COURT FILE NO.: FS-11-17189

DATE: June 2, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

APPLICANT

W.G.

RESPONDENT

S.G.

D. Melamed and L. Mills, for the applicant father

P. Brodkin and C. Ashbourne, for the respondent mother

HEARD: March 3-7 and 10-12, 2014

Perkins J.

Issues in the case

[1] This is a motion to change the terms governing custody, access and child support in a final consent order made in 2011 under the Children’s Law Reform Act and the Family Law Act. The case involves two children, a boy (age almost 14) and a girl (age 9), who reside primarily with the mother in California. They moved there from Ontario in 2012, by agreement of the parties. The parties also agreed Ontario would continue to have jurisdiction over the children.

[2] The final consent order dated December 15, 2011 incorporates parts of the parties’ agreement for joint legal custody and primary residence of the children with the mother in California. It contains a very unusual provision, which states that if an arbitrator chosen by the parties finds that the mother “has acted in bad faith directly or indirectly interfering with or excluding [the father] from the children’s lives and, more particularly, interfering with the children’s schedule for their secondary residence with the father”, the parties’ joint custody of the children is to be replaced by sole custody to the father and the children’s primary residence with the mother in California is to change to primary residence with the father in Ontario.

[3] The father has asked for an order under this provision, on the ground of bad faith by the mother. He wants the children to return to Ontario to live with him, under his sole custody. He has also asked that a new arbitrator be appointed to replace the original arbitrator, who has resigned. The mother asks that the existing residential arrangements continue, that she be given sole custody of the children, that no new arbitrator be appointed, and that any future issues be decided by the courts.

[4] Both parties seek adjudication of the father’s child support responsibilities from late 2012 onward, including expenses governed by section 7 of the Child Support Guidelines for the children’s education, health and recreation. The father seeks to reduce his support payments. The mother seeks to maintain them at the current level.

[5] The 2011 order also states, “Ontario shall also, by agreement of the parties, retain exclusive jurisdiction over these matters and their enforceability in Ontario, California or whatever jurisdiction where the children may be situate at the relevant time.” The mother asks that this provision be replaced by a paragraph conferring jurisdiction on the courts of California.

[6] The parties have also jointly asked for an order under section 70 of the Children’s Law Reform Act to seal the file, in light of the considerable quantity of sensitive information in the record concerning the parties’ children and three other children who are indirectly involved in the issues in this case.

Result

[7] The father’s motion fails on the issues of a change in residence and continuation of joint decision making for the children. His motion succeeds in reducing his monthly table child support, which is to be based on his income other than capital gains triggered by selling off (and not replacing) investments. It succeeds in part in relation to section 7 expenses. See below for the limits on what is reasonable and necessary. His request to impute income to the mother does not succeed.

[8] The mother’s requests for sole custody (decision making) and maintenance of the existing residential arrangements succeed. Her request to base child support on an income of $271,000 fails, but her requested section 7 expenses are generally allowed, subject to limits set out below.

[9] On consent, there will be an order sealing the court file, with access to it only by the parties, their lawyers, the court and its staff, without further order of the court. In addition, this decision is to be reported using only initials for the parties’ names.

Family history

[10] The father is from Switzerland. The mother is from Iran. They met in 1997 in New York, when the father was a professor and the mother was a graduate student. They lived together in New York for a time, married there in 1998 and moved to Toronto in 2000. Their son was born in 2000 and their daughter in 2004. They separated in 2006 and were divorced in 2008.

[11] After the separation, both parties continued to live in Toronto, with the children in the mother’s primary care. The parties signed a separation agreement in August, 2008. It confirmed the parties’ joint legal custody of the children and continued primary residence with the mother. In late 2011, they agreed that the mother would move with the children to Los Angeles at the end of the summer of 2012, with joint custody of the parents continuing.

[12] In January, 2012, the father took a short term academic appointment in Germany. He arranged his time so the children would be with him in Toronto for two consecutive weeks each month, and the mother would have them for two consecutive weeks. During this time, the mother became ill and the mother’s mother was terminally ill. The mother then arranged to have the children spend extra time with the father, first so she could recuperate, and then so she could tend to her mother until her death in July. The father returned to Toronto permanently in the summer of 2012, in time to have the children with him for much of the summer.

[13] The mother and children moved to Los Angeles as planned in late August, 2012. The children are now living with her in Los Angeles during the school year. They spend most of the Christmas, spring and summer school vacations with the father in Toronto, and he visits them for one or two extended weekends in Los Angeles in each of the fall, winter and spring.

[14] In Toronto, the children both attended a French language private school that is part of a worldwide network of schools. It was agreed the children would attend the Los Angeles branch of that school, and both did so. The daughter continues at that school, but the son transferred to another private school in September, 2013.

[15] The father continues to be a full time university professor. He also has substantial income from investments given to him by relatives in Switzerland. The mother is self employed as an independent documentary film producer. She is not generating any net income.

[16] The father is remarried and lives with his new wife and her three children in Toronto. The mother remains single. The mother has extended family in the Los Angeles area. The father’s extended family is in Switzerland.

