Court File and Parties

Oshawa Court File No.: FC-16-136-01 Date: 20181213 Ontario Superior Court of Justice – Family Court

Between: Sharlene Lawrence-Bryce, Applicant And: Roger Bryce, Respondent

Counsel: Sharlene Lawrence-Bryce, acting in person Roger Bryce, acting in person

Heard: November 20-26, 2018

Reasons for Decision

Woodley J.

A. Overview

[1] In September 2017, the Respondent, Roger Bryce (“Roger”), instituted the within motion to change the final Order of Timms J., dated July 21, 2017. [1] Roger seeks to reduce his child support and the proportionate division of s. 7 expenses effective September 1, 2017.

[2] Through her amended response, the Applicant, Sharlene Lawrence-Bryce (“Sharlene”), seeks sole custody of the children, costs, and a dismissal of Roger’s motion to change.

B. Issues

[3] The issues to be determined are as follows:

Relief Sought by Roger’s Motion to Change

a. Has there been a material change of circumstances sufficient to warrant the relief sought? b. If child support is adjusted: i. From what date is the adjustment to commence? ii. What is the appropriate income to be attributed to Roger for child support, both retroactively and ongoing? iii. What is the amount of child support payable? c. Should payment of the s. 7 expenses be adjusted from 60/40 to 50/50? If so, at what date should the payments be adjusted?

Relief Sought by Sharlene’s Amended Response

d. Should income be imputed to Roger as requested by Sharlene? e. Has there been a material change in circumstances sufficient to warrant the relief sought? f. If there has been a material change in circumstances sufficient to warrant the relief sought, should Sharlene be awarded sole custody of the children?

C. Facts

Background

[4] Roger was born in 1974 and is 44 years of age. Sharlene was born in 1975 and is 43 years of age. The parties have two children together – a ten year old son and an eight year old daughter.

[5] The parties separated after 15 years of marriage. The separation was acrimonious and included allegations that Roger engaged in cruel and abusive behavior.

[6] Following the separation, Sharlene commenced an application in family court for a divorce, equalization, custody, access, child support, and payment of s. 7 expenses. Sharlene’s application was issued on January 22, 2016 and Roger’s answer was dated February 26, 2016. Each party was represented by counsel until the final Orders.

Final Order Regarding Custody and Access dated June 22, 2016

[7] By way of a final consent Order of Rowsell J., dated June 22, 2016, the parties agreed to joint custody of the children with Sharlene having primary residence and a parenting schedule for Roger as follows:

a. Roger shall have the children on alternate weeks from Thursday at 6:00 pm until Monday drop-off at daycare or school; and b. Roger shall have the children every Wednesday from after school until 9:00 pm.

[8] The Order of Rowsell J. dated June 22, 2016, is the final Order regarding custody sought to be changed by Sharlene.

Final Order re. Child Support dated July 21, 2017

[9] On October 12, 2016, the parties agreed upon terms for a final Order and attached a draft Order to the consent filed. The Order was signed by Rowsell J. on October 12, 2016.

[10] Sometime following October 12, 2016, it was discovered that the issued order contained errors on the face of the document. Due to the errors, the Order dated October 12, 2016 was set aside by a 14B motion by Roger’s counsel and replaced by the final Order of Timms J. dated July 21, 2017. It is this Order dated July 21, 2017, that is the Order properly sought to be varied.

[11] The final Order of Timms J. dated July 21, 2017 provides for payment of child support and s. 7 expenses as follows:

a. Commencing October 1, 2016 Roger shall pay Sharlene child support in the amount of $966 per month for the two children based on the Child Support Guidelines (“CSG”) and his income of $65,000 per year; b. Roger shall pay 60 per cent of ongoing s. 7 expenses including daycare; c. Unless the support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed; and d. For so long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the CSG.

[12] The Order of Timms J. also dealt with custody, access, travel, and holiday scheduling. Therefore, to the extent that the June 22, 2016 Order of Rowsell J. dealing with custody is amended, corresponding amendments to paragraphs 11.2 and 12b. of the July 21, 2017 Timms J. Order is required.

