COURT FILE NO.: 1357/18

DATE: 2019-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.D.D., Applicant

AND:

A.M.M., Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: Ms. Charanjit K. Gill, Counsel, for the Applicant

Ms. Martina Dwyer, Counsel, for the Respondent

HEARD: October 25, 2019

ENDORSEMENT

Overview

[1] This matter came before me on a regular Friday motions list on October 25, 2019 by way of motion brought by the Applicant father dated October 9, 2019 and cross-motion by the Respondent mother dated October 21, 2019.

[2] At the outset of the motion the parties consented to an Order re-requesting the involvement of the Office of the Children’s Lawyer, and an extension of timelines by 180 days.

[3] The issues raised are as follows:

a. Motion by the Applicant father for:

i. An Order permitting the parties to make day-to-day parenting decisions during their scheduled time with the child without the consent of the other party, including enrollment in after-school care and activities.

b. Motion by the Respondent mother for:

i. An Order that the Respondent be granted right of first refusal with regards to caring for the child, J.J.D., born […], 2010;

ii. An Order that the Applicant pay the table amount of child support for the child, J.J.D., born […], 2010, in the amount of $685.00 and s. 7 expenses in accordance with the parties’ respective incomes;

iii. An Order that the Applicant secure child support payments with a life insurance policy in the amount of $71,357.00 and provide proof of this forthwith;

iv. An Order that the Applicant update his Form 35.1 to accurately reflect his pending criminal charges with the court;

v. An Order for final decision-making with regards to all health, educational and religious activities for the child, J.J.D., born […], 2010;

vi. In the alternative, an Order that the Applicant’s consent be dispensed with and the child, J.J.D., born […], 2010, be allowed to enter into counselling;

vii. An Order that the child, J.J.D., born […], 2010, be with the parties on an alternating basis for Halloween each year, beginning this year with the mother;

viii. An Order that questioning of the Applicant, B.D.D., be conducted on this matter by November 30, 2019;

ix. An Order that non-school access exchanges take place at the Respondent’s home instead of the Fortino’s parking lot.

[4] At the outset, it is worth commenting that the number of issues the Respondent mother attempted to address on a regular Friday motions list was overly ambitious. As a result, the amount of time counsel was able to spend making submissions on important issues was lacking. In future, the mother is advised to be more selective in prioritizing issues she wishes to address on a regular motion list.

Background

[5] The parties were married on [...],, 2010 and separated on May 4, 2013.

[6] There is one child of the marriage, namely J.J.D., born […], 2010. J.J.D. is 9 years of age and attends S[…] Catholic Elementary School in Ancaster. He is in grade 4.

[7] The parties entered into a Separation Agreement on or around November 2013. The Separation Agreement resolved the following issues on a Final Basis:

a. Custody/timesharing;

b. Child Support;

c. Benefits/Life Insurance;

d. Spousal Support;

e. Property Division/Matrimonial Home.

[8] At present, the parties enjoy joint custody of J.J.D., pursuant to the terms of their Separation Agreement. J.J.D. resides primarily with the Respondent mother.

[9] The parties commenced mediation in the spring of 2018 to address parenting issues which had arisen in the years following their Agreement. The Respondent father terminated the mediation sessions on October 12, 2018.

[10] On or around October 17, 2018 the father was charged with Assault, based upon allegations of historic domestic violence made by the Respondent mother. As a result, the father is bound by terms of an undertaking which prevent him from communicating directly or indirectly with the Respondent mother and “from going within 100m of any residence, or place of employment, education or worship of any place that [she] is known to be”. Further criminal charges against the father, also in relation to the mother, were laid in November 2018 which did not impact the father’s terms of release. All of the criminal charges are scheduled to proceed to trial in December 2019.

[11] The Applicant father commenced an Application on October 18, 2018. The mother filed an Answer. The issues of custody, access and child support are currently before the court.

