the children; Mr. Schill had access as provided in the agreement.
2In November, 2008, Jadyn was diagnosed with a rare and serious form of brain tumour. Surgery to remove the tumour followed soon after the diagnosis; Jadyn subsequently underwent an extensive course of chemotherapy and radiotherapy. Ms. Schill left her job and attended to the care of her daughter on a full time basis. Further surgeries have taken place and Jadyn continues to struggle with her cancer.
3Tragedy can either bring people together or render them asunder. In the present case, the latter occurred. The relationship between the parties deteriorated until they ceased to communicate. Mr. Schill’s access ceased for a period of time, and only resumed for Jadyn on a very limited basis after commencement of these proceedings in August, 2010. Jadyn’s medical expenses were not submitted for payment through the Applicant’s extended health care plan at his employer. At a time when the parties needed to focus their attention on Jadyn, they instead engaged in a power struggle which culminated in this trial.
4The major issues in this proceeding involve, as might be expected, Jadyn and the effect of her illness on her custodial and time sharing arrangement. Ms. Schill states that joint custody as set out in the agreement is impossible as there is no communication between the parties. She says that Mr. Schill has been uninterested in Jadyn’s condition from the beginning, and that he still refuses to acknowledge the serious nature of the illness. She wishes access by Mr. Schill to Jadyn to be limited until he demonstrates that he knows how to deal with Jadyn’s illness and her treatment options. She does not feel that Mr. Schill can handle an emergency should it occur. Mr. Schill, on the other hand, says that if he lacks knowledge of Jadyn’s condition, it is the fault of Ms. Schill in failing to speak with him about Jadyn’s illness. Mr. Schill does not understand why he should have to go through any pre-conditions to obtain regularized access to Jadyn; he also wishes Ms. Schill to communicate with him about Jadyn’s illness.
5The Respondent also says that she has expended, over the past four years, some $21,000 in medical costs for Jadyn; as she is not working and has no income, she states that Mr. Schill is fully responsible to reimburse her for the full amount that she has spent. She wishes an ongoing amount for Mr. Schill’s contribution to Jadyn’s medical expenses.
6Prior to commencement of trial, the parties settled all of their equalization issues and base guideline child support. Throughout the trial, they also agreed to certain other orders regarding a number of aspects of access and with regard to the s. 7 expenses. It is perhaps a measure of the abysmal level of communication between these parties that these agreements were in part gleaned during testimony at trial, and were eagerly seized upon by counsel as an order on consent. Neither party was willing to put themselves in a position where they were able to agree on these matters prior to trial or testimony being given. That being said, the following orders were agreed to on consent:
a. Access to Jadyn shall be increased to Tuesdays and Thursdays from 4:00 to 7:00 p.m. when Mr. Schill’s work schedule allows it provided the parties meet for access exchange at the Country Style Donut Shop in Sharon, Ontario (subsumed in access order made by me: see below);
b. The parties will communicate directly between each other through the Family Wizard Program; the Applicant will bear the $100 initialization cost (again, subsumed in order made by me: see below);
c. The Sun Life Insurance Company shall directly pay the Respondent, Christie Schill, mother of Jadyn and Austin Schill, for all lines of benefits including but not limited to extended health care, dependent Life and dental as applicable. The policy of the Applicant, Jeffrey Schill (Honda associate no. 005318) is to maintain the present plan coverage;
d. The Applicant to have additional summer access to Austin as follows:
i. Sunday July 2, 2012 (the completion of Austin’s access weekend) to Friday July 6, 2012;
ii. Friday August 31, 2012 to Monday September 3, 2012
7This trial took approximately two days plus necessary time for submissions. The only witnesses were the parties.
8For the reasons set out below, I have determined the following:
a. Ms. Schill shall have custody of Jadyn and Austin, provided that:
i. Ms. and Mr. Schill shall communicate regarding the children and in particular about Jadyn through the Family Wizard Program;
ii. Ms. Schill shall advise Mr. Schill in writing of any significant changes in Jadyn’s condition and of any treatments that Jadyn will be undergoing for her cancer;
iii. Ms. Schill shall consult with Mr. Schill in respect of any major decision to be made concerning a course of treatment in respect of Jadyn, as well as any other major decision concerning the health, education and welfare of the children;
iv. Apart from her obligation to consult and advise, Ms. Schill shall have sole responsibility for the management of Jadyn’s illness, and shall have final decision making authority respecting any and all treatments for Jadyn’s cancer; and
v. Mr. Schill may directly obtain any information about Jadyn’s medical condition and treatment from any medical professional involved in the care of Jadyn.
b. Mr. Schill shall have access to Jadyn on Tuesdays and Thursdays from 4:00 to 7:00 p.m. when Mr. Schill’s work schedule allows it and on every second Sunday for seven hours from 11:00 a.m. to 6:00 p.m.;
c. Upon Mr. Schill meeting with Dr. Bouffet, Dr. Drake, Dr. LaPerriere, Dr. Mireskandari and Janine Piscione regarding their various aspects of Jadyn’s treatment, and upon those medical professionals confirming in writing to Ms. Schill at Mr. Schill’s expense that they have met with him and discussed with him Jadyn’s condition, treatment options and emergency management, access under the Separation Agreement shall resume for Jadyn except that the visits on Tuesdays and Thursdays when Mr. Schill’s work allows it as above will continue;
d. Mr. Schill shall continue to have access to Austin according to the separation agreement except that he will see Austin on the Tuesdays and the Thursdays that he sees Jadyn as noted above;
e. Pickup and drop off for access shall take place at the Country Style Donut Shop in Sharon, Ontario.
f. Mr. Schill will reimburse Ms. Schill for s. 7 expenses for the children in the amount of $8,377.54.
g. In addition to the base child support payable, Mr. Schill shall pay the sum of $350 per month towards s. 7 medical expenses for Jadyn, subject to the Applicant’s right to an accounting of the use of these funds on an annual basis.
Background Facts
[9]
Background Facts
As can be seen from the above, this is a particularly unfortunate case. Both parties have been deeply affected by their daughter’s illness, and have coped in the best way that they can. Unfortunately, the reactions of both of the parties, and in particular those of Mr. Schill, have resulted in this little girl dealing not only with her very serious illness, but also in her time sharing with her father being restricted; moreover both children have had to manage ever increasing stress levied by the rising tension between their parents.
10These parties had a relatively short marriage; they married on November 10, 2001, and separated in 2008. Mr. and Ms. Schill have two children; Jadyn Schill was born February 10, 2003; Austin’s date of birth was November 4, 2004. Ms. Schill also brought a son from a former marriage into the relationship; Jared Compdon is now 18 and is not in issue in these proceedings.
11Mr. Schill is a production associate at Honda of Canada’s Alliston assembly plant. His income is presently in the range of $69,000 per annum. He works shift work; for two weeks he works days from 6:30 a.m. to 3:30 p.m.; the other two weeks involves working afternoons from 4:30 p.m. to 1:00 a.m.; on Fridays when working afternoons, the shift adjusts slightly to 3:30 p.m. to 12:00 a.m.
12During marriage, Ms. Schill operated a home daycare which allowed her to remain home with the children. When she left the marriage, she returned to work and by 2009, her income was about $15,000 per annum plus the child support under the Agreement.
13Although both parties named the date of separation as being May 27, 2008 which was the date of execution of the Separation Agreement, Ms. Schill’s evidence was that the parties had agreed to separate in February, 2008. Apparently, Mr. Schill left the home briefly but he moved back in, and Ms. Schill eventually left the matrimonial home in July, 2008 when she purchased a townhome which she purchased with her settlement under the Separation Agreement.
14The parties settled their differences without independent legal advice, although there was evidence that the Separation Agreement was prepared by a lawyer retained by Ms. Schill. Although the breakup appeared amicable, there were undercurrents of dissent which have more recently surfaced. For example, the child support under the agreement was below the guideline amount; Ms. Schill says that she was forced to sign the agreement because Mr. Schill bullied her into it. Mr. Schill states that his wife threatened to “bury him” and that she imposed the terms of the Agreement on him.
