COURT FILE NO.: OWEN SOUND – 12-214 DATE: 20160525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEE N:
J.J. Peter Harrison, counsel for the Applicant Applicant
- and -
C.C. Self-represented Respondent
HEARD: May 11, 12, 17, 18, 19, 20 and 24, 2016
REASONS FOR JUDGMENT
Introduction
[1] Mom and dad, two very different people, conceived a child together. They had dated very briefly beforehand. Now, that child is nearly ten years old (born in […] 2006).
[2] For much of the girl’s life, her parents have been in litigation. How depressing.
[3] Mom now lives in a small village in Grey County. Dad now lives in downtown Toronto.
[4] Dad is a teacher and earns about $100,000.00 per year, gross. Mom earns very little and receives social assistance.
[5] Mom wants to change a consent Final Order made in 2009, specifically, she wants to increase the monthly child support payable by dad.
[6] Dad wants to change a consent Final Order made in 2012, specifically, he wants to alter the child’s primary residence from mom’s home to his apartment, and he wants to have final decision-making authority on all matters concerning the girl.
[7] A trial was held in Owen Sound commencing on May 11, 2016 and lasting seven days (though not all full ones). The last day of trial was May 24, 2016. A prior Court Order directed the father to present his case first.
[8] At trial, I heard from one witness called by the father – himself. The father did not have counsel at trial. I heard from one witness on behalf of the mother – herself.
[9] In addition, on consent of both sides, I interviewed the child, in private. A transcript of that interview shall be prepared and sealed and not be accessed by anyone without a further Court Order. Neither parent shall pressure the child in any way to talk about the interview. The girl expects and is entitled to have the interview remain private.
[10] For the reasons that follow, mom’s request is granted, and dad’s request is denied.
[11] In making that decision, I have considered all of the evidence at trial, testimonial and by way of Exhibit, the submissions, as well as my discussion with the child.
The Background and the Facts Not in Dispute
[12] The Applicant mother, J.J., is 43 years old. The Respondent father, C.C., is 51 years old.
[13] The parties were never married and never lived together. They do not get along. They communicate only by email, and even that is strained.
[14] On August 20, 2009, a consent Final Order was issued in Barrie, Ontario. Both parties were assisted by duty counsel. Based on an annual gross income of $25,800.00, C.C. was ordered to pay monthly child support of $220.00.
[15] That Order is the one that the mother seeks to change.
[16] In August 2011, C.C. moved to Toronto. He had been a supply teacher with two school boards in Grey and Simcoe Counties but relocated to obtain better employment.
[17] It is acknowledged by the father that he has underpaid child support. He agrees that his gross annual income has been much higher than $25,800.00 in recent years: $61,758.00 in 2012, $93,753.00 in 2013, $94,000.00 in 2014 and just over $100,000.00 in 2015.
[18] The father also agrees that whatever he owes in child support arrears ought to be offset against what the mother owes him on a costs award made by the Court in Barrie in January 2009 (originally, for $27,000.00).
[19] In March 2010, upon the mother’s filing for bankruptcy, the Bankruptcy Court ordered that J.J. pay 50% of that outstanding costs Order.
[20] On September 19, 2012, a consent Final Order was issued in Barrie. Both parties had received some legal advice beforehand. That Order is very lengthy and meticulous, spanning some 17 pages. It reflected the recommendations of an expert with whom the parties had consulted.
[21] Essentially, that Order provided that the child reside primarily with J.J., have regular access with C.C., and have all major decisions made for her by both parents together, with the help of a parenting coordinator where required.
[22] The parties did utilize a parenting coordinator for quite a while, however, that ended well before the trial began (in August 2014).
[23] In a nutshell, the status quo arises from that Order made in September 2012. It is that Order that the father seeks to change.
[24] Currently, the child lives with J.J. in Grey County. She attends a local elementary school and is in grade 4. During the school year, the girl spends every second weekend with her father, who lives in downtown Toronto. In the summer, the child spends more time with C.C. than with J.J. Other holidays are shared equally between the parties.
