ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 40859-07
DATE: 2013-09-24

B E T W E E N:

Richard Laurier Dumais

Applicant

• and -

Jane Leanne Dumais

Respondent

Self-represented Applicant

Jennifer Breithaupt, for the Respondent

HEARD: September 3, 2013

THE HONOURABLE MR. JUSTICE P.B. HAMBLY

REASONS FOR JUDGMENT

Introduction

[1] Motions are brought by former spouses to vary the custody, access and support provisions of a final Divorce Order on the grounds of a change of circumstances since the making of the order. The wife also seeks an order prohibiting the husband from commencing any proceedings against her without leave of the court. The husband’s motion has no merit. It will be dismissed. I agree substantially with the wife.

The Facts

[2] The applicant, Richard Dumais (Richard), was born on June 6, 1954. He is 59. The respondent, Jane Dumais (Jane), was born on June 7, 1978. She is 35. They were married on December 10, 1998, when Richard was 44 and Jane was 20. There are the following two children of the marriage:

Mackenzie Dumais (Mackenzie), born April 6, 2001 – age 12

Jean-Richard Dumais (Jean), born July 6, 2006 – age 7

[3] Richard lost his employment shortly after the parties were married. Thereafter he worked at casual labour. He is presently employed as a taxi driver. Jane is a registered practical nurse. She became the major breadwinner for the family after Richard lost his employment. The parties physically separated three days after the birth of Jean on June 9, 2006 when Jane left the matrimonial home in Waterloo. She took the children and went to live with her parents in New Hamburg. She has resided there continuously with the children to the present. Both children attend school in New Dundee. The matrimonial home was sold and the net proceeds divided between the parties. Richard has lived in several apartments since the sale of the matrimonial home. He is presently living in an apartment in central Kitchener.

[4] There was an incident on April 10, 2007. Jane and her parents were having dinner with the children at a restaurant in celebration of Mackenzie’s birthday. Richard attended uninvited. There was a confrontation between Richard and Jane’s parents and Jane in which Richard threatened to cause physical harm to them. Notwithstanding that Jane was nursing Jean, Richard took both children with him back to his apartment.

[5] On April 11, 2007, Jane obtained an order against Richard in Family Court without notice that he return the children to her. The order was supported by a police assistance clause. Jane attended at Richard's residence with the police. Richard surrendered the children to Jane. Thereafter Jane obtained an order from Madam Justice M. McSorley on April 17, 2007 in the Ontario Court of Justice with notice to Richard and on consent. This order provided that Jane was to have custody of the children. Richard was to have access to both children on Tuesdays and Thursdays at noon hour, to Mackenzie on alternate weekends from Saturday at 9:20 a.m. to Monday morning and to Jean on these weekends on Saturday morning from 9:20 a.m. to 1:00 p.m. and to Mackenzie on Saturday mornings outside these weekends for the purpose of taking her to tennis lessons. The order required that he pay Jane child support in the amount of $362 per month in accordance with the child support guidelines based on an annual income of $24,000.

[6] Richard commenced an application in Superior Court on August 30, 2007, which had the effect of staying the proceedings in the Ontario court of Justice. He claimed joint custody and shared residence of the children. Jane, in her answer, claimed a divorce and sole custody.

[7] There was an order for a referral to the Office of the Children's Lawyer. Wendy Kirk prepared a comprehensive report dated February 22, 2009. She found that both parents had a good relationship with the children. Jane was devoted to the children. She was very sensitive to their needs. Richard and Mackenzie were particularly close. She stated the following:

… Both Mr. Dumais and Ms. Dumais were observed to be soft-spoken, gentle and patient with the children during their observation visits. Both engaged in age-appropriate activities with the children, and participated in active imaginative play initiated by Mackenzie. Ms. Dumais appeared focused on the needs of the children, and as having realistic expectations of them.

