Court File and Parties
Court File No.: FC-08-405; FC15-574-00 Date: 2016/08/16 Superior Court of Justice - Ontario
Re: Wendy Kelsey Brown, Applicant And: Robert Charles Rowe, Respondent
Between: Robert Charles Rowe, Applicant And: Aidan James Rowe
Before: Justice A. Doyle
Counsel: Mark S. Lafrance, for the Applicant, Wendy Kelsey Brown Robert Charles Rowe, Self-Represented Aidan James Rowe – not participating
Heard: June 13, 14, 15, 16, 17, 21 and 22, 2015 at Kingston
Endorsement
[1] The applicant, Wendy Kelsey Brown, (the mother) brings a motion to change the order of Justice Ray, dated July 15, 2010 (Order). She requests that the child Aidan James Rowe (AJ) reside with her on an equal time basis (week on/week off). She is also seeking a variation of child support and the determination of the sharing of post-secondary educational costs for their child Jessica Robbyn Rowe (Jessie).
[2] The respondent Robert Charles Rowe (the father) is requesting a variation so that AJ resides with him 24 days out of 28 days. He is also requesting retroactive child support, ongoing child support and the sharing of Jessie’s post- secondary educational costs.
[3] In a separate application, the father requested an order appointing him as the guardian of property of AJ, (guardianship application) pursuant to the Substitute Decisions Act, 1992, SO 1992, c 30 (SDA).
[4] The Court order of Justice Ray dated April 28, 2016 adjourned the guardianship application to the Justice hearing the family law trial.
[5] Therefore the Court heard both matters simultaneously.
[6] The issues are as follows:
- Has there been a material change of circumstances to permit the Court to vary the Order?
- If so, what parenting arrangement is in AJ’s best interests?
- What should be the ongoing child support payable?
- What is the retroactive child support?
- What is the mother’s contribution to Jessie’s University education?
- Should the father be appointed guardian of AJ’s property?
Background
[7] The parties were married on December 17, 1993 and separated July 6, 2006.
[8] The mother has a Bachelor of Nursing Science degree and a Nurse Practitioner designation. She currently works for the Ministry of Health and Long Term Care. The father has a PhD in Psychology. He is designated as competent in both clinical and forensic pathology for adolescent and adult population and works at the Family Court Clinic.
[9] They have two children, Jessie, born April 27, 1996 and AJ, born October 16, 1997.
[10] Jessie will be entering her third year at the University of Western Ontario in September 2016.
[11] AJ has been diagnosed with moderately severe autism. Although AJ is in grade 12 he functions considerably below his grade level. His overall IQ is within an extremely low range. He will remain eligible to continue Grade 12 for the next two years.
[12] The Order provided that both parties would have joint custody of the two children. They would keep each other informed and be entitled to direct information regarding the children.
[13] The Order provides that the children’s primary residence would be with the father subject to the following time-sharing schedule.
- Apart from holidays and special occasions, on a 28 day rotating cycle, the children Jessica Robbyn Rowe and Aidan James Rowe shall reside: (i) With the applicant, Wendy Kelsey Rowe, from Friday after school for a period of two days (two overnights) to the Sunday evening at 7 PM; (ii) Thereafter with the respondent, Robert Charles Rowe, from the Sunday evening at 7 PM for 12 days to the Friday after school (4:45 p.m.); (iii) Thereafter the applicant from Friday after school for seven days to the following Friday after school (4:45 p.m.); (iv) Thereafter with the respondent from Friday after school (4:45 p.m.) for seven days.
[14] The Order provides that the mother would pay child support in the monthly amount of $800 to the father commencing July 1, 2010 (which was below the guideline amount).
[15] At the time of the Order, the children were living with the father in Kingston’s west end. The mother resided with her partner in Battersea, which is approximately 30 minutes from the father’s residence in good traffic conditions. Jessie was involved in school activities and extracurricular activities and her friends lived in the father’s neighbourhood. The children were attending schools near the father’s residence.
[16] On October 7, 2010, the mother was charged with driving with 147 milligrams of alcohol in 100 milliliters of blood. At her guilty plea on November 12, 2010, her lawyer advised the Court that she was suffering from depression and anxiety, was receiving counselling, and was attending AA and a women’s group.
[17] She was fined and prohibited from operating a motor vehicle for one year. There was a delay in the reinstatement of her license for an additional year due to the requirement of the installation of an ignition interlock device in her vehicle. She and her partner had the use of only one vehicle. The mother indicated that she did not believe it was fair to impose this device on her partner.
[18] The mother indicates that she has not consumed alcohol since October 7, 2010. At the time of the offence, she checked herself into hospital to obtain professional assistance and stayed there for one week. The mother’s inability to drive a vehicle and the challenges of relying on her partner for driving made it difficult logistically during the school week to pick up the children.
[19] Therefore, the children remained at the father’s residence during the school weekdays when they were scheduled to be with her. She saw them on every second weekend.
[20] During the summers of 2011, 2012, and 2013 and each December, the parties would revert to the schedule as per the Order, i.e. the mother would have the children 9 days out of 28 days.
[21] For the remainder of 2010 and the years 2011 and 2012, the mother had the children every second weekend, i.e. 4 days out of 28 days.
[22] In September 2013, when her license was reinstated, the mother approached the father to reinstate the original schedule set out in the Order whereby she would have the children 9 days out of 28 days. Jessie had early morning and after school activities. If the mother took the children during the school week, the mother would have to transport both children to Jessie’s early morning and late afternoon practices and games.
[23] The mother would not have been able to accommodate Jessie’s schedule given her location in Battersea, which is not in Jessie’s school district. The mother did not want to disrupt Jessie’s activities, as she knew this was important to her. The mother suggested to the father that she only take AJ during the school week, which would allow Jessie to remain with her father who could take her to activities.