[12] On December 7, 2018, a motion for Temporary relief was heard before the Honourable Madam Justice L. Madsen. A Temporary Order was made on that date, the relevant portions which can be summarized as follows:

On consent:

1. The father’s time with J.J.D. is:

a. Every Thursday overnight with pick up from school until Friday morning return to school; and

b. Alternating weekends from Thursday pick up from school until Monday morning return to school (extended to Tuesday mornings where Monday is a school holiday);

2. All pick ups and drop offs take place at J.J.D.’s school;

3. The father’s extended family members, including his partner A.G., may complete the pick ups and drop offs.

Not on consent:

4. Christmas was divided equally between the parents;

5. Access exchanges which occur on days when J.J.D. is not in school occur at the Fortino’s in Ancaster, Ontario.

[13] In September 2019, the Respondent mother’s child, C.M., commenced Junior Kindergarten at S[…]’s Catholic Elementary School, where J.J.D. attends. The Respondent mother attends at the school to pick up the child C.M. after school each day.

Analysis

[14] For ease of discussion, I will address the relief sought in relation to three categories, as follows:

A. Parenting Issues:

a. Day to day decision-making/enrollment in daycare;

b. Right of first refusal;

c. Final Decision-making;

d. Counselling;

e. Halloween;

f. Access Exchange Location.

B. Financial Issues

a. Child Support; and

b. Life Insurance.

C. Procedural Issues

a. Form 35.1 Update;

b. Questioning.

A. Parenting Issues

[15] The parenting issues in this proceeding are governed by s. 16 of the Divorce Act, the relevant provisions of which are as follows:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[16] The requests which have been made to vary the incidents of parenting which were ordered on a Temporary basis by the Honourable Mme. Justice Madsen on December 7, 2018 are governed by s. 17 of the Divorce Act, the relevant provisions of which are as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[17] Section 24 of the Children’s Law Reform Act outlines the framework for considering the best interests of the child.

[18] I have considered these factors throughout my decision with the exception of the views and preferences of J.J.D.. It is the opinion of the court that J.J.D.’s true views and preferences at this time cannot be reasonably ascertained. The materials before me were fraught with contradictory assertions as to J.J.D.’s views and preferences. This court is not in a position to assess the veracity of these assertions on Affidavit materials alone. It is hoped that the Office of the Children’s Lawyer will reconsider the request of the court to provide representation on behalf of J.J.D. so that his views may be properly before the court. For purposes of this motion, J.J.D.’s views and preferences have not been considered.

Day to Day Decisions/After School Care

[19] The father seeks to be able to enroll J.J.D. in after-school care on his parenting days (i.e. Thursdays and alternating Fridays). The father has been unable to do so to date because the mother has made her objection known directly to the daycare provider; she will not consent.

[20] The father’s need for after school care arises from the following:

a. He cannot attend on the school premises at bell time because the Respondent mother is known to be on the school property picking up her daughter C.M. at that time. His attendance would therefore cause a breach of his conditions of release;

b. His parents, whom he has historically been able to rely upon to assist with after school pick up, will be in Florida during the winter months;

c. His wife’s hours of employment (which sometimes involve travel) do not always permit her to be at the school by bell time.

[21] The father stresses that his employment offers him a “great deal of flexibility in relation to his schedule.” On most days he could facilitate the pick-up of J.J.D. from school but for the Respondent mother’s attendance at S[…]’s Elementary School at the same time. He therefore proposes to enroll J.J.D. in after school care until 4:30 p.m. to ensure that there will be no incidental contact between himself and the Respondent.

[22] The mother asserts that it is not in the best interest of J.J.D. “to be sitting around in a daycare program when he could be in the custody of his mother.” She has multiple objections to J.J.D.’s enrollment which can be summarized as follows:

a. Many of the children are younger than J.J.D. in the after-school program, and he will have few friends in the program;

b. J.J.D. tires easily as a result of his diagnosed medical issues and should not overexert himself prior to completing his homework. She suspects that placing J.J.D. in after-school care will make it difficult for him to keep up with his homework;

c. It is “cruel” for J.J.D. to see his sister C.M. going home at 3:30 p.m. with his mother; and

d. The father is attempting to create “a false status quo with increased access with J.J.D. for the purposes of support while not actually spending time with J.J.D..”