[8] Running through the report is a concern about the ability of Richard to control his anger. At a meeting where Ms. Kirk disclosed her recommendations Richard was very disappointed. He engaged in abusive behavior towards Ms. Kirk which frightened her, notwithstanding her long experience in dealing with clients. Ms. Kirk found that there was no communication between the parties. It was her opinion that “a cooperative parenting plan is not feasible” (p. 15). Her primary recommendations were as follows:

1. That Jane have sole custody and primary residence of the children.

2. That Richard have access to Mackenzie on alternate weekends from Saturday at 9:00 a.m. to Sunday at 7:00 p.m., that he have access to Jean on these weekends from 9:00 a.m. to 12 noon on Saturday and that he have access to Mackenzie when she has tennis lessons on Saturday mornings.

3. Exchange of the children to take place at a public place.

4. Richard to seek counseling for anger management.

[9] The case was tried by Justice Kent in June 2009. Jane claimed sole custody. Richard claimed joint custody and shared residence of the children. Justice Kent decided this issue in Jane’s favor. He heard evidence on June 9, 10 and 11. He provided a judgment for oral reasons on June 12, 2009. The judgment as adjusted on July 7, 2009, following further submissions is dated June 12, 2009. It ordered the following:

1. That the parties be divorced.

2. That Jane have sole custody of the children.

3. That Richard have access to the children as follows:

4. To both children on Wednesdays from 5:00 p.m. to 7:00 p.m.

5. To Mackenzie on alternate weekends from Friday at 5 p.m. until Sunday at 7:30 p.m.

6. To Jean on Saturday from 9:00 a.m. to 1:00 p.m. and from September 1, 2001 the same access as to Mackenzie.

7. Divided holiday access.

8. To Mackenzie on Saturdays when tennis lessons were offered from 9:00 a.m. to 12:00 p.m.

9. Exchange of the children take place in the parking lot of the mall/plaza at Fisher Hallman Road and Ottawa Street in the city of Kitchener.

10. Richard to seek and obtain counseling for anger management.

11. Police assistance clause to enforce custody and access.

12. Richard to pay child support in the amount of $304 per month in accordance with the guidelines based on an annual income of $19,700.

13. The child support arrears were fixed in the amount of $6,484.00.

14. Richard to pay Jane costs fixed in the amount of $12,303.72.

[10] Richard did not obtain counseling for anger management. Jane brought a motion against him for an order that he be found in contempt of Justice Kent's order. Justice MacPherson made an order dated May 27th, 2010 suspending his access to the children, with the exception of four hours on Father’s Day, until he had obtained counseling for anger management. She ordered that he pay costs to Jane in the amount of $1,000. He did obtain the counseling. He resumed having access to the children on September 24, 2010.

[11] Richard has paid no child support voluntarily, either pursuant to the order of Justice McSorley dated April 17, 2010 or to the order of Justice Kent dated July 7, 2009. The FRO gave notice to Richard of its intention to suspend his driver's licence by way of enforcement of these orders. This would have serious consequences for Richard, since his employment is as a taxi driver. Justice Sloan made an order on April 21, 2011 that the FRO refrain from suspending Richard’s drivers licence conditional on Richard bringing a motion to change Justice Kent's order of child support by Friday, May 6, 2011.

[12] Richard has paid nothing towards the two costs orders which total $13,303.72.

[13] Jean attended the New Dundee preschool in September, 2010. Meredith De Beer was a resource consultant at the school. She referred Jean for a psychological assessment. He was diagnosed with autism spectrum disorder in March 2011. Ms. Breithaupt on Jane’s behalf has filed 3 reports from persons with expertise in the diagnosis and treatment of autism. These reports establish that Richard needs a stable routine, consistency, structure and a special diet.

[14] Richard commenced a motion to change on May 4, 2011. He sought an order that child support be reduced to zero as at May 1, 2011, that child support arrears be expunged and that the order of Justice Kent be reduced to $50 per month. He sought joint custody and shared residency of the children.

[15] Justice Kent had ordered an expansion of Richard’s access to Jean on September 1, 2011, to make the access weekend overnight access coincident with Mackenzie’s access. Jean did not come with Mackenzie for weekend access in September 2011, as provided by Justice Kent’s order. I granted an order at a case conference on October 31, 2011 giving the parties leave to bring long motions and that the police not enforce Justice Kent’s judgment dated June 9, 2009, until the long motions were heard.