[24] The father stated that he was not prepared to allow only AJ to revert to the 9 days out of 28 days schedule. He indicated that she would have to be responsible for both children during the week or they would have to maintain the schedule where she would have the children 4 days out of 28 days. Due to this disagreement, the schedule did not change at that time.
[25] In the fall of 2014, Jessie started attending the University of Western Ontario in London, Ontario. The mother insisted on a return to the schedule set out in the order. In July 2014, the parenting schedule that provides the mother with 9 out of 28 days was reinstated. This has been the schedule for AJ for the past 2 years except in September and October 2014 when the mother had employment training and was not able to take AJ.
[26] When AJ turned 18 he was eligible for ODSP. The parties could not agree on who would be the trustee for the receipt of these funds, and hence the father instituted the guardianship application.
Has there been a material change of circumstances to permit the Court to vary the Order?
Mother’s position
[27] The mother indicates that by virtue of the Order, upon Jessie no longer living with the father, the parenting schedule could be reviewed. Since this condition is now satisfied, the mother holds that there has been a material change of circumstances.
Father’s position
[28] Originally, the father indicated that there has not been a material change of circumstances that would allow the Court to vary the Order. In his final submissions, he conceded that given the wording of the Order, there has been a material change of circumstances.
Legal Principles
[29] The Divorce Act, R.S.C. 1985, c. 3, s. 17(5) states that:
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.
Analysis
[30] In determining whether there has been a material change of circumstances, the Court notes that Jessie is no longer residing with the father. The parties had already agreed that her departure would allow the parties to revisit the issue of the parenting time AJ would spend with each parent.
[31] Given that she attended university in September 2014 and resided away from both parents’ home, a material change of circumstances has occurred which allows this Court to vary the Order.
If so, what parenting arrangement is in AJ’s best interests?
Mother’s position
[32] The mother indicates that since this threshold of material change of circumstances has been met, the Court must embark on a fresh examination and inquiry to determine AJ’s best interest.
[33] She submits that it is in AJ’s best interests that he resides with each parent on a week on/week off schedule. In this way, AJ can have the benefit and involvement of both parents. Allowing AJ to have equal time with each parent would enable both parents an equal opportunity to be supportive and actively involved in AJ school-related and leisure activities.
[34] To date, both parents have had direct communication with AJ’s teachers, educational assistants and the school staff. She submits that equal time-sharing will allow both parents to help with homework, connect with teachers and provide recommended follow-up of learning life skills.
[35] An alternating week on/week off schedule will also allow both parents equal status in making major and day-to-day decisions for AJ. Otherwise, there is a default position on the parent with primary physical custody. Therefore, allowing both parents to spend equal opportunity with AJ will allow both parents to equally participate in his life.
[36] She believes that the current imbalance is not in AJ’s best interests. Equal time will allow AJ to feel deeply loved, equally safe and secure in both households. She believes that the sense of balancing AJ’s time will positively affect his learning and development along with his behavioural and emotional adjustment.
[37] The mother submits that the father is not in a better position to meet AJ’s needs. She states that the father’s thesis in support of his doctoral degree concerned predictors of criminal offending behaviour in adolescents.
[38] She will make the appropriate and efficient busing arrangements to ensure that AJ is taken to his new school. Until then, she will drive him to his new school located in the father’s neighbourhood.
Father’s position
[39] The father submits that it is in AJ’s best interests that AJ is with his mother 4 days out of 28 days, as has been the case for over 4 years since the issuance of the Order.
[40] Firstly, there is no need for a change as AJ’s needs are currently being met. The actual 9 days out of 28 days has been only in place since November 2014.
[41] When Dr. Fitzpatrick assessed AJ in April 2015, he had been with his father for 24 days out of 28 days for almost 4 years. The report indicates the progress made by AJ.
[42] Secondly, he has been the primary parent as he has been more intimately involved with AJ’s care such as arranging service providers at home and at school. He has always prioritized the children.
[43] He has a strong attachment to AJ. Jessie stays with him when she is home from University and she is AJ’s best friend.
[44] AJ’s school is within walking distance in his neighbourhood and Jessie is familiar with the father’s neighbourhood as he has lived there most of his life.
[45] In contrast, the mother has never asked for more time with the children. She has turned down opportunities to attend parent/teacher meetings, children’s events, proms, events and games. The father has never asked the mother to make accommodations to the schedule. She has relied on the father to transport and take care of the children and he has made accommodations for the mother so she could spend time with the children.
[46] Thirdly, AJ functions best with a strict routine and he ensured a stable environment for the past 15 years. He submits that AJ becomes upset if his routine changes.
Legal Principles
[47] Pursuant to the Divorce Act, s. 2(1), AJ continues to be a child of the marriage within the meaning of the Act:
(b) “Child of the marriage” means a child to the spouses or former spouses who, at the material time is the age of majority or over and under their charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[48] The Divorce Act, s. 17(1) permits a Court of proper jurisdiction to vary or rescind prospectively or retroactively an order.
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.
(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the Court.
(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.
[49] The Divorce Act, s.17(9) states that:
In making a variation order varying a custody order, the Court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the Court shall take into consideration the willingness of that person to facilitate such contact.
[50] Upon finding a material change of circumstances, the Court must embark on a fresh inquiry to determine what is in the child’s best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.
Analysis
AJ’s needs
[51] The Court must embark on a fresh inquiry to determine what is in AJ’s best interest having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy those needs.
[52] The Court must consider AJ’s special needs, his developmental delays, and the ability of each parent to meet his needs.
[53] Both parents agree to maintain the joint custodial arrangement and have equal responsibility in making decisions for AJ.
[54] The Court praises the parents in jointly facing the challenges faced by AJ due to his developmental delays. They are able to set aside their differences to ensure that he receives the appropriate services and support in all aspects, i.e. education, medical, social, etc. Each parent plays a unique role in ensuring that AJ’s special needs are met.
[55] At the time of the Order, both children were attending a school in the father’s area, where. Jessie had activities.
