CITATION: Gopenko v. Paré, 2017 ONSC 6940
COURT FILE NO.: FC-16-697
DATE: 20171127
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANNA GOPENKO, Applicant
-and-
JEAN-RODRIGUE PARÉ, Respondent
BEFORE: Madame la juge Julie Audet
COUNSEL: Julie Guindon, for the Applicant
Respondent, self-represented
HEARD: November 15, 2017
ENDORSEMENT
[1] This is a motion to change the final Divorce Order of the Superior Court of Québec dated January 29, 2016 as it relates to the parties’ parenting of their two daughters, Anastasia (9) and Virinea (7).
[2] The final Divorce Order, made on consent of the parties after they reached Minutes of Settlement, provides for the following:
the parties have divided their family property;
the children will remain in their mother’s care (“la garde des deux enfants serait maintenue à madame”);
the father will have access from Thursday after school until Tuesday before school every second week, as well as every Wednesday overnight from after school to the beginning of school every second week. The father is also given holiday and summer access, including March Break each year;
the children will be registered in a French school in Ontario for as long as the mother remains in Ontario and they will remain in that school subject to a court order or an agreement between the parties;
the father will pay support to the mother in the amount of $2500 per month for three years, of which $1729 is allocated to child support and $771 is allocated to spousal support. The spousal support terminates after three years. The order provides that, to the extent that the child support is varied, spousal support will also be varied so that the total support payable by the father will remain at $2500.
[3] The mother brings this motion to confirm by way of an Ontario court order what she understands to be her sole custody status pursuant to the final Divorce Order, and also to change its parenting provisions as follows:
allowing her to change the children’s school to a French immersion school located nearby her house;
reducing the father’s regular access to twice a week: on Wednesday after school until the next morning at school as well as one day during the weekend after Russian school or church and until the following morning;
granting her access over the March break on alternating years;
allowing her to apply for a passport for the children and to travel internationally without the father’s consent.
[4] The mother also seeks an order adjusting child support in accordance with the Federal Child Support Guidelines, S.O.R./97-175 and ordering the father to contribute to the children’s special and extraordinary expenses.
[5] The mother takes the position that material changes in circumstances have occurred since the making of the final Divorce Order which allows this Court to review its parenting provisions, as set out above, and that it would be in the children’s best interest for those changes to be made.
[6] The father disputes this motion and seeks its dismissal. He is of the view that no material change in circumstances has occurred since the final Divorce Order was made which would warrant a change in its parenting terms, and that the mother’s motion filed only four months after a final agreement was reached in Québec is a disguised appeal of the final Divorce Order. Further, he contests the mother’s interpretation of the Divorce Order as it pertains to custodial rights, and maintains that “parental authority”, which in his view is known in Quebec as the default parenting arrangement (“autorité parentale”), was clearly given to both parents. In his view, the Minutes of Settlement which form part of the final Divorce Order simply confirm that the mother will retain primary care of the children.
The Law
[7] The law as it pertains to variation applications under s. 17 of the Divorce Act, 1985, c. 3 (2nd Supp.) is clear. In order to vary a previous divorce order, I must come to the conclusion that a material change in circumstances affecting the children has occurred. To the extent that such threshold is met, I must embark upon a fresh inquiry into what is in the best interests of the children, having regard to all of the relevant circumstances relating to the children’s needs and the ability of the respective parents to satisfy them. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. (Gordon v. Goertz, (1996) 1996 CanLII 191 (SCC), 2 S.C.R. 27).
Analysis
The Parenting Provisions of the Final Order
[8] After having reviewed all of the evidence in this case, and as will be explained in more details below, I agree with the father’s submission that the mother’s motion to change brought in Ontario less than four months after an agreement was reached in Quebec was an attempt to renegotiate a parenting agreement that she was no longer happy with.