15The Separation Agreement provided that there would be no spousal support; Ms. Schill abandoned her claim for spousal support made in this proceeding. Ms. Schill agreed to accept the sum of $50,000 for her interest in the matrimonial home which was conveyed to Mr. Schill. Notwithstanding the evidence that there was some legal involvement in the drafting of the Separation Agreement, there were no releases and Ms. Schill requested equalization of property in her application; the equalization issues between the parties were settled prior to commencement of trial.
16The essential terms of the Agreement which are in issue are the custody and access provisions; paragraphs 7 and 8 of the agreement provide as follows:
The Husband and Wife agree that joint legal custody is in the best interests of the children. The Husband and Wife agree that both parents are fit and proper persons to have joint responsibility for the care of the minor children.
The Husband and Wife agree that the husband shall have the following visitation schedule with the children:
Regular visitation schedule: Jeff Schill will have visits every second weekend from Friday night at 5:00pm or Saturday morning at 10:00a.m, depending on his work schedule, to Sunday at 6:00pm. If that weekend is a long weekend, Jeff Schill will have the extra day. Weekday outings will be allowed as long as a phone call is made prior.
Holiday and School Vacation Visitation Schedule: Jeff Schill will have the child every Christmas Eve until 9:00pm when the children will be returned to Christie Schill. Jeff will be allowed access to the children after 3:00pm on Christmas day. Summer vacation time will be allowed and flexible depending on Jeff Schill’s work schedule.
17Under the Agreement, Mr. Schill agreed to pay $700 per month in child support to Ms. Schill. Under paragraphs 11 and 12, the Agreement covered the other major issue in this trial, the children’s uninsured medical expenses:
The Husband will pay a total of $700.00 monthly to the Wife for the children’s uninsured health care costs, and for other extraordinary expenses, such as (sic.) Jeff Schill will pay Christie Schill for the children’s uninsured health care costs, and half of the children’s extra curricular activities.
The Husband will maintain health insurances, including medical and dental coverage, for the benefit of Jadyn Brigitte Schill and Austin Riley Jeffrey Schill.
18Although Mr. Schill has not always submitted claims for Jadyn’s medical expenses under his plan, he has maintained health insurance for the children under paragraph 12 of the Agreement; in fact, Mr. Schill has extended coverage for the children under the Honda Optimum Plan which is the top coverage available. Apparently, this comes at some financial expense to Mr. Schill.
19In early November, 2008, soon after the Agreement was signed, Jadyn was diagnosed in Newmarket with a cancerous brain tumour. She was immediately transferred to the Hospital for Sick Children in Toronto (“Sick Kids”). Jadyn has a rare form of cancer; the formal diagnosis was of a Grade 3 Anaplactic Ependynoma of the Posterior Fossa and 4th Ventricle. Surgery was necessary; it took place almost immediately after the discovery of the tumour on November 13, 2008. Ninety-eight per cent of the tumour was removed, and post-operative recovery involved a stay at Sick Kids for nearly six weeks.
20Subsequent to this, Jadyn was subjected to an aggressive course of both chemotherapy and radiotherapy. She received six weeks of chemotherapy, followed by a number of radiation treatments between January and March, 2009; including radiotherapy after Jadyn’s subsequent surgeries, she has had 92 treatments to date. Each of these treatments involved a trip by Ms. Schill to Princess Margaret Hospital in Toronto. Because of the radiation, Jadyn’s vocal chords were paralyzed for some time, and she required a feeding tube because she could not swallow. Without the feeding tube, she would aspirate. She went through 86 days where she could not take food by mouth.
21On March 13, 2010, during an access visit, Mr. Schill noticed that part of Jadyn’s face was not moving and appeared to be paralyzed. Ms. Schill immediately took Jadyn back to Sick Kids; a further tumour was discovered. Surgery ensued on April 1, 2010; the entire tumour was successfully removed. Further radiation was ordered. She had vision problems and became deaf in her left ear.
22The nightmare did not end there. On August 13, 2011, a further tumour which intruded into Jadyn’s spine was discovered. A six hour surgery took place on December 16, 2011. Further radiotherapy took place. Her spine is affected and portions of the spine are not growing properly which will result in back deformity. She has balance problems and has had to wear a neck brace. She has a port on her right side with a tube running across her chest for chemotherapy purposes. A recent MRI indicates that there are two tumours present and suggests that the cancer will re-occur around April of 2013. Jadyn is on an experimental trial of a drug called Avestin.
23There are numerous medical caregivers on Jadyn’s team; Drs. Bouffet and Bartels are Jadyn’s oncologists and Dr. Campisi is an otolaryngologist, presumably dealing with Jadyn’s problems with her semi-paralyzed larynx. Drs. Jansen and Mabbott are psychologists and Dr. Drake is Jadyn’s neurosurgeon. Dr. LaPerriere is a radiotherapist, and administered Jadyn’s radiation treatments at Princess Margaret Hospital. Dr. Mireskandari is Jadyn’s ophthalmologist, dealing with the damage to Jadyn’s eyes resulting from the radiation treatment. Jadyn also has a physiotherapist, Janine Piscione, who deals with Jadyn’s balance problems. It is apparent that Jadyn’s course of treatment and care is complex and that Jadyn has a number of special needs arising out of her condition.
24It is uncontradicted that Ms. Schill has been primarily responsible for dealing with Jadyn’s treatment plan. Both parties gave evidence that they agreed to this in a meeting with the doctors and it was understood that Mr. Schill had to continue working while Ms. Schill would take care of Jadyn’s needs; it is not clear when this meeting took place. This illness has been at a financial cost to Ms. Schill; she had to quit her job after the second diagnosis in March, 2010, and has not had income since then. She says that she has made 143 trips to Sick Kids for surgery and check ups, 100 trips to Princess Margaret for radiation, and 17 trips to Toronto for physiotherapy. She has been responsible for instructing Jadyn’s doctors and for decisions respecting her treatment and recovery plan. If there is an emergency, she deals with it; this trial was delayed for several days because of a problem that required Ms. Schill take Jadyn to Sick Kids. She has taken Jadyn on three trips to Disney World, two at the expense of Children’s Wish Foundation, and one at her own expense. She has also recently taken Jadyn to Jamaica. She says that she is never away from Jaden for more than four hours; Jadyn does not go to school for more than three hours per day.
25Until the diagnosis, the parties’ relationship appears to have been positive; both Applicant and Respondent agreed that Mr. Schill had almost every weekend with the children during the summer after separation.
26Both parties also agree that communication deteriorated substantially after Jadyn’s diagnosis. However, they depart substantially as to who was responsible for that deterioration.
27Mr. Schill states that he had the boys (presumably Austin and Jared) for much of the time after the diagnosis, while Ms. Schill went to Sick Kids with Jadyn. He says that he took a month off to be with the boys and to help. On February 28, 2009, he attended at a fundraiser which raised $10,000 for Jadyn’s care, which was paid to Ms. Schill. He raised $1,900 through Honda employees, again for Jadyn’s care; those funds were again paid to Ms. Schill.
28He says that he continued to have his overnight access to both children under the Separation Agreement and that the parties worked well together until April, 2010, when Ms. Schill rented out her townhouse, and moved in with her present partner, Andre Chaisson. Mr. Schill states that after Father’s Day in 2010, Ms. Schill refused access to the children; he did not see either child for the entire summer. When he ceased seeing the children, he stopped paying child support. He only obtained access to the children after commencing these proceedings in late August, 2010. He states that Ms. Schill refused to communicate with him after that and that all communication comes through Mr. Chaisson. Mr. Schill states that the doctors refuse to talk to him, and that he cannot obtain any information about Jadyn’s condition from the Respondent who also refuses to talk to him.
29Ms. Schill denies that she withheld access. She states that after Father’s Day, 2010, Mr. Schill moved and did not provide her with an address where he was living. He did not request access that summer and did not advise her where she could drop the children off. She says that she was unable to contact Mr. Schill and that it was only after he obtained counsel that she was able to negotiate appropriate access between the parties.
