Casault v. McNally, 2018 ONSC 5945

Court File and Parties

COURT FILE NO.: FC-05-2527-3 DATE: 2018/10/09 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Maria Lucie Nicole Casault Applicant – and – John McNally Respondent

Counsel: Colin Fletcher, for the Applicant Aaron Heard, for the Respondent

HEARD: July 19, 2018

Reasons for Decision

Overview

1This is a motion to change brought by the Respondent father. The Applicant mother has brought a motion to change in response. Both parties also seek a determination of the annual child support adjustment dating back to April 1, 2015, as provided for in the May 30, 2013 Order.

2For the reasons set out below, I have determined the annual child support adjustments dating back to April 1, 2015 pursuant to the same methodology prescribed under the 2013 Order, declined to vary child support further, dismissed the mother’s request to change custody, and, pursuant to the review of access provided for under the 2013 Order, made small changes to the parenting schedule, but dismissed the requests of both parties for more significant changes.

Background

3This is the final hearing in a Motion to Change brought by the Respondent father. The father’s ¹ Motion to Change was commenced on March 27, 2017. The mother’s Response to Motion to Change is dated May 16, 2017.

4The parties were married on April 24, 2004. They separated on July 24, 2005. They have been separated for 13 years. There is one child of the marriage, Liam, born September 17, 2004. Liam is now 14 years of age.

5The current custody and parenting schedule has been in place since 2012, when the parties executed Minutes of Settlement, which were incorporated into the Order of Justice Warkentin dated May 30, 2013 (“the 2013 Order”). The mother has sole custody of the child over all issues, except for religion, which is in the sole custody of the father. The father’s current access is every second weekend, from Friday to Monday morning (Tuesdays on long weekends), plus every Wednesday overnight, three weeks of access in the summer, and other holiday access. The father pays child support to the mother pursuant to the 2013 Order, which provides a comprehensive annual adjustment process and sharing of s.7 expenses.

6Both parties seek a number of changes to the existing parenting and child support provisions. The 2013 Order contains extensive and detailed provisions which were designed to reduce conflict between the parties. This effort has not been entirely successful, as the parties continue to have significant conflict and are unable to resolve child support adjustments and other issues between them. But at the same time, Liam is doing well, both inside and outside of school.

7Although the 2013 Order provides a comprehensive scheme for adjusting child support, including s.7 expenses, on an annual basis, the parties have never been able to agree on the annual adjustment. The Order of Justice Laliberté dated July 29, 2014 (“the 2014 Order”) determined the adjustment in the first year, effective April 1, 2014. The parties have not been able to agree on the adjustment for April 1, 2015; April 1, 2016; April 1, 2017; or April 1, 2018, and both ask the Court to determine this issue now.

8Both parties also seek changes to the parenting provisions of the 2013 Order. The father seeks extra time with the child, including during the summer. The mother seeks sole custody with respect to religious decision making, to reduce the amount of time the child spends with the father, and a number of other very detailed changes that she describes as related to parenting or elaborating on her already existing sole custodial decision making authority.

9The motions were originally set down to be argued on February 25, 2018. The motions were adjourned due to insufficient time being set aside on that day. The motions were adjourned to July 19, 2018 for a three hour hearing.

10The motions before me on July 19, 2018 were the father's Notice of Motion dated June 5, 2018 and the mother’s Amended Notice of Motion dated July 11, 2018. At the outset of the motion, I raised with the parties that the Interim Order of October 17, 2017 included a direction that the parties schedule a settlement conference. Both parties confirmed that a settlement conference had not been held in this proceeding. Regardless, they wished to proceed with the final hearing of the Motions to Change on this day and I indicated I was prepared to do so.

11Significant material has been filed in this matter, making up seven volumes of the Continuing Record. Both parties also filed Factums. Neither party conducted questioning of the other party nor sought to do so.

Analysis

A. Child Support

1. Annual Adjustment of Child Support for 2015, 2016, 2017, and 2018

12The first issue between the parties deals with the annual adjustment of the base monthly child support as provided for under the 2013 Order. This annual adjustment of child support has not been done since April 1, 2014, when Justice Laliberté determined the adjustment for that year.

13The 2013 Order provides a comprehensive scheme for adjusting child support, including s.7 expenses, on an annual basis:

“ 52. Commencing on October 1, 2012, the father, John McNally, shall pay to the mother child support for Liam in the amount of $519 per month, based on the father's total 2011 income of $57,239.

53. Commencing on October 1, 2012, the father shall pay to the mother his proportionate share of Liam's 2011 daycare expenses of $3,533.00, the father's share being $62.00 per month, his proportionate share of Liam's 2011 healthcare expenses of $1,897.00 being $40.00 per month, and his proportionate share of Liam's 2011 activities of $2,104.00 being $63.00 per month, in the total amount of $165.00 per month.

54. Assuming that the September, 2012 child support payments of $503.00 and $110.00 were made by the father, there are no arrears of child support, whether for basic child support or for s.7 expenses, to and including September 30, 2012. According to the FRO records it appears these amounts were paid.

55. Commencing in 2013, by April 1 st each year, the parties shall exchange their T4's and any other proof of income for the previous year, and the mother shall provide to the father all invoices and proof of payment (invoices, receipts, etc.) for s.7 expenses not already dealt with pursuant to paragraph 50 above (health expenses).

56. For the purposes of calculating income for child support, cashed in RRSPs, income or losses for self-employment which is in addition to the party’s regular employment and income or losses for rental income do not count as income. In fact, the parties agree that for child support purposes, both basic and s.7 expenses, only their total employment income shall be considered as income on which child support in s.7 expenses will be calculated upon.

57. Commencing in 2013, by May 1 st of each year, the parties will adjust the amount of basic child support and the father's contribution to the s.7 expenses. Such new amounts shall be effective as of April 1 st of each year, starting in 2013 ² . The parties shall sign an agreement setting out the new amounts of basic child support and of the father's contribution to s.7 expenses.

58. Further, there shall be a cap on the total amount to be spent on Liam's activities (sports, music, art, etc.), for which the mother shall seek contribution from the father, of a total of $1,500.00 per year so long as there is day care payable, and that the father shall be responsible only for his share of this amount, after calculating all available tax credits and tax deductions as applicable, until such time as both parties agree to vary such cap’s amount in writing or until there is a further order of the court. Once daycare is not payable, that will be a material change.

59. If either party fails to provide the necessary income information and the necessary information to support claimed s.7 expenses, then the defaulting party shall be responsible for the full indemnity costs of the other party and this shall be enforced by a Judge hearing the issue of adjustment of child support.

60. Further, the parties shall exchange their complete income tax returns with all attachments and their notices of assessment by June 1 st of each year, starting in 2013, so long as there is child support payable.

61. When adjusting child support, the parties shall consider using the services of a mediator to assist them with the calculations and adjustments, including the services of Kathryn d'Artois or Heidi Ruppert or any other mediator they may agree upon in writing, before starting a court action.

62. Further, child support is subject to a material change in circumstances, whether such a material change is foreseen or not, whether it is foreseeable or not.”

14I refer to the above scheme as “the 2013 Method”.

a) Income in Previous Year

15The 2013 Method provides for child support to be adjusted effective April 1 st in each year based on the parties’ incomes in the previous year. This is what Justice Laliberté did in the 2014 Order. He adjusted the child support commencing April 1, 2014 to $573 per month based on the father’s 2013 income of $62,904.64.

16At the hearing, both parties provided me with calculations that based the child support adjustments for a certain year on the income earned in that year, rather than using the previous year’s income, as is provided in the 2013 Method and as was done in the 2014 Order. This appears to be an oversight by both parties, and would add to the confusion and difficulty of making the annual adjustments, both for past amounts and going forward, as well as create a problem for the year in which a new method is adopted.

