Court File and Parties

COURT FILE NO.: FC-16-410-1 DATE: 2018/08/30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kamal Chafic Hammoud, Applicant -and- Katharine Rosolen, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, in person Adrienne Curran, Counsel for the Respondent

HEARD: August 28, 2018

Endorsement

[1] This is a motion brought by the Applicant seeking an order requiring the Respondent to pay all of the cost of transporting the children to and from their school, and to pay costs of the July 10, 2018 motion before Justice Roger.

[2] For the reasons set out below, I order that on an interim basis, the parties shall each be responsible for their own costs, if any, of transporting the children to and from school; and that each party shall bear their own costs of the motion before Justice Roger on July 10, 2018 and the motion before me on August 28, 2018.

Background

[3] The parties were married on October 11, 2003. They separated in July of 2015. They have two children, now ages 12 and 14. The oldest child has special needs, but the evidence before me supports that the oldest child is high functioning.

[4] The parties executed a Separation Agreement on July 8, 2015 disposing of all issues arising from their marriage and separation. The Agreement provided, among other terms, for the parties to have joint custody of the children with an equal week-on week-off parenting schedule, the Respondent to keep the former matrimonial home, and the Applicant to keep the former investment property in which he now resides.

[5] Despite the equal timesharing arrangement provided for under the Separation Agreement, from July of 2015 to July of 2017, the children primarily resided with the Respondent. Since July of 2017, the children have resided in an equal timesharing week-on week-off arrangement.

[6] For school purposes, the children continued to attend school in the same school district as the Respondent’s residence (“the old school district”), being as it was the former matrimonial home. The Applicant’s residence was outside of the children’s old school district.

[7] At the end of August, 2017, the Respondent advised the Applicant that she intended to sell her residence, the former matrimonial home, and move in to her new partner’s residence, which is outside of the children’s old school district. The Respondent planned the move for the end of the children’s school year in June of 2018. The consequence of the Respondent’s move, given that neither party would reside in the children’s old school district, was that the children would either need to attend new schools, or the parties would need to request a cross boundary school transfer and have this request accepted by the school board so that the children could attend schools in the old school district.

[8] The Applicant commenced this Application on November 29, 2017 seeking an order preventing the Respondent from enrolling the children in a new school outside of the old school district and, if needed, an order changing primary residence of the children to the Applicant.

[9] The Respondent sold her home in the spring of 2018 and moved her residence. The Respondent’s new residence is approximately 10 kilometres from the Applicant’s residence.

[10] Due to the need to determine where the children would attend school as of September 2018, an interim motion was heard by Justice Roger on July 10, 2018.

[11] On that day, Justice Roger found that it was in the children’s best interests for the older child to continue in his current school in the old school district, and for the younger child, who was moving into a new school anyway, to join the older child in the same school. Justice Roger ordered that the parties complete the cross boundary transfer request for both children, and for the purpose of the Cross Boundary Transfer Report, to register the children in the high school in the Applicant’s school district in the hope that the transfer would be accepted. Justice Roger further ordered that any issues resulting from the transfer were adjourned to a later date once it was known if the transfer had been accepted, including any issue with after school programs and transportation to and from the school if the transfer request is not accepted.

[12] In August of 2018, the cross boundary transfer request was accepted for both children. The result is that both children will continue to attend the same school they would have attended if the Respondent had not moved.

[13] There is, however, one difference, being that there are now potential transportation costs for the children to get to and from school. Before the Respondent moved, the children were eligible for school bus transportation to and from the Respondent’s residence, as it was inside the old school district and they took the bus while in the Respondent’s care. While in the Applicant’s care, the Applicant drove the children to school in the morning and then the children returned by bus to the Respondent’s residence, where the Applicant picked them up after school. Now that neither parent resides in the old school district, the children are no longer eligible for school board funded bus transportation and the parties are now responsible for transporting the children to and from school themselves.

[14] On July 31, 2018, the Applicant served and filed a new Notice of Motion, which returned before me on August 28, 2018, seeking an order for the Respondent to pay all of the costs of transporting the children to and from school, and to pay the costs of the July 10, 2018 motion before Justice Roger.

