COURT FILE NO.: FS-14-80663-01
DATE: 2018 06 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lillian DaSilva-Resendes
A. Kania, counsel for the Applicant
Applicant
- and -
Antonio Resendes
K. Cunningham, Counsel for the Respondent
Respondent
HEARD: May 30 and 31, 2018, Supplementary Written Submissions Completed June 22, 2018
REASONS FOR JUDGMENT
LEMAY J
[1] The parties were married on July 22nd, 2006 and separated on November 1st, 2012. They have since been divorced. There is one child of the marriage, Lucas, who is currently 9 years old. A final Order was agreed to by the parties on April 20th, 2015 and signed by Andre J. on May 29th, 2015.
[2] The Applicant alleged that the Respondent engaged in numerous breaches of the Order of Andre J., and brought a motion to change that Order on August 25th, 2015. This Motion to Change was to proceed before me earlier this month by way of a trial.
[3] After extensive discussion with the parties on May 30 and 31, 2018 and the assistance of Trimble J. as a settlement conference judge, the issues between the parties were narrowed considerably. Minutes of Settlement resolving most of the issues were entered into on May 31st, 2018. These Minutes of Settlement left only five (5) outstanding issues for the Court to consider.
[4] As a result, the parties accepted my suggestion that, instead of having a trial to resolve the remaining issues, they file Affidavits and argument, and I determine the outstanding issues in writing. There were no limits placed on the length of the Affidavits or exhibits that could be filed, but argument was limited to five single-spaced pages.
[5] This process was adopted as the issues that are in dispute are narrow and focused. It is also a more cost-effective process than a full trial would be to resolve these issues.
[6] The issues that remained to be decided were as follows:
a) Where, and how, will access drop-offs and pick-ups take place?
b) Is the Respondent responsible for $1,273.02 in benefit claims that allegedly should have been claimed through his benefits plan?
c) Should the Respondent be required to pay $540.00 on account of extraordinary expenses that the Respondent allegedly failed to claim through his benefits plan?
d) Should the Respondent be required to provide the Applicant with a statement from the Respondent’s insurer outlining his employer’s benefits on an annual basis, or as the benefits booklet is revised?
e) Should the Respondent’s contribution to section 7 expenses be capped at $3,500.00 annually?
[7] After completing the minutes of settlement, I was advised (by way of the parties’ submissions) that only the first and last issues remain to be decided. The other three issues have been resolved, and the terms will be incorporated into a final Order of the Court.
[8] I will outline the terms of the parties’ settlement, as well as addressing the outstanding issues, and the relevant facts, in the sections that follow.
[9] First, however, the Applicant has raised a threshold question about both of the outstanding issues before me. Specifically, she argues that the Court should not consider the issues of access pick-ups and drop-offs and capping section 7 expenses because these issues were not specifically pled in the Respondent’s materials.
[10] The Respondent characterizes this issue as a jurisdictional issue. The Applicant rejects that characterization, and states that this issue is a “defence” to the Respondent’s claims for relief. Regardless of how it is characterized, my analysis is the same.
[11] I reject this argument for two reasons. First, the Courts should not be rigidly holding parties to the specific wording of their pleadings at trial. The Family Law Rules provide a wide discretion to the Court to permit an amendment of pleadings unless the amendment would “disadvantage another party in a way for which costs or an adjournment could not compensate” (see Rule 11(3)).
[12] In other words, the Court would be required to grant any amendment sought to bring the pleadings into conformance with the issues raised unless the party opposing the amendment could demonstrate prejudice that could not be compensated for by costs or an adjournment. I see no prejudice to the Applicant if the Court considers the issues raised by the Respondent. The Applicant has been able to provide complete argument and evidence on both points. Indeed, she has not asked for an adjournment to collect additional evidence on either issue.
[13] Second, on my reading of the final Minutes of Settlement, the parties did agree to have these issues addressed by me. To then say that they could not be addressed because of a failure in the pleadings seems to me to be denying the Respondent the right to have the issues he has raised addressed as a result of a technical failure in his pleadings.
[14] The Courts have rejected that approach. If an issue raised by a party at trial was not in the pleadings, the Courts will generally permit it to be adjudicated as long as no one is surprised or prejudiced. On this point, see Frick v. Frick (2016 ONCA 799) at paragraphs 38-40.
[15] In this case, it was clear that the parties both knew that they would have to address the issue of pick-ups and of the cap on section 7 expenses. Neither party is surprised or prejudiced by those issues being raised.