30As noted, the Applicant had to go to court to obtain access to the children. Under the consent interim order of Graham J. dated September 24, 2010, Austin returned to the access regime set out in the Separation Agreement. In addition, Mr. Schill was given mid-week access to Austin on Tuesdays from 4:00 p.m. to 7:00 p.m.
31For Jadyn, however, access was not regularized. Ms. Schill was not willing to trust Mr. Schill to have Jadyn overnight. Under the Graham J. order, Mr. Schill was to have access to Jadyn only on alternate Sundays from 3:00 p.m. to 7:00 p.m. The order states that Mr. Schill was to “take a program with the Hospital for Sick Children” and that the access to Jadyn would be “reviewed upon completion of the program.”
32Mr. Schill never took that program. There was some debate as to who was to blame for this; Mr. Schill provided in evidence correspondence from Sick Kids indicating that “no such parenting program exists at the Hospital for Sick Children.” Mr. Baker on behalf of the Respondent noted, however, that the Minutes upon which this order was based was drafted by Applicant’s counsel and that any ambiguity in the wording is the Respondent’s responsibility. Mr. Baker stated that the intent of the clause was to cause Mr. Schill to educate himself about Jadyn’s illness and to satisfy Ms. Schill of this; Mr. Schill has done neither. Ms. Schill noted in evidence that there are a number of courses at Sick Kids respecting treatment of juvenile cancer patients or emergency treatment, such as courses on feeding tubes and CPR.
33However, Mr. Schill interpreted this paragraph as an unreasonable barrier to his resumption of overnight access to his daughter. He stated in evidence that he sees no reason why he should not immediately have regularized access to Jadyn. He states that his daughter is “not fragile” and although he has to take care, he is able to do normal childhood things with his daughter such as put her on a swing or a bicycle, so long as he is there to ensure that she does not fall.
34He also says that he has been excluded from his daughter’s treatment. He states that Ms. Schill insists upon meeting with the doctors in a separate room from him. He has gone to Sick Kids for scheduled appointments only to find out that they have been cancelled. He notes that during the last surgery, his wife and Mr. Chaisson initially had stated that they should go in to see Jayden just prior to Jadyn being prepared for surgery rather than himself. He called that situation a “nightmare.” He suspects that his role as a father to Jadyn is being usurped by Ms. Schill’s new partner, and that this is the intent behind her actions. When asked who was to blame for the failure to communicate, Mr. Schill stated that it was “100 %” Ms. Schill’s fault.
35Ms. Schill confirms that it has been a nightmare, but she disagrees with the responsibility for the difficulties between the parties. She states that almost immediately after Jadyn’s diagnosis, Mr. Schill became increasingly difficult to deal with. Eventually, she says that communication became impossible, resulting in her partner, Mr. Chaisson, having to deal with Mr. Schill.
36She states that her husband’s response to Jadyn’s illness has been to lash out at her. She states that when she initially told Mr. Schill about the diagnosis, he screamed at her. In December, 2009, she asked Mr. Schill about payment of guideline support; she said that he slammed out of the home and told her to take him to court. Things became worse after the discovery of the second tumour; on March 16, 2010, when picking up the children after access, she asked him about purchasing a bicycle for Jadyn; she states that he became enraged, and he physically pushed her out of the home. She says that she was pleading with him to stop; the children witnessed this incident and were extremely upset. She called the police but they said that in the absence of an assault, they could do nothing.
37She also states that Mr. Schill has little or no interest in Jadyn’s condition. She notes that he does not even know the name of the condition; he was unable to recite it in cross-examination. He is unclear as to the number of chemotherapy or radiation treatments that Jadyn has had. Ms. Schill states that her husband has shown little interest in attending at Sick Kid’s for appointments and that he refuses to speak with Jadyn’s doctors. She denies that they refuse to talk to him; they have always made themselves available to her and would make themselves available to him. She says that Mr. Schill is in denial about the illness, and because of his volatility, she refuses to speak with him directly.
38She also outlines a number of incidents which have caused her to become increasingly concerned about the Applicant’s ability to deal with Jayden. These incidents are as follows:
a. During an access visit, on January 27, 2009, Mr. Schill failed to properly supervise Austin, who pulled Jadyn’s feeding tube out. The feeding tube was two feet long. Ms. Schill had to take Jadyn to Sick Kids and it took 14 hours before it could be replaced. At the time, Jadyn’s vocal chords were paralyzed, and she could not eat solid food because of the possibility of aspiration. As a result, Jadyn became dehydrated and could not take food or liquids during that 14 hour period.
b. On another occasion, Jadyn’s lumbar puncture from her spine began to weep during one of Mr. Schill’s four hour visits. He did not say anything about this to Mr. Chaisson when he came to pick up Jadyn; only when she arrived home did Ms. Schill notice that the lumbar puncture was weeping. Jadyn had to go to the hospital; Ms. Schill states that if the puncture had allowed Jadyn’s spinal fluid to leak out, she could have become paralyzed. In evidence, Mr. Schill described it as a small cut which was insignificant.
c. In March, 2011, Mr. Schill allowed Jadyn to swing on a tire swing attached to a tree outside his home. Ms. Schill states that this was extremely dangerous; Jadyn has a tube running across her chest in front of her heart, and if she had fallen off of the swing, that tube could pierce her heart causing death.
d. On another occasion, Mr. Schill allowed Jadyn to go swimming soon after her eye surgery; she was wearing a patch which became soaked. Ms. Schill states that this endangered Jadyn’s sight in that eye, which is already impaired by the tumour and the resultant radiotherapy. Ms. Schill states that she e-mailed Mr. Schill about not allowing the eye to get wet; he responded that he will do what he wants.
e. Recently, Mr. Schill allowed Jadyn onto the ice on Lake Simcoe; although this was dangerous considering the ice conditions last winter, it is particularly dangerous for Jadyn who has balance issues.
f. Several weeks prior to trial, Mr. Schill allowed Jadyn to get onto a bicycle. Although Mr. Schill states that he was beside her and in control of the situation, Ms. Schill has spoken with the physiotherapists who have stated that Jadyn cannot ride a bicycle. There is no evidence that Mr. Schill was told about this restriction.
39All of these have culminated in the order restricting access to Jadyn for four hours at a time. Ms. Schill is terrified that Mr. Schill will not know what to do in an emergency, or will not recognize an emergency situation, such as that of the lumbar puncture. She states that she does not believe overnight access to be safe until Mr. Schill has arranged to educate himself about Jadyn’s very unique situation.
40In addition, the lack of communication has also resulted in a failure to agree on payment of Jadyn’s expenses. The parties differ fundamentally on this issue. Mr. Schill has acknowledged that he owes something toward Jadyn’s medical expenses, but that Ms. Schill has failed to provide any of the receipts to him and accordingly, he cannot now submit these expenses to his medical and dental plan. Had she provided the receipts, he would have provided them to his plan. He says that it is her responsibility to arrange for payment of these expenses from his plan, and to provide him with original receipts. Ms. Schill, on her part, states that she provided copies of the receipts to him, and that he never reimbursed her for her expenses. She states that she had to quit work and has undergone significant financial hardship. She claims for some $21,000 in expenses from Mr. Schill, including travel costs, medical expenses related to Jadyn’s treatment and dental expenses. She also requests ongoing contributions on a monthly basis for section 7 expenses.
Analysis
[41]
Analysis
The issues before me are as follows:
a. What custodial and time sharing arrangement is in the best interests of Jadyn and Austin?
b. What contribution does Mr. Schill owe to Ms. Schill for past medical expenses of the children under s. 7 of the Child Support Guidelines1?
c. What is Mr. Schill’s ongoing obligation to pay s. 7 expenses?
42I will deal with each of these issues in turn.
(a) What custodial and time sharing arrangement is in the best interests of Jadyn and Austin?