17Both parties also provided me with calculations for the total current child support arrears or overpayments. I decline to engage in an exercise to calculate the amount of monthly child support arrears or overpayments that are owed to either party given the annual adjustments determined below. I leave this to the Family Responsibility Office to adjust the child support as provided herein and to calculate any arrears or credits accordingly ³ .

b) Base Table Amount - Father’s Income

18The parties agree that the father ‘s income, for the purposes of determining child support for 2014 to 2016, is as follows:

2014 – $55,470 2015 – $58,901 2016 – $52,634

19The parties disagree on the father’s income for child support purposes in 2017. The father states his income for 2017 should be determined to be $65,299. The mother states that the father's income for 2017 should be determined to be $86,778.

20The difference between the parties is due to the treatment of the severance payment that the father received in 2017. In January 2017, the father was terminated from his employment. He received a severance payment in lieu of 15 months’ notice in the amount of $75,845.36.

21The father’s position is that the severance payment should be allocated as income for the months in which it was payable. The father has allocated 12/15 th of the severance payment, being $55,299.50, to 2017, and the remainder of the severance payment, being 3/15 th of the payment, to 2018, to accord with the notice period for which it was payable.

22The mother takes the position that because all of the severance payment was received in 2017, all of the severance payment should be included in the father's income for the purposes of determining child support in 2017.

23Neither party provided me with any case law on the issue of how to treat the severance payment. The father relied on section s.17(1) of the Federal Child Support Guidelines ⁴ which provides the Court with discretion when income includes a non-recurring amount.

24This dispute on the treatment of the severance payment is largely a distinction without a difference. If 100% of the severance payment is included in the father’s 2017 income, then it will also be excluded from the father’s 2018 income, such that the child support obligation will be higher in 2017 but lower in 2018. If the severance payment is instead divided between 2017 and 2018, the child support payment will be lower in 2017 but higher in 2018.

25Determining the father’s income for 2017 based on including all of the severance pay as income in 2017 would not be the fairest determination of that income, in particular because of the non-recurring severance pay amount. The fairest way to deal with the severance payment is to allocate it to the father’s income for the months in which it was payable, in the manner proposed by the father. The effect of this is to spread the severance payment over the 15 month notice period, such that it is divided between his 2017 and 2018 income. This method results in an amount that is fair and reasonable as it means that child support remains more consistent from year to year instead of going from a higher amount in one year to a lower amount in the next, which creates more uncertainty and volatility in the child’s expenses, and makes budgeting more difficult. Accordingly, I find that the father's 2017 income for child support purposes is $65,299.

26Given the above, the annual adjustment of the father’s base table monthly child support provided for under the 2013 Order is as follows:

1. Effective April 1, 2015, $503 per month based on the father's 2014 income of $55,470 (based on the December 31, 2011 tables);
2. Effective April 1, 2016, $535 per month based on the father's 2015 income of $58,901 (based on the December 31, 2011 tables);
3. Effective April 1, 2017, $475 per month based on the father's 2016 income of $52,634 (based on the December 31, 2011 tables); and
4. Effective April 1, 2018, $608 per month based on the father's 2017 income of $65,299.50 (based on the November 22, 2017 tables).

27I am cognizant that the child support tables changed as of November 22, 2017 and that pursuant to section 14(a) of the Federal Child Support Guidelines, a change in the tables would allow a change in the child support effective the date of this change. I decline to add a further adjustment for this change given that neither party requested me to do so. In addition, the difference between the 2011 and 2017 table amounts for the father's income of $52,634 is only $10 per month.

28I am also aware, from a review of the father’s Income Tax Returns, that he had union dues which should normally be deducted from his income for the purposes of determining child support ⁵ . I have not done so because neither party raised this issue, and the parties agreed on the father’s income for child support purposes subject only to the difference due to the treatment of the severance pay in 2017. I raise this issue because both parties may wish to include their respective union dues (the mother also pays union dues) in future calculations and may do so.

2. Section 7 Expenses

29The mother's Motion to Change seeks an Order requiring the father to pay significant additional amounts for s.7 expenses incurred in 2014, 2015, 2016 and 2017. According to the mother’s affidavit sworn June 20, 2018, she claims the following s.7 expenses:

2014 - $8,292.46, made up of $2,811.34 for sports and activities, $4,094 for daycare and summer camps, $760.02 for medical expenses, $627 for dental; 2015 - $9,137.40, made up of $2,292.74 for sports and activities, $4,876 for daycare and summer camps, $525.46 for medical expenses, $1,443.20 for dental; 2016 - $9,082.83, made up of $1,866 for sports and activities, $3,740 daycare and summer camps, $719.73 for medical expenses, $2,097.10 for dental, $660 for tutoring; and 2017 - $4,072.85, made up of $326.25 for sports and activities, $1,563 daycare and summer camps, $1,972.60 for medical expenses, $211 for dental.

30The s.7 expense sharing between the parties is subject to the same annual adjustment process under the 2013 Order as the monthly table child support. Again, this has not been done since Justice Laliberté’s Order made on July 29, 2014. In addition to adjusting the monthly table amount, Justice Laliberté also adjusted the father’s additional monthly payment for s.7 expenses such that it was reduced from $165 to $103, also effective April 1, 2014.

31The mother acknowledges that the father has been paying $103 per month towards these expenses as required under the 2014 Order and that this amount should be credited to the amounts he owes, but takes the position that the father owes additional amounts for s.7 expenses.

32The father, on the other hand, takes the position that he has overpaid s.7 expenses by paying the monthly amount prescribed under the 2014 Order, and seeks reimbursement for this overpayment.

33Both parties are in agreement that contributions to s.7 expenses should be adjusted retroactive to April 1, 2015. In doing so, I have applied the 2013 Method, which means that the father’s contribution is adjusted in each year, effective April 1 st , based on the s.7 expenses incurred in the previous year.

34The mother has attached receipts to her affidavit, and copies of her annual emails to the father with these receipts, sent on March 26 th in 2015, and on March 31 st in each of the following years. The receipts provided by the mother do not cover all of the expenses claimed. The Continuing Record does not include other receipts. It appears to me that some other receipts were provided to the father, but I also note that the father complains in his affidavits that the mother has not provided complete documentation for the s.7 expenses. Given the wording of the 2013 Order that requires receipts be provided, and based on the evidence before me, I have adjusted the s.7 expenses to reflect the receipts that the mother has produced in her affidavit.

35There are a number of issues raised in dealing with the s.7 expenses. The first is the father’s proportionate share of the extra expenses, which is easily calculated based on the parties’ respective incomes. The second is what available tax credits or deductions reduce the expenses claimed, as the amounts claimed by the mother did not include a reduction for these. The third issue is the father’s objection to paying any amounts towards the medical and dental expenses because the mother did not provide him with the receipts early enough for him to also make a claim through his insurer, as provided for under the 2013 Order. The fourth issue is the interpretation of the $1,500 cap amount for activities set out paragraph 58 of the 2013 Order. The fifth issue is the father’s general objection to having to contribute to any activity expense because the mother failed to consult with him in advance, obtain his consent in advance, and notify him of the cost in advance.

a) Proportionate Sharing

36The parties agree that the mother’s income, for child support purposes, is determined to be as follows:

2014 – $106,432 2015 – $107,953 2016 – $107,954 2017 – $116,571

37Accordingly, based on the earlier findings for the father’s income, the father’s proportionate share of s.7 expenses is as follows:

Effective April 1, 2015 – 34.3% Effective April 1, 2016 – 35.3% Effective April 1, 2017 – 32.8% Effective April 1, 2018 – 35.9%

b) Tax Credits and Deductions

38The mother’s list of s.7 expenses includes claims for child care of $4,094 in 2014, $4,876 in 2015, $3,740 in 2016, and $1,563 in 2017. The mother has not provided the after-tax cost of these child care expenses.