The Issues and the Positions of the Parties
[25] As is commonly the case, the issues as originally pleaded have now been significantly narrowed. In the case of the father, he brought a motion mid-trial to further amend his pleading, which motion was granted.
[26] There are two issues: child support and custody/residency of the child.
[27] On child support, the mother submits that the August 2009 Order ought to be changed in that the father should be paying more on a go-forward basis, because of his higher gross annual income. I agree.
[28] Further, the mother proposes a set-off between what the father owes in total child support arrears between January 2012 and today ($29,405.00) and what she owes to C.C. on account of the January 2009 costs Order ($12,265.86, being 50% of the balance remaining).
[29] On child support, the father does not dispute that a material change in circumstances has occurred. Further, he does not dispute the following: (i) that he ought to be paying more monthly child support on a go-forward basis because of his higher gross annual income; (ii) that the total child support arrears calculation is as suggested by the mother’s counsel; (iii) that the remaining balance on the January 2009 costs Order is as suggested by the mother’s counsel (or perhaps a little higher, at about $25,000.00); and (iv) that the proposed set-off is appropriate.
[30] He does, however, submit that the mother’s income ought to be attributed at $35,000.00 per annum, gross (for purposes of section 7 expenses). The mother opposes that. And C.C. argues that, in performing the set-off, the full amount of the remaining balance on the costs Order (not 50%) ought to be used. I agree only with regard to the latter point.
[31] On custody/residency, the father requests that the September 2012 Order be changed as follows: the child would live primarily with him in Toronto, with generous and liberal access with J.J., and C.C. would have final decision-making authority on all matters concerning the girl.
[32] Further, C.C. wants to be the one who takes the child to her annual medical check-ups; he wants to have some of the girl’s original schoolwork; he wants the parties to alternate attendances at the child’s Christmas concerts at school; he wants no return to parenting coordination; and he wants to alter the place of exchanges of the child (from him to mom) in Toronto to a Tim Horton’s closer to his apartment while maintaining exchanges from mom to him at a daycare facility in Grey County.
[33] It should be noted, however, that the relief referred to immediately above was in contemplation of the father’s position when the trial started, which position included that he be the final decision-maker for the child but did not include any request to alter the girl’s primary residence (the latter request was made mid-trial).
[34] Unfortunately, some of the father’s positions on the issues were moving targets at trial. For example, in closing submissions, his stance suddenly changed from having the exchanges in Toronto at the Tim Horton’s closest to his apartment to having them outside the apartment itself. As another example, although he had previously acknowledged during his testimony at trial that the set-off spoken to above was appropriate, in closing submissions, he suddenly opined that his child support arrears could be rescinded altogether in light of the mother’s past conduct in frustrating his access with the child.
[35] In any event, as C.C. represented himself at trial, I extended to him a good deal of latitude. He had received well in advance of the trial and had reviewed a comprehensive memorandum to assist self-represented litigants. He was helped by the Court throughout the trial on procedural matters. The substantial amendment to his pleading was allowed mid-trial. And I have considered his closing submissions, even where they raised entirely new issues.
[36] On custody/residency, the mother asks that the status quo remain. She disputes that a material change in circumstances has occurred since September 2012. I agree.
[37] The only caveat is that J.J. would like to move the location of exchanges of the child from her to C.C. to a neutral place (a café) in Flesherton, Ontario (which is between Toronto and Grey County). The daycare facility would no longer be used for those exchanges. Exchanges of the girl from dad to mom would continue to occur at the present location in Toronto (not the Tim Horton’s closest to C.C.’s apartment, as suggested by him).
Analysis
Child Support
[38] It is conceded by the father that his significant rise in income since 2009 constitutes a material change in circumstances. I agree.
[39] There is no dispute about C.C.’s gross annual income - $100,071.55 (per his 2015 tax year information). Thus, based on that income, effective June 1, 2016 and on the first day of each month thereafter, enforced through the Family Responsibility Office, the father shall pay child support as provided by the Federal Child Support Guidelines.
[40] My review of the Tables indicates that the said monthly award is $877.00.
