ONTARIO

SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: FC- 09-1800

DATE: 20141125

CORRECTION: 20141202

BETWEEN:

SHON MICHAEL HLADY
Applicant

– and –

KAREN LOUISE O’NEIL
Respondent

Self-Represented

Self-Represented

HEARD: November 20, 2014

REASONS FOR DECISION

THE TEXT OF THE ORIGINAL JUDGEMENT WAS CORRECTED ON

DECEMBER 2, 2014 AND THE DESCRIPTION OF THE CORRECTION IS APPENDED.

McGEE J.

Pleadings

[1] This is the trial of two Motions to Change: the first issued May 27, 2013 by Mr. Hlady, and the second, issued August 12, 2014 by Ms. O’Neil.

[2] The 2013 Motion to Change seeks to vary the terms of the March 2009 Separation Agreement, the final order of June 20, 2011 and the final order of August 8, 2012. The order of June 20, 2011 incorporates terms from the separation agreement for parenting, child support and ongoing financial disclosure. The August 8, 2012 Order is drawn from Minutes of Settlement signed that day. It granted the mother decision making on all health and education issues, set out detailed access terms and continued the support terms of the June 2011 order.

[3] The 2014 Motion to Change seeks an order for sole custody and wrongly cites the June 2011 order as the order to be varied. That order was silent as to custody, although it in effect provided for same - decision making was vested with the mother. It was the March 2009 separation agreement provided for joint custody.

[4] Both Motions to Change were answered with claims that somewhat duplicated the answering party’s claim in the other proceeding. Specifically, Mr. Hlady sought in his 15B Response to the 2014 Motion to Change that his support be varied as of February 2014. He plead that in February 2014 he lost his employment position when he was placed on medical leave. He tendered no evidence of same during this trial.

January 15, 2015 Motion for Contempt

[5] Mr. Hlady has served a motion for a finding of contempt against Ms. O’Neil on the issue of access. It is scheduled for January 15th 2015. The order upon which Mr. Hlady seeks a finding of contempt is a temporary order. Because today’s trial results in a final order which supplants any temporary orders, there is no longer a basis upon which the January 15, 2015 motion can proceed.

[6] Order to go that the motion scheduled for January 15, 2015 is dismissed.

Issues for this Trial: Custody and Access

[7] Mr. Hlady and Ms. O’Neil are the divorced parents of two sons: Jordan born April 11, 2004 and Tyler born October 18, 2007. Ms. O’Neil has remarried and her spouse, Jacob O’Neil is a step-father to the boys. His testimony during trial revealed a genuine concern for their well-being.

[8] This differed from that of the parents, who over the course of this trial appeared far more exercised over the conduct of the other, and the payment of child support.

[9] Mr. Hlady and Ms. O’Neil do not cooperate in their parenting.

[10] In the Minutes of Settlement signed August 8, 2012 it was agreed that the mother would have final decision making on health and education.

[11] Custody is primarily a function of decision making. It is always best for parents to make decisions together. When parents are unable to make decisions together, it is better for a child to have one parent vested with decision making. Having one parent consult and when necessary, make a final decision brings to an end to the constant conflict and uncertainty of battling parents.

[12] There are exceptions. Sometimes a parent will deliberately create conflict to avoid co-parenting. In those circumstances a court will hesitate to “reward” the unreasonable parent with sole custody, see Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 194 O.A.C. 106, and Ladisa v. Ladisa (2005), 2005 1627 (ON CA), 193 O.A.C. 336.

[13] Being a sole custody parent is to have additional obligations and responsibilities. He or she must ensure that the children have a good relationship with both parents. The custodial parent must not only support, but activitely facilitating parenting time with the non-residential parent. He or she must provide information, consult and communicate.

[14] I learned during the course of the trial that Jordan and Tyler have not seen their father since July 6, 2014 when he returned them from summer holidays. It was mentioned by the mother that a CAS file is open – but no evidence was tendered.

[15] The mother submitted the first page of a letter addressed to her from the father dated July 5, 2015. The first page suggested that the father was acting unreasonably regarding the cessation of access. When the court asked for the second page of the letter it revealed a polite and heartfelt request from the father for access to continue with a modified schedule to match his changing circumstances.