39At the hearing before me, the mother’s position was that the father’s proportionate share of the child care expenses should be based on the gross amount of the expense, before any tax credits or deductions. The mother’s counsel argued that the 2013 Order did not require her to account for any tax credits or deductions. I note this is a different position than the one originally advanced by the mother in her Response to Motion to Change filed in May 2017, which included preliminary calculations showing the after tax cost for the child care expenses. In any event, I do not agree with the mother’s position. Paragraph 58 of the 2013 Order specifically provides for the father to be responsible for his share of the s.7 expenses after calculating all available tax credits and tax deductions, which is consistent with the Child Support Guidelines ⁶ .

40The income tax information filed in the Continuing Record for the mother shows that she received a tax deduction for child care expenses in from 2014 through to 2017. The amounts claimed on the mother’s tax returns in 2014 ($3,550), 2015 ($4,288), 2016 ($4,577.85) and 2017 ($1,415) are different than the amounts she states she incurred. The mother has not provided an explanation for this difference. The material shows that the father repeatedly requested the mother’s child care deduction schedule filed with her income tax returns, but has only received this for 2017.

41The mother’s tax information confirms that she received at least a partial tax deduction for the child care expenses. The receipts the mother provided for the child care do not differentiate between why some portion of the child care would be tax deductible while other portions would not be, and therefore I conclude that a tax deduction would have been available for all of the child care amounts, even if not claimed by the mother, and should reduce the net amount of the child care expenses which should be shared as a s.7 expense accordingly.

42The receipts provided in the mother’s material do not add up to the total amounts claimed by her. Based on the receipts the mother has provided in the Exhibits to her affidavit sworn June 20, 2018, I find that the mother incurred child care expenses of $4,094 in 2014, $3,755 in 2015, $1,433 in 2016, and $1,315 in 2017. A number of these expenses were incurred for day camps that related to sporting activities. I have included these as child care expenses because the camps took place in the summer and on March break, when presumably care was required. I have not included the ski and helmet rental of $125 in the child care totals, but transferred these expenses to the activity totals.

43At the hearing, neither party provided me with updated calculations for the after-tax cost of the child care expenses. After a break, the father’s counsel provided me with updated calculations prepared using the Divorcemate software, but these calculations did not include a tax deduction for the child care. Adjusting these calculations to add in a tax deduction for the child care expenses and the child care expense amounts, I find that the net child care expenses to which the father is required to contribute his proportionate share are:

2014 - $2,235 2015 - $2,050 2016 - $765 2017- $702

c) Medical and Dental Expenses

44The father’s position is that he should not be required to contribute to any of Liam’s medical and dental expenses because the mother did not provide him with the information necessary to claim a reimbursement for these expenses under his medical and dental insurance. The father states that he was not able to submit the expenses for reimbursement to his plan because the mother did not provide him with the expenses in a timely fashion, contrary to paragraph 49 of the 2013 Order. The father’s deadline for filing claims with his insurer is April 1 st . The mother only provided the expenses to him a few days before the April 1 st deadline, leaving him insufficient time to meet the deadline.

45The mother takes the position that she complied with the 2013 Order by providing the expenses prior to the April 1 st deadline provided for in paragraph 55 of the Order. She admits these expenses were provided at the last minute, such as on March 26 th , or 31 st .

46The 2013 Order specifically requires both parties to maintain health insurance for the child, and for both parties to claim reimbursements under their respective insurance to reduce the overall net cost of such expenses to the family. Specifically, the 2013 Order provides:

“49. The parties recognize that, by terms of the plans, all health claims must be submitted to the mother's plan first. Thereafter, once that claim is settled by her plan, the mother shall provide to the father the explanation of benefits form and the father shall submit this claim to his insurer and provide to the mother the explanation of benefits form.

50. The reimbursement from the insurance shall be given to the party who paid for such expense. Any portion not covered by the two plans, shall be shared by the parties in proportion to their incomes as a s.7 expense. The parties’ 2011 incomes were $57,239.00 and $92,442.00 so the father shall pay 38% of such expenses and the mother 62% of such expenses.

51. If a party does not submit a health claim for Liam, he or she shall be solely responsible for that portion of the expense which would have been covered by the plan had the claim been submitted, in addition to his or her share of the portion which would not have been covered.”

47Paragraph 55 of the 2013 Order provides for information exchange prior to April 1 st in each year – for the purpose of calculating the annual child support adjustment. It does not override the clear intention and agreement of the parties under paragraphs 49 to 51 that both parties would be able to claim reimbursements for medical and dental expenses under their plans. Paragraph 49 expressly requires the mother to provide the father with documentation “once that claim is settled by her plan” so that the father can apply for reimbursement from his own plan. To be clear, I find that the wording of paragraph 49 requires the mother to provide this documentation to the father immediately after her claim has been settled by her plan. The mother did not do so. Instead, she waited until right before the April 1 st deadline. I find the mother’s conduct in doing so is a violation of her obligation under paragraph 49 of the 2013 Order and is not justifiable.

48However, I do not agree with the father that the result of the mother’s conduct is that he does not have to contribute anything to these expenses. This is also not what the 2013 Order provides. Paragraph 51 provides that the consequences of a party failing to submit a health expenses for reimbursement is limited to “that portion of the expense which would have been covered by the plan had the claim been submitted.” The father did not provide any evidence of what the reimbursement would have been had he been able to submit the expenses.

49Although I would have been prepared to Order that the mother be solely responsible for the portion of the medical and dental expenses that would have otherwise been reimbursed through the father's insurer if she had provided the documentation in a timely manner, I am unable to do so without evidence as to what this reimbursement would have been. I find, therefore, that the father is required to pay his proportionate share of the medical and dental expenses in each of the years.

50The father seeks to change paragraph 49 of the 2013 Order to require the mother to provide the explanation of benefit statements and health claims within 30 days of the service being rendered in order to avoid future arguments that she is only required to provide these by April 1 st . Given my earlier findings on what is required by the existing wording of paragraph 49, such an Order is not required. If the mother’s delay in providing such documentation in the future results in the father not being able to claim a reimbursement under his plan, the mother will be responsible for the portion that would otherwise have been reimbursed, pursuant to paragraph 51 of the 2013 Order, upon evidence of what that reimbursement would have been.

51The receipts provided in the mother’s material do not add up to the total amounts claimed by her. For 2014, the mother claims $760.02 for medical expenses and $627 for dental expenses. This is based, however, on receipts that indicate most of these expenses were incurred in 2013. The 2013 expenses would have been the basis for Justice Laliberté’s 2014 Order, and should not be included here. The mother’s receipts support that in 2014 she incurred $410.95 for medical expenses and $49.70 for dental expenses. I find these amounts should be shared by the father as s.7 expenses.

52For 2015, the mother claims $525.46 for medical expenses and $1,443.20 for dental expenses. She did not include in her affidavit any receipts for dental expenses for 2015, 2016 or 2017, even though she was able to provide a receipt for dental expenses incurred in 2013. Given the wording of the 2013 Order that requires receipts to be provided, I have not included any amounts for dental expenses for the years 2015 to 2017. The mother’s total for medical expenses of $525.46 is supported by the insurance summary provided and I find this amount should be shared by the father as a s.7 expense.

53For 2016, the mother claims $719.73 for medical expenses and $2,097.10 for dental expenses. No receipts were provided for the dental expenses and so I have not included these. The mother’s total for medical expenses of $719.73 is supported by the insurance summary provided and I find this amount should be shared by the father as a s.7 expense.

