Court File and Parties
Court File No.: FC-12-228-2 Date: 2018-04-04 Superior Court of Justice - Ontario
Re: Kimberley Margaret Everett, Applicant (Responding Party) And: Brian Paul Carey, Respondent (Moving Party)
Before: J. Mackinnon J.
Counsel: Odette Rwigamba, for the Applicant Aaron MacKenzie, for the Respondent
Heard: March 29, 2018
Endorsement
[1] Mr. Carey is the moving party in a motion to change the access, child support and section 7 expense provisions of a final order dated May 22, 2014. He relies on his move to Nova Scotia on June 1, 2016 as the material change in circumstances required with respect to the changes he seeks to his access to the parties’ daughter, Megan, and to pay child support according to the Nova Scotia child support table.
[2] These threshold points are conceded.
[3] For the material change required to reduce child support and contribution to section 7 expenses, Mr. Carey relies on a decrease in his income below the $62,868 he was earning from his employment in the Canadian Forces, as recited in the final order. Mr. Carey was approved for disability coverage commencing May 2016. His 2016 income did not in fact decline. He was released from the Forces in May 2016, at age 51. The resulting severance pay maintained his annual income at or slightly above its prior level.
[4] Mr. Carey therefore relies on changes to his income as of January 1, 2017. He discloses $45,270 income for 2017 derived from his pension and disability payments. He has established that his disability entitlement ends in May 2018. After then ongoing coverage requires disability from “any occupation”, and has been denied. As of May 2018 Mr. Carey will receive his pension income only, namely $16,082 annually.
[5] Whether there has been a material change in circumstances entitling Mr. Carey to any change in the final order based on these reductions to his income is in dispute.
The Access Issue
[6] Megan turns 13 shortly. The final order provided alternate weekend access, Christmas access and other access as agreed. The father seeks two, two week periods in the summer, one week during the school Christmas break and alternate March breaks with his daughter. He proposes to exercise his access in Nova Scotia. He agrees to pay the cost of Megan’s airfare for the visits.
[7] The mother submits that access in Nova Scotia should be limited to a week in the summer and a week during the Christmas break. She would provide additional access in Ottawa of very short duration. Her position is that Megan should travel as an unaccompanied minor at the father’s expense. The cost is $200 for a return flight. The father’s view is that the complementary “meet and assist” service provided by the airline is sufficient for Megan’s needs.
[8] The final order refers to treatment Megan was receiving for ADHD, anxiety and depression. Counselling and tutoring expenses were considered necessary expenses in 2014. Megan continues in counselling for management of anxiety symptoms and emotional regulation. She is prescribed Prozac. She has an Individual Education Plan at school.
[9] Based on a review of her IEP, I conclude that Megan is susceptible to becoming overwhelmed, requires extra time to process information, and needs to practice communication and problem solving skills.
[10] Her counsellor is Cheryl Grant. Ms. Grant’s report dated January 22, 2018 states that Megan is doing well overall, and that her biggest distress is the relationship between her parents. She is aware that her parents do not get along with each other. Megan has a positive relationship with both parents and says that neither speaks badly to her about the other. Nonetheless, she made it clear to Ms. Grant that her father does discuss access arrangements with her. Megan appears to be more comfortable talking to her mother. She says she tries to avoid topics with her father that she thinks may upset him.
[11] It is important moving forward that Mr. Carey restricts discussions about access arrangements to himself and the mother. He should not use Megan as a go between or ask her to mediate with her mother on his behalf.
[12] Ms. Grant asked Megan what she would feel comfortable with in terms of visiting her father. The child’s preference was for visits between 7 to 14 days. Ms. Grant did not think visits of this duration would impact adversely on Megan provided her father supported her treatment plan during the visits. At present, the plan includes counselling, tutoring and medication.
[13] Megan’s physician has recommended that she travel as an unaccompanied minor, “to ensure her safety and to alleviate anxiety associated with travelling alone.”
[14] To date Megan has made three trips to Nova Scotia. The mother described Megan as being angry and upset with her on return from one visit. This revolved around Air Canada’s refusal to allow Megan to board her scheduled flight due to information the mother provided about her. Alternate arrangements were made, but the mother felt that Megan returned home angry because her father had been blaming the mother for the delay and inconvenience.
[15] The mother also said Megan has returned home from other visits showing signs of emotional anxiety and defiance. No specifics were provided. The mother did detail difficulties encountered recently in the Ottawa Airport in relation to getting through security, understanding the difference between boarding time and departure time, and a gate change. Megan appeared to need her mother’s intervention to handle these situations.