[23] In short, the mother asserts that it is not in J.J.D.’s best interests to be required to stay at school until approximately 4:30 p.m. on Thursdays and alternating Fridays.

[24] I do not accept that it would be contrary to the best interests of J.J.D. for him to spend an hour in after-school care on Thursdays and alternating Fridays. Specifically, in response to the mother’s objections I find that:

a. J.J.D. will presumably strengthen existing friendships or make new friends with the children in the after-school care system to the extent he is present;

b. All material filed with respect to J.J.D.’s academic performance indicates that he is excelling – there is no evidence, other than the mother’s opinion, that his school work will suffer if he spends 1 to 2 hours per week in after-school care;

c. If the mother believes it will be painful for J.J.D. to see her leaving the premises with the child C.M. after school, she would be well-advised to ensure that they do not come into contact with each other at bell time;

d. There is no ulterior (financial) motive behind the father’s request. The father has crafted the most child-friendly solution available to him as a result of the conditions of release he is bound by and the mother’s position with respect to her own attendance at the school.

[25] On this final point, the mother’s position is concerning to the court. Even if one were to accept that an additional hour on school premises for J.J.D. (one to two times per week) would be harmful to his interests, one would expect that both parents would do everything in their power to adjust their respective schedules to avoid this. For example, the mother could arrange for a third-party to pick up the child C.M. or could guarantee that she would vacate the premises within 10 minutes of the bell time on these limited days. There are multiple ways in which this situation could be resolved which do not necessitate reliance upon after-school care, however, in my view, the Respondent mother is simply not interested in making any accommodations. Instead, her position is:

a. “Mr. B.D.D.’s recognisance does not dictate where Ms. A.M.M. should be, Mr. B.D.D. is very much aware that Ms. A.M.M. has a daughter that also attends the school. Frequently, after school, Ms. A.M.M. stays with her daughter to allow her to spend a little time playing with her friends on the playground before heading home. Mr. B.D.D. is to arrange to have J.J.D. picked up when school is let out and he is in breach of his recognisance if he attends the premises personally knowing that Ms. A.M.M is likely to be there”;

b. The mother’s involvement with school council, volunteer work with school events, and frequent walking/riding bikes in the vicinity of the school makes it such that she “cannot guarantee that she will not be on the school grounds at any given time”; and

c. “Penalizing J.J.D. further by forcing him to remain later to accommodate Mr. B.D.D. is not in the interest of the child”.

[26] At present, the domestic contract which governs the incidents of parenting for J.J.D. provides for joint custody. It further provides that the parent residing with J.J.D. at the relevant time will make the daily decisions affecting his welfare. The father’s plan for after-school care is logical; it provides a back-up plan for occasions when third parties are unable to assist with transportation; it ensures compliance with other court ordered restrictions; and it provides a safety net for occasions when emergencies or unforeseeable situations arise. There is no basis upon which to interfere with this parenting decision the father has made regarding his parenting time. As such, there shall be a temporary Order permitting the parties to make day-to-day parenting decisions for the child J.J.D. during their own respective scheduled time with the child without necessity of the consent or authorization of the other party. This authority shall specifically include the father’s right to enroll the child J.J.D. in after school care without the consent of the Respondent mother.

[27] On an aside note, the father has made it clear that his presence on school property is probable at 4:30 p.m. on Thursdays and alternating Fridays to pick up J.J.D. from after-school care. While there has been no request made by the father to impose any restrictions on the mother’s attendance at S[…]’s Catholic Elementary School it is advisable that she not incite a breach of the father’s conditions of release by way of attendance at the school at that time.