[41] There is no dispute about the total quantum of arrears of child support - $29,405.00. Those arrears began to accumulate in 2012 and continue to this day. Remember that the father was, at all material times, paying a measly $220.00 per month in base child support.
[42] There is no dispute about the approximate total amount outstanding on the costs award made against the mother in January 2009 - $25,000.00. I say “approximate” because that is the best that the Court can do (in her counsel’s closing submissions, the mother suggested a few hundred dollars less than that, while the father suggested in his written closing argument a few hundred dollars more than that, but nevertheless both sides appear content with the figure of $25,000.00).
[43] Although it is true that the Bankruptcy Court made an Order in March 2010 that J.J. pay only half of what was outstanding on that costs award, it is also true that the mother outright ignored her obligation to pay, both before and after March 2010.
[44] She must not be rewarded for that. Hence, the full amount of what is outstanding ($25,000.00) shall be offset against the total child support arrears owed by C.C. ($29,405.00). The balance is $4,405.00, owing by the father.
[45] Effective June 1, 2016 and on the first day of each month thereafter, enforced through the Family Responsibility Office, the father shall pay $500.00 per month towards those arrears. He has the ability to pay both that amount and the $877.00 per month.
[46] I reject the submission made by the mother’s counsel that the outstanding costs amount ought to be reduced to 50% because J.J. would likely have paid it earlier if the father had paid more child support. That is speculation. J.J. never gave that evidence at trial. And such a notion is inconsistent with the Bankruptcy Court’s finding that the mother declared bankruptcy to try to evade the costs Order.
[47] I reject the closing argument made by the father that the Court should consider rescinding his child support arrears altogether because J.J. has a history of frustrating his access with the child. First, that was never pleaded by the father and never raised at trial before closing submissions. Second, and more important, the authority relied upon by C.C., Starr v. Starr, 2008 CarswellOnt 11318 (S.C.J.), has little factual similarity to the situation here. “Malicious, contemptuous, alienating behaviour” – that was present in Starr, supra (paragraph 51). J.J. needs a lesson in how to foster and encourage a relationship between the child and C.C., however, she is not the type of person described by the Court in the case referred to by the father.
[48] There is nil merit to the father’s request that J.J. have an annual gross income of $35,000.00 imputed to her. At trial, the father admitted that he has no evidence to support his mere suspicion that the mother is intentionally unemployed or underemployed. The mother has never earned anything close to $35,000.00 per year. She is currently working three part-time jobs. There is no hint of her turning down work or failing to declare income to the tax authorities.
[49] There is no reason for this Court to not accept her current annual gross income as that reported on her Notice of Assessment for the tax year 2015 – less than $12,000.00.
[50] I reject the closing argument made by the father that Court decisions like Crisp v. Crisp, 2012 ONSC 521 support his assertion that a higher income should be attributed to J.J. At paragraph 42 of the decision in Crisp, supra, the Court was simply pointing out that income may be imputed where there is evidence of blind persistence in un-remunerative employment, or the pursuit of unrealistic or unproductive career goals, or a self-induced reduction of income, or the pursuit of unreasonable self-employment.
[51] On any of those categories, there is no such evidence in our case.
Custody/Residency of the Child
[52] There has been no material change in circumstances that would justify a variation in custody or residency.
[53] A material change in circumstances is (i) a change in the condition, means, needs or circumstances of the child, (ii) which materially affects the child, and (iii) which was neither foreseen nor could have reasonably been contemplated when the initial order was made. Gordon v. Goertz, [1996] 2 S.C.R. 27, at paragraph 10.
[54] During cross-examination at trial, when pressed to articulate what has changed, C.C. struggled. He could point to only two things: the end of parenting coordination (which is not a material change because it was expressly contemplated by the September 2012 Order and, besides, it was the father himself who chose to end it) and friction between the parents, including J.J.’s alleged attempts to keep C.C. on the edges of the child’s life (which is not a material change because those things, according to the father himself, have been occurring since well before September 2012).
[55] For those reasons alone, the father’s request to change the September 2012 consent Final Order, regarding how major decisions are made for the child and where she primarily resides, must be dismissed.