54For 2017, the mother claims $1,972.60 for medical expenses and $211 for dental expenses. No receipts were provided for the dental expenses and so I have not included these. The insurance summary only supports medical expenses of $1,181.76 and I find this amount should be shared by the father as a s.7 expense.

d) The $1,500 Activity Expense Cap

55The mother seeks contribution from the father towards activity expenses totaling $2,811.34 in 2014, $2,292.74 in 2015, $1,866 in 2016, and $326.25 in 2017.

56In each of the years except for 2017, the mother has claimed more than $1,500 for activity expenses. The mother argues that the $1,500 cap applies to the father’s contribution, not to the total activity expenses to which the father should pay his proportionate share. I do not agree.

57Paragraph 58 of the 2013 Order imposes a cap on “the total amount to be spent on Liam's activities”. The total cap is $1,500 per year. This was reviewed and reiterated by Justice Laliberté in his 2014 decision. I find that the 2013 Order imposes a cap of $1,500 on the total activity expenses to which the father should pay his proportionate share.

58Again, I have adjusted the expenses claimed by the mother based on the actual receipts she has provided, and disallowed expenses for which she has not provided receipts. Based on the receipts provided by the mother, and adjusting the 2016 and 2017 to include the $125 ski and helmet rental expense that has been deducted from the child care expenses, I find that the total activity expenses to which the father is required to contribute is $1,491.85 in 2014, $752 in 2015, $774 in 2016, and $367.95 in 2017.

e) Obligation to Consult and Obtain Consent in Advance

59The father takes the position that he should not be required to contribute to any activity expenses incurred since 2014 because he did not consent to the expense, the mother did not consult with him in advance as required under the 2013 Order, and she did not provide him with advance notice of the cost. The father does not argue that the activity expenses are unnecessary or unreasonable. Nor does he deny knowing that the child was participating in activities.

60The mother's position is that subject only to the $1,500 cap, she has sole decision making authority with respect to activity expenses as long as they are reasonable and necessary, and does not have an obligation to obtain the father's consent nor notify him in advance of the amount that she is incurring.

61With respect to activities, the 2013 Order provides:

“2. The Applicant mother, Maria Lucy Nicole Casault (hereinafter sometimes referred to as the "mother"), shall have sole custody and a final decision-making authority regarding Liam's health, education and other matters regarding Liam except for religion. Prior to making any major decision regarding Liam's health, education and activities, the mother will advise the father in advance and in writing, within 30 days if possible, of any proposed decision and invite his input, which shall be provided within 10 days. If the parties cannot agree within five business days of receiving the father's input, then the mother shall have the final decision-making authority in this regard.

4. Third-parties dealing with the parents may rely solely upon the mother's direction regarding Liam's health, education, activities (mother to consider Liam's wishes on sporting activities, including daycamps) and other matters, except religious matters as set out in paragraph 5, without seeking the father's consent.

5. Liam shall not be enrolled in more than two activities, outside of school & day care hours, at a time. Further, the father agrees to take Liam to one scheduled activity during his weekend with Liam. Further, the father will be able to miss taking Liam to such activity if a special occasion presents itself, keeping in mind Liam's best interests, the importance of the activity to Liam, the nature of the activity scheduled for the father's weekend and the nature of the special occasion.”

62There is no express provision under the s.7 expense sharing portion of the 2013 Order that requires the mother to consult with the father before incurring an activity expense, nor notify him of the expense in advance. The custody provisions of the 2013 Order do, however, require that although the mother has sole decision making authority for the child’s activities, she has a duty to consult with the father in advance of such decisions being made.

63The mother argues that the father unreasonably withheld his consent to the activity expenses, which were reasonable and necessary for the child. The emails between the parties show that except for very few occasions, the mother did not consult with the father in advance of enrolling the child in the activity, request his consent, or advise him in advance of the cost. The mother did provide a number of emails where she advised the father that she is or has already enrolled the child in certain activities and when these activities will take place, but these emails rarely include notice of the cost of the activity or requests for the father’s input or consent.

64The correspondence between the parties before me confirms the father objected to various activities. One of the main reasons for his objection was that the activities interfered with his scheduled parenting time, particularly Wednesday evenings. The mother takes the position that she was allowed to schedule activities on Wednesday evenings because she has sole decision-making authority. The 2013 Order contemplates that the mother should be somewhat cautious about scheduling activities during the father's time in that paragraph 41 provides for Liam to only be enrolled in two activities at a time and for only one activity to be scheduled on the father's weekends. Despite this, the mother has repeatedly scheduled activities for Liam on Wednesday evenings.

65Spending parenting time taking a child to their regular activities is one of the incidents of being an involved parent. But given the conflict between the parties, the mother’s conduct in repeatedly scheduling activities on Wednesday evenings has exacerbated this conflict. The father’s responses are also exacerbating, such as, for example, constantly seeking make up time for even the smallest of interruptions due to the child’s activities. Neither is helpful.

66It is unfortunate that the mother did not advise the father of the cost of the activities in advance, which would have been very easy for her to do. The email exchanges upon which the mother relies do not demonstrate any significant effort on her part to inform the father of the proposed expense, or to consult with him for the purpose of taking his input into consideration.

67While I do not find that the mother has fulfilled her obligation to consult with the father with respect to activities as required under the 2013 Order, this does not equate with a finding that the father is not required to contribute to those expenses. The overriding consideration should be the best interests of the child, and whether the activity expenses incurred were reasonable and necessary. I find that they are. I also find that the parties intended, in agreeing to the $1,500 cap, for the mother to be given some latitude in incurring activity expenses for the child.

68The father also argues that his consent is required in advance of an expense being incurred to which he is required to contribute. He relies on paragraph 19 of the 2008 Order, which provides:

“19. The parties shall obtain the other party's prior consent before incurring such expense. Neither will unreasonably withhold their expense.”

69The father argues that this paragraph remains in force because this paragraph was not expressly varied by the 2013 Order. I disagree with this position. This was the same argument made by the father before Justice Laliberté in 2014. Justice Laliberté rejected that argument, as do I.

70The 2013 Order must be interpreted based on considering the 2013 Order as a whole. The 2013 Order provides a comprehensive scheme for child support, including s.7 expenses. It gives the mother sole decision making authority over the child’s activities. It makes little sense to suggest that, in this context, when the father’s consent is not required for the child to be enrolled in activities, his consent is somehow required before the father has an obligation to contribute to the activity expense. I find that paragraph 19 of the 2008 Order does not apply and the father’s consent to an activity expenses is not required before he has an obligation to contribute to the expense, as long as the total remains within the $1,500 annual cap.

71In all of the circumstances, I find that the mother's activity expenses for which receipts have been provided, being $1,491.85 in 2014, $752 in 2015, $774 in 2016, and $367.95 in 2017, are reasonable and necessary and are s.7 expenses to which the father is required to contribute.

f) Tutoring

72The mother claimed tutoring expenses of $660 in 2016. As she has not provided receipts in support of these amounts, I have not included this expense in the total s.7 expenses to which the father is required to contribute.

g) Summary of s.7 Expense Sharing Adjustments

73Accordingly, based on the child support adjustment method provided for in the 2013 Order:

1. Effective April 1, 2015, A. based the s.7 expenses for the child being $4,187.50 in 2014, made up of after-tax net childcare costs of $2,235, activity expenses of $1,491.85, medical expenses of $410.95, and dental expenses of $49.70; and B. the father's proportionate share of the child’s s.7 expenses based on the parties’ 2014 incomes, is 34.3%; C. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $119.69 per month.
2. Effective April 1, 2016, A. based the s.7 expenses for the child being $3,327.46 in 2015, made up of after-tax net childcare costs of $2,050, activity expenses of $752, and medical expenses of $525.46; and B. the father's proportionate share of the child’s s.7 expenses based on the parties’ 2015 incomes, is 35.3%; C. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $97.88 per month.
3. Effective April 1, 2017, A. based the s.7 expenses for the child being $2,258.73 in 2016, made up of after-tax net childcare costs of $765, activity expenses of $774, and medical expenses of $719.73; and B. the father's proportionate share of the child’s s.7 expenses based on the parties’ 2016 incomes, is 32.8%; C. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $61.74 per month.
4. Effective April 1, 2018, A. based the s.7 expenses for the child being $2,251.71 in 2017, made up of after-tax net childcare costs of $702, activity expenses of $367.95, and medical expenses of $1,181.76; and B. the father's proportionate share of the child’s s.7 expenses based on the parties’ 2017 incomes, is 35.9%; C. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $67.36 per month.