Applicant’s Position

[15] The Applicant’s submissions are summarized as follows:

1. As a result of the Respondent’s move, the children must now be transported to school, which must be done by private transport company at a cost of $55 per day for one way transportation (for both children) at a cost of $110 per day ($55 per day for transporting the children to school in the morning and $55 per day for transporting them after school);
2. The Respondent should be required to pay for 100% of this cost because: i. The Respondent acted unilaterally by moving without the Applicant’s consent; ii. Although the Applicant previously transported the children to school in the mornings during his weeks, the Applicant takes the position that paid transportation is now required for the children both to and from school because he was often late when he drove the children; his work schedule has now changed which makes it more difficult to transport the children on time; being late is only now a problem because, now that the children are attending the school under a cross boundary transfer, being late jeopardizes their placement; and the only reason they are under a cross boundary transfer is due to the Respondent’s unilateral choice to move; iii. The Respondent has greater financial resources than the Applicant. The Applicant states his annual income is approximately $50,000, whereas the Respondent’s is approximately $125,000; and iv. The Applicant also seeks his costs on a full indemnity basis in the amount of $3,410.50 on the basis that he states he was the successful party before Justice Roger.

Respondent’s Position

[16] The Respondent’s submissions are summarized as follows:

1. Each party should be responsible for transporting the children to and from school, and be responsible for any related costs they incur in doing so. The Applicant’s residence is only 10 kilometres away from the children’s school, which is exactly the same as before the Respondent’s move;
2. The Applicant only works part time, and has not filed evidence of his work schedule or changes to his schedule that restrict his ability to transport the children to school or pick them up after school;
3. The Applicant has not filed evidence in support of his position that the children require private transportation as opposed to other less expensive options;
4. The private transportation proposed by the Applicant is unreasonable and unnecessary. Suitable, less costly alternatives are available, such as an OC Transpo pass (approximately $89.75 per month per child) or taxi (approximately $22.48 one way);
5. The Applicant was previously transporting the children to school in the morning. The loss of the school bus for the children, caused by the Respondent’s move, only impacts the Applicant, at most, for after school transportation, such that the impact, if any, is only approximately $225 per month, based on a $22.48 taxi fare one way after school for approximately 10 days per month. The Respondent asserts that the Applicant can afford to pay this cost, and should do so, at least on an interim basis pending a final determination;
6. The Separation Agreement provides for the parties to share any special and extraordinary expenses equally. In the event that the Court does not order the parties to bear their own costs incurred to transport the children, any reasonable and necessary costs to do so should be shared equally, as a special and extraordinary expense under the Separation Agreement; and
7. With respect to costs, the Respondent asserts that the parties should each bear their own costs, noting that she had proposed making a cross boundary transfer request for the children to attend the designated school from the outset of these proceedings and Justice Roger did not make an order for costs in his July 10, 2018 Endorsement.

Analysis and Disposition

[17] This is a motion for interim relief. The purpose of an interim motion is to put in place necessary relief to hold the parties over until the trial, where there can be a full examination, based on oral evidence, and a final determination of the issues.

[18] Although it may appear that there are few issues that remain outstanding between the parties now that the children have been accepted under the cross boundary transfer, this does not change the fact that I am not adjudicating a trial, at which time a final order will be made, but only adjudicating a motion for interim relief pending a final determination.

[19] This is not meant to discourage the parties from settling this matter on a final basis, given the appearance that there is little left to be disputed, and in fact the Court encourages them to do so. At this time, I will make an interim order only, and the principles that govern such orders apply.

[20] The Applicant argues that paragraph 7.4.1 of the Separation Agreement, which requires that the parties make all important decisions concerning the children jointly, effectively imposes an obligation on the Respondent to pay for all of the children’s transportation costs because she acted unilaterally by moving. It follows, under his view, that she should be responsible for all of the financial consequences of her move.