[43]
What custodial and time sharing arrangement is in the best interests of Jadyn and Austin?
Other than the incidents noted above, there was no evidence that the children suffered or were in any way harmed through their contact with Mr. Schill. Both parties agreed that the children loved their father and enjoyed the visits that they had with him. No suggestion was made that the children should spend less time with Mr. Schill because of his treatment of the children or because he did not spend quality time with them. To the contrary, both parties confirmed that he was a loving and involved father. Both parties confirmed that the children loved their father and enjoyed their time with him. Apart from the communication difficulties between the parties and apart from the special needs arising from Jadyn’s illness, there would be no issue of reducing Mr. Schill’s time with these children.
44There are a number of issues to be considered. These include whether the court should affirm the joint custody arrangement set out in the Separation Agreement, the time sharing arrangement for Austin, and the time sharing arrangement for Jadyn.
(i) Sole custody or joint custody?
[45]
Sole custody or joint custody?
The Separation Agreement states that “joint legal custody is in the best interests of the children” and that both of these parents are “are fit and proper persons to have joint responsibility for the care of” Jadyn and Austin.
46That clause is intended as both an agreement as to the custodial relationship as well as a statement of fact. The clause recites that the parties agree to joint custody; the basis for that agreement is the second part of that clause which states that the parties are capable of carrying out their joint responsibility to care for Jadyn and Austin. Unfortunately, the parties have not been able to demonstrate that they are able to jointly parent these children. The evidence shows that these parties are not “fit and proper persons” to maintain a joint custodial relationship due to the fact that the parties are simply unable to communicate or to cooperate with one another on a reasonable basis.
47Mr. Schill states that there is a simple solution to this problem. He states the basis of all of the problems that the parties have had is that Ms. Schill refuses to reasonably communicate with him. He says that the parties could maintain a joint custodial relationship if Ms. Schill were only willing to speak with him. He notes that all of the communication comes through Andre Chaisson and that even e-mails from Ms. Schill come through Mr. Chaisson’s e-mail account. Surprisingly enough, Mr. Schill submits that he bears absolutely no responsibility for the problems in communication; as noted, he stated in cross-examination that Ms. Schill bore 100% of the blame for the failure to communicate.
48Unfortunately, in stating this, Mr. Schill indicates not only a lack of insight into the problem; his position also makes for a poor prognosis for future communication between these parties. It is unquestioned that there are severe communication difficulties between these parents. Most often, difficulties between separated parents lie in the psychopathology connected to the relationship between the parties; in the present case, this strained relationship was exacerbated by Jadyn’s very serious illness. Usually, to one extent or another, the blame lies with both. If a party takes no responsibility whatsoever for the difficulties in jointly parenting children or in his or her communication with the other party, it is unlikely that a cure lies through exhortations to that party to deal with their part of the problem.
49Moreover, contrary to his viewpoint, it is apparent to me that most of the responsibility for the communication difficulties lies, in fact, with Mr. Schill. I say this because the evidence submitted by the Respondent, while concerning at times, is the more credible version of events provided to me at trial.
50Firstly, I found Mr. Schill to be a problematic witness. For example, he stated in evidence that one reason he wished Ms. Schill to speak with him was because Jadyn’s doctors refused to talk to him; he did not, however, provide a credible explanation as to why they so refused. I have to conclude that they either refused for good reason, such as harassment or badgering from Mr. Schill, or alternatively because he made no serious effort to contact or speak with the doctors. As pointed out by Ms. Schill, these doctors were compassionate individuals only too happy to provide information to both parents as to their daughter’s illness and Mr. Schill did not offer any evidence to the contrary. He provided no incidents where he had specifically tried to make contact with the physicians involved in Jadyn’s treatment or had been rebuffed. He made the statement, in my view, so that he could blame his wife for his failure to follow up on the details of Jadyn’s illness and force her to communicate with him. It appears, as stated by Mr. Baker, to be an issue of control.
51Mr. Schill was, as well, unable to provide a coherent reason why Ms. Schill failed to communicate to him. He blamed her new relationship, and stated that the intent was to cut him out of parenting Jadyn and Austin; that however was not borne out by the evidence. As noted above, Ms. Schill eagerly testified that the children both loved their father and going to their father’s. The position of Mr. Schill was belied by the fact that Ms. Schill offered to provide overnight access as soon as Mr. Schill had spoken with Jadyn’s doctors and obtained meaningful information about her condition.
52In short, I find that Ms. Schill’s evidence as to the reasons for the parties’ communication difficulties more credible than those of Mr. Schill. She admitted that she made a decision to cease speaking with Mr. Schill, especially after the March 16, 2010 incident, when Mr. Schill pushed her out of the home in front of the children. She stated that she did this for good reason; she did it because Mr. Schill had become an unsafe individual to speak to. She elected to delegate the job of communication to the only person available to her, which was her partner, Andre Chaisson.
53In my observation of Mr. Schill in cross examination, Ms. Schill’s evidence was borne out. I found Mr. Schill to be emotionally labile and unpredictable. In his evidence he was both evasive, and he refused to take responsibility for his own actions. For example, he blamed his wife for his own failure to pay child support or to reimburse her for section 7 expenses, a position that I found demonstrated personal vindictiveness and control issues, rather than a reasonable explanation for a chain of events.
54I finally must highlight the fact that Ms. Schill was dealing with a complex and extremely painful situation in dealing with her daughter’s recurring cancer. Mr. Schill was unable to acknowledge in any way how difficult it would be for Ms. Schill to confront her daughter’s juvenile cancer and the toxic results of treatment. To expect perfection from Ms. Schill during that very painful process is at best, surprising and, at worse both selfish and unfeeling.
55Where effective communication and cooperation proves to be impossible, the rule is that joint custody is inappropriate and should not be ordered: see Johnson v. Cleroux, [200] O.J. No. 1801 (C.A.) and Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275 (C.A.). Accordingly, I believe that it is in the children’s best interests to name a custodial parent, and the person I choose is the individual who has been responsible throughout, being Ms. Schill. She is to have custody of the children. Pursuant to the consent arrived at during questioning, I am going to order that Ms. Schill communicate through the Family Wizard Program and advise and consult to all medical issues concerning Jadyn. As agreed, Mr. Schill to pay the registration fee of $100 for the Family Wizard Program.
56I am also going to ensure in my order that Mr. Schill is, on an ongoing basis, provided with information and will be consulted respecting Jadyn’s illness. However, in such an important issue as this child’s very serious illness, I do not wish treatment options to be subject to a deadlock or serious disagreement between the parties. This has not been the case to date, and Ms. Schill has always made decisions respecting Jadyn’s treatment; my order will, however, confirm that right.
57Finally, to clarify matters, I am going to specifically order that Mr. Schill have the right to obtain all medical information about Jadyn from any of the medical professionals dealing with Jadyn.
(ii) Time Sharing for Austin
[58]
Time Sharing for Austin
Mr. Schill asked for an increase in his time with Austin beyond the time sharing set out in the Separation Agreement. He suggested that the Agreement be varied to allow for access on a two week about basis; he would have Austin during the period of time that he works days and his mother, who lives with him, would transport Austin to his present school.
59Mr. Baker correctly pointed out that Mr. Schill’s pleadings do not support such a request. His claim in his application is for “access as per paragraph 9 of the Separation Agreement.” The claim for shared custody is only in the alternative, and Mr. Schill already has access to Austin in accordance with the Separation Agreement.
60Moreover, it would be in neither child’s best interests to provide for a different time sharing arrangement for Austin than that of Jadyn. Assuming we move toward overnight access to Jadyn as in the Separation Agreement as requested by Mr. Schill, he would have to demonstrate why it would be in Austin’s best interests to have a different time sharing arrangement than that of his sister; this he has not done. There is no good reason why custody of these children should be split.
61To the intent of keeping the children together, however, I am going to give Austin the same mid week time sharing as offered for Jadyn, which is Tuesdays and Thursdays for three hours each visit from 7:00 to 10:00 p.m. when Mr. Schill works days. It is in Austin’s best interests that he join his sister for those visits.
