COURT FILE NO.: 18-55 DATE: December 18, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Allan v Romanov BETWEEN: Kevin James Allan, Applicant and Anna Alexa Romanov, Respondents

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Jacquelynne Clark for the Applicant Fan MacKenzie for the Respondent

DATE HEARD : September 26, 2018

REASONS FOR DECISION

James, J

Introduction

[1] This is a motion to change an existing order brought by the respondent, Anna Romanov. The order sought to be amended was made on consent by Shelston J on January 10, 2017. The order by Justice Shelston was itself an alteration of an earlier order by Kane, J in 2013 that provided for joint custody and primary parenting by Mr. Allan.

[2] Justice Shelston’s order restructured the parenting arrangements. Ms. Romanov was permitted to move from Ottawa to Renfrew with the children who were to be in her primary care. One of the trade-offs for that arrangement was that Ms. Romanov was to provide the transportation to Ottawa for Mr. Allan’s access visits every second weekend with drop off at his residence in the former City of Gloucester on Fridays at 7:30 p.m. and pick-up on Sundays at 5 p.m.

[3] The relief sought on this motion is as follows:

a) Sole custody to Ms. Romanov; b) Parental communications through Our Family Wizard; c) Access pick-up by Mr. Allan to be Fridays after school and return by Mr. Allan on Monday mornings with drop-off at school every second weekend; d) Table amount child support based on $45,000 annual income; e) 50% of the section 7 expenses capped at $750 per year per child for extra-curricular activities and adjustments to the payment arrangements for the section 7 expenses.

Background Facts

[4] The parties were married in 2005, separated in 2010 and were divorced in 2013.

[5] Their children are Lelia, age 14, Kaymin, age 11 and Avalyn, age 10.

[6] The children were taken into care by the CAS in early 2011. They were in foster care initially then lived with Mr. Allan’s father in Toronto until 2013.

[7] Mr. Allan commenced legal proceedings for the return of the children to his care. The OCL was appointed and a disclosure meeting was held in December, 2014. A temporary arrangement was agreed to that was to be updated in a few months after assessing Ms. Romanov’s consistency in her access and involvement with the children.

[8] An updated report was completed in March, 2015. It was agreed that one of the children, Kaymin, would transfer to a school near his mother’s home and live with Ms. Romanov as a means of addressing his difficulties at school. The other children would go to a week-about arrangement temporarily then transition to Mr. Romanov’s full-time care at the start of the 2015 school year. It appears that this new arrangement was implemented but not incorporated into an order.

[9] About a year later Ms. Romanov decided to move to Renfrew with her new partner who was a member of the Canadian Forces posted to Petawawa. She was working in Ottawa. Her brother was also living with the family and it was anticipated that he would provide additional support with child-care responsibilities. It was this request that eventually resulted in Justice Shelston’s consent order of January 10, 2017.

[10] This motion to change was commenced by Ms. Romanov in January, 2018.

Position of the Moving Party, Ms. Romanov

[11] Ms. Romanov says that there have been a material changes in circumstances in the year following the move to Renfrew. She lists 10 items in all. Among her concerns is an allegation that the Mr. Allan is not participating in typical parenting responsibilities such as medical and dental appointments. He is not sufficiently engaged with Kaymin’s challenges at school. She says she agreed to joint custody because she believed that Mr. Allan would become more involved. Her brother is no longer residing with her family and is unable to help out with household responsibilities. Ms. Romanov has a new child who she says cries incessantly during the back and forth trips to Ottawa for Mr. Allan’s access visits. Ms. Romanov’s partner was deployed overseas sooner than expected and this has placed an additional burden on Ms. Romanov.

[12] Ms. Romanov also says that Mr. Allan is not sufficiently committed to facilitating the children’s extra-curricular activities when they take place during his access time. These activities are important to the children and it is not in their best interests to miss these activities because Mr. Allan finds them inconvenient.

[13] In addition, she says that Mr. Allan has not been cooperative in maintaining appropriate communications respecting the children. He fails to appreciate that the children often have extra-curricular activities that conflict with his access times and he frightened Ms. Romanov by showing up at her home in a rage last November because she did not make the children available for his access visit. As a result of this incident, Ms. Romanov is seeking a restraining order.

[14] Ms. Romanov also points to the fact that Mr. Allan moved to Embrun for a time, the duration of which is disputed, and this placed an additional burden on Ms. Romanov because it was further to drive for Mr. Allan’s access visits.

Position of the Responding Party, Mr. Allan

[15] Mr. Allan says that the threshold requirement for this motion, that Ms. Romanov demonstrate that there has been a material change of circumstances since Justice Shelston’s order in early 2017, has not been satisfied.

[16] Also, Ms. Romanov enrolls the children in activities without consulting him then complains that his access interferes with those same activities. He has not seen any indication from the children that they are distressed by alleged interference of access visits with their activities.

[17] The fact that the driving for his access visits has become more onerous for Ms. Romanov is simply a matter of her convenience and does not justify a variation.