[21] I disagree with the Applicant’s position. The Separation Agreement does not contain any provisions preventing the Respondent from moving her residence within the City of Ottawa. The Separation Agreement does not contain any provisions that require the Respondent to remain in the children’s old school district. The Separation Agreement does not contain any provisions that require the Respondent to be solely responsible for any costs that may result from neither parent residing in the children’s old school district.

[22] I do not find that the Respondent is solely responsible for all of the costs associated with the children continuing to be able to attend school in their old school district, which is effectively what the Applicant is seeking. If the parties had intended such an obligation to flow from the terms of the Separation Agreement, they needed to do so expressly. They did not.

[23] In the past, both parties, including the Applicant, have benefitted from the Respondent maintaining a residence inside the children’s school district – the fact that the Respondent is no longer doing so does not mean that only she has to bear any increased costs.

[24] I am also not persuaded that the reasonable and necessary costs associated with transporting the children will be significant, given that the Applicant appears to be working part time, and has had the flexibility in the past to transport the children directly to school in the mornings. The fact that his work schedule may have changed to impact upon his ability to transport the children to school on time, of which there is no evidence before me, does not mean that the Respondent is responsible for any increased costs due to changes in the Applicant’s work schedule.

[25] It may be that the reasonable and necessary expenses associated with transporting the children to and from school should be shared between the parties as special and extraordinary expenses, either under the terms of the Separation Agreement (i.e. equally) or in accordance with section 7 of the Child Support Guidelines (i.e. in proportion to income). Based on the evidence before me, however, I find that, pending a final determination of this Application, it is appropriate for each party, on an interim basis, to bear their own costs, if any, of transporting the children.

[26] This finding is buttressed by the fact that the Applicant’s pleadings do not include a request for an Order requiring the Respondent to pay the transportation costs the Applicant now seeks. The relief requested by the Applicant within this proceeding is limited to seeking an order preventing the Respondent from enrolling the children in a new school outside of their old school district and, if needed, an order changing primary residence of the children to the Applicant. Nor did the Applicant seek such relief in his Notice of Motion returnable on July 10, 2018. The Applicant’s Notice of Motion returnable on August 28, 2018 does request this relief, but this relief is outside of the scope of his pleadings, framed by what he has plead in his original Application. While this Court has some latitude to grant relief beyond the strict pleadings of the parties, and particularly when such relief is incidental to relief sought in pleadings, so long as the this case is dealt with justly ensuring a procedure that is fair to all parties, I am not prepared go further, at this time, than the interim order set out below. If the Applicant wishes to pursue a change in the child support or expense sharing provisions in the parties’ Separation Agreement, he must amend his pleadings in accordance with the Family Law Rules.

[27] Given the above reasons, I order that, on an interim basis, the parties shall each be responsible for their own costs, if any, of transporting the children to and from school.

Costs

[28] Rule 24 of the Family Law Rules provides:

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case.

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case.

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[29] Justice Roger did not decide the issue of costs in his Endorsement of July 10, 2018. Pursuant to Rule 24(11), the fact that he did not do so does not prevent me from determining the costs of that motion. I find that it is appropriate for me to do so, given the direction of the rules for costs to be dealt with in a summary manner, and given that the matters before me flow from Justice Roger’s adjournment of the related issues.

[30] I have considered the provisions of Rule 24 and in particular, the factors under Rule 24(12). The Respondent’s position in this matter, as evidenced by the Answer she filed on December 21, 2017 and her affidavit filed on the July 10, 2018 motion, supports the Respondent’s position that she supported requesting a cross boundary transfer, although there was an issue with where the children would be registered for the purpose of applying for such a transfer.

[31] It is apparent from the evidence before me that these motions could have been avoided if both parties were more effective at communicating with each other in a constructive manner. As such, I order that each party shall bear their own costs of the motion before Justice Roger on July 10, 2018 and the motion before me today.

Orders

[32] I therefore make the following orders:

1. On an interim basis, the parties shall each be responsible for their own costs, if any, of transporting the children to and from school.
2. Each party shall bear their own costs of the motion before Justice Roger on July 10, 2018 and the motion before me on August 28, 2018.

Justice P. MacEachern Date: August 30, 2018