[16] I conclude that Megan should travel as an unaccompanied minor for at least one more year, and until she expresses sufficient comfort to try the “meet and assist” service as an alternative. She is of an age where the airlines do not require this, but her special needs are such that it is appropriate. The additional cost shall be treated as a section 7 expense to be divided proportionately between the parents.
[17] Either parent may seek a review of this provision after the summer visit of 2019. For the purpose of such a review the views of the child shall be provided to the court by an independent professional, ideally by Ms. Grant.
[18] Given the impractically of regular weekend visits, it is in the child’s best interests to provide for extended visits. Two weeks over an entire year is not sufficient contact. Her special needs and the tension to date around the topic of out of province travel, persuade me that this summer there should be one visit of two weeks duration, rather than two as proposed by the father. A well-known, consistent schedule that does not require negotiation and agreement will protect Megan from parental conflict or disagreement over access arrangements
[19] Accordingly, I order a fixed schedule for the father’s access to Megan in Nova Scotia as follows:
• for the summer of 2018 from Saturday July 7 to Saturday July 21. In future years this visit shall commence on the first Saturday in July and conclude on the Saturday fourteen days later;
• for the second part of the school Christmas vacation every year, with the intention of providing the father with not less than 7 days, commencing on the Friday one week following the last school day before the vacation commences, and continuing until the Saturday prior to the day on which school recommences; and
• for March break in alternate years commencing in 2019, commencing on the Saturday after the close of school and continuing until the following Saturday.
[20] The father shall make the flight arrangements at least 30 days in advance for each visit and shall email the itinerary to the mother forthwith upon having done so. The flights booked shall be for direct travel between Ottawa to Halifax, return, at the father’s expense, except for the unaccompanied minor fee which shall be shared proportionally as a section 7 expense.
[21] The father may seek a review of summer access after the summer of 2019 to add an additional week of access, whether consecutive or not, provided that the views and experience of the child related to access shall be provided to the court by an independent professional, ideally by Ms. Grant.
[22] The father shall also be entitled to Face Time access with Megan once per week at a time to be fixed by the parties and included as a term of my order. Failing an agreement on this issue the Face Time call shall be take place every week at 10 am, Sunday, local time in Ottawa, to be placed by the father.
[23] The father shall also be entitled to exercise reasonable weekend access to Megan in Ottawa, including an overnight, to be exercised on not less than 14 days written notice to the mother not more frequently than once per month, and not to be exercised in December or March. The father may exercise this access in Ottawa during the summer months which shall then include two overnights, provided he notifies the mother of the weekend he selects no later than March 31. The pick time for weekend access shall be 10 a.m. and the return time shall be 6 p.m.
[24] As a condition of exercising his access, the father shall adhere strictly to the child’s medication regime as it may be from time to time, and shall not discuss with her other aspects of her treatment plan that are in place, including counselling or tutoring, except to indicate his confidence in the mother’s decision making in this regard.
Child Support
[25] Mr. Carey has established that he was eligible for disability coverage from May 2016 to May 2018, pursuant to a medical opinion that he was disabled from performing his own occupation, as an operational member of the Canadian Forces. His disability coverage ends in May 2018 because his insurer is not satisfied that he is disabled from any occupation.
[26] The medical opinion prepared in support of his disability application is the only medical evidence produced by Mr. Carey. He was diagnosed with depression and anxiety. His specific work related impairment arose from his inability to handle high level or persistent stressors. It does not support a finding that Mr. Carey was at that time unable to work at any employment. There were no physical impediments to employment. In a civilian setting his psychiatric impairment would be considered mild. Mr. Carey was considered fit to participate in vocational or rehabilitation programs. It was expected he would return to work in a position with lower stress and no fast decision making requirements. In terms of treatment, the only information provided is that Mr. Carey had finished psychotherapy.
[27] Mr. Carey’s Record of Employment does not reflect a forced departure from employment. It indicates that his return date to work is “unknown” as opposed to “not returning”.
[28] Mr. Carey has established that in May 2016 he was unable to perform military operational duties. He received a medical release from the Forces in May 2016. Without diminishing his service and consequential mental health issues, he has not proven that he was compelled to retire or that non-operational employment with the Forces was not an available option to him. Mr. Carey has not established that he is disabled from any occupation for which he is reasonably suited. He has not provided evidence of any medical treatment after May 2016, or of any ongoing or current medical issues impairing his ability to be employed. He has not sought alternate employment since May 2016. In August 2017, he became self-employed building custom surf boards under the business name of AEON Surf Boards, but has earned no income to date.