Issues

[18] Has there been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child, which materially affects the child and which was not foreseen or could not reasonably have been contemplated at the time of the initial order?

[19] If so, the court should consider the matter afresh, without defaulting to the existing arrangement, to determine what circumstances or arrangements ought to be varied to better advance the child’s best interests?

Discussion and Analysis

Material change in circumstances

[20] Ms. Romanov is seeking two independent variations to the existing arrangements. She has requested sole custody of the children as well as a change to the terms of Mr. Allan’s access to his children. A finding that there has been a material change in circumstances will open the door to a fresh consideration of both issues.

[21] The change required to justify a variation of a custody and access order must be “material”. A material change is one that has altered the child’s needs or the ability of the parties to meet those needs in a fundamental way. The change in circumstances should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. A change will only be considered “material” if it is significant and long-lasting. The court must also consider whether the change was real and not one of choice.

[22] This threshold requirement ensures that variation proceedings do not turn into an indirect route of appeal from an earlier order.

[23] The concept of material change in circumstances must be viewed flexibly so as to accommodate a host of factual developments that may have evolved since the existing order was made. It is a child-centered exercise.

[24] The threshold “material change in circumstances” test is aimed in part at ensuring that the parties do not resort to litigation whenever a change occurs, however minimal. Not every circumstance, event or mistake by a parent that affects a child will be considered a material change in circumstances for the purposes of a variation application. Parents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances (see Thompson v. Drummond, 2018 ONSC 1975 at paras. 34 to 38 and the cases therein referred to).

[25] A finding that there has been a material change in circumstances requires a careful examination of what has changed since the previous order. The previous order is deemed to have been correctly decided so the review is limited events that post-date the order sought to be varied.

[26] In my view, the changes here do not amount to a material change in circumstances within the meaning of the case-law on this issue. The order in question was made on consent through discussion and negotiation. Ms. Romanov was represented by counsel. The parties chose this arrangement as a means of dealing with Ms. Romanov’s decision to move to Renfrew. The burden of driving for the access visits would have been readily apparent; so too was the possibility that the children’s extracurricular activities would conflict with Mr. Allan’s access time and this would be complicated by the greater distance between the two households. Only a year had gone by from the date of Justice Shelston’s order until Ms. Romanov sought to vary it. The reality of the arrangement may be worse than anticipated but the implications could or should have been considered at the time the order now sought to be varied was made. I have no evidence of the role that Ms. Romanov’s brother was to play in assisting her with the children or what he actually did to help out. I am not going to assume that his absence has made things unexpectedly more difficult. Also, I have not been provided with an anticipated return date for Ms. Romanov’s husband from his deployment abroad.

[27] It does not seem surprising that Mr. Allan is less engaged in parenting tasks than Ms. Romanov says she anticipated he would be. It was Ms. Romanov’s decision to move to Renfrew even though she works in the south end of Ottawa. It is difficult to accept that it wasn’t foreseeable that the increased distance between the two households would impact on Mr. Allan’s ability to help with routine parenting tasks.

[28] I agree that Mr. Allan has not followed some aspects of Justice Shelston’s order but I am not convinced that this non-compliance provides a basis for establishing a material change in circumstances. Separate issues can be addressed with different remedies.

[29] Mr. Allan agreed to accommodate the greater driving distance created by his move to Embrun by driving one way for his access visits. This is what led to the incident with Mr. Allan banging loudly on the front door at Ms. Romanov’s home due to a misunderstanding about the pick-up time. He was acquitted of a criminal charge related to an allegation that he kicked and damaged the front door of the residence although there is no doubt that Mr. Allan made a commotion that was frightening and upsetting for Ms. Romanov.

[30] Mr. Allan has resumed residing in Gloucester.

[31] There is evidence that the parties have achieved at least a minimal level of cooperation in the past. For example, Mr. Allan agreed to share the driving responsibility when he moved to Embrun. The parties were able to agree that Kaymin should move to a school closer to his mother’s residence and live with Ms. Romanov in 2015. Later that year the children transitioned to Ms. Romanov’s primary care on consent.

[32] I accept that Mr. Allan failed to adopt using the My Family Wizard software to ease communication difficulties between the parties despite a court order that he do so. In May, 2017 Shelston J specifically required Mr. Allan to register for My Family Wizard forthwith and he did not. There ought to be consequences for disregarding a court order.

Restraining Order

[33] Ms. Romanov has requested a restraining order against Mr. Allan due to the door banging incident in November 10, 2017 when Mr. Allan attended early for an access pick-up. I accept that Mr. Allan behaved aggressively and Ms. Romanov, who was pregnant at the time, was justifiably frightened. Mr. Allan’s explanation does not excuse his behaviour. He should know better than to involve the children in communicating access issues. Children are not to be used as a conduit for parental communications. This incident reinforces the utility of the My Family Wizard software.