74The amounts that the father has paid towards the child’s s.7 expenses under the 2014 Order, being $103 per month, shall be credited to the above amounts.

3. Material Change as of July 1, 2018

75The father also requests an adjustment to child support effective July 1, 2018 based on a material change in circumstances on this date. Effective July 12, 2018, the father’s employment contract came to an end, such that he was unemployed and without an income.

76The father is not seeking to reduce the child support to zero as of July 1, 2018, but only that child support be changed to reflect his income in 2018 being $41,251. This is made up of his employment income earned from January to July 12, 2018 ($26,000), plus the portion of the severance payment allocated to 2018. This would reduce the monthly table child support to $373 per month.

77Keeping in mind that the 2013 Order already provides for a comprehensive scheme to adjust child support on an annual basis based on the previous year’s income (the 2013 Method), I am not satisfied that there has been a material change that warrants a change in this scheme. If the father’s total income in 2018 is lower than it was in previous years, this will be reflected in the child support adjustment effective April 1, 2019. In making this finding, I have considered all of the factors before me, including:

1. At the time of the hearing of this motion the father had only been unemployed for 7 days. He has a history of being employed, and being able to find employment after job losses. His income for child support purposes in 2018, for the first six months, is already $41,251. There is a reasonable prospect that the father will have additional earnings in 2018;
2. The effect of reducing the table child support to $373 per month, from the $608 per month payable above, would create an immediate savings of $235 per month. But these savings would otherwise accrue to the father when child support is adjusted on April 1, 2019. I do not find that the father would suffer a financial hardship if the reduction in child support is deferred to April 1, 2019, as provided under the 2013 Method;
3. The father has also had the benefit of receiving higher income in 2017 for which he has not yet paid child support, given the structure of the 2013 Method which adjusts support based in the previous year’s income. This factor offsets the fact that the father is arguably paying higher child support now than what would be payable based on his current income. He also paid less child support in 2017 than what would have been payable based on his actual income in 2017, because the 2013 Method adjusts child support based on the previous year’s income. This was contemplated under the 2013 Order and a fair and reasonable mechanism is provided for under that Order for these adjustments; and
4. There is a benefit to the parties, and the child, for continuity in the manner in which the child support is calculated (based on the previous’ years income) and adjusted on an annual basis (effective April 1 st in each year).

4. Material Change to Activity Expense Cap

78Paragraph 58 of the 2013 Order provides that once daycare is no longer payable, this will be a material change for the purpose of adjusting the $1,500 cap on activity expenses. Both parties agree that Liam was no longer in daycare as of June 2016. On this basis, the father seeks a change to reduce the cap to $240 per year. I dismiss this request.

79The father relies on the decision in Sanders v. Sliede, 2009 CarswellOnt 2107 (Ont.S.C.J.) ⁷ in support of his position that $240 per year is a reasonable cap for activity expenses taking into consideration the parties’ net disposable incomes. In Sanders v. Sliede, Justice Kane found that annual extraordinary activity expenses of $3,600 exceeded the financial capacity of the support payor who earned $126,000 per year, significantly more than the father in this matter.

80While I agree that the parties’ net disposable incomes are relevant to determining whether an expense is reasonable and necessary under s.7 of the Child Support Guidelines, Sanders v. Sliede is a very different situation than the one before me, in that the payor in that case was also paying spousal support, child support for three children, and significant childcare. When considering the parties’ net disposable incomes in the matter before me, and taking into consideration that the father is paying child support for one child, is not making other support payments, is contributing to health related expenses for the child, and that his income in 2018 is going to be at least $41,251, I find that an obligation to contribute a proportionate share towards $1,500 per year in activity expenses is fair and reasonable.

5. Non-Variable Child Support

81The mother seeks an Order that, effective August 1, 2018, child support be fixed at $500 per month, plus a $50 per month contribution to s.7 expenses, and a proportionate sharing of post-secondary expenses. $500 per month is the table amount payable for payor earning $54,200 per year. The mother proposes that this child support be non-variable until Liam reaches the age of majority or finishes post-secondary education. The mother’s intention is to avoid the annual adjustment process and also to avoid having to exchange annual disclosure of income and s.7 expenses, although this would still need to be done to determine the father’s contribution to post-secondary expenses.

82The mother takes the position that a non-variable amount of child support will reduce hostility between the parties, which is in the best interests of the child. She argues that she has been forced to engage in litigation for 12 years due to the father’s conduct. She objects to the requirement for annual information exchange and blames the father for refusing to contribute towards s.7 expenses. She ignores that the father has been contributing to s.7 expenses by paying the monthly amount required under the 2014 Order. She views the father’s claims that he has been overpaying child support as harassing. The mother did not provide any case law in which a Court imposed a non-variable fixed monthly child support amount on a go-forward basis.

83While reducing hostility between the parents is an admirable goal, given the history of this file and the nature of the disputes between the parties, for which I attribute responsibility to both parties, I do not find that simply imposing a non-variable child support amount for a child that is 14 years old and requires the parties to continue to engage with each other on other issues (including post-secondary expenses), even if I had the jurisdiction to do so, provides any promise of reducing this hostility.

84It is apparent to me, given the very detailed Orders that were made in 2008 and 2013, that extensive efforts have already been made to attempt to govern the parties’ interactions and reduce the conflict between them. These have not been completely successful. Simply put, whether the parties continue to engage in hostile interactions in the future is up to them. This Court hopes that they will not continue to do so, but is not under any illusion that making child support non-variable would change this. I dismiss the mother’s request for non-variable child support on a go-forward basis.

6. Termination of Child Support

85The father asks for an Order providing that the child support shall terminate “when Liam is 18 years of age, when he is living independently & when he is not pursuing higher education while living with one of the parties.”

86No evidence has been put before me on the issue of when child support should terminate for Liam. Such a determination involves consideration of many factors. It is premature to make such a determination based on the evidence before me.

B. Parenting

1. Decision Making

87The father does not seek to change custody. The mother does seek a change on the basis that there has been a material change in circumstances since the 2013 Order. The mother seeks sole decision-making with respect to religious issues. The father opposes this change.

88The mother’s request for a change in custody for religious issues is pursuant to s.17(5) of the Divorce Act. There must first be a material change in circumstances. A material change in circumstances is one which:

1. Amounts to a change in the conditions, means, needs, or other circumstances of the child and/or the ability of the parents to meet the needs of the child;
2. Materially affects the child; and
3. Was either not foreseen or could not have been reasonably contemplated at the time of the 2013 Order ⁸ .

89If this threshold requirement is not met, the inquiry can go no further ⁹ .

90This test is modified by paragraph 44 of the 2013 Order, which provides:

“44. Matters relating to decision-making and to Liam’s schedule are subject to a material change in circumstances, whether foreseen or unforeseen or whether foreseeable or unforeseeable.”

91The mother’s position is that there has been a material change in circumstances because the child missed his confirmation in grade 6. She blames the father because he was supposed to coordinate the confirmation with the school, but did not.