[56] AJ has numerous experts and service providers in his life and they have played an instrumental role in his development.
[57] AJ has a regular individual education plan (IEP) which notes the diagnosis of moderately severe autism.
[58] The IEP dated April 2014, notes the following levels:
(i) word recognition: grade five (ii) listening comprehension: grade one (iii) oral reading: grade 4 (iv) reading: vocabulary comprehension grade 1 (v) reading: comprehension lower grade 3
[59] The communication assessment summary in the IEP states that AJ continues to function significantly below age level and that he is in the severely impaired range.
[60] His IEP dated November 18, 2015 deals with teaching strategies and learning expectations in the communication and language. The report speaks of the need to “establish clear, consistent routines and expectations in a predictable environment” and “Aidan gaining attention from staff and peer through positive behaviours, interactions and communications” and the need to “provide consistent routines and expectations.”
[61] The communications assessment summary states: “Testing indicates AJ’s ability to understand and use spoken language, continues to develop but is significantly below age level, and in the severely impaired range.”
[62] A clinical report by Dr. Renee Fitzpatrick dated April 13, 2015 states the following:
“The child was brought to the appointment by his father. AJ needed an assessment to assess his current level of functioning and to make suggestions for the educational plan over the next 3 to 4 years. According to the father there has been stagnation in his developmental skills over the last few years. His language development has been quite poor and he tends to try to get away with one word answers and his father feels that there is not been significant progress in his use of language”.
[63] The doctor finds “he is able to participate in his academic program…” and “AJ responds well to structure and consistency. When he tried to get out of doing tasks he doesn’t want to do, he may do so by protesting in a somewhat aggressive way. He is easily refocused and expectations are outlined.” “He is well-adapted to his baby brother and engages in family activities with encouragement from his father.”
[64] Dr. Fitzpatrick referred him to Dr. Elizabeth de Grace for a psycho-educational assessment in order to optimize his educational plan over the next few years.
[65] Dr. de Grace’s psychological assessment dated May 13, 2015 states: “Aidan’s parents have been successful in developing his repertoire of adaptive skills and managing his distractibility and behaviour. He is clearly (one) who is able to cope with a variety of different environments without stress”. At the time of this report, AJ was living with his mother 9 out of 28 days. On page 1, she states that: “his behavior is easily redirected if expectations are clearly outlined”. His emotional coping skills are relatively strong and he is very responsive to prompts. His language is severely impaired and he responds in single words or short phrases that are scripted and he requires constant supervision.
[66] The IPRC and IEP reports discuss setting clear expectations for AJ, establishing clear consistent routines and expectations in a predictable environment.
[67] The May 2016 IPRC comments again on AJ’s needs of communications skills, language, self-regulating and fine motor skills.
[68] Dr. Renee Fitzpatrick letter to Dr. Baran dated May 16, 2015 saying, “AJ responds well to structure and consistency.”
[69] She also referred AJ to Occupational Therapy (OT) for an assessment of his gross motor functioning recommendation for an exercise program.
[70] The Occupational Therapy Assessment report (Child & Adolescent psychiatry) dated May 7, 2015 from the Occupational Therapist, Danielle Procunier, recommends OT to target specific motor activities.
[71] It was recommended that AJ have OT at school to foster both his fine and gross motor skills in the school environment. He requires adult assistance and support in gym. “With demonstration, prompting, and direct supervision, AJ can learn proper form and technique, which will help to facilitate his full participation in gross motor activities”.
[72] Both parents spoke glowingly about AJ. It is obvious that they love AJ and have a great affection for him. The mother described him as a happy young man with a wonderful sense of humour loves to “ham it up” for an audience. The father describes him as fun loving and bit of “a daredevil.” Both parents admit that AJ has a genuine affection for both parents.
[73] They describe him as being scared of thunderstorms. He responds well to cueing and schedules and reward systems. He loves goldfish crackers and Disney movies and characters including Shrek, Tigger, Woody and Grinch and can aptly impersonate their voices.
School and transportation
[74] The parents indicated that AJ has to change schools in September 2016. Loyalist Collegiate Vocational Institute (LCVI), the school that AJ was attending last year, is taking on many students from other schools that have been closed and the teacher to student ratio will be increased. In addition, one of AJ’s teachers will be leaving the school.
[75] The emails between parents regarding change of school from LCVI indicate that the choices are Bayridge or Holy Cross.
[76] In AJ’s last scholastic year, AJ's school was in the father's neighbourhood. During the times that the mother had the child during the school week, she would drop AJ off at the father’s residence. AJ would enter the father’s home and would take the school bus from there.
[77] The mother has not arranged what bus could take AJ to either of the two new schools that AJ will attend when he is residing with her during the school week. She states that the Court should be assured that she would find a bus service that will not require AJ to be on the bus when transported from and to school.
[78] AJ will require a special-needs bus which is aesthetically designed for children with disabilities. The bus service also provides for an individual in the bus to monitor and oversee the children. The father is concerned that the child would spend an inordinate amount of time in school. He indicates that AJ’s behaviour has been stable and appropriate due to the parents ensuring that he has a consistent schedule without spending too much time on school buses.
[79] Therefore the father believes that it is not in the child’s best interest to reside with the mother every second week during the school year which would mean that the child would be travelling on a school bus 3 hours per day.
[80] The mother states that last year, it took 150 minutes to bring AJ to school, which included the time he is at the father’s home before the school bus arrives.
[81] The mother submits that the parents can work together to find the appropriate bus services for AJ when he is with his mother during the school week. She intends to explore options with Tri-Board school bus transportation system. In the meantime, the mother agrees that she will be driving the child to school.
AJ and change
[82] The father strongly believes that AJ does not do well with change. He states that the success in achieving good behavior from AJ is the structure, predictability and routine that the father has ensured is part of AJ’s life. Any change of routine can cause disruption to him. He does not cope well with any changes to his routine.
