Court File and Parties
COURT FILE NO.: FS-18-001808 DATE: 20190705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Victoria Helen Farmer, Applicant – and – Christopher Phillips, Respondent
Counsel: Kristen Normandin, for the Applicant Rochelle Cantor, for the Respondent
HEARD: July 2, 2019
C. Gilmore, J.
Ruling on Motions
Overview
[1] There are two motions before the court, the applicant mother’s motion to dispense with the respondent father’s consent to allow her to travel to New Zealand with the children, and the father’s motion for terms of the travel consent, an order that the parties’ eldest child, S.P. continue to attend Mildenhall Montessori School (“Mildenhall”) and that the issue of the cost of tuition for Mildenhall as a section 7 expense be considered at a case conference or at trial following the re-assessment of S.P. by Dr. Broeking.
[2] Given the urgency of some of these issues (the mother’s travel was scheduled for July 8, 2019), I gave a short ruling at the conclusion of the hearing of the motions in which I granted the mother’s motion to dispense with the father’s consent to travel, and ordered that S.P. continue at Mildenhall for Grade 4. The father was required to pay the tuition for S.P. for the 2019/20 academic year with the issue of whether tuition for Mildenhall should be a section 7 expense adjourned to the trial judge.
[3] The parties were ordered to exchange the children’s passports (the mother to receive their Canadian passports and give the father their New Zealand passports) and the mother was to provide certain other documentation to the father forthwith. I also indicated that I would be providing written reasons in relation to the July 2, 2019 endorsement. These are those reasons.
The Mother’s Motion to Dispense with the Father’s Travel Consent
[4] This matter has become a high conflict case. There have been three motions on different issues since January 2019. I have recommended the appointment of a Case Management judge.
[5] The parties have different views on parenting, S.P.’s autism, support and section 7 expenses, and the children’s education. That has led to litigation and a great deal of mistrust between these parties.
[6] There is no dispute that the mother booked and paid for travel to New Zealand with the parties’ two children in January 2019. The father agreed to the travel. There was no issue at that time. The travel was booked for July 8-28, 2019.
[7] Tragically, after the travel had been booked, the mother’s mother was struck and killed in a traffic accident. The summer vacation plans were converted into a trip to bury the maternal grandmother.
[8] After the travel was booked, the father made plans for the children to be placed in camp upon the mother’s return. The father did not specifically tell the mother this, nor did the mother enquire about the father’s plans on her return. As a result, the father requested certain conditions be attached to his signing the travel consent. This was because the children would be severely jet lagged upon their return and unable to attend camp for the first several days. Initially he requested that she change her flights and return early so that the children would be over their jet lag when they were returned to him. When the cost to do so proved to be prohibitive, the father requested that the mother pay him $400 in compensation and that she care for the children for an additional two days upon her return so that when the children were returned to the father they would be ready to pursue their planned summer activities with him.
[9] Initially, the mother was agreeable to this arrangement but on June 17th the father added additional conditions which included a requirement that the mother provide him with additional days of make up access time in October 2019. At that point, the mother decided that further negotiation was fruitless and brought her motion.
[10] The father’s position is that the mother was unreasonable in her approach. Clearly the children needed to be rested for camp and it would be futile to send them when they were severely jet lagged. The mother’s motion was unnecessary as his counsel’s letter of June 17, 2019 set out several options. The father had already signed the travel consent and his requests for certain conditions were entirely child focused.
Ruling on the Mother’s Motion
[11] Rightly or wrongly, these parties should have discussed the father’s summer plans for the children on the mother’s return from New Zealand. They did not. The children will arrive home early on Sunday July 28, 2019 and will no doubt be jet lagged when returned to their father’s care. That is for him to manage. His seeking of continual conditions and concessions when the travel plans have been known since January is misplaced. I note that the mother previously consented to the father travelling with the children to Panama, Cuba and Iceland without conditions.
[12] Neither the children nor the mother should in any way be hindered in travelling to New Zealand where the main purpose is now the burial of the maternal grandmother. In future, if either party is travelling to a location with the children where jet lag on their return will be an issue, this should be a topic of discussion between them at the time of making the travel plans and not used as a reason to curtail travel or exact conditions from the other party.