Facts Specific to Roger’s Motion to Change

Roger’s Education, Employment, and Earnings

[13] Roger attended college in Jamaica and has a diploma in business accounting. Following graduation in 1996, Roger obtained employment with Air Jamaica where he remained employed for 13 years.

[14] Roger and Sharlene immigrated to Canada on March 24, 2008.

[15] Following immigration to Canada, Roger was employed at five different companies and has experienced periods of unemployment as follows:

a. Shoppers Drug Mart: June 2008 to March 2009 b. Bell Canada: March 2009 to July 2012 c. Payday Loan Company: July of 2012 to September/October of 2014 d. Unemployed: (6 months) October 2014 to April 2015 e. MI9: April of 2015 to July 2017 (business analyst) with benefits and severance pay to September 1, 2017 f. Unemployed: (9 months) September 2017 to May 2016 g. IFG: May 16, 2018 to November 16, 2018 h. Unemployed: November 17, 2018

[16] Roger’s income from 2012 to 2017 as reported on his Notice of Assessment (“NOA”) and his 2018 income as estimated in his Financial Statements, is as follows:

a. 2012: $55,933 b. 2013: $65,365 c. 2014: $60,812 d. 2015: $56,467 e. 2016: $66,621 f. 2017: $54,771 g. 2018: $58,812

[17] Roger commenced the motion to change as a result of his termination from MI9 in July 2017. To support his motion, Roger filed correspondence from the Employment Insurance Commission, stating that Roger’s “actions or omissions were not a direct cause” of his dismissal and “do not constitute misconduct within the meaning of the Employment Insurance Act”. [2]

[18] As for Roger’s subsequent employment at IFG, Roger advised that this employment was a contract position that ended on November 16, 2018. The contract of employment with IFG was filed with the court as an Exhibit. [3] Roger’s evidence is that he is currently unemployed and searching for employment.

[19] The agreement that forms the basis of the consent final Order fixing Roger’s income at $65,000 was reached on October 12, 2016. As is apparent, Roger’s actual earned income for 2016 was $66,621 and his actual earned income for 2017 was $54,771.

[20] The income reported by Roger for 2018 is an estimate from the Financial Statement and does not represent his actual earned income for 2018.

Sharlene’s Education, Employment, and Earnings

[21] Sharlene also attended college in Jamaica and obtained an education diploma; however, Sharlene does not have a bachelor’s degree and is not qualified as a teacher in Canada.

[22] Following immigration to Canada in March of 2008, Sharlene gave birth to the parties’ son in May of 2008 and their daughter in September of 2010.

[23] Sharlene’s first employment in Canada was working as a customer service representative for the Royal Bank of Canada at a call center. Sometime following this job, Sharlene obtained work at Bell Canada.

[24] Sharlene was employed by Bell Canada in July 2015 when the parties’ separated, however, her employment ended in July 2016. Sharlene was unemployed at the date the agreement was reached determining child support and s. 7 expenses.

[25] Sharlene was unemployed from July 2016 to March 2017.

[26] In March 2017, Sharlene obtained her current employment with the Toronto Parking Authority situated in downtown Toronto. Sharlene’s employment is by contract without benefits set to expire in March of 2019. Sharlene hopes her contract will be extended or renewed, but has no assurances. She worries that her future employment has been compromised by Roger’s refusal to follow their daycare agreement and her absence due to this trial.

[27] Sharlene’s income from 2012 to 2017 as reported on her NOA and her 2018 income as reported in her financial statement, is as follows:

a. 2012: $44,451 b. 2013: $52,230 c. 2014: $51,626 d. 2015: $58,571 e. 2016: $52,010 f. 2017: $55,166 g. 2018: $64,539.84

[28] As noted, the income reported by Sharlene for 2018 is an estimate from her Financial Statement based on her current employment contract. It is unclear whether her employment contract will be extended beyond March 2019.