[9] To support her motion to vary the existing parenting arrangements, the mother relied on the following main alleged material changes in circumstances:
The children were home-schooled by the mother for seven years prior to the separation and have grown accustomed to her love and affection. The parenting regime put into place in November 2015 has not worked well for them as they have had difficulty being away from her for five days at a time;
Anastasia was assessed and diagnosed by Dr. Gilles Desmarais with ADHD in 2017. According to the mother, Dr. Desmarais also diagnosed other issues such as emotional insecurity, fearfulness and anxiety, oversensitivity, mental preoccupation, depressed mood, oppositional and withdrawal tendencies, hoarding behaviour and difficulties with peer relations and social integration;
Anastasia has developed gastrointestinal issues in early 2016, and has been on a strict diet and prescribed medication since. There is a consistent history showing that the father is refusing to follow through with the diet and medication for her;
The father has refused to drive the children to their ballet, church, Russian school, piano, and painting lessons while they were in his care;
Anastasia is struggling academically;
The father has moved to a new home in Gatineau which has significantly increased the driving time between his home and the children’s school (between two to three hours of commute for the children depending on traffic).
Material changes in circumstances
[10] It is important to remember that when the motion to change was filed in March 2016, the mother was not only seeking a change in the parenting and child support provisions of the final Divorce Order, she was seeking an equalization of the parties’ family property as well as a variation of the spousal support provisions, both of which had already been dealt with in the context of the Quebec proceedings. In summary, she was asking for a brand-new order. The issues of spousal support and equalization were withdrawn at some point during the course of this proceeding.
[11] In her evidence, the mother explains that she homeschooled both girls for seven years prior to the parties’ separation and that the new parenting regime has not worked well for them as they were used to spend most of their time with their mother. She says that she did not appreciate at the time of the final Divorce Order that the girls would find it so hard to be in school or in their father’s care for such long periods of time.
[12] I note that at the time of the parties’ separation in December 2014, Anastasia was 6 years old and, therefore, had only been of school age for less than two years. Virinea was 4 years old and, therefore, had only recently turned of school age. The mother’s assertion that she had “home-schooled the girls for seven years” is therefore quite an exaggeration. I do acknowledge, however, that the mother had remained home to care for them from birth until the parties’ separation. At the time of the final Divorce Order, however, the children were 8 and 6 and had already been in the regular school system for at least one year (the evidence was contradictory as to whether they had been for more than one year).
[13] The mother also contends that her motion to change was prompted by Anastasia’s diagnosis of severe gastrointestinal issues, which began to flare in early January 2016. I do not consider this health issue to constitute a material change in circumstances which would warrant a change in the parties’ parenting arrangements. The mother argues that the father does not take this medical condition seriously and refuses to follow through with the diet and medication recommended for Anastasia. The father disagrees with those assertions, claiming that he is very well aware of the dietary restrictions that are required to assist Anastasia, but maintains that he takes a much less draconian stand when it comes to implementing them in his home. As he suffers from Crohn’s disease himself, he has similar dietary restrictions which he follows himself in his home.
[14] To support the seriousness of Anastasia’s gastrointestinal problems, the mother provided the court with medical records from CHEO dating back to November 2016. A thorough review of these records indicates that Anastasia had problems with severe constipation. She was prescribed an over-the-counter stool softener to assist with that condition. While it appears that Anastasia continues to be seen by a specialist at CHEO for that condition, I have no recent medical report which would confirm that this continues to be an ongoing problem for her. The father maintains that these problems have been resolved.
[15] Whether or not these problems continue to be present, they do not constitute material changes in circumstances which materially affect Anastasia in a way that parenting arrangements should now be changed on that account.
[16] The mother argues that Anastasia’s recent ADHD diagnosis and academic struggles also support a change in the parenting provisions of the final order. It is important to note that such diagnosis only occurred well over a year after the mother had filed her motion to change. Therefore, it could not have supported a motion to change back in March 2016. In addition, ADHD symptoms do not develop overnight. Anastasia’s difficulties to concentrate and to be attentive for long periods of time must have been apparent for quite some time.