[13] The mother’s motion to dispense with the father’s consent to travel to New Zealand with the children between July 8 and 28, 2019 is granted. The father’s motion for certain terms to be added to the travel consent is hereby dismissed.
The Father’s Motion
[14] The parties’ eldest child, S.P. is going into Grade 4. He has attended Mildenhall since JK. S.P. is on the Autism Spectrum Disorder. I heard a motion in April 2019 related solely to the mother’s request to register S.P. in certain therapies and services to which the father did not consent. Both parties allege that the other has unilaterally enrolled S.P. in school for the fall of 2019 without consulting the other.
[15] The father’s view is that S.P. should remain at Mildenhall given the low teacher/student ratio. The father submits that, given S.P.’s autism, it is important that he maintain a routine and keeping him in the same school is essential. There is insufficient information about S.P.’s educational needs at this time. The safest course is to keep S.P. at Mildenhall where he is doing well.
[16] The mother does not disagree that it would be optimal to keep S.P. in private school. Her concern is the cost. The mother earns about $85,000 per year. The father’s most recent financial statement indicates that he earns about $61,000. He concedes that his business is not doing well. The mother’s position is that the cost of Mildenhall is simply not reasonable given the parties’ incomes. As well, given that she is from Australia and has relatives living in New Zealand, she would like to use her disposable income for travel to visit family. She cannot afford to travel with the children to visit family in New Zealand and pay for private school; that is unaffordable for her.
[17] The mother submits that the father’s evidence concerning payment for private school is contradictory. In his April 11, 2019 affidavit he stated that his parents were assisting with the cost of private school tuition. There is no mention of this in his most recent affidavit material.
[18] The mother’s position is that given the parties’ financial circumstances, S.P. should attend public school. She suggests that S.P. attend either the Extended French Program at Rawlinson Public School or the English stream at Perth Avenue Public School (where his younger brother attends). In any event, S.P. was enrolled at Mildenhall before he was diagnosed with autism. The school was not chosen because of S.P.’s special needs.
[19] Originally, both children were attending Mildenhall. However, last year the parties agreed that the younger child would attend public school. Because of this, a deposit of about $17,000 remains at Mildenhall. The school has confirmed that this can be used for S.P. for the 2019/20 academic year. Tuition in the 2018/19 academic year was $18,326.
Ruling on Private School and Tuition
[20] While there remains a dispute about the extent of S.P.’s special needs there is no doubt he is on the autism spectrum. Given the level of conflict in this case, particularly in relation to parenting issues, it is important for S.P. to have continuity while this litigation is ongoing.
[21] As such, S.P. should remain at Mildenhall for the 2019/20 academic year. He has been there since JK and it is unknown at this time what the effect of any change would be on him.
[22] The father seeks to have the Mildenhall tuition included as a section 7 expense. The mother does not agree. She only agreed to S.P. going to Mildenhall last year and this year if the father paid the tuition and it did not factor in as a section 7 expense. She is also concerned about the impact of that expense (which she says she cannot afford) on her spousal support claim and her claim for other section 7 expenses.
[23] The issue is whether the tuition cost for Mildenhall is both reasonable and necessary pursuant to section 7(1) of the Child Support Guidelines. It is this court’s view that that issue cannot be decided at this stage. More information is needed about S.P.’s special needs and how that impacts on the necessity of sending him to private school. There will also be considerations as to the reasonableness of the expense given the parties’ incomes. The trial judge will have to consider the parties’ spending patterns during the marriage, their financial means and who has paid for the tuition in the past.
[24] For now, the tuition payment for Mildenhall will remain uncharacterized. If the father seeks a future or retroactive contribution from the mother for that expense, it will be his onus at trial to prove it is both reasonable and necessary.
Case Management
[25] As indicated above, this is a high conflict case and verging on out of control given the number of motions since January 2019.
[26] I have spoken to the Family Team Leader, Justice S. Stevenson who has requested that I case manage this matter. That will mean that I can no longer hear any motions. However, given my knowledge of the case to date, hopefully my involvement will assist in moving this matter along to trial and reduce the amount and the cost of litigation until trial.
Costs
[27] Both counsel provided a Bill of Costs at the conclusion of trial. Their Offers to Settle were provided in a sealed envelope which was opened once these reasons were written.