Right of First Refusal

[28] The mother seeks to be granted ‘right of first refusal’ with regards to caring for the child J.J.D.. This issue is directly related to the issue of daycare, as discussed above. The mother asserts that the consent terms of the Temporary Order of Madsen J. were entered into on the strength of the father’s representation that he would be available to personally care for the child rather than placing him in child care. The father disagrees. There is no written evidence in the materials filed supporting such representations. Furthermore, it is this court’s view that the mother’s position reflects a strategy of leveraging; gaining advantage from the criminal court conditions imposed on the father. In effect, she is contributing to a situation wherein the child requires third-party care to avoid contact between the parties, and then claims that the child should be in her care rather than the care of third-parties. This position is untenable.

[29] This is a high-conflict custody and access situation. There is past involvement of the police and the Children’s Aid Society, and there are pending criminal charges before the court. The allegations of conflict extend beyond the parties to their extended families. ‘Right of first refusal’ obligations in family law proceedings reflect an appreciation for the principle of maximum contact; in general, it is preferable for a child to be in the care of his parents rather than a third party. However, in this court’s view, the effective navigation of a first refusal clause requires a willingness and ability on the part of parents to communicate and co-parent effectively. At present, in this case, the parties have no ability to communicate and in fact are prohibited from doing so by court order. I note that the Respondent mother’s Affidavit materials expressly acknowledge that this is a high conflict matter and that the parties “cannot come to an agreement on anything”. I further note that on the occasion that the Applicant father’s wife, Ms. A.G., texted the mother requesting that the mother “please ask J.J.D. to call us,” the mother’s written reply was “you do realize this is breaking B.D.D.’s no contact order, correct?”. This inability to navigate a simple telephone call does not inspire confidence in the parties’ ability to successfully navigate unforeseen changes to a time-sharing arrangement on the basis of the parties’ schedules.

[30] There is no evidence that either party is an absentee parent during his or her parenting time. A right of first refusal clause would serve to create further reliance upon third-party communications, additional transitions for J.J.D. between homes, and greater opportunity for conflict between the parties in an already high-conflict situation. I find that it would be contrary to the best interests of J.J.D. to order a right of first refusal to the Respondent mother in this situation as it would serve to add yet another complicating layer to an already difficult parenting arrangement. The mother’s motion for this temporary relief is dismissed.

Final Decision Making

[31] This mother’s choice of wording is confusing. She seeks “final decision making” over all major aspects of J.J.D.’s care. It is unclear to the court whether she intended her motion to be for temporary custody of J.J.D.. Neither counsel provided submissions on the issue of custody, perhaps due to a shortage of time. The court does not accept that a Friday motions list is the appropriate forum for a final determination of custody (i.e. granting the Respondent mother final decision-making authority with regards to all health, educational and religious activities for the child) as the mother’s pleadings appear to request. The primary objective of the Family Law Rules is to enable the court to deal with cases justly, including ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; giving appropriate resources to the case while taking account of the need to give resources to other cases: Family Law Rules, Rule 2(2), and 2(3). It would be unjust and unfair to grant final dispositive relief on this extremely important issue, on Affidavit evidence alone, at this juncture.

[32] The mother’s motion is dismissed on a without prejudice basis to pursue this relief at a later date with more fulsome argument and sufficient time.

Counselling

[33] In the alternative, the mother seeks an Order that the Applicant’s consent be dispensed with and the child be allowed to enter into counselling.

[34] In support of this request the mother asserts the following:

a. J.J.D. suffers from a medical condition called “strabismus” which significantly impacts his vision. He has many special accommodations in school and is closely monitored by medical and educational professionals. J.J.D. has also suffered in past with muscle tension. The mother has been primarily responsible for arranging and monitoring J.J.D.’s treatment with respect to his medical and educational needs, of which there have been many. The father has historically been less involved in addressing J.J.D.’s medical and educational needs;

b. J.J.D. requires a neutral and confidential outlet to work through the many issues that have arisen in the last year between the parties, including:

i. J.J.D. has been placed in the middle of the proceedings;