[16] In her response to Richard’s motion to change, Jane sought the elimination of the expansion of Richard’s access to Jean because of Jean’s autism and his resulting special needs. Richard does not accept the diagnosis of autism for Jean.

[17] The long motion came before Justice Flynn on January 13, 2012. He dismissed it without prejudice to its being brought in proper form with factums.

[18] Richard commenced a fresh motion to change on March 30, 2012. He sought overnight access to both children from Wednesday at 5:00 p.m. to Thursday at 8:45 a.m. He also sought access to both children every weekend except the first weekend of the month from Friday at 5:00 p.m. to Sunday at 7:30 p.m. He stated that shared parenting would help him preserve his relationship with the children. He sought an order terminating child support and rescinding the arrears.

[19] Jane filed a Response to Motion to Change sworn May 7, 2012. Jane sought an order that Richard have access to Mackenzie on alternate weekends from Friday at 5:00 p.m. to Sunday at 7:30 p.m. and alternate Saturdays, for the purpose of taking Mackenzie to tennis lessons when they occurred. There would be no mid-week access. Richard would only have access to Jean when he had access to Mackenzie on Saturday mornings. He would pay child support arrears at the rate of $100 per month. He would pay ongoing child support at an amount to be determined by the court.

[20] In April, 2011 Richard found that he was unable to maintain a vehicle .The exchange of the children continues to take place at a mall at Fisher Hallman and Ottawa streets. Because Richard does not have a vehicle this requires a one-hour bus trip from his apartment to the mall. Jane or her parents deliver the children to the mall. Richard has access to them. They then come to the mall to retrieve them. On weekends Richard takes Mackenzie on Friday night from the mall back to his residence by bus. On Saturday morning he and MacKenzie take the bus to the mall where they receive Jean. Richard and the children spend the time at McDonald's, at a playground connected to McDonald’s or they go to a nearby Community Center

[21] Wendy Kirk prepared an updated report dated March 20, 2013. She found that Richard’s anger had not appreciably diminished. She also found that Richard did not accept the diagnosis of autism spectrum disorder for Jean. He did not appreciate Jean’s special needs. She did find that the children were doing well. She stated the following:

MacKenzie is an intelligent, gentle, attractive child who presents as being happy and well-adjusted. She does well, both socially and academically at school, and is involved in a faith community with her respective parents. Mackenzie has participated in an extra curricular activity in the community for a number of years. Mackenzie indicated that she enjoys having time with each of her parents. She appears to be in the process of making an age-appropriate transition wherein her peers are becoming increasingly important in her life. Mackenzie noted that she loves her current school and is looking forward to transitioning with her peers to the area senior public school, and, ultimately the high school they will attend.

Jean-Richard is a sweet, gentle, high-energy child, whose enthusiasm is infectious. He has had intensive intervention within the community to address a multiplicity of needs related to his diagnosis of Autism Spectrum Disorder. Jean-Richard continues to receive intensive support within the classroom to maintain him in a regular stream class with his peers. Mackenzie assumed a parental role with Jean-Richard when together with their father, chiding him gently about food, ensuring he took his boots off prior to entering the play area, and walking alongside him when crossing the street.

The Law

Variation of the Divorce Order

[22] The Divorce Act

Order for variation, rescission or suspension

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Variation order

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Gordon v. Goertz, 1996 191 (SCC), 1996 2 S.C.R. 27

[23] The Supreme Court of Canada, in the judgment of Justice McLachlan (as she then was) set out a two stage inquiry before a court could change the custody and access provisions of a Divorce Order for a child. There first must be a material change in circumstances of the child and then the court must consider what is in the best interests of the child.