[83] The parents related an incident when the father was not home one school morning when the mother was dropping AJ off before he was to take his school bus. AJ became agitated and visibly upset as his father was not home and he was concerned.
[84] It was determined that the father had taken his wife to the hospital to deliver a baby. The parties did have a dispute as the mother was trying to help and arranged with the school to pick up AJ after school. However, she was not aware that the father had already made arrangements for AJ to be picked up at the school to come directly to the hospital so he could meet his baby brother.
[85] There have been changes in AJ’s life:
(1) There have been a number of changes of teachers at AJ’s school. He did struggle with these changes and the parents were able to transition AJ; (2) Jessie leaving for university in the fall of 2014 caused a big change in AJ’s home life; (3) The parties reverted back to the 9/28 schedule with the mother in the summer of 2014; (4) A new baby brother, Henry, to which the doctor indicated AJ has adjusted and adapted well; and (5) AJ has been in various schools due to his special needs. Dr. De Grace’s report of May 13, 2015, confirms that he has attended Pathways, Welborne Public School, Collins Bay PS to community program at Winston Churchill PS, Frontenac PS, then Loyalist Collegiate Vocational Institute (LCVI). The parents are again introducing change in AJ’s life by changing schools in September 2016.
Parents’ ability to meet AJ’s needs
[86] AJ is attached to both parents. The father resides with his wife Tammy and their son, Henry. The father remarried in August 2012 and cohabited with Tammy for 2 years prior to their marriage. The mother resides with Jake Murphy.
[87] The Court finds that both parents have unique strengths and skills and have been vigilant in ensuring that AJ avails himself of all services and support in the community and at the school.
[88] Both parents spoke very highly of each other as they described their concerted and joint effort to work with the school to ensure that AJ receives the best services available. They are able to show a united front when dealing with services available in the community for AJ. They both agree that it continues to be in AJ’s best interests of the parents to have joint decision-making power. The father speaks of the mother’s organizational skills and the mother speaks of the father’s knowledge as a psychologist and knowing the “tricks of the trade” when dealing with AJ’s needs.
[89] Both parents spoke of the various activities that they enjoy in their respective homes.
[90] The mother’s home has developed games for AJ to learn and have fun. His dietary needs are met and he engages in cooking. AJ likes finger foods and McDonald’s food.
[91] Both parents are very sensitive to any inappropriate behavior and deal with this issue as soon as they can. They can confirm that AJ is unaware of his challenges and not self-aware of how he presents himself.
[92] The mother admitted to having some mental health issues at the time of her conviction and confirmed that she felt that these past issues have been dealt with.
[93] The father is concerned with respect to her continuing mental health but no evidence was adduced with respect to this issue.
[94] There are strained communications between the parents as exhibited by the emails filed. The mother indicates that she tried to avoid communicating with him and will read her emails in the morning so that she can avoid being upset before bed. She believes he dictates to her and tells her what to do. They also encountered communication difficulties when they dealt with finances especially, special and extraordinary expenses. Both parties admitted to sending emails to the other parent containing intemperate comments.
[95] Neither parent sought a medical report, educational report or psychological assessment supporting their respective position regarding AJ. The father did not seek reports or clinical records regarding the mother’s mental health.
[96] The mother explained why she did not attend children’s activities and events in that she did not wish to be in a place when the father was present.
[97] The evidence demonstrates that, despite the parents encountering issues regarding financial issues and other logistical issues such as transportation, they have both played an equal and vital role in AJ’s educational and medical issues. They are able to make major decisions regarding AJ but are unable to resolve the dispute regarding his residential schedule. It is indeed remarkable that despite the frustrations that they both express when dealing with each other, they are able work as a team when it comes to issues involving AJ.
Summary
[98] Gordon v. Goertz, [1996] 2 S.C.R. 27, at p. 61 requires the Court to examine the following:
A) The existing custody arrangement and relationship between the child and the custodial parent:
What parenting arrangement during the school year is in AJ’s best interests? During the summer, the parties already have a week on/week off schedule. The father wants to reduce the mother’s time to every second weekend during the school year and the mother wishes to have an equal time. The current school schedule is that the mother has the child one week out of four weeks. This has been working well for AJ and his behaviour has been stable. There is no question that AJ has a good relationship with both parents and his siblings and he is loved.
B) The desirability of maximizing contact between the child and both parents.
At this time, AJ spends more time with the father and his wife and their new child during the school year. The mother is equally involved with the child’s needs but does not have equal time with him. There is imbalance between her involvement with the child and the time she spends with AJ. The Divorce Act promotes the principle that there should be maximum time between the child and the parent.
C) The views of the child:
Even though AJ is 18 ½ years old, due to his development delays, his views cannot be ascertained.
D) The disruption to the child of the change in custody.
As discussed, AJ has been able to cope with change. Although due to his special needs, it is important to have consistency and routine, the parents are to be commended for their ability to assist AJ to transition when dealing with changes to his life. Recent changes include his sister going away to university, the birth of his brother, and changes of school.
[99] The evidence confirms that both parents have met AJ’s needs and that they are both uniquely placed to continue to meet his needs. Change is part of life and it is no different for AJ. Evidence indicates that he can cope with change and the parties have done well in ensuring that AJ adapts to change.
[100] As indicated in Dr. de Grace’s psychological assessment: “Aidan’s parents have been successful in developing his repertoire of adaptive skills and managing his distractibility and behaviour. He is clearly (one) who is able to cope with a variety of different environments without stress.”
[101] Therefore, the Court finds that the parents have succeeded in meeting AJ’s needs with all the changes that have occurred in his life. Moving to spending another week with his mother during the school year will be another transition that AJ can adapt to with the help of his parents.
[102] The Court believes it is in his best interests that AJ have equal time with both parents so he can benefit from both of them. This meets the Divorce Act maximum contact principle. Both parents will continue to be equally involved in AJ’s life.