(iii) Time Sharing for Jadyn
[62]
Time Sharing for Jadyn
The evidence of the Respondent is that Jadyn’s condition is precarious. This poor little girl has had the worst of it in the past four years. She has back issues, hearing and seeing problems and a paralyzed larynx. She has been wearing a neck brace and has an eye patch. She has balance issues. There is a lumbar tear which has opened up once; there are issues concerning her eye being exposed to water; she apparently has to wear goggles or a mask in the shower. If someone caring for Jadyn made a mistake, the consequences could be serious.
63It is apparent from the evidence that care for Jadyn would be complicated for anyone undertaking that role. In the normal course, the ideal would be for a potential caregiver to live several days of Jadyn’s life with the Respondent, who has had to deal with all of these issues on an ongoing basis and knows what Jadyn needs. She is obviously the best person to provide information regarding Jadyn and the care she needs.
64That is one of the points made by the Applicant. He states that if only the Respondent would speak with him on a reasonable basis, he would find out all that he needed to know about Jadyn’s care. He would then, very quickly, be in a position to graduate to overnight access.
65That is, however, Mr. Schill’s fallback position. In fact, Mr. Schill testified that he did not see any reason why he should not have overnight access to Jadyn immediately. He pointed out that the Respondent had taken the child to Jamaica, where the hospitals would not be able to provide front line care if there was an emergency involving Jadyn. He notes that Jadyn had been to Disney World on several occasions, again far from her medical caregivers. He states that it does not lie in the Respondent’s mouth to state that he should not have overnight access when she travels with the child to places far from the caregivers that Jadyn would need in the case of an emergency.
66It was the evidence of Ms. Schill that regarding the trip to Jamaica, she had arranged for an appointment the morning of departure with Jayden’s neurosurgeon as well as Dr. Bouffet; they both gave the go-ahead for Jadyn to fly to Jamaica. She stated that had an emergency occurred, she would have called her oncologist and gotten Jadyn on the first plane home. There is no doubt that Ms. Schill can adequately care for Jadyn; Mr. Schill does not allege that Ms. Schill would not know how to deal with a problem arising from Jadyn’s condition and he wishes for nothing more, in fact, that Ms. Schill communicate with him as to how to deal with Jadyn’s needs.
67The real concern is that, considering Jadyn’s condition and the allegations made by the Respondent, it was important for the Applicant in advocating for regularized access to demonstrate that he would be able to recognize a potential problem with Jadyn and to deal with that problem as appropriate. He chose not to do so. Although he was aware of the surgeries that his daughter had undergone, her basic issues with hearing, seeing and with her back and her chemotherapy and radiotherapy, he did not demonstrate that he knew the details of the illness or what Jadyn’s specific vulnerabilities are. He did not know the name of the cancer (which, considering its complexity is understandable). He did not lead evidence of his own knowledge of Jadyn’s doctors or who was responsible for what. All that he said was that, if there was a problem, he would contact Sick Kids immediately.
68And this leads me to the problem with the Applicant’s claim that it is the duty of Ms. Schill to approach him and educate him as to Jadyn’s illness. Mr. Schill asserted in cross examination that he would not call his wife in the case of an emergency; he would make a call to Sick Kids and transport Jadyn to the hospital immediately. This when the knowledge of whether there might be an emergency or not is admittedly solely in the hands of the Respondent. In stating that he could deal with problems involving Jadyn, Mr. Schill simply stated “I can take her to the hospital”; he posited that he could deal with any problem concerning his daughter without Ms. Schill’s assistance instead of acknowledging that he should immediately contact her about a problem respecting Jadyn’s health. The issue of Ms. Schill’s ability to educate Mr. Schill about Jadyn’s cancer was put paid to by the incident where Ms. Schill telephoned Mr. Schill to tell him not to allow Jadyn’s eye to be exposed to water; his response was that he would do what he wanted.
69This is combined with the concerning incidents during access visits as noted above. Jadyn’s feeding tube was removed by Austin during an overnight access visit; it took 14 hours to replace. Mr. Schill allowed Jadyn to go on a swing; he did not recite in cross examination that he was aware of the tube through Jadyn’s chest but had simply decided that she was safe. He allowed her to swim with her eye patch on. I cannot make a judgment as to whether these actions put Jadyn into danger; it does appear to me that the Respondent did not understand the risks for Jadyn arising out of a child’s everyday activities. Mr. Schill himself stated that, although he knew that the disease was “deadly”, he did not want to believe that, and preferred to believe in a positive prognosis. I can completely understand that a parent may find it too painful to acknowledge the truth of their child’s very poor prognosis, but my concern is the ability of Mr. Schill to properly deal with Jadyn’s illness when in his care for an extended period of time.
70It is also clear to me that Ms. Schill is not the person to educate Mr. Schill about the specifics of her daughter’s condition or her needs during access visits. There is evidence that I have accepted which indicates that communication between the parties is abysmal and that meetings between the parties would be unproductive. Moreover, there is evidence that Mr. Schill would pay no attention to her exhortations to do or not to do certain things; it was my impression during his evidence that there was a fundamental difference between the parties as to what was and was not appropriate for Jadyn. Mr. Schill stated that she was ill but “not fragile”; however, Ms. Schill’s evidence was that Jadyn was, indeed, fragile, and not able to do the things that normal children can do. Mr. Schill called the tear in the lumbar puncture a small cut; Ms. Schill emphasized the serious nature of a problem with the lumbar puncture, something Mr. Schill did not seem to be aware of. It was apparent that Jadyn does not need more trips to Sick Kids than she already needs and that the intent of any order would be to lessen the frequency of those visits. This would not be achieved by Ms. Schill attempting to educate Mr. Schill about his daughter’s illness as I am not convinced that he would listen to her.
71Ms. Schill suggested that, prior to the reinstatement of overnight access, that Mr. Schill speak with certain medical professionals who have been responsible for Jadyn’s treatment. The suggested doctors are Dr. Bouffet, Dr. Drake, Dr. LaPerriere and Dr. Mireskandari, who are respectively Jadyn’s responsible oncologist, neurosurgeon, radiotherapist and ophalmologist. Ms. Schill’s suggestion is reasonable and that will be so ordered. Ms. Schill has also suggested a meeting with the physiotherapist respecting Jadyn’s balance problems; although she is not a medical doctor, again Mr. Schill should be educated regarding Jadyn’s balance as there was some controversy as to whether she should have been allowed on the lake ice last winter, and recently on a bicycle.
72Accordingly, Mr. Schill will have to arrange to meet with all of these medical professionals in order to educate himself as to Jadyn’s present medical condition, her present treatments, the risks associated with those treatments and emergency management for her illness and recovery. Once he has done this and they have confirmed in writing (at Mr. Schill’s expense) that he has met with them and discussed those issues with them, access for Mr. Schill to Jadyn will resume under the Separation Agreement.
73This is subject to the two midweek visits (Tuesdays and Thursdays when Mr. Schill is working days) which Ms. Schill offered during testimony. That is to commence forthwith upon Mr. Schill providing her with his work schedule and will continue so long as Mr. Schill continues to provide his work schedule to Ms. Schill upon receipt.
74I am, in the meantime, going to increase Mr. Schill’s Sunday access right now. Although Ms. Schill states that she never allows Jadyn out of her care for more than four hours, I believe it is in Jadyn’s best interests that Mr. Schill have access to Jadyn for at least a full day every second Sunday. It is correct that Ms. Schill took Jadyn to Jamaica; both parties acknowledged that they would not trust hospitals in that country and it would have taken at least a day to return her to treatment in Canada were a problem to occur. Other than the feeding tube and the weeping from the lumbar region (which was not alleged to have been caused by Mr. Schill), there have been no serious problems which have occurred during access visits. It is common ground that Jadyn enjoys her time with Mr. Schill. Accordingly, the bi-weekly Sunday access is increased to seven hours, from 11:00 a.m. to 6:00 p.m.