[28] The applicant seeks full recovery all inclusive costs of $8,500. The respondent seeks approximately the same amount.
[29] The applicant served two Offers to Settle. Her June 13, 2019 Offer requested that the father sign the travel consent attached to the Offer. There were no conditions attached to the consent and no costs were payable if the consent was signed by June 18, 2019 at 5:00 p.m.
[30] The mother’s second Offer to Settle was dated June 21, 2019. She offered to agree that S.P. would be enrolled in either the Extended French Program at Rawlinson Public School, the English stream at Perth Avenue Public School or Mildenhall. If the father chose Mildenhall, he was to bear the entire costs and the cost of Mildenhall would never be a section 7 expense and would be without prejudice to the mother’s other claims in the case.
[31] The father served an Offer dated June 25, 2019. He offered to sign the travel consent upon receiving the children’s New Zealand passports, their Australian and New Zealand citizenship documents, a payment of $400 towards the children’s camp scheduled for July 28, 2019 and confirmation that she would care for the children the evenings of July 28-31, 2019.
[32] The father further offered that S.P. would attend Mildenhall for the 2019/20 school year with the determination of whether the tuition was a proper section 7 expense to be determined after Dr. Broeking completed her assessment of S.P. and the matter was case conferenced or proceeded to trial.
[33] The mother has had more success. The court dispensed with the father’s consent to travel without conditions. The mother did not specifically oppose S.P. attending Mildenhall, she opposed the cost of the school which was ordered to be paid by the father from the tuition credit for S.P.’s younger brother. The mother was not successful in having the cost of Mildenhall never treated as a section 7 expense. The determination of the reasonableness and necessity of that expense was put over to trial.
[34] The conditions imposed by the father on the mother’s travel were not reasonable in these circumstances. The father’s position on Mildenhall was somewhat puzzling given the parties’ current financial circumstances, however, he was successful in having S.P. attend for 2019/20. The father was correct in his position that there was not sufficient evidence at this point to determine whether the tuition should be treated as a section 7 expense, particularly as it related to the necessity of the expense.
[35] Given all of the above, the mother’s success was somewhat greater than that of the father especially in light of the Offers. Therefore, the father shall pay costs to the mother of $4,500. The payment of costs is stayed pending the results of trial given the parties’ competing claims.
Orders
[36] The respondent’s consent for the applicant’s travel with children namely S.P. born May 11, 2010 and S.P. born January 13, 2013 to New Zealand from July 8 to July 28, 2019 is not required.
[37] Commencing September 2019, S.P. shall attend Mildenhall Montessori School. The tuition for the 2019/20 academic year shall be borne solely by the respondent. The issue of S.P.’s continuance at Mildenhall in future academic years and whether the cost of tuition (both retroactive and ongoing) is a section 7 expense is adjourned to trial.
[38] The respondent shall pay costs for the motion heard by Justice Shore in the amount of $6,500 forthwith.
[39] The parties shall exchange the children’s passports within 48 hours of July 2, 2019. That is, the respondent shall deliver to the applicant the children’s Canadian passports and the applicant shall deliver to the respondent the children’s New Zealand passports.
[40] The applicant shall provide a copy of her 2018 Income Tax Return to the respondent forthwith and a copy of her 2018 Notice of Re-Assessment when available.
[41] The applicant to forthwith provide to the respondent copies of the children’s citizenship documentation.
[42] The applicant to forthwith provide to the respondent a copy of all documents related to the applicant’s efforts to obtain an Australian passport for the children.
[43] Justice C. Gilmore is appointed as the Case Management judge for this matter. Counsel are to arrange a telephone conference through the family law assistant Patrizia.Generali@ontario.ca for a date during the last week in July.
[44] The respondent to pay the applicant’s costs for these motions in the amount of $4,500. The payment of costs is stayed pending the results of trial given the parties’ competing financial claims.
C. Gilmore, J. Released: July 5, 2019
COURT FILE NO.: FS-18-001808 DATE: 20190705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Victoria Helen Farmer, Applicant – and – Christopher Phillips, Respondent
REASONS FOR JUDGMENT
C. Gilmore, J. Released: July 5, 2019