[103] However, it is not in AJ’s best interests to spend 3 hours on a school bus each day when he resides with his mother during the school year. His behaviour is dependent on routine and the Court accepts the father’s evidence that long bus rides are not in his best interests and could affect his behaviour.
[104] Therefore, commencing September 2, 2016, the parties will have a week on/week off schedule. The change between parents will occur on Fridays after school. The parent who will have AJ for the week will pick up the child from school or the other parent’s residence (if AJ is not in school) on Fridays.
[105] The mother will ensure that she drives AJ to school on her weeks. If she arranges a special school bus service, the mother must ensure that AJ is not spending an inordinate amount of time on the bus.
[106] Given that AJ only has two years left to attend Grade 12, this should not be onerous on the mother. AJ being able to spend time with both parents on an equal basis, outweighs any inconvenience imposed on the mother in driving him to school on a daily basis if she cannot find the appropriate and efficient special bus service for AJ.
What is the ongoing child support payable?
Mother’s position
[107] If the Court grants equal time for AJ with both parents, the mother states that the father should be paying her $373 per month as child support. The mother is not requesting support. She is waiving this support. She is asking that the ODSP cheque be split equally between the parties.
[108] She wishes to pay $500 per month directly to Jessie until she completes her first post-secondary education degree.
Father’s position
[109] The father is requesting that the ODSP cheque be split in accordance with residency and that the mother assist in child support.
[110] He is requesting child support for Jessie and a sharing of Jessie’s post-secondary educational costs.
Legal Principles
[111] Section 15.1 of the Divorce Act provides that a Court may make an order requiring a spouse to pay for the support of a child of the marriage.
[112] The Federal Child Support Guidelines (SOR/ 97-105) (Guidelines) state:
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the Court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[113] S. 9 of the Guidelines sets out:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[114] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at paras. 40-51, the Court stated that under s. 9, the Court is required to take the financial situations of both parents into account, determine the table amounts and commence with the simple set-off amount. It must be followed by an examination of the continuing ability of parents to meet the needs of the child, especially in light of the fact that many costs are fixed. The Court can exercise its discretion in modifying the set-off amount. The case urges the Court to examine the budgets and expenditures of both parents. The Court will also review the standard of living of the child in each household and the ability of each parent to cover the costs. In doing so, the Court requires financial statements and/or child expense budgets to complete a proper evaluation of s. 9(c).
[115] The Ontario Court of Appeal confirmed in Ontario (Disability Support Program) v. Ansell, 2011 ONCA 309, at paras. 30, 49, that the child support received the recipient parent does not reduce the child’s ODSP entitlement.
[116] In Senos v. Karcz, 2014 ONCA 459, the 24-year-old child was in receipt of ODSP and the mother received them as his trustee. At para. 40, the Court states that in determining child support, the Court must consider the receipt of ODSP and whether the guideline approach is inappropriate. The Court must determine the nature and purpose of ODSP support including a child support budget and a personal budget for the child. In Senos, the Court held that the table amount approach was inappropriate given that the child received almost $10,000 in the form of ODSP income support. This was “... sufficient to displace the “one-size-fits-most” approach in s. 3(2)(a) of the Guidelines in favour of the “tailor made” approach in s. 3(2)(b) (para 58). That approach would have regard to the child’s “condition, means, needs and other circumstances”.
[117] The Court found that the child eligibility for ODSP is an amount that should be considered as a payment with respect to board and lodging (Senos, at para 31). If the parents provide board and lodging, the Court can consider some portion of the ODSP he receives is to enable him to make a contribution to the cost of his board and lodging.
[118] A significant portion of child support is intended to contribute to the “child’s needs for shelter, food, clothing and the multitude of other expenses associated with raising a child.” (Senos, at para 62).
[119] In Senos, the Court stated at paragraph 67:
“The Table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.”
Analysis
[120] Both parties agree that the ODSP funding is for AJ’s living expenses and “not spending money.” They both agreed that the ODSP funding should be split equally between the parties if AJ resides equally with both parents. Both parents intend to use the ODSP funds to offset AJ’s living expenses including food, clothing and personal care.
[121] Regarding the ODSP payments, the Court heard that the Ministry, pending the determination by this Court, has suspended the ODSP payments because the parents were not able to agree who would have access to and control of his bank account and ODSP funds. Both parents had wanted to be trustees, which is not permissible.
[122] In her letter dated March 3, 2016, Ann Harmsen, Director of the Ontario Disability Support Program, referred them to the Official Guardian and Public Trustee.
[123] As a result of this disagreement, the father commenced the guardianship application.
[124] A.J. will be benefiting from ODSP payments that the parties have estimated will be $814 per month. By virtue of my order below granting the father guardianship of AJ’s property, he will be receiving those funds and he will provide ½ to the mother.
[125] Neither party provided the Court with the proper evidence for an analysis under s. 9 and the Contino case. Neither party submitted budgets or evidence of their respective living costs for AJ. The Court has considered their respective financial statements and their respective positions, Section 9 of the Guidelines. The Court accepts that the ODSP payment should be equally divided between the parties given that they will have equal time with the child.
[126] The Court orders that the equal division of ODSP payment will form part of his management plan as the guardian of AJ’s property.
What is the retroactive child support?
Father’s position
[127] The father is seeking retroactive child support commencing September 1, 2014, when he first notified the mother that he was seeking an increase in child support in his answer.
[128] The father’s income after schedule III adjustments is: 2014: $122,840; 2015: $126,019 and 2016: $127,525.
[129] The father also had negative income he earned from his business activities at Hotel Dieu Hospital.
[130] The mother’s income after schedule III adjustments is as follows: 2014: $151,385; 2015: $138,274 and 2016: $79,861.
[131] The father submits that the mother owes $13,368.29 in retroactive support.
Mother’s position
[132] The mother states that, based on Jessie being away at University and a child at home receiving the ODSP, her underpayment is $4,720.
[133] The mother accepts that the father should receive the OSDSP retroactive payments as he was the primary parent during that period of time.