[17] Even if they were recent, Dr. Desmarais’ conclusions with regards to Anastasia’s ADHD symptoms and social-emotional challenges, while real and deserving of serious attention, are far less severe than suggested by the mother. In his report which is not dated, but which has been prepared after his last meeting with Anastasia in February 2017, Dr. Desmarais concludes as follows:
Current assessment findings indicate that Anastasia is of average intelligence. Her cognitive profile is not consistent with one of learning disability in the absence of significant academic delays in spite of being schooled in French, a second language for her. While her rote memorization capacity appeared to be weak and may have contributed to render some aspects of her academic learning difficult, such as her mastery of phonics, it was felt that the fact of simultaneously developing her skills in three languages (Russian, French and English) could be a factor as well. Attention problems stand out on the other hand is a more significant contributing factor with respect to Anastasia’s academic learning and performance. Those attention problems are very manifest at home and at school, and are indicative of an Attention Deficit Hyperactivity Disorder (ADHD) where inattention is predominant while self-regulation difficulties are also manifest in certain respects”. (my underlying)
[18] In an addendum to his psychological report, he adds :
Self-regulation difficulties (impulsivity, poor emotional control especially with regard to anger) were also reported by Anastasia’s mother to a significant level, but not so by her teacher and by her father. They were not manifest either during assessment sessions. Peer relations and social integration is another area where Anastasia was perceived as experiencing significant difficulties, according to her parents and her teacher. In addition, both parents indicated in their ratings of Anastasia’s behaviour some signs of anxiety and fearfulness, depressed mood, oppositional and withdrawal tendencies, shyness and timidity. Her mother furthermore reported signs of mental preoccupation, obsessive-compulsive tendencies, and behaviours such as hoarding and aggressiveness, none of which were observed by her father.
[19] Dr. Desmarais proposed several strategies to the parents to address Anastasia’s attention deficit symptoms as well as to help her manage her social-emotional difficulties, none of which included medical treatment (prescribed drugs).
[20] While the evidence makes it clear that Anastasia’s academic learning is affected by her attention deficit disorder, it also makes it clear that she does not struggle academically. An Individualized Education Plan has been put into place to help her academic learning in light of her ADHD symptoms, nowhere in that IEP is assistance provided to deal with poor academic results. Various strategies are implemented by the school to help her manage her attention deficit and auto-regulation challenges. In fact, the father provided the court with a recent report card which confirms that Anastasia maintains grades which are equivalent to the provincial average in both French and Mathematics, two subjects in which her mother suggested she was struggling, and which led to the referral to Dr. Desmarais.
[21] With regards to Anastasia’s social-emotional difficulties, Dr. Desmarais reported that:
Anastasia presented as a friendly, cooperative and alert-looking child who was open, communicative and spontaneous, and who did not show signs of anxiety, apprehension or defensiveness. She expressed herself relatively well in French and stated that she very much enjoys school, although she later talked about having few friends and being at times the target of some bullying by other girls.
[22] In his addendum, Dr. Desmarais confirmed that the mother and school psychologist’s suggestion for psychiatric evaluation and treatment was a highly sensible and relevant recommendation which he endorsed.
[23] While it is clear that Anastasia has struggled in her attempts to make friends and to get integrated in school, and has shown signs of anxiety, fearfulness, depressed mood, oppositional and withdrawal tendencies, I am far from being convinced that moving Anastasia from the French school that she is registered in to put her in a French immersion school closer to her mother’s home would have any impact on her academic performance or overall well-being. Quite the contrary, it would require that she studies in a third language (English) which is not one of the two languages in which she has been raised (Russian and French). Further, the father’s evidence, which I find credible, reveals that an attempt was made to school Anastasia in a French immersion school in the past which resulted in greater difficulties for her and the father’s insistence that the final Divorce Order make it mandatory for the children to be registered in a French school in Ontario. Changing her school might also increase her stress and anxiety by forcing her to integrate a totally new group of children.
[24] I am equally not convinced that changing the parenting arrangements agreed to between the parties less than two years ago would have any significant impact on Anastasia’s well-being. As it stands, the children spend six days every two weeks with their father and eight days every two weeks with their mother. A review of the emails and other evidence filed in the record convinces me that, while the mother has assumed primary care of the children, particularly as it relates to their medical needs, the father has been extensively engaged in their lives, especially in respect of their education. Even if I had found a material change in circumstances, I would not have changed the parenting arrangements that are currently in place based on the evidentiary record before me, which does not support a conclusion that Anastasia’s well-being would be improved by a change of school or of parenting schedule. Furthermore, there is no evidence suggesting that Virinea is experiencing any challenges at all, whether emotionally, academically or health-wise.
[25] With regards to the mother’s assertion that the father has moved into another home which has increased traveling time between the two homes to two or three hours, I find no evidence that would corroborate the mother’s evidence in that regard. The father used to live at 245 St Raymond Boulevard, in Gatineau. He confirms that he has recently moved to 36 Scott Street in Gatineau. According to MapQuest, his former residence was 16 minutes away from this courthouse (when no traffic), whereas his new residence is a 12 minutes from this courthouse (without traffic).