Facts Specific to Sharlene’s Request for Sole Custody

[29] Sharlene testified that Roger has been consistently vindictive and mischievous in his behavior towards her. Roger behaves in this manner even at the expense and wellbeing of the children. Sharlene offers the following examples of Roger’s behavior that has transpired since the final custody Order dated June 22, 2016:

a. Roger “falsely and maliciously” reported in court documents that Sharlene historically threatened to kill the children and herself. b. Roger has repeatedly and periodically refused to pay his proportionate share of daycare (P.A. days and July-August 2016) being periods that he does not require daycare. c. Roger deliberately neglected to pick the children up at daycare when he was unemployed (he drove by the daycare center), requiring Sharlene to arrange for the hold-over and late pick-up of the children. His actions have negatively affected her employment, caused late charges for daycare, and have upset the children. d. Roger advised that he supports tutoring for the children but refuses to contribute to tutoring expenses or to allow tutoring to take place during his access time. This has negatively affected the daughter’s progress and has caused a financial burden on Sharlene. e. Roger advises he supports counselling, but withheld consent such that their son lost his place on the waiting list. Counselling has not occurred except through a walk-in clinic. Roger did not provide consent for counselling until prompted by the court. f. Roger withheld the children’s passports and consent to travel until prompted by the court. g. Roger reported Sharlene to Children’s Services alleging fraud when she applied for a daycare subsidy during a period of her unemployment. This act jeopardized her subsidy application and the children’s continued ability to attend daycare. h. Roger has repeatedly contacted the Canadian Revenue Agency (“CRA”) to report that he is entitled to receive the Child Tax Benefits, though he does not have primary residence. These reports have caused uncertainty to Sharlene’s income and her ability to provide for the children. Additionally, the reports have required Sharlene to repeatedly respond to the CRA with correspondence and taken valuable time away from the children’s care. i. Roger reported Sharlene to the Children’s Aid Society (“CAS”) for leaving fruit in the children’s lunches. Sharlene only learned of Roger’s report to the CAS when Roger was advising the court on the witness stand. Despite Roger’s claim that the report was warranted – I find the report to the CAS to be vindictive, petty and an abuse of the CAS services. j. Roger reported Sharlene to the Durham Regional Police for the “theft” of his high school diploma and other documents that he last saw at the matrimonial home. Again, as per the CAS report, I find that the report to DRPS to be vindictive, petty and an abuse of DRPS services.

[30] Roger does not dispute that he engaged in the behavior cited. In fact, Roger appeared quite proud of his behavior and activities including his reporting of Sharlene to the authorities.

D. The Law and Analysis

The Law Regarding Variation of Child Support

[31] Pursuant to s. 14 of the Child Support Guidelines (Ontario) (the “CSG”), for the purposes of s. 37 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), the following constitutes a change of circumstances that gives rise to the making of a variation order:

In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstance that would result in a different order for the support of a child or any provision thereof.

[32] Section 37 (2.1) of the FLA provides that an application to the court for variation of an order made for child support, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively; (b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (c) make any other order for the support of a child that the court could make on an application under section 33.

[33] Any order made by the court for variation under s. 37 (2.1) shall be made in accordance with the child support guidelines.

Analysis Regarding Roger’s Motion to Change Child Support

[34] Despite Sharlene’s claims to the contrary, based on the evidence presented at trial, I find that Roger did not intentionally disrupt his income nor was he responsible for the termination from MI9.

[35] I further find no grounds to impute income to Roger. Roger is a T4 employee who suffered a loss of employment with no fault attributed to him. During periods of unemployment Roger has consistently sought employment.

[36] According to s. 14 of the CSG and s. 37 (2.1) of the FLA, Roger’s change in income as evidenced by his NOAs, entitles Roger to a variation of the child support order.

[37] Pursuant to the final Order dated July 21, 2017, Roger is required to pay child support in the amount of $966 for the support of two children for the period commencing October 1, 2016 based on his income of $65,000.