[16] I am not satisfied that since July 2014 the mother has done much to support the father’s parenting time by communicating with him and/or discussing options. Rather, she and her spouse have focussed on being able to demonstrate to the court that the father is in breach of the June 2011 order for access.

[17] Neither am I satisfied that the father has acted constructively to ensure his relationship with the boys continues in a positive manner. In closing submissions he simply asked that the current order for access continue, as if it was an ever - available option to exercise at his discretion.

[18] The mother’s evidence, and a general view of the situation, persuades me that Tyler and Jordan are feeling angry and abandoned within the present circumstances. How else would they interpret having no contact with their father since last July?

[19] I am concerned that the father does not fully appreciate the effect on his sons to have no contact for such a lengthy period. There may well be an apology, or an accounting in order. Possibly from both parents. I lack sufficient evidence to understand how this situation developed, or why it persists.

[20] There must be a better way. Everyday thousands of children in this jurisdiction grow up in two home families and enjoy the best of each parent, step-parents, and extended family. Parents mature, build new skills and make commitments to their children’s future. They know that childhood may be is fleeting, but that the effects of a poor childhood can last forever.

[21] The future parenting schedule for Jordan and Tyler must be focussed on them and their needs. Access is a child’s right. Each child is entitled to have as full and meaningful a relationship with each parent as possible. Access is not dependent on the payment of child support. Neither can it be a set of terms observed more in the breach.

[22] I make the following order:

(1) The mother shall have custody of Jordan and Tyler.

(2) The access terms within the order of June 20, 2011 are terminated.

(3) The mother shall immediately arrange an appointment with the boys’ physician for a referral to a child and family service provider who will assist the boys in reconnecting with their father. Alternatively, the mother will obtain a referral through the Children’s Aid Society or the family law information centre for the same purpose.

(4) The service provider will meet with Tyler and Jordan together, and each of the parents separately to form a parenting plan going forward. Tyler and Jordan’s views and preferences must be considered within the plan.

(5) As a custodial parent, the mother is required to support her sons having a positive relationship with their father.

(6) The mother shall purchase for a period of 12 months, and then download http://www.ourfamilywizard.com/ofw/ . The parties are to communicate through that software platform on all matters affecting the boys until they agree otherwise in writing. The cost of the software renewal after one year shall be paid by the father. The parties will alternate payment in each year of renewal thereafter.

(7) Scripts of communications recorded by the Family Wizard shall be evidence in any future proceedings. Parties are to be respectful, polite and helpful in their written communications.

(8) Neither parent is to disparage the other parent in any manner that may come to the boys’ attention.

(9) Until the parents can agree on a fulsome schedule, the following access shall occur at a minimum:

a. Alternate weekends from after school on Friday until Sunday evening at 7:30, commencing November 28th.

b. Pick up shall be at the school. Drop off shall be to the mother’s residence. The father shall not leave the car when dropping off the children and the mother shall not approach the car. If the boys need assistance transferring their belongings, the step-father shall assist.

c. On any pick-up day for which there is no school (such as December 26th) pick up shall be at the mother’s residence at noon. The weekend of December 26th shall constitute Christmas access for the father.

d. The boys shall have unlimited telephone, email, text and social media contact with their father, in their discretion. The father will at all times acknowledge his sons’ communications.

Table Child Support

[23] The final order of August 8, 2012 provides for table child support in the amount of $1,242 based on income of $86,839.

[24] On the first day of trial, Mr. Hlady produced his 2013 Notice of Assessment. The NOA was dated March 17, 2014 and shows income of $72,654. At trial he provided no evidence of his 2014 income. He failed to file a Financial Statement.

[25] The Trial Management Order required Mr. Hlady to serve all documents on which he intended to rely at trial by August 31, 2014. In his own words, Mr. Hlady stated that he had not done so, that he was negligent in not doing so, and that “he never thought that it would get to this.”

[26] At the same time, Mr. Hlady seeks an order that his child support be paid in accordance with his income. It bears stating that Mr. Hlady’s failure to provide timely disclosure of his income –particularly as it has declined – is as self-defeating as it is nonsensical.

[27] Child support is the right of a child. A parent receiving child support deserves to know the appropriate amount owing at the time that it is owing so that the child’s budget can be adjusted accordingly.

[28] The failure to make timely financial disclosure shall be addressed within these reasons and costs submissions.