[26] His change of residence has no impact whatsoever on the parties’ parenting arrangements.
Conclusion
[27] As a result, the mother has not met the threshold of establishing a material change in circumstances which would warrant a change in the parenting arrangements agreed to by the parties and confirmed in the 2016 final Divorce Order, or a change in the children’s current school.
Custodial Rights
[28] As stated earlier in this endorsement, the parties disagree on the interpretation of their Minutes of Settlement (“procès verbal”), which form part of the final Divorce Order, as it relates to their respective custodial rights. The father argues that in Quebec, both parents sharing parental authority equally is the default custodial regime between parents unless the court says otherwise. He takes the position that the Minutes of Settlement confirm primary residence of the children to the mother, nothing more. The mother takes the position that the Minutes of Settlement grant her sole custody of both children. The minutes of settlement state:
Les parties ont convenu que la garde des deux enfants serait maintenue à madame aux conditions suivantes:
[29] I am of the view that the Minutes of Settlement can easily be interpreted both ways. Without expert evidence and/or evidence with regards to the circumstances in which this agreement was reached (and the reasons therefore), I am unable to determine that issue.
[30] In the context of the motion hearing, both parties confirmed that if I was unable to reach a conclusion on that regard, they asked that I confirm the custodial regime within which they are to operate on a go-forward basis.
[31] I have reviewed the evidence, keeping in mind the factors set out in s. 16 of the Divorce Act as well as those listed in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (which, although it does not apply, is a helpful tool in assessing the “best interests” criteria). I find that both parents are capable parents, that they both share a close bond with the children and that they both have the children’s best interests at heart even though they, at times, disagree on what is in their best interests. Unlike many other cases where high conflict is obvious, I do not find that this is a high conflict family. The evidence shows that while they have taken very opposite views of what was in the children’s best interests with regards to major areas of decision making for the children (health, education and recreational activities), the parents have nonetheless been able to communicate and cooperate with one another on matters pertaining to the children, without much acrimony, particularly over the past year. I find that it is in the children’s best interests that both of their parents remain involved in their day-to-day upbringing and that they both continue to be part of the decision-making process with regards to their needs.
[32] However, it would not serve the children well to maintain a true joint custody regime in light of their opposite views on major areas of decision-making such as education and health. It is in the children’s best interests to minimize opportunities for conflict between their parents, and for that reason, I am of the view that the following custody arrangement is in the children’s best interests at this time:
The parties will share legal custody of the two children;
The parties shall consult with one another on all important decisions with regards to the children;
In case of conflict, and only after a consultation process has occurred, and due consideration been given to the other parent’s views on the subject:
a. The mother shall have final decision-making with regards to religious matters for the children;
b. The father shall have final decision-making with regards to educational matters for the children;
c. The mother shall have final decision-making with regards to health matters for the children, so long as her final decision is based on the recommendations of a health professional chosen and consulted by both parties to provide a diagnosis and/or recommendations.
[33] The attribution of specific areas of decision-making as set out above is based on what I consider to be each parent’s strongest forces based on the evidence before me.
Child Support
[34] The mother is not seeking a variation of spousal support. Child support may be varied on a yearly basis based on variations in the parties’ income. In this case, the final Divorce Order is clear that the combination of child and spousal support may not exceed $2500 until such time as the spousal support is terminated. For instance, in the event that the father’s child support obligation based on his current income was $2000, the mother’s spousal support obligation would be reduced to $500 to bring the combined support obligation to $2500. Clearly, if the father’s income increases to such an extent that child support in and of itself exceeds $2,500, this would have the effect of bringing the spousal support to $0.
[35] In this case, the father’s total income for 2016 is somewhat less than the income upon which the support payable by him pursuant to the final Divorce Order was based. It was $121,369 in 2016, compared to $129,733 in 2015. Any review of the child support obligation would only lead to a slight reduction in spousal support. In those circumstances, I find that no adjustment is necessary.
[36] Both parents consent to an order imposing upon them an obligation to exchange their income tax returns, notices of assessment and of reassessment as well as proof of current income on a yearly basis, and I so order. Such exchange shall take place on or before May 15 of each year.