[38] In 2016, Roger’s income was $66,621. Child support shall be adjusted based on Roger’s actual income earned. The adjusted amount equals $990.00 per month.

[39] Accordingly, for the period October 2016 to December 2016, Roger underpaid child support by $24 per month resulting in a payment due to Sharlene for 2016 of $72.00.

[40] In 2017, Roger’s income was $54,774. Child support shall be adjusted based on Roger’s actual income earned. The adjusted amount equals $813 per month for the period of January 2017 to November 2017. For December 2017, the CSG provides that child support equals $835.

[41] Accordingly, for the period January to November 2017, Roger overpaid child support by $153 per month. For December 2017, Roger overpaid child support by $131 resulting in an overpayment to Sharlene for 2017 equaling $1,814.00.

[42] For 2018, Roger estimated his income at $58,812. Child support shall be adjusted based on Roger’s estimated income (subject to readjustment following receipt of Roger’s NOA). The adjusted amount equals $896 per month for the period January 2018 to December 2018. For 2018, Roger overpaid child support by $840.00

[43] As for Roger’s payment of child support for 2019, and ongoing, his income shall be based on his estimated 2018 income of $58,812, subject to yearly adjustment following delivery of his NOA. Child support for the support of the two children based on income of $58,812 equals $896 per month. The Order for child support dated July 21, 2017, shall be varied accordingly commencing January 1, 2019.

[44] Consequently, the provisions of the final Order dated July 21, 2017, regarding child support are varied to reflect Roger’s actual earned income for the period October 1, 2016 to December 31, 2018, as noted above.

[45] The provisions of the final Order dated July 21, 2017, regarding child support on an ongoing basis, shall be varied on an ongoing basis to reflect support of two children in the amount of $896 per month, based on income of $58,812, subject to yearly adjustment in accordance with the CSG.

Analysis Regarding Adjustment of Section 7 Expenses

[46] As for adjustment of the s. 7 expenses, at trial Sharlene consented to an adjustment of the proportionate payment of s. 7 expenses from 60/40 to 50/50.

[47] Roger requested that the adjustment be made effective September 1, 2017. Sharlene made no submissions with respect to the date of adjustment.

[48] Having considered the matter, I am of the view that it would be most equitable if the adjustment of the percentage commenced January 1, 2019. My reasons for determining this date are based, in part, on the following considerations:

a. The parties have been sharing daycare expenses on a 60/40 split as per the July 21, 2017 Order. b. Sharlene obtained a subsidy and as a result of her efforts greatly reduced the cost of daycare to the parties. c. Roger has refused to pay for daycare for various periods including P.A. days (when he has the children); the months of July and August 2017 (when his mother was visiting) thus causing the Family Responsibility Office to intervene to obtain payment. d. Roger has refused to pay for tutoring and Sharlene has borne the bulk of all tutoring expenses. e. Overall, it is both just and expeditious to commence the variation as at January 1, 2019, such that both parties are aware of the variation and their responsibilities for payment of section 7 expenses.

[49] For the above noted reasons, the final Order of Timms J. dated July 21, 2017, is hereby varied to a 50/50 split commencing January 1, 2019.

The Law Regarding Variation of Custody

[50] In order to interfere with a final order regarding custody, there must be a finding that there has been a material change in circumstances between the time the final order was made and trial.

[51] The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13, held that before a court can consider the merits of an application for variation, it must be satisfied that there has been a material change in circumstances since the last custody order was made. To be more specific, McLachlin J. held that the trial judge must be satisfied of:

i. change in the condition, means, needs or circumstances of the child; ii. which materially affects the child; and iii. which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[52] If the applicant is unable to meet this threshold requirement, the inquiry can go no further.