92The father’s position is that the only reason Liam missed the confirmation was because the mother refused to allow him the necessary permission to communicate with the school so that he could organize the confirmation, and that he has now made arrangements for Liam’s confirmation. The father states that he is a very religious man and that he is primarily the one directing the Liam's religious activities. Liam goes to church with the father.

93I am not satisfied that the issue of the delay in Liam’s confirmation, nor any of the other evidence before me, amounts to a material change in circumstances that warrants a change in the custodial provisions for religious decision-making. Liam is now 14 years of age. The father has been the one who has been primarily responsible for Liam’s religious decisions since the 2013 Order. Although the parties have a high conflict relationship and have significant difficulties communicating with one another, this is not a new development. The differences between the parties were certainly foreseen and expressly contemplated at the time of the 2013 Order – it underlies the entire structure of that Order. These differences are not a material change in circumstances. Even if there has been a material change, due to the relaxed requirements set out under paragraph 44 of the 2013 Order, I am not satisfied that it is in Liam’s best interests to change the custodial provisions for religious decision-making.

2. Parenting Schedule

94Paragraph 42 of the 2013 Order provides that the parenting schedule may be reviewed after April 1, 2015:

“42. In addition to a material change in circumstances, a review of the access terms may take place after April 1, 2015. The father is seeking more time with Liam including two nights during the week in which he does not have Liam for the weekend and an additional week during the summer, the mother may be seeking a reduction in the amount of time Liam is spending with his father. As part of the review process the following factors will be considered, among others:

• Liam's progress at school, including and without limiting the generality of the foregoing, his attendance, completion of homework, signing of agenda and Liam's behaviour;
• Whether father completed the New Directions program;
• The parties history of communication, interaction and cooperation since the fall of 2012;
• Liam's attendance at activities; and
• Liam's best interests.”

95This review has not taken place. Both parties seek to have the parenting schedule reviewed at this time, and changed. Given the review clause, a material change in circumstances is not required to be shown before the Court has jurisdiction to change the schedule. The overriding test is the best interests of the child.

96The father seeks more time with Liam. He seeks:

1. An extension of his alternate weekend access to provide for Liam to remain with him until Tuesday morning, rather than being returned on Monday morning;
2. An extension of his alternate weekend access such that if Liam is not in school on the Friday, his weekend would start on Thursday after school;
3. For pick up times to be at 3:30 p.m. rather than 4:00 p.m., to correspond with the end of the school day;
4. For drop off times to be 9:00 a.m., rather than the current 7:15 and 8:00 a.m., to correspond with the beginning of the school day;
5. For exchanges to take place at Liam’s school, except in the summer, when the parties may agree to another location. If they cannot agree, the transfer location will be the school;
6. For Liam’s March break, from Friday when school ends to Monday when school begins, to alternate between the parties each year;
7. For one additional week of access in the summer (the father has three weeks under the 2013 Order).

97The mother seeks to terminate the father's Wednesday overnight access and for the father's alternate weekend access to end on the Sunday evening at 6:00 p.m. (Mondays if it is a long weekend) rather than on the Monday morning. The mother seeks, in conjunction with this change, an order that the pick-ups and drop-offs be at her home, rather than at school, and for pick-ups on the Fridays of alternate weekends to be delayed to 7 p.m. The mother’s position is that this change should be made so that she can ensure that Liam’s homework is done on Sunday and Friday evenings. Although she does not identify any current issues with Liam’s school progress, she submits that this change is warranted because Liam is now in high school. The mother states that the transfers can take place in her laneway so that the parties do not have contact.

98The father opposes the pick-up and drop-offs being moved to the mother's home. His position is that this would increase the conflict between the parties and not diminish it. The father takes the position that the transfers should continue to take place at school, when school is in session, as this has been the status quo since at least 2012.

99The mother also seeks a large number of detailed changes to the parenting provisions which she states clarify her sole custodial decision making authority and reduce conflict between the parties. These include restricting communications with Liam by the non-access parent, that the mother have the right to travel with Liam anywhere in the world during which time the father’s access would be suspended, that she has the right to obtain a new passport for Liam without the father’s consent, that the father sign an acknowledgement that electronic devises belonging to Liam are for Liam’s use only, that the father not be allowed to create on-line accounts for Liam, that only the mother will have access to Liam’s bank accounts, that the father take Liam to all activities (which are scheduled by her), that the father be restrained from contacting Liam’s medical, dental, other health professionals, and school, that the father not be permitted on school property or at Liam’s work, that the father not be allowed to attend Liam’s activities during the mother’s parenting times, and an Order for police enforcement.

100Despite the high degree of conflict and animosity between the parties, they are in agreement that Liam is doing well, including in his performance at school. There are no behavioural problems.

101This is a 14 year old child. Liam’s views are an important consideration before any change in the parenting schedule should be made, especially to a schedule that has been in place since 2012. Yet there has not been a custody and access assessment in this matter, nor the involvement of the Office of the Children's Lawyer, nor a Voice of the Child Report.

102I have no independent evidence before me with respect to Liam’s views and preferences. The father has produced some email correspondence between himself and Liam which he states supports the close bond between them - I place little weight on these emails. But I have no difficulty finding that Liam has a close relationship with both parents. Both of the parties are Liam’s parents. They have both been in his life since he was born. They have both had significant involvement in his life and he is doing well.

103The parties consented to the 2013 Order. That Order is very detailed and very specific - and was obviously drafted to attempt to address the conflict between the parties. The 2013 Order already speaks to many of the issues that the parties raise before me now ¹⁰ . The parties were cognizant of these issues at the time that they consented to that Order. Very little has changed between the parties – the conflict has continued but this cannot be said to have been unanticipated or unexpected. But by all accounts, Liam is doing well.

104The parties have sustained a remarkable ability to disagree over almost everything, most, if not all, of which does not come close to warranting the level conflict that is created as a result. Both parties acknowledge this conflict and blame the other for it. I disagree and find that they are both to blame.

105I do not hold any particular confidence that the dynamic between the parties’ is going to change at this point, after 13 years of separation. I expect that the parties will continue to engage in a high conflict manner. Whether they do so or not is up to them. If the parties want to change this dynamic, they will have to do so themselves. But by some miracle, after 13 years of a high conflict separation, Liam is doing well – either because he is not negatively impacted by the conflict between his parents or, more likely, because he has figured out his own way to manage the conflict.

106This is a delicate situation. Liam is 14 years old, and has apparently figured out a way to delicately balance the situation in a way that is positive for him. In all of the circumstances before me, and in the absence of independent evidence with respect to Liam’s views and preferences, I am not prepared to make any significant changes to the parenting schedule that has been in place since 2012. I find that it is not in Liam’s best interests to change the parenting schedule set out in the 2013 Order other than the few minor adjustments detailed below, as to do so would, I find, unnecessarily place this delicate balance at risk.

107I am prepared to make a few minor adjustments to the parenting schedule, which I find are in Liam’s best interests. These are as follows:

1. Location of Transfers: The 2013 Order provided for the transfers to take place at Liam’s school or day care except on holidays, when they were to take place at the mother’s residence. This continues to work during the school year, but in the summer it is expected that Liam will not be in school or daycare, and therefore an adjustment is warranted. The mother has also moved her residence to Greely, from Westboro. I find that the location of transfers should take place at Liam’s school, except in the summer, when the parties may agree to another location. If they cannot agree, the transfer location should be the school. These provision best reflect the status quo, to which Liam has adjusted well. I find this is in Liam’s best interests, as it minimizes Liam’s exposure to the conflict and tension between the parties, which would be present if the transfer took place in the mother’s laneway.