(b) What contribution does Mr. Schill owe to Ms. Schill for past medical expenses of the children under s. 7 of the Child Support Guidelines?
[75]
What contribution does Mr. Schill owe to Ms. Schill for past medical expenses of the children under s. 7 of the Child Support Guidelines?
In this proceeding, the Respondent claims $21,395.80 in medical and dental expenses to be reimbursed by the Applicant. This is the full amount of expenses claimed less reimbursements actually received from the Pediatric Oncology Group of Ontario (“POGO”), the Canadian Cancer Society as well as various fundraisers and one anonymous donation. The Respondent claims full reimbursement for these net expenses as she says that she does not acknowledge receiving any income during this time as she left her employment in 2010 and did not receive any employment insurance because she quit. The Respondent also does not include about $10,000 received from a 2009 fundraiser; she states that she lived on these funds as she did not have income from her employment as noted above.
76My jurisdiction to order reimbursement of the various expenses claimed lies under s. 7(1) of the Child Support Guidelines, which reads as follows:
- (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
77Expenses are to be shared in proportion to the parties’ respective incomes; if the Respondent did not have income, then the Applicant would be responsible for 100% of the expense: see s. 7(2) of the Guidelines.
78Most of the expenses claimed by the Respondent derive from Jadyn’s illness and have been incurred over the past four years since diagnosis. These expenses include claims for mileage, parking, hotel accommodation and medical equipment and appliances for Jadyn. There were also claims for dental costs of both children as well unreimbursed portions of drug costs for Jadyn.
79Many of these expenses were covered under Mr. Schill’s plan available through his employment. Most were not submitted to the plan, and are now not claimable due to the expiry of the time limits for submitting those expenses. Mr. Schill states that the receipts, or at least the original receipts, were not provided to him; Ms. Schill states that she provided copies of all of the receipts to no avail. Mr. Schill does acknowledge having submitted some expenses to his plan, but he never reimbursed Ms. Schill for those expenses because she would not “communicate” with him.
80There were also fundraisers held and subsidies available. By inadvertence the Respondent did not claim for the subsidies until March, 2010; the Applicant wishes the Respondent to be penalized for this. The parties also differ on whether about $10,000 received from a fundraiser should be deducted from the amount which was claimed.
81There are, accordingly, a number of issues under this heading. I firstly must determine what expenses are and are not chargeable; for example the Respondent claims mileage costs which are disputed by the Respondent. Next I must determine the deductions to be taken from those various amounts; certain subsidies were available to the Respondent which were not taken up on a timely basis and the Applicant claims deductions for expenses which might have been reimbursed under his plan. Finally, the incomes of the Applicant and the Respondent must be fixed; the Respondent declared a capital gain from the sale of her home and as well received close to $10,000 from a benefit on which she says she lived for some period of time.
(i) Mileage and Parking Charges
[82]
Mileage and Parking Charges
A list of the expenses claimed by the Respondent can be found at Tab 13 of the Respondent’s Exhibit Book; the Applicant acknowledges that most of the expenses are properly chargeable, although he wishes to argue “imputed deductions” to certain of the equipment and medical expenses as discussed below. The major expense that the Applicant takes exception to is the mileage charges to and from the Respondent’s residence to Sick Kids, Princess Margaret and physiotherapy.
83As may be obvious, Ms. Schill has had to make numerous trips to Toronto with Jayden. She says that she has made 143 round trips to Sick Kids, 100 round trips to Princess Margaret Hospital for radiotherapy and 17 separate round trips for physiotherapy. She stated in evidence that these trips totaled 35,360 kilometers; at .52 per kilometer, this results in a claim for mileage of $18,387.20. The claim for mileage is the single most expensive claim made by the Respondent.
84The Respondent testified that she obtained the .52 figure per kilometer from the website for the Canadian Institutes of Health Research, which is a federal agency and which reimburses its drivers at that rate in Ontario. She also testified that she has fuel expenses which total about $80 per tank of gas; she gets 2 ½ one way trips per tank of gas.
85The Applicant states that the Applicant’s claim for mileage is improper and that the expense must be proven. Mr. Zaldin stated in argument that the only amount chargeable by the Respondent should be the amount actually proven by her, which were her fuel expenses. He states that the Respondent did not prove any other vehicular expense or that there was wear and tear on her car. He states that the cost of the trips which can be claimed should be limited to $32 per round trip based upon the fuel expenses only (not the $70.72 charged based upon mileage for the 136 kilometer round trip).
86There is no issue that the numerous trips to Toronto were necessary for the treatment of this child’s cancer. In fact, Mr. Schill took no issue with then necessity of the round trips taken to the hospitals or chemotherapy; he only takes exception to the expenses. Expenses for travel are a legitimate s. 7 expense, albeit an unusual claim: see Converti v. Escobedo, 2011 627 (Ont. C.J.). These are, however, unusual circumstances as this is a very sick little girl who has undoubtedly required numerous treatments for a very aggressive cancer.
87As well, there is little doubt that I may take judicial notice of the fact that there are additional expenses to the operation of a vehicle beyond fuel expenses. That a vehicle costs more than the fuel costs alone is a well known matter within the realm of general public knowledge. That is the exact reason for a mileage reimbursement such as is done by the Canadian Institutes of Health Research; that agency as well as others recognizes that use of a vehicle attracts additional charges to that of fuel, including increased maintenance and insurance costs.
88I do not find that the mileage claim made by the Respondent is unreasonable. She should be reimbursed for the other expenses of her vehicle beyond fuel costs alone. She has spent hours in her vehicle ferrying Jadyn to her very necessary medical appointments and she should not be shortchanged for doing so. I find that the amount claimed for mileage by the Applicant in the amount of $18,387.20 to be a reasonable amount for the expenses of her vehicle resulting from mileage of in excess of 35,000 kilometers.
(ii) POGO and Canadian Cancer Society Subsidies
[89]
POGO and Canadian Cancer Society Subsidies
The Applicant has claimed, in addition to the mileage noted above, parking costs of $3,511.88. Receipts were provided; no exception was taken by Mr. Schill to the costs claimed for parking.
90As well, Ms. Schill has had to stay at hotels in Toronto when the weather was too bad for her to return to her home with Jadyn, or where her treatment required such an early start that it was impractical to drive Jadyn to Toronto in the morning. Ronald McDonald House was not an option; that facility is limited to persons who reside far from Toronto or whose children required a lengthy stay at Sick Kids. Again, there was little issue taken with the cost of the hotel stays.
91However, there were certain subsidies available. Firstly, there was a travel subsidy available through POGO; that group paid a parental attendance subsidy of $7.50 per day for attendance at medical treatments. Moreover, the Canadian Cancer Society paid an escort cost of $18.50 per trip. Accordingly, for each round trip, POGO and the Canadian Cancer Society paid a total of $26 per round trip. Jadyn had 260 round trips to Toronto; accordingly, had this been properly paid for, Ms. Schill would have been able to claim $6,760 as a deduction from both the parking and mileage costs.
92Finally, were it necessary for Ms. Schill to stay overnight in Toronto for treatments for Jadyn, and Ms. Schill stayed at the Westin Hotel, POGO had a number of rooms reserved at no charge as necessary. Again, had the subsidy been claimed, Ms. Schill would have had a total subsidy for the costs of the hotel rooms leaving only the charges of $560 for valet parking, which was acknowledged to be a necessary charge.
93Unfortunately, Ms. Schill only discovered these subsidies in March, 2010. By the time that she had discovered POGO and the Canadian Cancer Society reimbursement, she had already incurred mileage and parking for 43 round trips to and from Toronto; had she properly claimed from POGO and the Society, she would have saved an additional $1,118. Ms. Schill also incurred hotel charges of $1,024.65 which she would have been able to claim against POGO (again excluding the valet parking charges).