[134] The mother suggests that the Court consider whether the father should be entitled to retroactive support when he is intransigent in this position regarding AJ’s residency.
[135] The mother wishes to pay $500 per month directly to Jessie, which would amount to $6,000 per year.
Analysis
[136] The parties have agreed that retroactive child support is owed from September 2014 when the father gave notice to the mother requesting an increase of support.
[137] The mother’s income has increased in the past few years and she has been underpaying child support. The Court does not agree with the mother’s position that the father’s refusal to change AJ’s residential schedule is a relevant factor in determining retroactive child support.
[138] The Court has made the following calculations based on the fact that AJ lived primarily with his father until September 1, 2016. The table amount would be payable for him up to age 18, when the father would be entitled to ODSP payments.
[139] After AJ was eligible for ODSP payments, the mother’s child support payments should also be adjusted. Without proper budgets and details of the children’s expenses, the Court must review what evidence is available to determine the appropriate level of child support for a child over 18 years of age who is entitled to ODSP. As per the Senos case, it is inappropriate for the Court to order the table amount. Given the mother’s income, the father’s income and the child’s needs, the Court finds that appropriate amount should be $500 per month.
Year Mother’s Income Guideline Amount Paid Retroactive amount underpaid or overpaid
2014 (September to December) $151,385 1 child (AJ) $1,273.25 $800 per month Under paid $1,893
January 1, 2015 to October 2015 (10 months) $138,274 1 child (AJ) $1,175.97 2 children for 4 summer months: $1,876.28 $800 per month Under paid for 6 months = $2,255.82 Underpaid for 4 months: $4,305.12= $6,560.94
November 2015 to December 2015 (father will receive retroactive ODSP payments of approximately $814 per month) $138,274 1 child (AJ) Since the table amount of $1175.97 is in-appropriate due to the receipt of ODSP payments, proper amount of child support is $500 per month Paid $800 per month Overpaid $600
January 1, 2016 to August 1, 2016 inclusive (8 months) $79,385 1 child (AJ) The table amount is $723.20. The appropriate amount is $500 per month for 4 months (January to April inclusive) Table amount for 2 children for 4 summer months: Table amount of $1,170.50 Appropriate amount is $947.30 (There is a deduction as AJ receives ODSP: i.e. the mother is paying $223.20 less for AJ – to be deducted from table amount for 2 children during the summer) Paid $800 per month Overpaid for 4 months: $1,200 Underpaid $539.20
Total amount owed by mother to father for retroactive child support $7,193.14
[140] Hence, the mother owes the amount of $7,193.14 in support arrears as of August 31, 2016. This amount must be paid by December 31, 2016 after which time interest will run in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
What is the mother’s contribution to Jessie’s university education?
[141] Jessie is enrolled in a four-year Kinesiology program. In her first year, she was eligible for a $12,000 entry scholarship at the University of Western Ontario, and, provided that she maintained her grades, was able to qualify for the further $6,000 per annum for three more years. Estimates of tuition and residence for first year were approximately $20,000.
[142] Jessie worked part-time at Queen’s University in the summer of 2015 while taking mathematics and statistics courses. She is currently working full-time this summer with the Ministry of Transportation.
[143] Both parties agree that Jessie is a smart, mature, athletic, motivated and exceptional daughter and is doing well at school.
[144] The father has been able to claim some credits for Jessica.
[145] As stated previously, there was a strain between the parties when it comes to financial matters. Budgets for Jessie and details of receipts were not provided to the mother. She inquired numerous times by email requesting a budget and details. The father refused to discuss the issues.
[146] In an email dated October 25, 2015, the father’s response to the mother was: “I have no budget “plan” for Jess. She has many set expenses that we all know of and I pay them. She had many living expenses and I pay them. She has some random/unplanned expenses and pays them. I pay for what she needs when she needs it. That’s the plan.”
[147] During the trial, the father presented the mother with documents pertaining to some of Jessie’s expenses.
[148] Despite numerous requests by the mother, no budget for Jessie’s education has ever been provided. The Court cannot conduct a proper analysis of the appropriate amount that the mother should pay for these s. 7 expenses. This is not to say that the father would not dutifully ensure that Jessie’s educational needs are met.
[149] Given that Jessie continues to benefit from scholarships and is working and making her own contribution, it is fair for the mother to continue to make payments directly to Jessie.
[150] She submits that this can be paid through FRO but the Court is doubtful that this can be affected given that Jessie is not a party to these proceedings.
[151] Therefore, in this instance, the Court orders that the mother continue to pay Jessie directly. The mother is ordered to pay $500 per month to Jessie commencing September 1, 2016 until she completes her degree.
[152] The mother states that there should be no retroactive payment on account of Jessie’s s. 7 expenses due to the paucity of evidence. The Court agrees.
[153] As stated in Oczkowski v. New, 2011 ONSC 3932, at para. 2: “Generally, when applying section 3(2) (b), Courts should take a budget driven approach. Child support is usually just about money and math.”
[154] Again, no budgets, receipts and list of expenditures for the last 2 years of university were presented. The Court cannot do a proper analysis to determine what the mother should pay in retroactive support for Jessie’s university education.
Should the father be appointed guardian of AJ’s property?
Father’s position
[155] The father believes that he should continue overseeing AJ’s financial needs. He submits that he has a particular skill set due to his education and experience. As a registered psychologist and competent in both clinical and forensic Psychology for adolescent and adult populations, he believes he has more expertise in assisting AJ on all his issues.
[156] The father disputes the mother’s position that naming him, as trustee of AJ’s ODSP funds is sufficient to manage AJ’s property. He indicates that this would not provide him the power, among other things, to deal with those funds, manage other business matters for AJ or sign contracts or an income tax return on his behalf.