ii. J.J.D. does not want to disappoint or inconvenience his father;

iii. The Applicant has frequently placed the child in an uncomfortable position (e.g. turning off his cellular phone because the mother was “stalking him”);

iv. J.J.D. is having difficulty with transitions and would benefit from learning healthier coping mechanisms;

v. The Applicant’s upcoming criminal trial may be causing anxiety to the child;

vi. Changes to the access regime may be causing anxiety to the child;

vii. When J.J.D. is anxious, he is prone to stomach aches;

viii. J.J.D. is hard on himself with respect to performing well in school and is a people pleaser;

ix. J.J.D. sometimes sleeps in the same bed as the Applicant which leaves him feeling uncomfortable and not well rested;

x. The Applicant has asked J.J.D. to lie in the past;

xi. Prior to his remarriage, the Applicant introduced J.J.D. to multiple romantic partners, causing J.J.D. confusion and discomfort.

[35] The Applicant father denies any assertions that he has placed J.J.D. in the middle of the parties’ disputes or in uncomfortable situations. He has not observed J.J.D. to struggle with transitions between homes, and is correct in pointing out that the Respondent has provided little detail as to how these alleged struggles have manifested in J.J.D.’s day to day behaviour and functioning. He describes his bedtime routine with J.J.D. (e.g. talking and reading in bed) and acknowledges that sometimes he falls asleep in his bed. He has been with his wife since 2016 and indicates that J.J.D. has never expressed any confusion about that relationship. There have been no concerns reported to the parties from J.J.D.’s school. For example, the Individual Education Plan dated October 7, 2019 filed by the mother as an Exhibit on this motion confirms that J.J.D. is “doing well academically”. One of his areas of strengths is noted to be his “Behaviour Management Skills (Self-regulation).” His needs appear to pertain to motor skills and vision.

[36] I accept that the mother has historically been responsible for arranging the majority of treatments on behalf of the child and her opinion as to J.J.D.’s emotional state carries great weight. I also accept that situations of high conflict between parents are often stressful to children and J.J.D. is likely not an exception to this reality. While it is tempting to find that there would likely be no harm in counselling, this is not the legal test. There is a joint custodial arrangement in place. The parties disagree as to whether counselling in the best interests of the child. As the moving party, the burden falls upon the Respondent mother, on a balance of probabilities, to prove that counselling is in J.J.D.’s best interests such that the father’s consent must be dispensed with.

[37] On the record before me, I am not satisfied that this is the case. I have specifically considered the relevant factors under s. 24 of the Children’s Law Reform Act. The child appears to be stable at this time. He has the strong love, affection and support of his two parents and extended family. J.J.D. has been and continues to be under the care of a number of qualified medical practitioners, including a family doctor, pediatrician, and multiple specialists. He is also closely monitored by his school resource team and has a highly individualized IEP in place. No concerns have been brought forward by any of J.J.D.’s third-party care providers which provide evidence of any emotional or behavioural issues requiring treatment at this time.

[38] To be clear, this decision should not be interpreted as a prohibition against counselling for J.J.D. in the future. It is entirely possible that counselling becomes necessary in the relatively near future, as per recommendations of third-party professionals or significant changes in J.J.D.’s observed behavioural or emotional state. It may also become known, through the Office of the Children’s Lawyer, that J.J.D. himself would like a neutral third party to talk to. Further, this decision should not be construed as preventing the parents from speaking to J.J.D.’s care professionals about these concerns, with the caveat that the observations and opinions of both parties should be shared directly with the professional before any treatment options are recommended. Both parties are urged to vigilantly monitor J.J.D.’s well-being and remain open-minded to the prospect of counselling in future.

[39] As such, the Respondent mother’s motion to dispense with the Applicant father’s consent to enroll J.J.D. in counselling at this time is dismissed.

Halloween

[40] On October 31, 2019 I released an endorsement on this issue, ordering that J.J.D. would remain in the care of the Applicant father as per the regular parenting schedule, with reasons to follow.