2. Timing of pick-ups and drop-offs: I find that the transfer times should be adjusted to reflect the start and end of Liam’s school day, being 9 a.m. and 3:30 p.m. When Liam is not in school, the same times shall apply. I am not satisfied based on the evidence before me, and in particular the mothers’ concerns about Liam’s homework, that it is in Liam’s best interests to delay the alternate weekend Friday pick-ups to 7 p.m.

3. March Break: The holiday schedule in the 2013 Order does not include provisions for March break. The parties have attempted to negotiate some sharing of March break over the years, but this has been difficult ¹¹ . The mother proposes that March break be subject to Liam’s activities and that if the parties cannot agree on plans for March break by February 15 th in each year, that she have final decision making authority. This, of course, gives the mother total control over March break, given that she also has sole decision making authority over what activities Liam is involved in and she has demonstrated a failure to consult with the father on these activities. I find that the mother’s proposal is not in Liam’s best interests. I find that it is in Liam’s best interests to have March break alternate between the parties, but for this period to run from Monday to Friday of March break (from 9 a.m. on Monday to 3:30 p.m. on Friday), rather than the father’s proposal which would include both weekends. The father’s proposal would disrupt the alternate weekend schedule. If March break runs from Monday to Friday, each party may attach this to one of the weekends in which Liam would already be in their care under the alternating weekend regular schedule. The father’s Wednesday overnight access will not take place during the March break.

4. Telephone Access: The 2013 Order includes clauses that provide for both parents’ to have telephone access with Liam when he is with the other parent, daily (except for holidays) during a one hour time period from 6 p.m. to 7 p.m. There has been significant conflict between the parties related to this access. Given Liam’s age, he should largely be in charge of determining when he wishes to speak with either parent. He may or may not care to do so on a daily basis. Liam should be free to communicate with either parent whenever he wishes, by whatever means he wishes, including telephone, text, email, or other method. I find that it is not in Liam’s best interests to impose telephone access as set out under the paragraphs 14 to 18 of the 2013 Order, and provide that these provisions be removed. Paragraph 19 of the 2013 Order is varied to provide that Liam is free to communicate with either parent whenever he wishes, by whatever means he wishes, including telephone, text, email, or other method. A new paragraph shall be inserted providing that both parents are permitted to communicate with Liam, including when Liam is in the care of the other parent, but such communications should be respectful of Liam’s wishes with respect to such communications, including his activities, and the other parent’s parenting time.

Specific Comments on Other Changes Requested

108I dismiss the other requests of both parties for changes to the parenting schedule and access provisions. I will not make specific comments on all of these requests, but do provide summary comments on some of the requests below.

Summer Holidays

109There was an issue related to the summer holidays in the summer of 2018. The mother took the child for the first two weeks of the summer holidays to Newfoundland and St. Pierre du Miquelon, which was during the father’s prescribed time. This was done without the father’s consent.

110The mother's position is that she had made a reasonable proposal to the father to switch the summer holiday weeks, the father's response was not reasonable such that this entitled the mother to act unilaterally.

111Although I do not condone the manner in which the father responded to the mother's proposal for this summer holiday, it is similarly unacceptable that the mother acted unilaterally simply because she thought that the father should have agreed to her alternate proposal.

112At the hearing, the mother's counsel argued that the provisions in the 2013 Order that allow for travel outside of Canada (paragraphs 22 to 24) override the summer access schedule ¹² . This would mean that if either party is taking the child outside of the country, as long as the party provides advance notice, the other party is required to consent and cannot unreasonably withhold their consent. There is no merit to this argument which is completely incongruent with the terms of the 2013 Order read as a whole.

113Paragraph 22 to 24 do not override the access and timesharing arrangements under paragraphs 9 to 13 of the 2013 Order. To find otherwise would result in a nonsensical Order that would allow either party to defeat the carefully crafted timesharing arrangements simply on the basis that they were travelling outside of the country.

114The sincerity of the mother’s argument is also undermined by the fact that part of her travel was inside of the country, to Newfoundland. This is an example of some of the conduct that fosters conflict between the parties.

115I find that it is not in Liam’s best interests to change the detailed and specific regime with respect to the summer holidays.

Health Information

116The mother seeks an Order preventing the father from contacting Liam’s health care providers, and that she will provide the father with a summary of medical, dental and other appointments within seven days “as required”. The 2013 Order already includes a requirement for the mother to provide “a written up-date of the appointment and with any health reports, assessments, estimates, etc.” to the father within five business days. The mother admits that she is not complying with this obligation, although she states she will do so going forward. At the hearing before me, however, her counsel argued that she had been complying because she provides a report "if there was a report that needed to be provided.”

117Presumably, her counsel’s view is that if Liam goes to medical, dental or other appointments and the professional does not prescribe a medication or identify a problem, no report is required. This is also a nonsensical interpretation of the 2013 Order and totally incongruent with the spirit of that Order when read as a whole. Every time the child goes to professional appointments, the mother should be providing the father with a report – that is what is required under the 2013 Order, to which the mother agreed, and the mother should comply. It does not need to be a lengthy report. In these circumstances, I decline to change these provisions or restrain the father from communicating with Liam’s health care providers, which is a standard incident of an access parent.

118To the extent that the mother is motivated by concerns about Liam’s privacy, at some point soon, if not already with respect to certain issues, Liam will have a right to exercise decision making authority over the privacy of his own health information and will be able to control these issues himself.

Holiday and Summer Access

119The mother seeks an Order that states that the holiday and summer access overrides the regular access. She says this is needed because of issues that arise each December when the father does not appreciate that the Christmas access overrides the regular schedule. Paragraph 12 of the 2013 Order already provides that the holiday schedule overrides the regular access and midweek access and therefore I decline to make another Order that provides for the same thing.

Travel

120The mother seeks an Order allowing her to travel anywhere in the world without the father's consent. The mother states that she has had difficulty obtaining the father's consent in the past with respect to such travel and has needed to resort to Court proceedings on such occasions. I am not prepared, based on the evidence before me, to make such an Order. This is based on considering all of the evidence before me, including:

1. My finding that both parties are strongly contributing to a dysfunctional communication relationship between them; and
2. The mother's conduct in the summer of 2018 when she unilaterally overrode the summer access schedule to take Liam out of the country, although I note that the father did at the end of the day consent to her travel, noting his objection to the change in the summer access.

Restraining Order

121I do not find that it is in Liam’s best interests to restrain the father’s contact with Liam, his attendance at Liam’s activities, the father’s contact with Liam’s school or work, or his attendance at the school or work.

Police Enforcement

122In her draft Order, the mother asked for in Order providing for police enforcement. This was also requested by the father in his Notice of Motion to Change, but was not included in his draft Order. No evidence has been presented to me that supports such an Order being made. Liam is 14 years old. It is highly unlikely that given Liam’s age such a clause would serve any beneficial purpose in the future.