[24] Regarding the requirement of a material change in circumstances she stated the following:

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) 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) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[25] Federal Child Support Guidelines

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Undue hardship

10. (1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Order Prohibiting Further Proceedings Without Leave

[26] Courts of Justice Act

Vexatious proceedings

140.--(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

Ballentine v. Ballentine, 2003 27775 (ON CA), [2003] O.J.No. 2589

[27] The Court of Appeal, in the judgment of Justice Macpherson, held that s. 140 of the Courts of Justice Act could be used to prevent a party in a Divorce Order from bringing further applications to vary without leave. He stated the following;

39 … Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied. …

Discussion

Custody and Access

[28] The status quo is working reasonably well. Richard has not established a change of circumstances that would justify a variation of Justice Kent’s order that would result in his having shared residency or joint custody of the children.

[29] There is nothing in the material of a change in circumstances that should result in a change to the custody and access arrangements regarding Mackenzie from Justice Kent’s order dated June 12, 2009. The diagnosis of Autism Spectrum Disorder for Jean in March, 2011 is a change of circumstances that should result in a variation of the access arrangements for Jean. It is clear that Jean requires consistency, stability and routine in his life from day to day. He also requires a special diet. It is concerning that the father does not appreciate the seriousness of the disorder from which Jean suffers and his special needs resulting from this. The circumstances regarding Jean meet the test of material change in circumstances in Gordon v. Goertz. I agree with the mother's proposal for the father's access of Jean. Richard is not sensitive to the needs of Jean. Jane’s proposal for Richard’s access to Jean is in his best interests.

[30] It is a measure of the breakdown in communication between the parties that they have not been able to agree to a more reasonable way to exchange the children than at the Mall at Fischer Hallman and Ottawa. This was put in place by Justice Kent’s order when Richard had a vehicle. He has not had a vehicle since April, 2011 yet this exchange point remains notwithstanding that Richard can only reach it by bus. I agree with Jane that notwithstanding Richard’s modest income and his lack of a vehicle for personal use he should be able to find a way to provide some of the transportation for the exchange of the children. Wendy Kirk in her second report was also of this view. I also agree with both parents as does Wendy Kirk that the Richard’s access should take place at his residence. The multiple bus trips are costly. By eliminating them Richard will save some money which he may be able to use to find some alternative means of transportation for the children and to pay some support. I appreciate that the saving will not be sufficient for him to do both to any great extent.

Child Support and Costs

[31] Richard holds Jane responsible for the breakdown of the marriage. Jane has lived with the children in new Hamburg with her parents and her brother since the birth of Jean in July 2006. Richard is employed as a taxi driver. His taxable income for 2012 was $17,061. Jane works part-time as a personal support worker at an undisclosed income. I assume that her income is modest. Jane’s parents are both employed as is her brother. In the household of Jane’s parents there are three persons who are fully employed – her father, mother and brother and one person, Jane, on a part-time basis. Ms. Breithaupt, on Jane’s behalf, concedes a household income consisting of the incomes of her and her parents of $70,000. Richard’s position is that in the circumstances he should pay no child support. There is ample income in the household where the children are living to provide for their needs.

[32] Although he claims hardship as a result of the requirement that he pay child support given his modest income Richard made no attempt to satisfy the requirement of s. 10 of the Federal Child Support Guidelines that would permit him to claim undue hardship. On the material before me he would not qualify for a finding of undue hardship under s. 10(2). He does show a large debt of over $45,000 owing to Scotia Bank in his financial statement. There is no evidence before me that could satisfy the test in s. 10(2) (a) or (b) that the debt was incurred for the support of Jane or the children either before or after separation.

[33] Jane filed material prepared on her behalf by Ms. Breithaupt which establishes that even if he could meet one of the tests in s. 10 (a) or (b) he could not meet the requirements of s. 10(3) and (4) by establishing a lower standard of living in his household than in Jane’s household. Ms. Breithaupt imputed income to the parties based on the minimum wage, each party having full time employment and Jane having custody of the 2 children. When these figures are used Jane’s household has a lower standard of living than does Richard’s household. This is not the case if the combined incomes of Jane and her parents are used. However there is no legal or moral obligation for Jane’s parents to support Richard’s children. This is the fundamental flaw in Richard’s argument. I reject his position.