94Mr. Zaldin states that his client should not be requested to bear any of these costs. He says that his client should not be responsible for Ms. Schill’s negligence in finding out about theses subsidies. He notes that she very effectively found a website showing the mileage charges and should have also been able to find out about any applicable subsidies. He notes that if there is a subsidy available, that should be deducted whether or not the claimant takes advantage of that subsidy or not: Kapell v. Richter, [1997] S.J. No. 796 (Q.B.) at para. 17.
95Ms. Schill states that she did not find out about POGO or the Canadian Cancer Society because of erroneous information received from a social worker at Sick Kids. She states that she asked about subsidies early on and was told that none were available. It was only later when she was assigned another social worker that she was told of these subsidies. She states that if there was negligence, it was not hers; it was the social worker who had a duty to provide the proper advice to her regarding available subsidies.
96This is distinguishable from the Kapell v. Richter, which spoke of whether a deduction should have been taken for day care costs on the claimant’s income tax return, something which is common knowledge. In the present case, as stated above, Ms. Schill was facing a complicated course of treatment with a number of different doctors, therapists and caregivers. To not immediately become aware of an available subsidy is entirely understandable under the circumstances, especially where she was given misinformation regarding those subsidies by the social worker at Sick Kids hospital. In the normal course, these costs are “collateral damage” to the illness and would normally be written off as yet another negative experience during a difficult time. Mr. Schill certainly provided no assistance in dealing with Jadyn’s treatment or the costs of that treatment.
97Accordingly, I do not find it appropriate to deduct the amounts for the lost subsidies for travel and for hotel costs as claimed by the Applicant and noted above.
(iii) What should have been claimed from the Applicant’s medical and dental plan?
[98]
What should have been claimed from the Applicant’s medical and dental plan?
There were a number of claims for dental expenses for both of the children as well as for medical equipment and supplies purchased by Ms. Schill for Jadyn. The costs included the costs of a hearing aid, for a walker, for bars in the bathroom so that Jadyn could take a shower and for glasses. Some of the costs were for normal dental care and some were for the fact that Jadyn had damage to her mouth resulting from the radiotherapy. These expenses totaled $6,296.31.
99Many, if not all, of these costs were reimbursable from Mr. Schill’s medical and dental plan. According to Mr. Zaldin, all but $1,479.64 would have been paid had claims been made against Mr. Schill’s plan.
100There is a major conflict on the evidence as to why these claims were not made within the time limits set out in the plan. Mr. Schill initially stated that he never received the receipts by which most of these claims were made. Ms. Schill, on the other hand, stated that she sent all of the receipts to him; she suspects that he made the claims but kept the money.
101Unfortunately, again I have to find that Mr. Schill has little or no credibility in respect of this issue. His evidence was inconsistent throughout. He initially stated in cross examination that he had only received two receipts from Ms. Schill. Later, he stated that he received more, but only submitted two receipts. He later provided a file folder which contained a number of receipts that he received; he blamed Ms. Schill for not providing the original receipts (as opposed to photocopies) in order to make the claims. He did not state that he had ever requested those original receipts; his position was apparently that she should have known to do this. He admitted to keeping two payments for dental costs; he blamed Ms. Schill for not arranging for payment of the funds to herself or for arranging that with his insurer.
102I find that Ms. Schill did submit the receipts to Mr. Schill on a timely basis and that he was responsible, as the insured under his policy, to submit the receipts to his plan. As noted above, although the failure to arrange for reimbursement results from the failure of the parties to communicate, I have also found Mr. Schill to be largely responsible for this failure to communicate.
103The amount for these expenses is properly chargeable under s. 7 of the Child Support Guidelines without deduction.
(iv) Application of Benefit Funds
[104]
Application of Benefit Funds
On February 28, 2009, the community held a benefit dance for Jadyn. The sum of $10,000 was raised and paid to the Respondent.
105The Respondent states that she used these funds to live on. She notes that she had to leave her employment due to Jadyn’s illness and that she was unable to obtain Employment Insurance as a result of the fact that she voluntarily left that employment. She says that she was without income, and that she used the funds from the benefit to keep a roof over her head and the heads of Jadyn and Austin. She notes that she received no assistance from the Applicant throughout that time other than the child support payable under the Separation Agreement.
106The Applicant states that this amount should be deducted from the Respondent’s claim for expenses. He notes that the funds from this gift were provided to the Respondent for the purpose of assisting with her expenses connected with her illness; to apply them to the Respondent’s living expenses would be a breach of the implied undertaking to use those funds for Jadyn’s expenses.
107As Ms. Schill testified that she needed these funds to live on as she was unemployed, it is necessary to deal with what her income was and when, exactly, she gave up her job due to Jadyn’s illness. Her evidence, unfortunately, is lacking in this respect and the Respondent does not adequately prove her unemployment during the year subsequent to the benefit.
108The Applicant testified that it was his understanding that Ms. Schill ceased working soon after Jadyn’s diagnosis. He stated that, during a meeting with the doctors, it was agreed that he would work and that Ms. Schill would stop working in order to deal with Jadyn’s illness.
109This is not, however, what Ms. Schill’s evidence shows. In fact, her evidence is inconsistent as to when she left her employment. She stated in evidence that she continued to work from the fall of 2008 until spring, 2010, when she says that she left her employment. This is borne out by evidence filed by her in the form of a pay stub, which indicates that as of February 26, 2010, Ms. Schill was still working at Upper Canada Mall and her year to date income was then $3,315. However, at another point, she stated in evidence that she stopped working right after the fundraiser was held in February, 2009. It is also to be noted that Ms. Schill’s income, as shown on her tax returns, increased from what it was in 2008 (the year of the diagnosis); based upon the tax returns filed, Ms. Schill’s income was as follows:
Year
Income
2008
$6,132
2009
$15,681
2010
$16,809
2011
$11,0712
110Moreover, Ms. Schill’s evidence that she did not receive Employment Insurance was not borne out as her income 2011 Tax Return Summary appears to have included a small amount of income from that source.
111By 2012, it appears to have been acknowledged that Ms. Schill had no income and that she was dealing with her daughter’s income on a full time basis. Moreover, in argument, and other than the funds from the home, Mr. Schill was not seriously arguing that Ms. Schill presently had any significant income to contribute to the section 7 expenses claimed by her.
112The evidence provided by Ms. Schill does not demonstrate that she left her employment in early 2009 as alleged by her during her evidence. She appears to have still been working in 2010 and in fact, during that year, her income that year was the highest annual income between the date of diagnosis and the present. She appears to have been in receipt of Employment Insurance in 2011. As well, a significant amount of the expenses being claimed (and allowed) are related to the operation of her vehicle, which were, in effect, living expenses upon which she states that the $10,000 was used for.
113Accordingly, Ms. Schill’s income actually increased in the years after the benefit dance. Donors at that dance understood that they were contributing to the costs of Jadyn’s illness and a portion of the costs being claimed are expenses connected with Ms. Schill’s vehicle. Therefore, the sum of $10,000 will be deducted from the expenses claimed by Ms. Schill; she has not adequately demonstrated that she was not working prior to the sale of her home and that she required these funds for living purposes.
(v) Income Issues
[114]
Income Issues
The final issue is what amount of income to be attributed to Ms. Schill in order to calculate her proportionate contribution, if any, to the expenses chargeable to Mr. Schill in this matter.
115As noted, Ms. Schill’s income fluctuated significantly between 2008 and 2011. She only began working in 2008 and her income that year was only $6,000. It appears that during 2009 and 2010, her income was in the range of between $15,000 and $16,000 per annum. By 2011, it is acknowledged that Ms. Schill was not working; her only income came from rental receipts, Employment Insurance and a capital gain from the sale of her home.
116During much of this time, however, it is apparent that Ms. Schill was not making ends meet. She testified that at one point in time, she had to increase her mortgage to pay ongoing living expenses. When she sold her home, she paid off about $20,000 in credit card debt; the remaining amount of the net proceeds were used to pay for a trip to Orlando Disney World for Jadyn.