[29] I am prepared to vary paragraph 6 of the final order of August 8, 2012 to provide for the payment of table support in the amount of $1,073, being the table amount for two children on income of $72,654. Payment of $1,073 shall commence June 1, 2014; as per Mr. Hlady’s request to have a June anniversary review of table support based on the prior calendar year of income.

[30] Starting in 2015, Mr, Hlady shall provide a copy of his T1 income tax return for the prior taxation year by May 15th , and a copy of his Notice of Assessment within a week of receipt. The parties are recommended to use a Form 15C to amend the Support Deduction Order on consent. If the adjustment is not on consent, the parties are to attend for mediation, failing which a Motion to Change may be issued.

Section 7 Expenses

[31] The Separation Agreement of March 2009 provides for a somewhat atypical scheme of determining the payment of special expenses.

[32] Each party is to pay 50% of the daycare fees (paragraph 5.2 and 5.4) and Mr. Hlady is to pay 80% of the boys’ special or extraordinary expenses (paragraph 5.4).

[33] The Agreement does not require the parties’ consent. Rather, it sets out a list of section 7 expenses which may be included (but for daycare, none of which are the expenses in question within this proceeding.)

[34] The Agreement requires the payment of expenses to be net of any income tax benefit or subsidy (paragraph 5.5.) This provision has been entirely ignored by Ms. O’Neil.

[35] The last sentence of paragraph 5.4 provides that should the income of either party change, the parties will adjust Mr. Hlady’s contribution accordingly. Both parties have ignored this provision. Neither has provided timely disclosure of his or her income. The father’s failure to do so is set out above. Likewise, the mother has failed to provide any evidence of her income.

[36] Paragraph 5.7 provides that section 7 expenses will be reconciled annually in February.

[37] For reasons that were not pursued at trial, the voluntary scheme for payment of special expenses within the Separation Agreement failed. Rather, the mother submitted Statements of Arrears directly to the Family Responsibility Office for the activity and daycare expenses that she incurred without contribution from the father. None of the amounts were net of tax. None were adjusted to reflect changes in the parties’ annual income. Many were not agreed in advance by the father. Some were unknown to him.

[38] The Statements of Arrears resulted in debit entries within the FRO accounting records. In the course of the trial the mother filed certain of the Statement of Arrears as marked below.

[39] The debit entries additional to the table child support amount set out in the FRO Statement for the period of October 1, 2010 to November 17, 2014 are as follows. I have included the corresponding Statement of Arrears where the figures match. Amounts in bold are debit reversals.

Amount Date Corresponding
Statement of Arrears

$ 3,043 January 4, 2011 June 15, 2010[1]
$ 1,393 August 16, 2011 None provided
$2,086 March 12, 2012 January 9, 2012[2]
$10,430 October 23, 2012 None provided
$499.24 March 11, 2013 February 20, 2013[3]
$1,733.69 August 23, 2013 August 9, 2013[4]
($400.00) August 28, 2013 Adjustment credit[5]
($12,836.00) August 28, 2013 Adjustment credit
$921.60 November 5, 2013 None provided
($ 3,055.98) November 5, 2013 Adjustment credit
($ 363.71) November 5, 2013 Adjustment credit
$812.09 August 27, 2014 None provided

Total $4,262.93[6] Net received, or under enforcement.

[40] The debit reversals are the result of the father’s tenacious objections to amounts being added to his arrears without consent, or the opportunity for him to verify the amounts. Such is the process allowed by the FRO when the payment of section 7 expenses is provided for within a domestic contract, but the amount are not crystallized.

[41] The present circumstances are most unsatisfactory. The FRO enforcement of special expenses as contemplated in the March 2009 Separation Agreement court must terminate. I will determine the expenses for 2014 within these reasons, and thereafter the parties are to determine special expenses in the ordinary course: by annual agreement or court order.

Special Expenses within Exhibit 3 prior to December 31, 2013

[42] Ms. O’Neil submitted a series of expenses incurred from 2008 to 2014 inclusive of daycare to which the father has not contributed. Those incurred before December 31, 2013 total $2,742 (rounded). The amounts are not reduced for tax, and all are eligible for tax deduction or credit.

[43] Absent a full record of the Statement of Arrears submitted to the FRO, it is impossible to determine whether these amounts have already been submitted and form part of the $4,262.93 that has been collected or is under enforcement.