[41] I share the opinion of Justice Madsen as expressed in her Ruling on Christmas holiday sharing in this matter: “J.J.D. has a right to experience and enjoy holiday traditions with both his mother and his father”… “a child has a right to share these special times with both parts of his or her family and to develop new traditions in both homes”.

[42] On the record before me, it appears that J.J.D. has not received equal benefit of holidays shared with both parents; the mother enjoying the lion’s share to date. For example, it is undisputed that until the December 7, 2018 Temporary Order of Madsen J., the mother appears to have always had J.J.D. in her care on both Christmas Eve and Christmas morning. Further, J.J.D. has been in the care of his father on Halloween only once (2018) since separation, although the parties have differing perspectives as to why. The mother has clearly enjoyed consecutive holidays with J.J.D. but does not accept that the father may also with to enjoy this privilege. Correspondence between counsel appears to suggest that the following holidays simply followed the regular schedule in 2019: Family Day long weekend, March Break, Canada Day long weekend, August Civic Holiday weekend, Labour Day weekend, Easter, and Victoria Day. I see no reason why Halloween this year should be treated any differently.

[43] The parties are urged to craft an agreement with respect to the sharing of all holidays which are important to their respective families on a Final basis. This may take the form of alternating such occasions between them each year, or it may not. Until such time as they reach a final agreement, they both risk missing out on occasions they might otherwise share.

Access Exchange Location

[44] On December 7, 2018 the court heard and decided the issue of access exchanges on a Temporary basis. In her Endorsement Justice Madsen noted that “it is clear from the affidavit material that there is still considerable conflict between the parties. Having exchanges, which cannot take place at school, take place in a public, neutral location will help reduce conflicts, for the benefit of J.J.D.”. Justice Madsen ruled that the exchanges should take place at the Fortino’s in Ancaster.

[45] The mother asserts that the motions judge was not advised of the totality of the criminal charges faced by the father. However, a review of the mother’s previous affidavit materials reveals that this information was squarely before Madsen J., as she herself provided this detailed information in her sworn Affidavit of November 26, 2018. Justice Madsen also had the benefit of written correspondence of the Children’s Aid Society of Hamilton before her which indicated support for stipulations which minimized J.J.D.’s exposure to adult conflict. The mother did not appeal the ruling of Justice Madsen.

[46] The mother now seeks to vary the Order of Madsen J. to permit access exchanges to take place at her home. The basis of her request to vary this Temporary Order appears to be her perceived improvement as to the level of conflict between the parties. The mother relies upon three occasions in which J.J.D. was (successfully) retrieved from her home following the Order of Madsen J. The father asserts that despite making concessions from time to time (e.g. on one occasion the Respondent’s mother was seriously ill) none of his family members are comfortable with exchanges taking place at the mother’s home.

[47] While the conflict may have abated somewhat since December 2018, this is likely due to the complete lack of contact between the parties, and the effect of moving access exchanges to a neutral location, as per the logic of Justice Madsen’s ruling. However, in her recent Affidavit of October 22, 2019 the mother reiterates that this is a “high conflict matter.” There is simply no compelling evidence of any material change in circumstance warranting a change to the Temporary Order of Madsen J.

[48] The mother’s motion to vary the access exchange location as ordered by Madsen J. on December 7, 2018 is dismissed.

B. Financial Issues

Child Support

[49] The Respondent mother seeks an Order for the payment of Table child support in accordance with the Applicant father’s income. She further seeks an order for proportionate contribution to J.J.D.’s s. 7 expenses in accordance with the parties’ respective incomes.

[50] The mother’s initial request for Table child support (as per her motion materials) was in the monthly amount of $685.00 based upon a 2017 gross annual income of $73,432.00. At the hearing of the motion the mother filed an updated pay statement pertaining to the father and amended her position to request the monthly amount of $794.00 per month based upon a projected 2019 income of $85,261.00. In submissions, the father argued that this projection was not realistic as he would not be paid for the approximate two-weeks that he will be attending his criminal trial in December 2019.