Mother’s position
[157] The mother opposes the motion on the ground that the father has been less than candid and forthright in sharing financial information with the mother as follows:
- failure to file the financial statement with his original materials as mandated by the Family Law Rules, O. Reg. 114/99 (Rules);
- failed to file his notices of assessment with his responding materials as required by the Rules;
- without her knowledge, he opened a bank account for AJ and arranged for him to sign documents when he has no capacity; and
- obtaining a SIN for AJ without her knowledge or consent.
[158] Dr. Fitzpatrick is a child and adolescent psychiatrist. The mother is also concerned that she is a colleague that works in the same field as the father. The father was not prepared to consider respecting an assessment of the child custody arrangement yet he used her support in his application for guardianship. The mother is suspicious.
[159] The father notified the mother regarding the introductory appointment with the psychiatrist at the neurodevelopment clinic but did not give her enough time to seek permission from her employer to attend. She states that he never told her the place of the appointment.
[160] Also, the mother submits that a guardian does not need to be appointed. In her closing submissions, she was agreeable to the father being named trustee for ODSP funds. She relies on s. 22(3) of the SDA which provides that a Court shall not appoint a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that:
(a) does not require the Court to find the person to be incapable of managing property; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.
[161] She submits that the Court may make an order for the appointment of a trustee under the Trustee Act, s. 5(1).
[162] The mother is prepared to allow the father to receive funds paid by ODSP on behalf of AJ provided that she has signed privileges to access those funds once deposited and agreed between them. She states that he did not have to commence this application, but rather could have dealt with her as a joint custodial parent.
Legal principles
[163] Section 5(1) of the SDA states that:
The Superior Court of Justice may make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. R.S.O. 1990, c. T.23, s. 5 (1); 2000, c. 26, Sched. A, s. 15 (2).
(2) An order under this section and any consequential vesting order or conveyance does not operate as a discharge from liability for the acts or omissions of the former or continuing trustees. R.S.O. 1990, c. T.23, s. 5 (2).
[164] Section 22 of the SDA states that:
(1) The Court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 22 (1).
(2) An application may be made under subsection (1) even though there is a statutory guardian. 1992, c. 30, s. 22 (2).
The Court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the Court to find the person to be incapable of managing property; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian. 1992, c. 30, s. 22 (3).
[165] Section 24(4) is also relevant:
The Court may order that the requirement for security under subsection (3) does not apply to a person or that the amount required be reduced, and may make its order subject to conditions. 1992, c. 30, s. 24 (4).
Analysis
[166] The father commenced an application in November 2015 asking the Court for an order:
- a finding that AJ lacks capacity to manage his property;
- appointing the father as the guardian of AJ’s property under the SDA; and
- dispensing with the requirement that he posts a bond.
[167] Firstly, the Court finds that AJ is an adult who is not capable of offering informed consent or preparing a power of attorney and that he lacks capacity to manage his own financial affairs and property. Dr. Fitzpatrick’s report is thorough and there is no evidence that she is biased merely on the fact that she knows the father. The other evidence filed in this trial confirms Dr. Fitzpatrick’s findings. In any event, Dr. Fitzpatrick’s report confirms AJ’s disability but does not necessarily support the father’s appointment as his guardian.
[168] Secondly, there is nothing in place regarding the management of AJ’s property. A trustee would only be able to receive the ODSP funds. The beneficiary, i.e. AJ, cannot direct a trustee as he has no capacity. Someone most distribute the funds appropriately. In addition, AJ needs someone to handle all his financial affairs. No one else has applied.
[169] Finally, the father is well placed to take over the financial responsibility for his day-to-day needs and expenses and is the appropriate choice to be guardian of AJ’s property.
AJ’s lack of capacity
[170] In support of his application, the father states that AJ currently attends high school at Loyalist College and Vocational Institute in a “school to community” program. Although he is in grade 12, AJ functions below an academic level. He requires special assistance in the classroom. He will remain in the program until June 2018 when he will no longer be able to participate in the program.
[171] AJ has been diagnosed with autism spectrum disorder and he has an intellectual disability. He was first diagnosed when he was two years of age.
[172] At the time of separation, AJ had been diagnosed with autism for eight years. AJ had attended specialized autism programs. He transitioned to LCVI in grade 9 and had an unsettled year with changes of teachers. There were challenges with respect to speech and language arts. His parents advocated for a consistent structured program, and the consistency in his designated educational assistant.
[173] Dr. Fitzpatrick’s letter of October 29, 2015 acknowledges that she is aware of an application for guardianship. She states the following: “based on both clinical impressions and testing results, it is clear that Aidan is not capable of offering informed consent on any level. His language skills prevent even the most simplistic understanding of the nature or process of informed consent. Aidan is also not capable of understanding legal issues or of meaningfully offering information to a legal representative. Aidan has no capacity to understand financial issues or make decisions with regards to his own financial best interests. He is also not capable of making personal care decisions as they relate to healthcare, mental health treatment, school, employment, nutrition, accommodations, clothing, hygiene or safety. Aidan will likely never be able to live independently as his adaptive functioning in all assessed domains is extremely low. Unfortunately, there is no reason to suspect that he will ever reach a level where he could be considered competent to make his own decisions regarding any major aspects of his life. He will always require someone to assist in all decisions relating to his welfare. Without hesitation it would be my recommendation to the Court to have a guardian appointed to look after all matters concerning Aidan Rowe throughout his adult life.”
Need for someone to manage AJ’s property
[174] In his affidavit in support of the guardianship application, the father indicates that there is nothing currently in place to allow someone to make a final decision for AJ. He confirms that he opened a bank account in his name. He cannot access his bank account as he does not have a power of attorney for guardianship. The father indicates that he applied for Ontario Disability Support Program (ODSP).
[175] He has been approved medically and financially for this benefit. Monies cannot be paid until AJ has a trustee or guardianship. The mother has refused to consent. The father indicates that he needs to be able to access the ODSP funds to use for AJ’s benefit. Checks can be payable to him but the father does not have the authority to complete AJ’s banking.