[16] As a result, I reject the Applicant’s arguments that the Court should not deal with the two remaining issues because the Respondent did not properly plead them. I will address both issues on the merits.
Issue #1- Access Pick-ups and Drop Offs
[17] The Applicant seeks to have these pick-ups and drop offs take place at her home. The Respondent wants them to take place at the Tim Horton’s on Cinguacousy Road near Sandalwood. This is a hotly contested issue, and some background is necessary to explain both why the issue arises and what my disposition of the issue is.
a) Background Facts
[18] As noted above, the parties entered into Minutes of Settlement leading to a final Order that was issued by Andre J. on May 29th, 2015. These minutes were signed on April 14th, 2015. They set out a regime whereby the Applicant had custody, and the Respondent would have access every other weekend, as well as access during some vacations. The minutes of settlement specifically stated (in paragraph 3) that “The Respondent father shall be responsible for all pick up [sic] and drop offs.” No location was specified. However, the evidence is clear that the pick-ups and drop-offs took place at the Applicant’s home, where she lived with her fiancé.
[19] It did not take long for things to unravel. In early May of 2015, the Respondent was criminally charged with uttering threats at the Applicant’s now fiancé. He entered into a peace bond that, among other things, prevented him from attending at the Applicant’s residence.
[20] I was provided with some e-mail correspondence from 2015. I do not intend to review all of that correspondence. However, the following facts emerge from this correspondence:
a) The Applicant was not prepared to permit the Respondent to attend at her house while he was covered by the terms of the peace bond. Indeed, in an e-mail dated June 7th, 2015 at 8:21 pm, she stated “you are lucky enzo [the Applicant’s fiancé] isn’t calling the police right now as being dropped off a street beside us is still a violation of the terms of your release and if this happens again we will have you arrested.” She had previously warned the Respondent that the drop off needed to be done by someone other than him.
b) The relationship between the Applicant, the Respondent and their new partners was not good in 2015, and appears to have significantly deteriorated between the signing of the minutes of settlement and the end of June, 2015.
[21] By August of 2015, the Applicant had determined that the Respondent should not have access to Lucas. She had also brought a Motion to Change the terms of the May, 2015 Order of Andre J. The Respondent did not see Lucas between the latter part of 2015 and the beginning of 2018.
[22] At the beginning of 2018, supervised access visits commenced. Those visits have continued since the beginning of 2018, and the parties are now in a position where they will move to unsupervised access. The change to unsupervised access occurs effective this weekend, which is why a decision on this issue is required now.
[23] I also note that Lucas has been diagnosed with potentially having ADHD as well as Oppositional Defiant Disorder.
b) Positions of the Parties and Analysis
[24] In opposing any change to the location for the pick-ups and drop-offs, the Applicant starts by noting that there has not been a material change in circumstance. She also argues that, given Lucas’s medical diagnoses, having pick-ups and drop-offs take place at home is more normal, and will assist Lucas with his routine.
[25] In support of these argument, she relies on a number of decisions. The most relevant of these are A.B. v. J.B. ([2017] O.J. No. 6730 (O.C.J) and Waxman v. Waxman ([2016] O.J. No. 2550 (S.C.J))
[26] In addition, the Applicant relies on the definition of a material change in circumstances as set out by the Supreme Court’s decision in L.M.P. v. L.S. (2011 SCC 64, [2011] 3 S.C.R. 775) that a material change in circumstances is substantial, continuing and that, if known at the time, it would have likely resulted in a different agreement or decision.
[27] The Respondent’s position is that there has been a material change in circumstance for a host of reasons outlined in his Affidavit. Further, he is of the view that there has been significant conflict in this relationship, and that there should be a neutral location for drop-offs.
[28] I start with the issue of whether there has been a material change in circumstances. I find that there has been one for three reasons. First, the parties entered into their minutes of settlement prior to the charges being laid against the Respondent. The Respondent then had a prohibition against attending at the Applicant’s residence, which was not foreseeable at the time the parties entered into their agreement.
[29] Second, there were problems in the relationship between the Applicant and the Respondent that, on the evidence before me, got significantly worse after the minutes of settlement were signed. I have noted the Applicant’s threat to charge the Respondent with a breach of his bail conditions if he was the one to drop Lucas off at the Applicant’s home. I also note the following exchange that took place between the Respondent and the Applicant’s fiancé:
Learn how and what it takes to be a dad before claiming to be one. All you have done is planted a seed and emotionally and mentally scarred your ex wife and poor son.
Have a great weekend and don’t waste any more of our valuable family time.