[34] Richard’s obligation to support his children will be adjusted in accordance with the child support guidelines to $267 per month, on an annual income of $17,061.

[35] Ms. Breithaupt, on behalf of Jane, has done a calculation of the support that Richard ought to have been paying, according to the guidelines, given his income reported on his income tax forms. She has deducted the amount that FRO has collected. This has been as a result of garnishments of the money owing to Richard from government sources. He has paid nothing voluntarily. This results in arrears of $10,616.01 as at September 3, 2013.

[36] The total outstanding costs prior to these proceedings owed by Richard to Jane are $13,307.72. These costs were sustained by Jane in resisting the claims by Richard for joint custody and shared custody in the trial before Justice Kent and for the enforcement of Justice Kent's order by requiring Richard to take a course in anger management control, in the motion for contempt before Justice McPherson. Ms. Breithaupt claims costs of the proceedings before me in the amount of $15,655.27 inclusive of disbursments. Ms. Breithaupt filed extensive material which was all carefully prepared and very helpful. This claim for costs is modest. I allow it in full. I also agree with Ms. Breithaupt that all these costs which total $28,962.99 should be enforced as child support.

Enforcement

[37] The children are close to Richard. I was impressed by his interaction with them in the video that I permitted him to play. I appreciate that it is artificial. I do not think that Jane would disagree that it is in the best interests of the children that he have substantial access to them. Wendy Kirk’s recent report establishes that they are doing well. It is unfortunate that Richard’s thinking is so distorted.

[38] The arrears of child support and costs total $39,579.00. Clearly, on the material before me, Richard is incapable of paying this amount. If FRO was to suspend his license he would lose his employment as a taxi driver, his livelihood and his capacity to provide transportation for the children for him to exercise his access. This would be a catastrophe. I will make an order that enforcement of the arrears of support and the costs be suspended. Enforcement of guideline support that I will order may proceed.

Prohibition of Richard Bringing Further Proceedings Against Jane

[39] Richard’s motion to vary Justice Kent’s order to obtain joint custody and shared residency of the children was an attempt to relitigate his position which was rejected by Justice Kent. The injustice of this is apparent. He had costs awarded against him by Justice Kent and then further costs awarded against him by Justice Macpherson when Jane was required to take contempt proceedings against him to compel him to take anger management counseling as ordered by Justice Kent. He has not paid any of these costs. His belief that Jane is responsible for everything means that it is unlikely that he will attempt to pay them. He also seems incapable of generating sufficient revenue to pay. He must be prevented from subjecting Jane to the expense, time and effort of defending meritless claims. He cannot be permitted to bring “an endless stream of variation applications”. There will be an order preventing Richard from bringing claims against Jane without leave of the court in the terms proposed by Jane.

Conclusion

[40] There will be an order to go in terms of the draft provided by Ms. Breithaupt attached hereto. The essential terms of that order are as follows:

1. That Richard have parenting time with the children as follows;

a) With Mackenzie on alternate weekends.

b) With Jean on Saturday mornings at the same time as Mackenzie.

c) With both children on Tuesday evenings.

d) Mackenzie always to be present when Richard has parenting time with Jean.

e) Transportation of the children for Richard to have parenting time with them to be shared by the parties.

f) Richard’s parenting time to be exercised at his residence.

2. That Richard shall pay the costs of these proceedings to Jane in the amount of $12,597.50.

3. That the arrears of child support be fixed at $10,616.01 as at September 3, 2013.

4. That the total costs including the costs of the proceeding before Justices Kent and MacPherson in the amount of $28,962.99 shall be enforced as child support.

5. That enforcement by FRO of the costs awarded and the arrears of child support in the total amount of $39,579.00 are suspended.

6. That Richard pay child support to Jane in the amount of $267 per month, based on an annual income of $17,061 in accordance with the guidelines commencing October 3, 2013.

7. That Richard be prohibited from commencing further proceedings against without leave of the court.

If the parties are able to identify any arithmetic errors in what I have ordered or any other obvious mistakes I will receive further written submissions.

“P.B. Hambly”

Justice P.B. Hambly

Released: September 24, 2013