Disposition

123Given the above, I make the following Orders:

1. The amount of monthly table child support payable by the father to the mother for the support of Liam Jack McNally, born September 17, 2004, pursuant to paragraph 2 of the Order of Justice Warkentin dated May 30, 2013, as changed by the Order of Justice Laliberté, dated July 29, 2014, is hereby changed as follows: A. Effective April 1, 2015, to be $503 per month based on the father's 2014 income of $55,470 (based on the December 31, 2011 tables); B. Effective April 1, 2016, to be $535 per month based on the father's 2015 income of $58,901 (based on the December 31, 2011 tables); C. Effective April 1, 2017, to be $475 per month based on the father's 2016 income of $52,634 (based on the December 31, 2011 tables); and D. Effective April 1, 2018, to be $608 per month based on the father's 2017 income of $65,299.50 (based on the November 22, 2017 tables).
2. The amount the father shall contribute to Liam’s expenses pursuant to paragraph 3 of the Order of Justice Warkentin dated May 30, 2013, as changed by the Order of Justice Laliberté, dated July 29, 2014, is hereby changed as follows: A. Effective April 1, 2015, I. based the s.7 expenses for the child being $4,187.50 in 2014, made up of after-tax net childcare costs of $2,235, activity expenses of $1,491.85, medical expenses of $410.95, and dental expenses of $49.70; II. the father's proportionate share of the child’s s. 7 expenses based on the parties’ 2014 incomes, is 34.3% (based on the mother’s income of $106,432); and III. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $119.69 per month . B. Effective April 1, 2016, I. based the s.7 expenses for the child being $3,327.46 in 2015, made up of after-tax net childcare costs of $2,050, activity expenses of $752, and medical expenses of $525.46; II. the father's proportionate share of the child’s s. 7 expenses based on the parties’ 2015 incomes, is 35.3% (based on the mother’s income of $107,953); and III. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $97.88 per month . C. Effective April 1, 2017, I. based the s.7 expenses for the child being $2,258.73 in 2016, made up of after-tax net childcare costs of $765, activity expenses of $774, and medical expenses of $719.73; II. the father's proportionate share of the child’s s. 7 expenses based on the parties’ 2016 incomes, is 32.8% (based on the mother’s income of $107,954); and III. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $61.74 per month . D. Effective April 1, 2018, I. based the s.7 expenses for the child being $2,251.71 in 2017, made up of after-tax net childcare costs of $702, activity expenses of $367.95, and medical expenses of $1,181.76; II. the father's proportionate share of the child’s s. 7 expenses based on the parties’ 2017 incomes, is 35.9% (based on the mother’s income of $116,571); and III. the amount the father shall pay to the mother as his contribution towards these s.7 expenses is changed to $67.36 per month .
3. The amounts that the father has paid towards the base monthly child support and the child’s s.7 expenses, pursuant to the Order of Justice Laliberté dated July 29, 2014, shall be credited to the above amounts.
4. Location of Transfers: A. Paragraph 13 of the Order of Justice Warkentin dated May 30, 2013 is changed to provide as follows: “The location for pick-ups and drop-offs shall be Liam’s school, except in the summer, when the parties may agree to a different location. If the parties are unable to agree on a different location, the pick-ups and drop-offs shall take place at Liam’s school.”
5. Timing of pick-ups and drop-offs: A. Paragraphs 9 and 10 of the Order of Justice Warkentin dated May 30, 2013 are changed to provide for the pick-up time on the father’s alternate weekends to be Friday at 3:30 p.m., for the pick-up time on Wednesdays to be 3:30 p.m., and for the drop-off times on Monday mornings (Tuesday in case of a long weekend) and Thursday mornings to be 9 a.m. B. Paragraph 12 of the Order of Justice Warkentin dated May 30, 2013 is also changed to reflect the change in the pick-up time from 4 p.m. to 3:30 p.m. (in 12(a), (f), (h), (i) (the return under (i)III on the third day will remain 7 p.m.), (j), and (k)) and the change in the drop-off time from 8 a.m. to 9 a.m. (in 12 (a), (d), (f), (h), (j), and (k)).
6. March Break: A. Paragraphs 12 of the Order of Justice Warkentin dated May 30, 2013 is changed to include a new paragraph below 12(k), included in holiday access, as follows: “ March Break” 12(l) The March (spring) school break shall alternate between the parties each year such that in odd numbered years, Liam shall be in the care of the father from the first Monday of the spring school break at 9 a.m. to the Friday of the spring school break (5 days later) at 3:30 p.m.. In even numbered years, Liam shall be in the care of the mother from the first Monday of the spring school break at 9 a.m. to the Friday of the spring school break (5 days later) at 3:30 p.m.”
7. Telephone Access: A. Paragraphs 14 to 18 of the Order of Justice Warkentin dated May 30, 2013 shall no longer be of any force or effect. B. Paragraph 19 of the Order of Justice Warkentin dated May 30, 2013 is changed to provide that Liam is free to communicate with either parent whenever he wishes, by whatever means he wishes, including telephone, text, email, or other method. C. The Order of Justice Warkentin dated May 30, 2013 is changed to insert a new paragraph after the existing paragraph 19 as follows: “Both parents are permitted to communicate with Liam, including when Liam is in the care of the other parent, but such communications should be respectful of Liam’s wishes with respect to such communications, including his activities, and the other parent’s parenting time.”
8. The remainder of the father’s and mother’s requests for changes to the Order of Justice Warkentin dated May 30, 2013 are dismissed.
9. If the parties are unable to agree on costs, the father may serve and file submissions with respect to costs on or before October 15, 2018. The mother may serve and file submissions with respect to costs on or before October 26, 2018. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall comply with Rule 4.01(1) of the Rules of Civil Procedure. The father may file a brief reply, of no more than two pages in length, on or before October 31, 2018.

Justice P. MacEachern Released: October 9, 2018

Footnotes

Footnotes

1. 1I have referred to the parties as the “father” and “mother”, rather than as “Respondent” and “Applicant”, because this is how there are referred to in the previous Orders.
2. 2The Minutes of Settlement upon which the 2013 Order was based were signed in August and September of 2012. This explains why the 2013 Order, although dated May 30, 2013, included dates that had already passed. It does not appear to me that the child support was adjusted as of April 1, 2013. The 2014 Order dealt with the child support adjustments as of April 1, 2014 and therefore this issue was not before me.
3. 3Current child support is being paid through and enforced by the Family Responsibility Office.
4. 4Federal Child Support Guidelines , SOR/97-175, as am., s.17(1)
5. 5Schedule III, Federal Child Support Guidelines , SOR/97-175 , as am.
6. 6The Child Support Guidelines require, at s.7(3), that the Court take into account any subsidies, benefits or income tax deductions or credits relating to s.7 expenses.
7. 7Sanders v. Sliede , 2009 CarswellOnt 2107 (Ont.S.C.J.)
8. 8Gordon v. Goertz , [1996] 2 SCR 27
9. 9Litman v. Sherman , 2008 ONCA 285 , Persaud v. Garcia-Persaud , 2009 ONCA 782
10. 10For example, the parties’ inability to make decisions together, the issue of scheduling activities during the father's time, the difficulty of communicating between the parties with respect to expenses and activity expenses, the comprehensive scheme to adjust child support, the benefit of the parties engaging a parenting coordinator, etc.
11. 11Liam was with the father for a portion of March break in 2017.
12. 12“Travel Outside of Canada 20. Liam may travel with either parent to the United States of America, provided that a written travel consent has been signed and provided to the other parent pursuant to paragraph 23 and information provided as set out in paragraph 22. 21. Both parties must agree if one parent wishes to take Liam to a country other than the United States of America, and such consent shall not be unreasonably withheld. 22. Each parent shall notify the other of any trips with Liam outside of Canada, 15 days in advance and in writing for a trip in excess of 72 hours and 48 hours in advance of a trip in excess of 24 hours, in writing, and shall advise the other parent of the following: - Proposed dates of travel ; - The intended destination ; - Summary of the itinerary of the trip; - Travel information including modes of transport and flight details if applicable; - Details as to who will be travelling with the child; and - Emergency contact number(s). 23. When travelling to the States, each parent shall sign the required form permitting Liam to travel with the other parent as soon as reasonably possible upon being advised by the other parent of a proposed trip, provided that the other parent provides the information as set out in paragraph 22 above. 24. When planning to travel to destinations outside of Canada other than the States, both parents must consent to such travel in advance and in writing, and such consent shall not be unreasonably withheld. Once they agree on such travel, they will sign the required form permitting Liam to travel to such destination, provided that the parent taking Liam will provide the information as set out in paragraph 22 above.”