Litigation history

[17] Though the parties were divorced in 2008, there was no court order governing the arrangements for the children or for child support. Instead, the parties’ rights and obligations were regulated by their comprehensive separation agreement signed in 2008. Under the agreement, the parents had joint legal custody. The mother had primary residence of the children and the father had them on alternating weekends for three nights, on alternating Thursdays overnight, and every Tuesday evening, as well as alternating Monday evenings with one child (the son one week and the daughter the next week).

[18] This case began in 2011 with an application by the father. I do not know anything about why the case was started, who asked for what relief, or the events in the case, other than the parties’ achievement of a final agreement on custody, access and child support in November, 2011. The trial scheduled for November, 2011 was cancelled as a result. The agreement was incorporated into the consent final order of December 15, 2011 now before me for variation.

[19] The principal terms of the December 15, 2011 order are summarized below, with some terms quoted exactly. Terms that are not germane to the issues before me are omitted. The paragraph numbers refer to paragraphs of the order.

1. Joint custody of the children continues.

2. The children’s primary residence is to be with the mother in California from August 27, 2012.

3. (a) If the mother “has acted in bad faith directly or indirectly interfering with or excluding [the father] from the children’s lives and, more particularly, interfering with the children’s schedule for their secondary residence with the father” as set out in the order, “the children’s primary residence shall be transferred to the father” and the mother must pay the father’s costs on a full recovery basis. The process for determining these issues is arbitration, as set out in paragraph 9 of the order.

(b) The terms of the children’s secondary residence with the father may be changed only by the parties’ written agreement or “a finding the father has acted in bad faith directly or indirectly in his parental care and duties.” The process for determining these issues is arbitration, as set out in paragraph 9 of the order. If there is a finding of bad faith, the father must pay the mother’s costs on a full recovery basis.

(c) Residence of either parent with a “partner, current or future,” is not a material change in circumstances, “and there is no material change in circumstances remedy because of (a) and (b) above.”

(d) If there is a finding under (a) or (b), the arbitrator decides what (if any) access the children will have with the parent found to have acted in bad faith.

4. The children’s secondary residence with the father is as follows:

(a) For summer 2012, alternate weeks in July and August, except that the children are to spend three consecutive weeks with the father immediately before their departure to California, returning to the mother the day before departure.

[On consent, paragraph 4(a) of the order was replaced, by an order made on May 6, 2013, with a paragraph reading:]

“(a) Effective the summer of 2013, and each succeeding summer, from the 8th day after the school year ends (which presently ends after the 2nd week in June) to the 8th day preceding the commencing of school in September.”

(b) Christmas school vacations are to be divided equally, with the father having the last half in even numbered years and the first half in odd numbered years. The father has the option of spending the holiday time in either Toronto or Los Angeles.

(c) On written notice, the father may have the children for the spring school break, from the third day after school ends to the third day before school resumes.

(d) Any other time, on written notice, up to four days in Los Angeles in any month when he does not otherwise have the children.

(e) Until the father moves temporarily to Germany in January, 2012, the schedule in the 2008 separation agreement governs.

(f) When the father takes up his temporary appointment in Germany in January, 2012, the father is to have the children every two weeks for 14 overnights, until the summer.

5 and 6. If either parent is unable to care for the children for 10 consecutive days during their parenting time, the other parent can elect to come and care for the children.

7. Other incidents of custody are as follows:

(a) Each parent has the same right to information from schools or service providers as the other parent.

(b) The father may arrange for a bar/bat mitzvah for each child, to occur when the children are with him.

(c) “No major decision concerning the children’s health, education or welfare shall be made except with the parties’ prior written consent,” but subject to review after grade 8, the children are to continue in the French private school through high school unless the parties agree or the arbitrator under paragraph 9 decides otherwise “for academic reasons”.

(f) Until age 9, the daughter must travel for access with one of the parties. From age 9 on, the father may choose to have the children travel together unaccompanied.

(g) Each child is to have reasonable contact with each parent, including telephone, Skype or other methods. Each parent shall facilitate this contact and respect the child’s privacy. If the parents are unable to work out “difficulties”, they may be determined by arbitration under paragraph 9.

8. The child support terms are as follows:

(a) Subject to paragraph 7 (c), the children are to attend the French private school through high school and the father will pay the entire cost as a section 7 expense, including tuition, books, tutoring as recommended by the school, and school supplies. School trip costs are to be shared 50-50.

(b) The father is to pay 90% of the cost of full health insurance as a section 7 expense and the mother is to pay 10%. If the mother obtains employment health benefits, she is to add the children to the plan and the father is to pay the cost of adding them. Disputes about the level of coverage are to be arbitrated under paragraph 9.

(c) The father is to pay the cost of extracurricular activities or sports for the children up to $2,000 for each child. The activities may be arranged by the mother on notice to the father “but not necessarily with his consent.”

(d) Because the father pays 100% of travel costs for the children, he is not to pay the child support table amount for each July and August.