[53] If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

[54] The Ontario Court of Appeal in Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239, cites with approval the decision in Griffin v. Bootsma, [2004] O.J. No. 2781 (S.C.J.), varied on other grounds , [2005] O.J. No. 4112, where it was held that parents’ chronic difficulties in resolving parenting issues may amount to a material change in circumstances where the parties could not have anticipated the conflict at the time they settled their custody dispute. It is the subsequent turn of events, the turning into a “high conflict couple” that is the “change” that was not foreseen, thus satisfying the requirements of Gordon v. Goertz.

Analysis Regarding Material Change of Circumstances

[55] There was no evidence presented to establish that prior to the June 22, 2016 final Order, the parties did not parent cooperatively. The evidence presented by the parties was that the parties chose their children’s school (French immersion), doctor, daycare, and cooperated with access, work schedules, and pick-up and drops-offs, prior to the date of the order. Following the final Order dated June 22, 2016, however, there was little cooperation and limited ability to make joint decisions in the best interests of the children.

[56] In addition to the examples of vindictiveness and petulant behavior cited by Sharlene, Roger testified that (i) he was considering whether the daughter should be removed from French immersion (and had not consulted with Sharlene); (ii) he would not approve tutoring if a cost was attached; (iii) he believed counselling was beneficial but sought further information before consenting to counselling and had not yet satisfied himself despite the passage of nearly two years from the initial request.

[57] Roger questioned every decision made by Sharlene and he made it abundantly clear that nothing would be done without his input, investigation, and thorough consideration. Indeed, Roger was not dissuaded by the fact that decisions for the children often need to be made on a timely basis to be effective. He clearly considered himself to be the governing voice in the parenting relationship.

[58] It is my view that Roger is using the children and the joint custody arrangement to assert his dominance and control over Sharlene.

[59] While control and dominance is not new to their relationship – the method of asserting control and dominance through the guise of joint parenting decisions – is new and cannot be tolerated.

[60] I find that the parties’ chronic difficulties in resolving parenting issues amounts to a material change in circumstances not anticipated at the time they settled their custody dispute.

The Law Regarding Custody

[61] Joint custody gives both parents full decision-making authority and responsibility in all matters respecting the child.

[62] In Kruger v. Kruger et al. (1980), 25 O.R. (2d) 673 (Ont. C.A.) and Baker v. Baker (1979), 23 O.R. (2d) 391 (Ont. C.A.), the Court of Appeal for Ontario held that joint custody should generally be ordered only in exceptional circumstances where the parties consent and demonstrate co-operation and an ability to communicate. While the consent requirement has been dispensed with, evidence that the parties are able to communicate effectively is required.

[63] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, details the factors that a court shall consider when making a determination with respect to custody and access. Considerations under s. 24 include a consideration of all the child’s needs and circumstances, including but not limited to, the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child, and the ability of each person applying for custody of or access to the child to act as a parent.

[64] Where there is such a degree of friction between equally competent spouses so as to make joint decision-making impossible, custody should be awarded to the parent who is more likely to ensure that the child reaps the benefit of both households: see Huisman v. Stefaniw (1997), 26 R.F.L. (4th) 406 (Ont. Gen. Div. Fam. Ct.); Boukema v. Boukema (1997), 31 R.F.L. (4th) 329 (Ont. Gen. Div. Fam. Ct.); and Wilson v. Wilson, 2015 ONSC 479.

[65] I note that in considering the issue of custody I must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on allegations of conflict, or on conflict existing at the time of trial: see Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.); and Ladisa v. Ladisa (2005), 11 R.F.L. (6th) 50 (Ont. C.A.).

[66] If the parties have been able to communicate when necessary, putting the child’s interests ahead of their own, an order for joint custody may still be appropriate in spite of the conflict.

[67] The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

[68] Where an objective review of the historical and more recent evidence clearly indicates that the parties have never been able to cooperate or communicate effectively or that one or both of them are unable to put the child’s needs ahead of their own, an order of joint custody is not appropriate: see Hildinger v. Carroll (2004), 2 R.F.L. (6th) 331 (Ont. C.A.); Kaplanis; and Ladisa.