12:28 PM
U and your selfish wife r the ones holding me from lucas doing everything u guys can and lie about me verbal abusing her and my son u guys r the ones fighting with me in front of lucas as my seed I love my son to death as I love Jose the some. The seed was planted with the wrong person your wife but I love my son and feel sorry 4 him u guys don’t let me in his life
12:39 PM
[30] I am not sure when exactly this exchange took place, but it is not friendly. I do not intend to cast blame for these exchanges. I only note that there is significant conflict here, and it escalated sharply after the final Order was signed in 2015.
[31] Third, the denial of access by the Applicant also constitutes a material change in circumstances. Again, I do not intend to assign blame for this decision. However, it is a significant change in the relationship between the parties and Lucas, and one that may have long-lasting consequences.
[32] This brings me to the merits of the Respondent’s request, which I am prepared to consider. While I note the Applicant’s concern that the Respondent has framed his position partly in terms of his own interests, the Court’s focus must be on what is in Lucas’s best interest. In my view, scheduling the pick-ups and drop-offs at a neutral third-party location are in Lucas’s best interests for two reasons.
[33] First, it is clear that there has been conflict in this relationship, including over the location of the drop-offs and pick-ups. The Applicant’s insistence that, during his probationary period, the Respondent send someone else to pick up and drop off Lucas is a level of inflexibility that concerns me. It is also an attempt to control the access to Lucas for reasons unrelated to Lucas’s best interests. It is in Lucas’s best interests to see his parents cooperating and getting along.
[34] Second, there is the question of what regime will be most positive for Lucas. In support of her position, the Applicant points to the decision in Waxman, supra, where Raikes J. observed (at paragraph 35) that access exchanges at the parties’ respective residences would ensure a greater degree of normalcy. While I agree with that observation, it is also true that each case depends on its own facts.
[35] Given the history of the relationship between these parties, and their partners, I am not persuaded that access exchanges at the Applicant’s home are in Lucas’s best interests. There is simply too high a risk of conflict between the parties.
[36] I acknowledge the statements in the Applicant’s Affidavit that there were positive interactions between her fiancé and the Respondent over the past few weeks. However, I would note two points in respect of those interactions. First, it is clear from reading the recent text messages that there is still some suspicion between the two of them. Second, they are both recent and few in number. These reactions have to be balanced against a lengthy history of conflict between the parties and their new partners. When that balancing is done, I view the risk of continued conflict to be substantial. Therefore, it is in Lucas’s best interests to avoid the possibility of conflict, and a neutral site is more appropriate. As the relationship between the parties changes, there is nothing to prevent them from revisiting this issue on consent.
[37] For the foregoing reasons, I am directing that the pick-ups and drop-offs shall take place at the Tim Horton’s on Chinguacousy Road, or such other place that is mutually agreeable. The times are to be as set out in the Order of Andre J. as modified by the agreement of the parties.
[38] As a final note, the Applicant stated that Lucas has said that he is excited about when “his dad can come and pick him up at his home.” In the Applicant’s Affidavit, this is reported as a direct quote from Lucas. It would surprise me to discover that Lucas, who is only 9 years old, would add the comment “at his home” in the absence of some knowledge as to the issues currently before the Court. This information, if it was provided to Lucas, could either have been shared with him directly or overheard by Lucas.
[39] While I am not making a finding that the litigation was discussed with Lucas, I am gravely concerned that a discussion may have taken place. I am reminding the parties that any discussion with Lucas about the litigation, or its outcome, is clearly not in his best interests.
Issues #2 and #3- Expenses Under the Respondent’s Drug Plan
[40] These issues have been resolved by the parties. An order incorporating that resolution is to be included in the final Order resolving this case in the following terms:
The Respondent agrees to pay $1,273.02 to the Applicant, in relation to paragraph 9 of the May 29, 2015 Order. The Respondent also agrees to pay $540 to the Applicant based on s.7 special and extraordinary expenses as mentioned in paragraph C of the Unresolved Issues in the Minutes of Settlement dated May 31, 2018.
Issue #4- Benefits Statement
[41] The Applicant has requested that the Respondent provide a benefits statement or booklet from his insurer, and provide updates on a regular basis. The Respondent had resisted this request. Again, this issue has been resolved.
[42] A provision will be included in the final Order, reading as follows:
The Applicant’s claim that the respondent shall provide a statement from the insurer of his employer’s benefits plan within 30 days of the annual renewal of the applicable benefits showing the coverage and amounts available for Lucas during the twelve months after the annual renewal is hereby dismissed.