[51] The Applicant father’s pay statement dated October 13, 2019 reveals the following:

a. His year to date income as at October 13, 2019 was $65,634.90;

b. His hourly rate of pay is $37.50/hr.

[52] The Applicant father did not file an updated sworn Financial Statement as required by the Family Law Rules.

[53] I understand that the Applicant father is currently paying Table child support in the sum of $685.00 per month based upon his 2017 gross annual income of $73,432.00 and is contributing 60% of the total cost of J.J.D.’s agreed-upon s. 7 expenses. I also understand that there is the potential that the father may have overpaid Table child support in 2018, however the issue of a retroactive adjustment is not before me.

[54] I accept that the father’s projected 2019 income will be slightly higher than the income he earned in 2017. Even if the father only worked eight more 40 hour weeks in the 2019 calendar year after the October 13, 2019 pay period, without inclusion of any overtime hours he would anticipate additional earnings of $12,000.00. When added to his 2019 year-to-date sum of $65,634.90 this amount totals approximately $80,000.00. I am not inclined to adjust the parties’ respective 60%/40% contribution to J.J.D.’s s. 7 expenses at this time, as is appears that there may be issues of income imputation which should be explored more fully at trial with a fulsome evidentiary record.

[55] As such, on a without prejudice basis as quantum and retroactivity, commencing November 1, 2019 the Applicant father shall pay:

a. Table child support of $745.00 per month to the Respondent mother, on behalf of the child J.J.D., born […], 2010, in accordance with the Federal Child Support Guidelines based upon an estimated 2019 gross annual income of $80,000.00; and

b. 60% of the child’s reasonable s. 7 expenses.

Life Insurance

[56] The Respondent mother seeks an Order requiring the Applicant father to obtain additional life insurance coverage. She asserts that the coverage in place at present is insufficient to secure his total child support obligation. The Respondent mother requests that the Applicant be ordered to obtain further coverage to a total face value of $71,357.00 in accordance with Divorcemate software Life Insurance Estimates provided.

[57] The jurisdiction of the child support claims in this proceeding is the Divorce Act. Under the Divorce Act, a support order is not automatically binding upon a payor’s Estate. However, the court has jurisdiction to Order such a binding obligation by way of explicit language to this effect: See Linton v. Linton, 1 O.R. (3d) 1 (ONCA).

[58] The court’s jurisdiction to Order security for child support is found in s. 15.1(4) of the Divorce Act. The court’s jurisdiction includes the authority to order a payor to obtain additional insurance, however in ordering a payor to obtain a new or additional policy the court should proceed cautiously and have sufficient evidence of the payor’s insurability and the cost of available insurance: Katz v. Katz, [2014] ONCA 606 at para. 74.

[59] There is no evidence of the payor’s insurability or the cost of available insurance on the record before the court. The Applicant father’s sworn Financial Statement reveals a net worth in excess of the additional coverage sought by the Respondent mother. The parties intend to attend at Questioning. The issue of life insurance coverage may be explored more fully at a later date, with the benefit of a complete evidentiary record.

[60] As such, on a Temporary basis, the Respondent mother’s request that the father obtain additional life insurance coverage is dismissed, and the Applicant father’s child support obligation shall be binding upon his Estate.

C. Procedural Issues

Form 35.1 Affidavit

[61] The mother requests an Order that the Applicant father file an updated Form 35.1 Affidavit to reflect his outstanding criminal charges. Rule 35.1 of the Family Law Rules requires any individual claiming custody or access to complete a Form 35.1 Affidavit in Support of Claim for Custody or Access. Subparagraph 35.1(7) requires parties to correct and update the Affidavit where there has been a change in the information provided.

[62] The father’s Form 35.1 was sworn on October 18, 2018. On the second page of the form the Applicant father affirmed that he was charged with Assault Level 1 (the charge was laid the previous day). He appears to have appropriately filled out the portions pertaining to next court date and terms of release.