[29] Mr. Carey provided little information about AEON Surf Boards. He said he had hopes to expand from building and selling custom surf boards, but at this time the business is deriving no real income. Bank statements, receipted expenditures and particulars of the sale of three surf boards for about $800 each were produced. The business bank balance was less than $200 at the end of February, 2018.
[30] Ms. Everett attached a print out from AEON’s webpage headed “Our Story”. Mr. Carey did not address this document in his own evidence. Although authorship is not attributed, I infer Mr. Carey wrote it and that it expresses his thoughts. Like Mr. Carey, the author was deployed with the army, and currently builds surf boards. The vision of the business is explained by reference to the experience of being hunkered down during a rocket attack and making the decision that if he survived he would make changes to his life, do things that mattered to him, not just what was needed to get by. This is consistent with the inference I have drawn from the omissions in evidence noted above, namely that Mr. Carey sought release from the Forces, and has chosen not to seek alternate gainful employment since then.
[31] The law is well established that a voluntary reduction in income does not constitute a material change in circumstances. The onus is on the moving party to establish diminished earning power due to medical reasons by cogent, current medical opinion. Every parent is obliged to support his or her child. In Mr. Carey’s case this means that he must earn what he is reasonably capable of earning. It is up to him to satisfy the court as to what that amount is. The evidentiary record here does not even address this issue.
[32] Accordingly I find that Mr. Carey has not established for the period from January 2017 to and including May 2018, that he was unable to earn the differential of $17,595 that would have brought his actual annual income up to what it had been in 2014. Nor has he done so as of June 1, 2018, with respect to the greater annual differential of $46,786.
[33] Based on these facts his motion to change the child support and section 7 expense provisions of the 2014 based on a material change in circumstances pertaining to his income is dismissed.
[34] I find he is entitled to a reduction in the amount of expenses claimed by Ms. Everett. The 2014 order requires her to have Mr. Carey’s consent to expenses other than those stipulated in the order for counselling, tutoring and assessment. The responding party has claimed expenses for music classes and parental advocacy coaching for herself, totalling $1,561.50 which do not fall within that scope and for which she did not seek or obtain the father’s consent.
[35] I also accept the father’s submission that the overall total of section 7 expenses claimed by the mother to date as permitted by the 2014 order is high in comparison to the parties’ incomes. He has not established a basis to alter the terms of that order with respect to expenses already incurred, especially having regard to the fact that the order was made on consent. Going forward, a term shall be added to require the mother to take advantage of tutoring services provided by the school, and not to incur private tutoring expenses for Megan unless supported by a detailed letter from the school setting out what in its view is required for Megan that the school itself cannot provide. With a copy of such letter she shall seek the father’s consent in advance of incurring a private tutoring fee, which consent shall not be unreasonably withheld.
[36] Counsel shall prepare an approved draft order fixing the amount of child support to be paid by the father based on an annual income of $62,868 according to the Nova Scotia table commencing June 1, 2016.
[37] The draft order shall also recalculate the amount the father owes on account of section 7 expenses after deducting the amount of $1,561.50 from the total incurred by the mother.
[38] Paragraph 7 of the mother’s notice of motion dated February 5, 2018 shall be included in the order. The mother also claims the father owes her $1,716.00 for reimbursements he received from Sun Life for the child’s medical expenses that were incurred by the mother. This claim was not established by the attachments she relied on.
[39] The responding party was ordered to pay the moving party $500 costs in connection to an adjournment of the motion to change. That amount shall be credited by the Director of the FRO against arrears of child support or section 7 expenses currently owing by the father to the mother.
Costs
[40] If the parties are unable to agree on the disposition of costs they may make written submissions, from the responding party, by April 20, and from the moving party by May 7. The responding party may exercise a brief right of reply by May 14. The submissions should not exceed 3 pages in length plus bills of costs and relevant offers to settle.
J. Mackinnon J.
Released: April 4, 2018
COURT FILE NO.: FC-12-228-2 DATE: 2018-04-04
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Kimberly Margaret Everett, Applicant (Responding Party) AND Brian Paul Carey, Respondent (Moving Party)
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Odette Rwigamba, for the Applicant Aaron MacKenzie, for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: April 4, 2018