[56] The father relies heavily on the decision of Ricchetti J. in Taylor v. Taylor, 2012 ONSC 1419. There, the Court held that the end of parenting coordination amounted to a material change in circumstances (paragraphs 65-72). But the facts of that case were very different than they are here.
[57] First, in Taylor, supra, unlike our case, the party bringing the Motion to Change was not responsible for the end of parenting coordination. Rather, it was the other party’s distrust for and lack of cooperation with the parenting coordinator that necessitated the matter being brought back to Court.
[58] Second, in Taylor, supra, unlike our case, neither party wanted to return to parenting coordination.
[59] I also reject the father’s reliance in his closing submissions on the case of Tremblay v. Tremblay (no citation given and no copy provided). Apparently, it stands for the proposition that one parent’s outright refusal to grant Court-ordered access constitutes a material change in circumstances. Assuming that is true, it is of no assistance to C.C. This is not a case of the mother having outright refused to grant any access to the father.
[60] Even if there had been a material change, however, I would not have granted the father’s requests. It is clearly not in the best interests of the girl to move to Toronto. C.C. himself acknowledged at trial that she is thriving in her current school and appears happy and well-loved and cared for in Grey County.
[61] C.C. had great difficulty in cross-examination at trial articulating why it would benefit the child to move to Toronto. His evidence came down to this: the move would foster a better relationship between him and the girl and would be more consistent with him making the final decisions for her.
[62] Neither of those reasons is sufficient. The latter will not be ordered by this Court in any event, and thus, is irrelevant. The former can be accomplished by other, less drastic means, including this stern message to J.J.: C.C. is this child’s father; the girl is entitled to have a healthy, open, loving relationship with her dad; and the mother shall not do anything to circumvent or frustrate that from happening. If she does, then she risks losing her daughter. The mother must recognize that the principle of maximum contact with both parents is not just some hollow notion; it must be respected and encouraged by both households, as long as it is in the best interests of the child.
[63] And, make no mistake, the relocation of the child’s primary residence would, indeed, be a drastic step. At paragraph 124 of the father’s written closing argument, he called it a “major change”. After many years of attending a small, rural school in a village in Grey County and living with her mom and grandma in the country, the girl would suddenly be living and attending school in downtown Toronto, leaving much of what she has known behind her.
[64] When one looks at the factors outlined in subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, one sees the following: clause (a), emotional ties, favours the status quo (because of the relationship between the child and her maternal grandmother); clause (b), the child’s views, favours the status quo; clause (c), the length of time that the girl has lived in a stable home, favours the status quo; clauses (d) and (g), abilities of the parents, are neutral; clause (e), plans of care, is neutral; clause (f), the permanence and stability of the family unit, is neutral; clause (h), relationship by blood, is neutral; subsection (3), past conduct, is neutral; and subsection (4), violence and abuse, is neutral (there was a passing reference at trial to the father having abused the mother previously, however, I have insufficient details to place any weight on that allegation).
[65] None of the factors favours the father’s proposal to move the child to Toronto.
[66] Further, it is not in the best interests of this child to have one parent make all major decisions for her. That is attractive in many cases where the parents, as these ones, simply cannot cooperate with one another. But it is not attractive here because, frankly, notwithstanding that my meeting with the girl suggests that she is well-adjusted, I do not trust either parent’s ability to make those decisions alone.
[67] The mother presents as scattered, unfocussed and overly care-free. She tends to see the father through a dirty glass. If she communicates with him as she answered questions at Court, often not in a responsive manner, I can see why C.C. grows frustrated. She is somewhat secretive in keeping information from the father, such as the child’s chronic abdominal issues. She is often hyperbolic in her dealings with the father, for example, quoting verses from Martin Luther King, Jr. when she wanted to show her dislike about C.C. having taken the girl to be immunized (which was recommended by the family physician). And she does not always respect Court Orders, such as the clause in the September 2012 Order that requires each parent to give to the other the opportunity to care for the child in certain circumstances.