The father’s appointment as guardian
[176] The father has been the primary parent who has been the recipient of child support for AJ since the date of separation. He has been involved in the finances for AJ and he is in the best position to receive the ODSP of $814 per month.
[177] He indicates that he currently deposits $100 per month into the RDSP and intends to increase the contribution. It is a savings plan that is intended to help parents to save for long-term financial security of the person eligible for the disability tax credit.
[178] Until AJ turned 18, he received Special Services at Home (SSAH) and the father administered them. The father also received the child tax credit and the child disability tax credit. This is no longer available as AJ turned 18. This benefit was used for special programs and services in the home including respite care, skill-based treatment, summer caregiving and behaviorists that worked with AJ during the summer months.
[179] The father’s plan indicates that other than ODSP and RDSP, AJ does not have any other income or property. He intends to use the ODSP for the benefit of AJ and to maximize the opportunities and programs available for him in a management plan that was attached.
[180] The mother alleges that the father improperly used the funds from Special Services at Home (SSAH). He indicates that the program was aware of the duration and access of the funds and the use of the funds the SSAH application was initiated by both parents.
[181] The Court has no evidence with respect to the funding and spending requirements of SSAH. The Court accepts the father’s evidence that originally SSAH was intended primarily for respite care and not for specialized services. His partner Tammy provided before and after school care for AJ after the age of daycare. They were not married when this commenced and she was never considered the primary caregiver. The mother was aware of this arrangement. The father indicates that SSAH was aware of this arrangement and approved these expenditures.
[182] The father states that every summer he would ask the mother to assist in summer camps and childcare. The mother would refuse and hence, according to the SSAH guidelines, he could utilize the funds available through SSAH to pay for the services. The guidelines require that he attempt to acquire funding from other sources and since the mother consistently told him that he had other options, she refused.
[183] The mother also complains that pursuant to the order, there was to be an exchange of the parties’ respective income tax returns and notices of assessment for the preceding calendar year. She states that he failed to provide this mandatory disclosure to include his last three years of notice of assessment with his financial statement. Hence, at the case conference on January 26, 2015, the father was ordered to provide his complete income tax returns and his financial statement for 2011, 2012 and 2013 within 30 days.
[184] In addition, despite repeated requests, he refused to provide a budget for Jessie. She wrote to him on September 28, 2015, and stated that, as joint custodial parents, it was important that they be able to communicate with each other and third parties regarding issues that arise for the children. In the father’s response of September 28, 2015, he stated that the issues were before the Court and the trial date had been set and her lawyer could contact him directly.
[185] The father states that he has paid many expenses out of his own pocket including psychologists, speech pathologists, specialists, behaviorists, summer workers, nutritionists, occupational therapists, and respect workers. He indicates that the mother refused to provide financial information for them to determine the apportionment of s.7 expenses for the last three years. His income as a government employee is a matter of public record. He thought the purpose of the case conference was disclosure and compliance with the order.
[186] The Court accepts that the father was forthcoming with his financial disclosure when required, albeit delayed. His failure to provide a budget for Jessie affected the amount that he could receive from the mother and he believed it best to leave it to the courts. The Court is not prepared to make a finding that the father improperly used SSAH funding. There was no independent evidence regarding the guidelines nor was an individual from SSAH called to testify regarding the appropriate expenditures.
[187] Therefore, there is no evidence that the father is untrustworthy nor that he would misuse or mismanage AJ’s funds.
[188] It is clear that financial issues cause mistrust and animosity. The parties do not have a history of co-operation regarding financial matters.
[189] AJ needs a substitute decision maker and no one else has applied. Being a trustee of the ODSP funds is not enough for AJ. The father’s management plan is sound and someone must be in charge on how the ODSP funds should be spent. The father as his guardian will handle all other financial matters relating to AJ.
Bond not necessary
[190] The office of the Public Guardian and Trustee’s letter dated November 23, 2015 to the father’s previous counsel, indicates that the Public Guardian and Trustee does not insist on a bond being posted. The mother takes no position on this issue.
[191] The Court does not require the father to post a bond. The record shows that he has AJ’s best interests in mind and there is no reason to believe that he would be dishonest with his own son’s funds.
[192] The Court finds that the father is suitably placed to be his guardian. He will be held accountable and provide regular accounting in accordance with the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The management plan presented by the father is appropriate and acceptable.
Summary
[193] Therefore, the Court orders the following:
(a) Commencing September 2, 2016, the parties will have a week on/week off schedule with AJ and the week will commence with each parent on Friday after school; (b) The mother will pay retroactive support to the father in the amount of $7,193.14. This amount is owed as of August 31, 2016; (c) The retroactive payment must be paid by December 31, 2016, it will accrue interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43; (d) The father will be entitled to the retroactive ODSP payments from October 2015 to August 2016 inclusive; (e) The mother will pay $500 per month to Jessie for her share of post-secondary education until she obtains her first post-secondary degree; (f) The father is appointed the guardian of AJ’s property. The Court accepts his management plan and directs that the plan include a stipulation that he provides the mother with ½ of the ODSP payment commencing September 1, 2016; (g) The requirement of posting of a bond by the father is waived; (h) The Court orders that the guardian of the property shall commence an application to pass his accounts as guardian of property of Aidan James Rowe from today’s date to the two-year anniversary date of this order; (i) Thereafter, the passing of the accounts will occur every three years; (j) This Court orders that the Public Guardian and trustee’s fee for reviewing this application, as approved by the Attorney General, in the amount of $250 plus HST of $32.50 shall be paid forth with to the Public Guardian and trustee from the property of Aidan James Rowe.
[194] If the parties cannot agree on the issue of costs, the mother may submit her 3-page written submissions with any offers to settle and her bill of costs by August 31, 2016 and the father will provide his 3-page written submissions with any offers to settle and his bill of costs by September 9, 2016.
Madam Justice A. Doyle Date: 2016/08/16
Released: 2016/08/16