[44] The mother states that none of the expenses claimed at trial have been previously listed in a Statement of Arrears. Absent all the Statements of Arrears, I cannot be satisfied in that regard. In any event, I find that the amount of $2,742 within the totality of expenses paid since 2009 (including those voluntarily paid) have been effectively received as an offset of the tax deductions and credits that have not been calculated in each of the calendar years since 2009.[7]

Special Expenses within Exhibit 3 for 2014 Activities

[45] There are 4 expenses submitted:

Swimming lessons Tyler $294.93
Swimming lessons Jordan $310.75
Soccer Tyler $185.00
Baseball Jordan $250.00

Total $1,040.68

[46] Ms. O’Neil has not calculated the benefit of the child fitness credit. Neither parent placed financial statements before the court on which proportionate shares could be calculated. In the absence of financial statements, the reasonableness of the expense in relation to the parties’ means per section 7 of the Federal Child Support Guidelines cannot be assessed.

[47] In the absence of any evidence to assist me, I will fix Mr. Hlady’s contribution to the 2014 section expenses at $ 720.00: being 80% of a deemed after tax amount of $900. Per Rule 1(8) of the Family Law Rules, the failure of Mr. Hlady to file financial disclosure while under a legal obligation to do so shall prevent him from later claiming that his proportionate share for 2014 ought to be in a different amount.

Daycare

[48] I was not provided with a statement confirming the after-tax cost of daycare for the boys in 2014. Absent such evidence, the court cannot calculate the amount of the father’s contribution and no order can be made. If the parties cannot agree on the father’s proportionate share for the 2014 after tax cost of daycare, they are to attend mediation, or Ms. O’Neil may seek an order within a new proceeding upon filing her 2014 Income Tax Return.

[49] Final order to continue as follows:

(10) Paragraph 6 of the final order of August 8, 2012 is varied effective June 1, 2014 to provide that the father shall pay the monthly table amount of $1,073, being the table amount for two children on income of $72,654.

(11) Starting in 2015, Mr Hlady shall provide a copy of his T1 income tax return for the prior taxation year by May 15th, and a copy of his Notice of Assessment within a week of receipt.

(12) In any calendar year in which Ms. O”Neil seeks a proportionate share of special expenses; she must provide a copy of her T1 income tax return and notice of assessment.

(13) Paragraphs 5.2 to 5.7 of the March Separation Agreement are terminated.

(14) The FRO shall make no further adjustments to the non-table support debits for section 7 expenses accrued up to December 31, 2013.

(15) The debit of August 27, 2014 in the amount of $812.09 shall be reversed.

(16) Mr. Hlady’s contribution to 2014 special expenses for activities is fixed at $720 and is payable forthwith. This amount is non-variable.

(17) Support Deduction Order to issue accordingly.

(18) From January 1, 2015 forward, the net, after tax cost of any section 7 expenses is to be shared proportionate to each parent’s income. No expense is to be incurred without the other parent’s prior consent or a court order, but for uninsured health, medical and dental expenses.

(19) Neither parent shall unreasonably withhold consent to a section 7 expense.

Costs

[50] The respondent mother shall serve and file her costs submissions on or before December 3rd, and the applicant father shall file his response by December 12th. Submissions are not to be more than 2 pages in length, exclusive of any Offers to Settle or a Bill of Costs.

McGee J.

Released: November 25, 2014

CORRECTED DECISION

1. Page 2, para. 7 now reads: …….Jordan born April 11, 2004……

2. Page 5, para. 29 now reads:……final order of August 8, 2012……

3. Page 8, para. 48 now reads: …….Ms. O’Neil may seek an order …….

4. Page 8, para 49 sub para. (10) now reads: ……of the final order of August 8, 2012

[1] Home insurance payments and interest disallowed.

[2] Table support for September and October 2009

[3] Expenses unstated and dated Feb 1, 2013.

[4] 2013 daycare, swimming and baseball.

[5] This amount was reversed, that is, subtracted from the case balance.

[6] The mother provided two Statement of Arrears which do not appear on the FRO Statement: $1,213.22 (June 26, 2012) and $1,760.77 (October 9, 2012) I have thus disregarded them.

[7] As was required in the 2009 Separation Agreement.