The Respondent will ensure that the Applicant is provided with an updated benefit booklet for his place of employment upon any revision to the current booklet, if he is aware of such revision and is he is provided with same.
Issue #5- Capping Section 7 Expenses
[43] The Respondent seeks an Order capping his contribution to section 7 expenses at a total annual amount of $3,500.00. The Applicant opposes this request.
[44] The Respondent advances this request for two related reasons. First, the Applicant has a large amount of latitude in determining which activities Lucas will be enrolled in. Second, the Respondent states that he wants the cap “so I know the upper limit of what I have to pay and can budget accordingly and have peace of mind.” In support of his position on this issue, the Applicant points to Black-Johnson v. Black (2016 ONCJ 736) and C.A.S. v. N.A.S. (2014 ONSC 6201).
[45] I reject the Respondent’s position on this issue for a number of reasons. First, he already has significant protection in the existing Orders. In that regard, I note paragraph 18 of the May 29th, 2015 Order of Andre J., which states provides that the Applicant must obtain the Respondent’s written consent for any new extracurricular activities. This provision clearly requires the Applicant to obtain the written consent of the Respondent before going outside the listed activities. This is a significant restriction on section 7 expenses that, in my view, should provide the Respondent with sufficient “peace of mind” in terms of the level of those and appropriateness of the expenditures.
[46] I also note that this provision makes the decisions that the Respondent relies upon distinguishable. In both case, there were fewer limitations on the scope of section 7 expenses, and the amounts being sought were quite significant. In this case, the limitations that have been imposed are sufficient.
[47] Second, I accept the Applicant’s argument that, because her income is significantly lower than the Respondent’s income, she is unlikely to choose section 7 activities that would significantly affect the Respondent, as the Applicant will be required to pay her proportionate share of those expenses.
[48] Finally, it is possible that Lucas will end up playing, or being invited to play, representational level hockey. I accept the Applicant’s assertion that this is an expensive endeavor, and that it might result in the Respondent being required to pay more than $3,500.00 per year in section 7 expenses. I do not think it is constructive for the parties to have to return to Court to address that eventuality.
[49] In the result, I am not prepared to place a hard cap on the section 7 expenses that the Respondent is required to pay.
Conclusion and Costs
[50] Based on the foregoing, I am making the following Orders:
a) Pick-ups and drop-offs are to take place at the Tim Hortons on Chinguacousy Road, or such other place as the parties may agree from time to time.
b) The Respondent agrees to pay $1,273.02 to the Applicant, in relation to paragraph 9 of the May 29, 2015 Order. The Respondent also agrees to pay $540 to the Applicant based on s.7 special and extraordinary expenses as mentioned in paragraph C of the Unresolved Issues in the Minutes of Settlement dated May 31, 2018.
c) The Applicant’s claim that the respondent shall provide a statement from the insurer of his employer’s benefits plan within 30 days of the annual renewal of the applicable benefits showing the coverage and amounts available for Lucas during the twelve months after the annual renewal is hereby dismissed.
The Respondent will ensure that the Applicant is provided with an updated benefit booklet for his place of employment upon any revision to the current booklet, if he is aware of such revision and is he is provided with same.
d) There shall be no cap on Section 7 expenses
[51] These provisions are to be included in the final Order flowing from the Minutes of Settlement dated May 31st, 2018.
[52] This leaves the matter of costs. I will entertain costs submissions from the parties on the following timetable:
a) The Applicant’s costs submissions are due on July 27th, 2018. These submissions are not to exceed four (4) single-spaced pages exclusive of offers to settle, case-law and bills of costs.
b) The Respondent’s costs submissions are due on August 17th, 2018. Again, these submissions are not to exceed four (4) single-spaced pages exclusive of offers to settle, case-law and bills of costs.
c) The Applicant’s reply costs submissions are due on August 31st, 2018. These submissions are to be no more than two (2) single-spaced pages.
[53] There is an argument to be made that neither party should recover costs in this case, both because of the fact that they were able to compromise on most of the issues, and because the remaining issues were not as significant as what the parties were able to resolve. The costs submissions from the parties should address that argument as well. In that regard, I would direct the parties’ attention to Dhillon v. Dhillon Estate (2009 58607 (ON SC), [2009] O.J. No. 4459), Davis v. Fell (2016 ONCJ 84) and Talbot v. Talbot (2016 ONSC 1351).
LEMAY J
Released: June 27, 2018
COURT FILE NO.: FS-14-80663-01
DATE: 2018 06 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lillian DaSilva-Resendes
Applicant
- and -
Antonio Resendes
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: June 27, 2018