Special Expenses
[37] The mother is seeking a contribution to the children’s special and extraordinary expenses. It would appear on the face of the final Divorce Order that no provision was made for those expenses. The father takes the position that when the parties arrived at the combined support amount of $2,500, the parties not only relied on the Federal Child Support Guidelines, but also considered the mother’s monthly budget which included all of those expenses.
[38] As those budgets were not before me during the motion, I cannot assert what was or was not considered. However, considering the level of child support payable by the father pursuant to that order, which appears to be in line with the table amount that a payor would pay for two children based on his income, it appears more likely than not that no provision was made for the payment of the children’s special expenses. As a result, I am prepared to make an order setting out the parties’ respective contribution to those expenses.
[39] The parties do not appear to have had difficulties dealing with health and dental related expenses. I order the parties to pay in proportion to their respective income any such expenses not covered by a medical or dental plan of insurance. I also order the parties to share in proportion to their respective income the net cost of any before or after school care expenses incurred by either of them as a result of their employment, illness, disability or educational needs. Summer camps must be discussed and agreed to by both parties before the expense is incurred.
[40] In addition to those expenses, the mother seeks a contribution from the father to the following extracurricular activities:
$300 per year for the registration of the girls in summer camps and in Russian school;
$742 per semester for both girls for ballet or gymnastics;
$3000 per year for both girls for piano lessons;
$720 per year for painting.
[41] It is to be noted that, given that the mother is not currently employed, the father will have to pay the vast majority of those expenses for the time being. In light of the spousal support currently being paid, the father’s proportionate share would be 92% whereas the mother’s proportionate share would be 8%. The father has prior child support obligations towards a first family which reduce his ability to contribute to special expenses.
[42] On the other hand, Dr. Desmarais has made it clear that it would be in Anastasia’s best interests to participate in extracurricular activities such as ballet and gymnastics as it may be an important source of self-esteem enhancement for her. I do not think that it can be reasonably disputed that it would also be in Virinea’s best interests to participate in some extracurricular activities.
[43] However, given the parties’ current financial circumstances, the cost of such activities must be limited until the mother finds gainful employment and is able to contribute a larger portion of those costs as well. As a result, I order that the children may each be registered in one extracurricular activity per semester, the total annual cost of which shall not exceed $2500 per year (in total for both girls), unless the parties agree otherwise. The parties must come to an agreement as to which activities the girls will be involved in, keeping in mind the importance of allowing each parent to enjoy their weekends with the girls without too much interference as a result of extracurricular activities.
[44] The father has agreed to bring the children to church on Sunday mornings every second of his weekends (once per month), and I so order. The parties are free to register the children into additional activities on their own time with them, and at their own cost. This may be revisited when the mother becomes employed.
Passport and Right to Travel
[45] Although there appears to have been difficulties on the part of the mother to obtain the father’s consent to travel in the summer of 2016, it seems that no such problems occurred since. To provide the parties with clarifications which will avoid future disputes on the issue, I make the following order:
Upon being provided with specific travel plans and a detailed itinerary (which includes the dates during which the children will travel, the name of any airline carrier and flight times, accommodation, as well as a telephone number where the children may be reached in case of emergency during the trip), the parent shall sign any travel authorization necessary to allow the requesting parent to travel with the children internationally, within 10 days of the request, unless there are reasons to believe that the children would be at risk travelling to the requesting parent’s travel destination. Travel requests shall be provided as early as practically possible;
Upon written request by one parent to the other, passport applications or renewals for the children shall be signed and returned to the requesting parent within five days.
[46] The mother sought a contribution from the father towards the cost of the children travelling to Russia each summer with her. I see no legal basis upon which I could order the father to do so, and I see no reason why the father should be contributing the mother’s vacation costs with the children unless he specifically consents to do so.
Madam Justice Julie Audet
Date: November 27, 2017
CITATION: Gopenko v. Paré, 2017 ONSC 6940
COURT FILE NO.: FC-16-697
DATE: 20171127
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ANNA GOPENKO, Applicant
-and-
JEAN-ROGRIGUE PARÉ, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Julie Guindon, for the Applicant
Respondent, self-represented
ENDORSEMENT
Audet J.
Released: November 27, 2017