(e) The father was paying approximately $3,400 monthly as the table amount under the 2008 separation agreement, based on stated income of $260,000. He is to continue paying that amount. Each party is to provide by April 15, 2013 the financial disclosure required by the Child Support Guidelines. If there is no agreement on the table amount from September 1, 2013, there is to be a review by the arbitrator under paragraph 9 by June 15, 2013. Child support is in any event subject to annual review in accordance with the Child Support Guidelines.

9. The issues in, and only the issues in, paragraphs 3 (primary and secondary residence and bad faith), 7(c) (major decisions concerning the children), 7(f) (choice of person travelling with the daughter), 7(g) (parents’ communications with the children), and 8 (child support) are to be arbitrated by a named arbitrator, who is to be retained for two years, starting September 1, 2012. The arbitration agreement is to provide for an appeal without leave on an error in fact, law, or fact and law.

“10. Ontario law is the parties’ choice of law for the determination of any issues and Toronto, the location of any proceeding, including but not limited to mediation, arbitration and/or court, provided above and for the purpose of the interpretation of this order, if accepted and it becomes a binding agreement of the parties. Ontario shall also, by agreement of the parties, retain exclusive jurisdiction over these matters and their enforceability in Ontario, California or whatever jurisdiction where the children may be situate at the relevant time.”

“12. This order replaces the terms of the 2008 separation agreement in all respects concerning the children and child support that conflict with this order, but the balance of the terms of the 2008 separation agreement remain in effect.”

[20] Paragraph 10 of the order is hard to understand. Counsel told me that “if accepted and it becomes a binding agreement of the parties” meant simply that the parties’ agreement had to be “accepted” by the court by way of being incorporated into an order. That has occurred.

[21] In August, 2012, there was an arbitration, under paragraph 9 of the order, of several issues raised by the father in a “notice of urgent motion” served on August 9, 2012. This was less than three weeks before the scheduled move of the children to Los Angeles. The arbitration hearing took place on August 15. The award (dated August 17) dealt with several mechanical issues about how child support and other payments were to be made, health and dental insurance coverage and premium payments, whether school uniforms were a section 7 expense, and most importantly, the provision of therapy for the son and a psychoeducational assessment of the son. The father had been trying to have an assessment done by the therapist who had been seeing the son in Ontario. The mother had refused to authorize this. She had also told the therapist that she no longer had confidence in him, with the result that he declined to continue after May, 2012. This will be discussed below, as it is an instance where the father says the mother acted in bad faith. The arbitrator’s award provided for the selection of a therapist and a psychoeducational assessor for the son in Los Angeles.

[22] The mother submitted a request to the arbitrator that he rule on whether the father was responsible for paying the costs of private tutoring and “study hall” at the children’s school. On October 25, 2012, rather than ruling on the issue, the arbitrator resigned. He did so because the mother and a lawyer acting for her in California had written several letters or emails to him complaining about his August award and the mother had sent one email stating she felt he had “blatantly discriminated” against her “as an Iranian-born American Muslim woman.”

[23] The father proposed three names for a replacement arbitrator, but the mother did not agree to any of them. The father asks in his motion that I appoint one. The mother opposes this.

[24] On November 27, 2012, three months after the children moved to Los Angeles, the father issued his motion to change the final consent order of December 15, 2011. The mother’s response to the motion to change is dated February 27, 2013.

[25] On May 6, 2013, the order of December 15, 2011 was corrected, on consent, by replacing paragraph 4(a) governing summer access with a new provision for summer access from 2013 onward. The parties agreed that the omission of wording covering summer access in succeeding years was an oversight requiring correction.

[26] On June 26, 2013, after extensive negotiations between the parties, the court made a consent order selecting a therapist for the daughter and providing for payment for the therapy. The father is responsible for 100% of the children’s therapy and the son’s psychoeducational assessment, subject to the order I make at this trial.

[27] The motion to change the 2011 order had been set for a trial in November, 2013. On October 29, 2013, the court granted the mother’s request to adjourn the trial so that she could retain new trial counsel. She parted company with her previous lawyer because, she said, she had run out of money. The order adjourning the trial also required the mother to ensure the children were given privacy for telephone or video calls with the father and to unblock email access to the children by the father’s family in Switzerland. The mother did not oppose the order but neither did she admit she had done anything improper.

[28] On January 6, 2014, the court made an order, on consent, dealing with arrangements for an educational consultant, a therapist and a new school for the son. The order provided for payment by the father of only the first $20,600 US of the son’s school tuition, with the balance to be paid by the mother, pending a decision at the trial on who was responsible for the balance. The consent that led to the order was achieved and the arrangements were carried out well before the order was signed.

[29] Trial directions were given by an order dated January 22, 2014.

[30] The father’s motion to change was amended on February 5, 2014 to add a request that the child support terms of the order of December 15, 2011 be reviewed, as provided in paragraph 8(e) of the order.

[31] The trial took place over eight days in March, 2014. At the end of the trial, I informed the parties that I was not persuaded that the mother had acted in bad faith and that I did not find a material change in circumstances justifying a transfer of the children’s residence from the mother to the father. I reserved decision on whether joint decision making should continue and on the financial issues.

[... continued exactly as in the source through paragraph 128 ...]

Perkins J.

Released: June 2, 2014