Analysis Regarding Sharlene’s Request to Change Custody

[69] In the present case, both the documentary record and the testimony at trial evidence that Roger is not able to put the children’s interest ahead of his own. The conflict between the parties relating to the children arose after the date of the final custody Order dated June 22, 2016 and continued throughout the trial.

[70] The recent conflict revolves around all aspects of the children’s care and includes:

a. summer daycare b. P.A. days c. pick-ups and drop-offs (time and location) d. tutoring (necessity, payment and time allowance) e. counselling (necessity, attendance and consent) f. vacation, passports and travel (consent and terms) g. homework completion h. contents of lunch i. telephone access and communication j. Individualized Education Program (diagnosis and necessity) k. schooling (French immersion or English public) l. CRA child tax benefits

[71] Based upon Roger’s evidence alone, I find that he has not placed the children’s best interests before the conflict. Quite the contrary, I find that Roger engages in conflict at each and every opportunity afforded to him to battle Sharlene.

[72] Examples of situations where Roger did not consider the best interests of the children ahead of the conflict include, but are not limited to:

a. Delaying consent to counselling until the son lost his place on the list b. Refusing to allow tutoring for the daughter to take place during his access periods, regardless of payment c. Refusing to pick the children up from daycare (driving by daycare without picking up the children to make his point) d. Reporting Sharlene to CAS for leaving fruit in the lunch bag e. Reporting Sharlene to Durham Regional Police Service to report theft of his high school diploma f. Reporting Sharlene to Children’s Services to report fraud for applying for a subsidy when she was unemployed and g. Repeatedly contacting the CRA to claim the Child Tax Benefit despite the fact that Sharlene has primary residence of the children

[73] I do not believe that the conflict that has arisen from the date of the June 22, 2016 Order is resolvable. I am of the view that the conflict will continue – without abatement and with ever changing and evolving issues – if custody remains joint.

[74] While I have considered parallel parenting, I do not believe that it is warranted in the present case based on the relative parenting abilities of each parent and their capacity to make decisions that are in the best interest of the children. I do not believe that Roger is able to provide child-centered and focused parenting. Given the recent history and his vindictive and mischievous conduct, I find that sole custody is warranted.

[75] It was apparent that Roger believed that he was justified in contacting the police, the Children’s Aid Society, Children’s Services, and the CRA in making serious allegations against Sharlene. In my opinion, there was no evidence of any wrongdoing by Sharlene and find that these allegations were baseless. As a result, I find that Roger is neither willing nor able to focus on the needs of the children or place them above his own.

[76] Roger did not consider the effect or potential effect of his actions on the welfare and well-being of his children. Roger’s actions were petulant, controlling, abusive and completely contrary to the principles of cooperative parenting and joint custody. Roger did not consider the best interests of the children.

[77] In contrast, I find that the evidence before me indicates that Sharlene is willing and able to place the needs of the children above her own needs and interests. Indeed, I am of the view that Roger’s ongoing crusade to create conflict and havoc in Sharlene’s life is a barrier to her providing even better care for the children.

[78] Having regard to the principles set out in Kaplanis and Giri v. Wentges, 2009 ONCA 606, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 438, I find sole custody is necessary to meet the children’s day-to-day needs, and moreover, that it is in the best interest of the children for Sharlene to have sole custody: see Perron v. Perron, 2010 ONSC 1482, 91 R.F.L. (6th) 110, aff’d 2012 ONCA 811, 113 O.R. (3d) 612.

E. Order

Relief Sought by Roger’s Motion to Change

[79] For the sake of clarity, I confirm that the final Order of Rowsell J. dated October 12, 2016, was set aside and is of no force and effect, and was entirely replaced by the final Order of Timms J. dated July 21, 2017.