[63] The Respondent mother’s Affidavit materials advise that on November 19, 2018 three additional charges of historic sexual assault were laid. She has provided the court with a copy of the Information/Promise to Appear which confirm that the father has been charged with three counts of sexual assault against the Respondent, with two incidents alleged to have occurred between April 1, 2013 and April 30, 2013 and one incident alleged to have occurred between April 1, 2014 and April 30, 2014 in Hamilton, Ontario. The terms of release appear to have remained unchanged.

[64] The purpose of the Form 35.1 Affidavit is to ensure that the court has up-to-date information about each party’s plan in order to make a custody or access order in the best interests of a child. The mother holds the father to a strict updating of his Form 35.1 to advise the court of this updated information. However, at present, the details of these criminal charges are fully known to the court by way of Affidavit materials filed. As such, the Applicant father shall file an updated Form 35.1: Affidavit in Support of Claim for Custody or Access immediately following the disposition of his outstanding criminal charges.

Questioning

[65] The Respondent mother seeks an Order for questioning of the Applicant father, and that this questioning be conducted by November 30, 2019. The Applicant father is agreeable to questioning but requests that it follow his criminal trial, scheduled for the first two weeks of December. The mother argues a further delay of one month is not warranted, and correctly asserts that any information discovered under Questioning would be protected by the deemed undertaking rule.

[66] The rules pertaining to questioning of witnesses are found in Rule 20 of the Family Law Rules, the relevant portions of which are as follows:

(5) Order for Questioning or Disclosure – The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in a case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[67] In my view, the Applicant father’s request to schedule the questioning at a date following his criminal trial is reasonable. I am not satisfied that it would be unfair to the Respondent mother to delay the questioning by one further month; this is not an unacceptable delay. I note that no further case management steps have been scheduled by the parties, there are now temporary orders in place as to both timesharing and support, and the timelines have been extended by 180 days. I do not accept that there is a level of urgency to this questioning which necessitates that it must be completed by November 30, 2019. If there is time-sensitive information which must be shared in advance of November 30, 2019, the Respondent mother can make a written request for same. As such, there shall be an Order permitting the mutual Questioning of the parties to follow the disposition of the Applicant father’s criminal proceedings. In the event that the Applicant father’s criminal trial is adjourned or delayed this matter may be revisited.

Conclusion

[68] For the reasons outlined above, there shall be a Temporary Order as follows:

1. Each party is authorized to make day-to-day parenting decisions in relation to the child J.J.D., born […], 2010, during his or her respective parenting time with the child, without the consent or authorization of the other party. Day-to-day parenting decisions shall include, but are not limited to, the right to enroll the child in after-school care and extracurricular activities to the extent that this does not infringe upon the other party’s scheduled parenting time.

2. Commencing November 1, 2019, the Applicant father shall pay:

a. Table child support of $745.00 per month to the Respondent mother, on behalf of the child J.J.D., born […], 2010, in accordance with the Federal Child Support Guidelines based upon an estimated 2019 gross annual income of $80,000.00; and

b. 60% of the child’s reasonable s. 7 expenses.

3. The Applicant father’s child support obligation shall be binding upon his Estate.

4. The Applicant father shall file an updated Form 35.1: Affidavit in Support of Claim for Custody or Access forthwith upon the disposition of his pending criminal charges.

5. There shall be a mutual order for questioning to follow the disposition of the Applicant father’s pending criminal charges.

6. All other motions are dismissed.

7. If the parties are unable to agree on costs, written submissions may be submitted as follows:

a. By the party seeking costs on or before December 16, 2019, not exceeding two pages in length plus bill of costs;

b. By the party responding to the request for costs on or before January 6, 2020, not exceeding two pages in length plus bill of costs; and,

c. Any reply on or before January 20, 2020, not exceeding one page.

d. If costs submissions are not received by December 16, 2019 the issue of costs will be considered settled.

Bale J.

Date: November 13, 2019