117Mr. Schill’s lawyer urged me to find that Ms. Schill’s income in 2011 was significant; he notes that no one rents out their home to lose money and that I should not accept the loss of rental income. He also asked me to find that the capital gain on the home was income to be used in calculating the Respondent’s proportionate share for the contribution to the section 7 expenses.
118Under the Child Support Guidelines, I can determine the parties’ income outside Total Income as set out in a parties’ Tax Return by looking at the last three years’ income in the event that income is skewed by a non-recurring amount: see s. 17 of the Guidelines. That is exactly the situation that occurred in 2011; in that year, the Respondent had left her job and had rented out her home and moved in with Andre Chaisson. She had rental income, but a high mortgage and at best, based upon the Respondent’s evidence, she was breaking even. She did not purchase the property to rent it out, and when it proved uneconomical to rent out, she listed it for sale and sold it. She realized a capital gain, but much of that was spent on debt to pay living expenses. I do not find that the Respondent had income for support purposes in 2011.
119That being said, if the other income noted in her income tax returns is averaged over a four year period, the Respondent’s income was in the range of $9,000 per annum. Taking into account that the Respondent earned about $900 from other sources in 2011, I find that the Respondent’s income for contribution purposes is $10,000 per annum. The Applicant’s income is agreed to be $69,000 per annum. This would mean that the Respondent’s proportionate share of the section 7 expenses would be about 13%; the Applicant would be responsible for 87% of those expenses.
(vi) Conclusion
[120]
Conclusion
Accordingly, using the figures noted above, the Applicant’s share of the section 7 expenses related to the children can be calculated as follows:
Mileage: $18,387.20
Parking: $3,511.88
Hotel: $1,584.65
Physical Assistance Devices $2,994.82
Non Insured Medications/Eyepatch $1,889.46
Mobility Expense $1,412.03
Dental Expense $421.82
Subtotal: $30,325.62
Less: Deductions acknowledged by Respondent:3 ($10,572.50)
Less: February, 2009 benefit: ($10,000.00)
Subtotal: $9,629.36
121Mr. Schill is responsible for 89% of this amount, or $8,377.54.
(c) What is Mr. Schill’s ongoing obligation to pay s. 7 expenses?
[122]
What is Mr. Schill’s ongoing obligation to pay s. 7 expenses?
For the purposes of ongoing expenses, it is acknowledged that Ms. Schill has no income at present.
123Her expenses have now decreased significantly as well. She will now be able to claim directly from Honda pursuant to the consent granted in these proceedings, and there should no longer be a problem arising from the parties being unable to communicate. The major costs will be the continued trips to Sick Kids Hospital, Princess Margaret and for physiotherapy.
124In the past four years Ms. Schill has made 260 trips to various hospitals and institutions for her daughter’s treatment. This is about 65 trips per annum. The evidence is that these visits will continue. Each of these trips cost about $70 in mileage charges or $4,550 per annum. In addition, there are charges for parking; the costs of parking during the past four years totals about $3511 or $878 per annum. Accordingly, there are anticipated costs of $5,528 per annum for travel to and from Toronto.
125There are, however, subsidies, which would pay $26 per trip, or $1,690 per annum. The net annual cost for transportation is anticipated to be $3,838 per annum ($5,528 - $1,690). This would result in a monthly cost of $319.
126Taking into account that the Honda plan covers 90% of most of the other expenses (which decreases to 85% after certain policy limits are arrived at), a $350 per month amount toward extraordinary expenses is not unreasonable under the circumstances. This assumes that Ms. Schill presently has no income. So ordered.
127That amount should be reviewed based when the parties make their annual financial disclosure pursuant to s. 21 of the Child Support Guidelines; at that point in time, the Respondent shall also provide an accounting of expenses for both children under s. 7 of the Guidelines, and the amount shall thereupon be adjusted retroactively for the past year.
(d) Divorce
[128]
Divorce
Mr. Schill requests a divorce. He has filed an affidavit in proper form under Rule 36 in support of the divorce. The divorce is granted, effective 31 days after today’s date.
Order
[129]
Order
There will accordingly be a final order to go as follows:
a. Ms. Schill shall have custody of Jadyn and Austin, provided that:
i. Ms. and Mr. Schill shall communicate regarding the children and in particular about Jadyn through the Family Wizard Program;
ii. Ms. Schill shall advise Mr. Schill in writing of any significant changes in Jadyn’s condition and of any treatments that Jadyn will be undergoing for her cancer;
iii. Ms. Schill shall consult with Mr. Schill in respect of any major decision to be made concerning a course of treatment in respect of Jadyn, as well as any other major decision concerning the health, education and welfare of the children;
iv. Apart from her obligation to consult and advise, Ms. Schill shall have the sole responsibility for the management of Jadyn’s illness, and shall have final decision making authority respecting any and all treatments for Jadyn’s cancer; and
v. Mr. Schill may directly obtain any information about Jadyn’s medical condition and treatment from any medical professional involved in the care of Jadyn;
b. Access to Jayden shall be as follows:
i. Tuesdays and Thursdays from 4:00 to 7:00 p.m. when Mr. Schill’s work schedule allows it and on every second Sunday for seven hours from 11:00 a.m. to 6:00 p.m.;
ii. Upon Mr. Schill meeting with Dr. Bouffett, Dr. Drake, Dr. LaPerriere, Dr. Mireskandari and Janine Piscione regarding their various aspects of Jadyn’s treatment, and upon those health professionals confirming in writing to Ms. Schill at Mr. Schill’s expense that they have met with him and discussed with him Jadyn’s condition, treatment options and emergency management, access under the Separation Agreement shall resume for Jadyn (every second weekend from Friday night at 5:00 p.m. or Saturday morning at 10:00 a.m., depending on his work schedule, to Sunday at 6:00 p.m. plus extended holiday time as set out therein) except that the visits on Tuesdays and Thursdays when Mr. Schill’s work allows it as above will continue;
c. Mr. Schill shall continue to have access to Austin according to the separation agreement (every second weekend from Friday night at 5:00 p.m. or Saturday morning at 10:00 a.m., depending on his work schedule, to Sunday at 6:00 p.m. plus extended holiday time as set out therein) except that he will see Austin on the Tuesdays and the Thursdays that he sees Jadyn as noted above;
d. The Applicant to have additional summer access to Austin as follows:
i. Sunday July 2, 2012 (the completion of Austin’s access weekend) to Friday July 6, 2012;
ii. Friday August 31, 2012 to Monday September 3, 2012
e. Pickup and drop off for access shall take place at the Country Style Donut Shop in Sharon, Ontario.
f. Mr. Schill shall provide a copy of his work schedule to Ms. Schill prior to the midweek access commencing and he shall continue to provide that on an ongoing basis.
g. The Sun Life Insurance Company shall directly pay the Respondent, Christie Schill, mother of Jadyn and Austin Schill, for all lines of benefits including but not limited to extended health care, dependent Life and dental as applicable. The policy of the Applicant, Jeffrey Schill (Honda associate no. 005318) is to maintain the present plan coverage;
h. Mr. Schill will reimburse Ms. Schill for s. 7 expenses for the children in the amount of $8,377.54;
i. In addition to the base child support payable, Mr. Schill shall pay the sum of $350 per month towards s. 7 medical expenses for Jadyn, subject to the Respondent providing an accounting for the use of these funds on an annual basis when the parties make disclosure under s. 21 of the Child Support Guidelines, commending May, 2013;
j. Divorce judgment to issue, effective in 31 days.
130The parties may make written submissions as to costs with the Applicant providing written costs submissions within 20 days of the date of these reasons, and the Respondent providing her submissions and the Applicant providing reply submissions on a ten day turnaround. Submissions as to costs not to be in excess of five pages, not including offers to settle and bills of costs.
McDERMOT J.
Released: June 14, 2012
Footnotes
- SOR/97-175
- In 2011, Ms. Schill’s income appears to have mostly consisted of a capital gain amount from her home; there is rental income and Employment Insurance income that year as well.
- These are amounts received from POGO, the Canadian Cancer Society, the Honda employees ($1,900) plus an anonymous donation of $1,000.