[80] For the reasons provided above, the final Order of Timms J. dated July 21, 2017, is hereby varied at paragraphs 15a), 15b), and 21), effective January 1, 2019, as follows:

15a) Commencing January 1, 2019, the Respondent Roger Bryce shall pay the Applicant child support in the amount of $896.00 per month for the two children based on the Federal Child Support Guidelines and his income of $58,812 per year. 15b) The Respondent shall pay 50 per cent of ongoing s. 7 expenses including daycare commencing January 1, 2019. 21) Commencing June 1, 2019, the parties shall exchange their Notices of Assessment and they shall then adjust the table child support and their proportionate contribution to the special and extraordinary expenses for the ensuing twelve months.

[81] The net overpayment of child support made by Roger to Sharlene for the period October 1, 2016, to December 31, 2018, totaling $2,582.00, shall be deducted from Roger’s ongoing child support obligations to Sharlene, at the rate of $50 per month, commencing January 1, 2019, until paid.

Relief Sought by Sharlene’s Amended Response

[82] For the reasons provided above, the final Order of Rowsell J. dated June 22, 2016, is hereby varied at paragraph two as follows:

Paragraph 2 is deleted and replaced with the following paragraph 2: 2a) On a final basis, Sharlene Lawrence-Bryce shall have sole custody of the children R.S.B. born May 19, 2008 and R.S.B. born September 2, 2010, with the Applicant mother, Sharlene Lawrence-Bryce having primary residence of the children and the father, Roger Steve Bryce, having secondary residence as provided by the terms of the June 22, 2016 and July 21, 2017, final Orders. 2b) Both parties shall have the right to consult with and obtain information directly from the children’s teachers, doctors or other professionals about the health, education and general welfare of the children. 2c) Sharlene shall keep Roger apprised of the name and contact information for any and all professionals who are working with the children. Roger is expected to obtain information including school calendar, school and sport notices directly from the professionals, and if necessary, Sharlene will execute any documentation necessary to ensure that Roger may obtain this information directly. 2d) Sharlene shall consult with Roger in writing on all major decisions with respect to the health, education and counselling for the children and Roger shall provide his input within 72 hours. In the event of an impasse, Sharlene’s decision shall be final. 2e) Both parties shall keep each other informed about any significant issues relating to the children that arise during their time with the children. 2f) Sharlene shall be the keeper of all original government documents pertaining to the children, including, Passports, health cards, and social insurance cards, and Roger shall be provided with photocopies of all documents.

[83] The final Order of Timms J. dated July 21, 2017, is hereby varied at paragraphs 11.2 and 12b. as follows:

Paragraph 11.2 is deleted and replaced with the following: 11.2. On a final basis, Sharlene Lawrence-Bryce shall have sole custody of the children R.S.B. born May 19, 2008 and R.S.B. born September 2 2010, with the Applicant mother, Sharlene Lawrence-Bryce having primary residence of the children and the father, Roger Steve Bryce, having secondary residence as provided by the terms of the June 22, 2016 and July 21, 2017 final Orders. Paragraph 12b. is deleted and replaced with the following: 12b. Sharlene is permitted to travel with the children outside of Canada without the consent of Roger. If Roger plans a trip with the children outside Canada with the children, he shall provide Sharlene with a draft letter or travel consent authorizing the children to travel, for Sharlene to execute and have notarized (if requested by Roger) at the expense of Roger. All travelling expenses shall be paid by the travelling party. Roger shall return the children’s original Passports and other documentation to Sharlene within 72 hours of return from travel.

[84] Unless specifically amended by the terms of this Order, all other provisions of the final Orders of Rowsell J. dated June 22, 2016 and Timms J. dated July 21, 2017 remain in full force and effect.

[85] As the results of the proceeding were mixed, each party shall bear their own costs.

Justice S. J. Woodley Released: December 13, 2018

[1] Roger’s motion to change incorrectly cites the final Order of Rowsell J., dated October 12, 2016, issued on the basis of an executed consent of same date; however, the Order that issued on October 12, 2016 was set aside (pursuant to a 14B motion by Roger’s counsel) as it contained an error. This Order was replaced by the final Order of Timms J. dated July 21, 2017. [2] Exhibit 5. [3] Exhibit 4 - 1BB.