[68] The father presents as paranoid, obsessive and overly-sensitive. He is a conspiracy theorist, for instance, suspecting at times that third parties are in cahoots with J.J. to stick it to him. He is a meticulous man whose communications with the mother border on harassing, at times.
[69] In addition, the concept of one parent making all of the major decisions for the girl is not attractive here because the parenting coordination in the past actually worked, even according to the father’s testimony at trial, at least to some degree.
[70] Hence, the parties shall continue to abide by the September 2012 Order in terms of decision-making for the child. Parenting coordination with Ms. Sivkin (the same person used in the past), or with another person agreed to by the parties, shall continue where necessary (only in cases of a true impasse and only after the parties have done their very best to resolve the issue as rational, mature adults). The parenting coordination shall be paid for by C.C. The mother just does not earn enough money currently to order that the parties share the cost proportionately. Besides, in the past, C.C. consented to paying 100% of the fees.
[71] Until the arrears are extinguished, the father will be paying close to $1400.00 per month in child support, plus the parenting coordinator’s fees. Hence, the mother must keep two things in mind. First, do not abuse the parenting coordinator. Only utilize him/her where strictly necessary. Second, minimize section 7 expenses for the child to those that are reasonably necessary and beneficial.
[72] Rather than burden the parenting coordinator with a multitude of disputes to resolve in the immediate future, and to get these parties off to a fresh start, I am going to settle now the other more minor issues raised by C.C.
[73] As for the medical check-ups, the mother shall bring the child to those on a schedule that is recommended by the child’s current family physician. It makes more sense for the primary residential parent to be responsible for that. Further, it may be more comfortable for the girl to have her mom there as she gets a little older.
[74] As for the child’s original schoolwork, it is entirely reasonable for that to be shared by the parties equally. So ordered. The child can choose for herself which original items to give to which parent, however, the mother shall ensure that it is distributed roughly equally.
[75] As for the Christmas concerts at school, and any other organized school activities such as plays, track and field competitions, gymnastics, and so on, it is time for these parents to grow up. They shall both be free to attend those activities, remembering to be respectful of each other.
[76] As for the locations of exchanges of the child, they shall occur at the café in Flesherton (from mom to dad) and at the current Tim Horton’s location, a little further away from the father’s apartment, in Toronto (from dad to mom). The former location is more normal for the child than some daycare facility. The latter location is more convenient for the child as it places her closer to Grey County when she is picked up by her mom. I understand the father’s position that his pitch to move the exchange place to within walking distance of his apartment in Toronto (or to outside the apartment itself) would save the child having to be driven twice (by him to the Tim Horton’s, and then by the mother to home in Grey County), however, it is more important that the child get home at a decent hour.
[77] I understand the mother’s submission, through her counsel’s closing address, that issues like schoolwork and the locations of exchanges were already put before the parenting coordinator and resolved, with nothing really changed since. But the mother herself wants to vary the exchange place in Grey County, and the schoolwork dilemma is fast and easy to resolve. Hence, I am not shy about ordering as indicated above.
Conclusion
[78] A Final Order shall issue in accordance with these Reasons.
[79] The mother’s Motion to Change is granted. Except for relatively minor matters referred to above, the father’s claims in his Response to Motion to Change, as amended, are dismissed.
[80] As the more successful party, J.J. would normally be entitled to some costs, subject to other considerations.
[81] If the parties cannot resolve the issue of costs between themselves, I will accept written submissions. The mother shall file within thirty days of today. The father shall respond within fifteen days thereafter. No reply is permitted. Each submission shall be limited to two pages, excluding attachments such as offers to settle and dockets.
[82] I thank Mr. Harrison, counsel for the mother, for his professionalism throughout the trial.
[83] I commend the father, C.C., for being a caring parent and for being polite and respectful throughout the trial.
[84] These parties have managed to raise a very bright, polite, friendly young girl. Now they must choose to end the litigation and get on with living.
[85] I wish both parties and their child the very best going forward. I encourage J.J. and C.C. to get along, for the sake of their daughter.
May 25, 2016 The Honourable Mr. Justice C.J. Conlan
Conlan J.