[34] Ms. Romanov shouldn’t have to put up with Mr. Allan acting out on her doorstep. A restraining order is appropriate but I am of the view that the order should be limited to preventing Mr. Allan from coming too close to Ms. Romanov’s home.

Child support

[35] The adjustment to Mr. Allan’s child support payments requested in the draft order presented by counsel for Ms. Romanov at the hearing of the motion appears to match the financial disclosure in Mr. Allan’s financial statement at Tab 2, Vol. 3, of the Continuing Record.

Medical/Dental Expenses

[36] Ms. Romanov requests that Mr. Allan reimburse her $340 for his share of Kaymin’s out-of-pocket psycho-educational assessment, $137.50 for the children’s out-of-pocket dental expenses from January to September, 2018 and, commencing October 1, 2018 and monthly thereafter, $46.88 per month for his share of Leila’s braces as long as this expense is being incurred. Particulars of these items are set out in Ms. Romanov’s affidavit of September 14, 2018 and do not appear to be disputed by Mr. Allan.

Extra-Curricular Activities

[37] In para. 18 of the draft order proposed by counsel for Ms. Romanov, Ms. Romanov claims arrears of sec. 7 expenses of $1,066 as particularized therein and which are different items than the claims set out in the preceding paragraph. I understand that this amount is not contested by Mr. Allan although the parties do not agree on whether this amount ought to be paid as a lump sum or in instalments. It is not clear to me how much advance notice Mr. Allan had that these expenses were being incurred or alternatively, when he was notified that they had already been incurred. I find that they ought to be paid in 3 monthly instalments of $355.33 commencing on January 15, 2019.

[38] Also not clear to me is the source of the obligation set out at para. 17 of the draft order. It does not appear to be included in the orders of Justices Kane and Shelston or the minutes of settlement from December 12, 2015. Para. 20 of Justice Shelston’s order is restricted to medical and dental expenses. I am not inclined to add new requirements on a motion to change. If the parties wish to deal with this item on a consent basis, then of course they are free to do so.

Life Insurance

[39] Pursuant to the order of Shelston J, Mr. Allan was required to obtain life insurance worth at least $100,000. He attempted to do so unsuccessfully by making what appears to have been one inquiry which resulted in a denial. I am not aware of any further efforts until recently when he requested insurance from RBC Insurance. The evidence respecting his efforts to fulfil this obligation is inadequate. He has not demonstrated due diligence in attempting to comply with the insurance requirement. Ms. Romanov seeks a financial penalty of $50 per week until he provides reasonable proof that appropriate insurance has been obtained. Mr. Allan does not appear to take a position on this request. It is reasonably likely that if Mr. Allan is unable to secure life insurance as part of a benefits package available from an employer (I understand that he is currently a student), then he would be obligated to secure insurance in the marketplace at a monthly cost. In my view this cost could amount to $750 per year or more. I have no specific evidence as to his insurability beyond RBC’s apparent unwillingness to insure him for health reasons. I note that in the response to his initial inquiry in 2017, an accidental death policy was available at a minimal cost.

[40] In all the circumstances, and bearing in mind that the evidence of Mr. Allan’s efforts to comply with the order is sparse, I find that he should pay an additional payment to Ms. Romanov of $70 per month (the “insurance compensation payment”) until such time as he provides reasonable proof that he has either secured the required insurance or that he is uninsurable. This provision shall expire no later than its third anniversary.

Disposition

[41] The request to alter the custody and access provisions of the existing orders is dismissed on the basis of no material change of circumstances.

[42] The child support obligations of Mr. Allan shall be as set out in paras. 9 to 13 of the draft order.

[43] Mr. Allan shall reimburse Ms. Romanov for medical/dental expenses as set out in paras. 14 to 16 of the draft order.

[44] Mr. Allan shall pay section 7 expense arrears in instalments as provided for in para. 37 of this endorsement.

[45] Mr. Allan shall pay the insurance compensation payment to Ms. Romanov until the earliest of any one of the following events occurring:

i) he provides reasonable proof that he has secured the required insurance, ii) he provides reasonable proof that he is uninsurable, or iii) the third anniversary of this order. This monthly payment shall be collected through the Family Responsibility Office as if it was child support.

[46] The parties shall use My Family Wizard for all necessary communications. Communications shall be respectful and business-like.

[47] A restraining order shall issue against Mr. Allan restraining him from coming within 50 meters of Ms. Romanov’s home for 3 years. A copy of the restraining order shall be personally served on Mr. Allan forthwith after issuance.

[48] As for costs, on a preliminary basis and subject to hearing from counsel, I would regard a no costs order as appropriate because although Mr. Allan was successful on the material change issue, he failed to comply with certain provisions in the existing orders. Therefore the results of the motion were mixed. However, if either party wishes to make cost submissions, they may do so by delivering a costs outline and a bill of costs within 21 days and the other party shall have 15 days to respond. If no submissions are received within the 21 day period, the no costs order shall become final.

James, J. DATE: December 18, 2018