Buckley v. Blackwood, 2019 ONSC 6918

OSHAWA COURT FILE NO.: FC17-1713

DATE: 20191209

ONTARIO SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Michelle Donna-Ann Buckley

Applicant

– and –

O’Neil Constantine Blackwood

Respondent

Self-Represented

Self-Represented

HEARD: November 25, 2019

REASONS FOR DECISION

WOODLEY J.:

OVERVIEW

OVERVIEW

1By this Motion to Change the Final Order of Justice J. P. Nevins dated December 18, 2013, the Applicant seeks:

a. An Order for the following residential/access arrangements for the children: that Bethany Grace Blackwood, born August 12, 2010, not be required to have overnight out of country visits with O’Neil Blackwood (paragraph 4); and

b. Disclosure regarding paragraph 8 and 10 of existing court order.

2By the Respondent’s Response to the Motion to Change, the Respondent seeks:

a. An Order dismissing the Motion to Change;

b. Revised access in accordance with a proposed schedule; and

c. That the order for child support dated December 18, 2013 be terminated due to hardship caused by the additional travel costs to exercise access in Canada from the United States.

FACTS

FACTS

3The Applicant Michelle Donna-Ann Buckley (Michelle) and the Respondent O’Neil Constantine Blackwood (O’Neil) were married in 2008 and were divorced on June 13, 2013.

4Michelle and O’Neil had one child together, being Bethany Grace Blackwood (Bethany), who was born on August 12, 2010.

5Despite the fact that Michelle and O’Neil were married to one another, and had a child together, they never resided together.

6Michelle has resided in Ajax, Ontario and the O’Neil has resided in Brooklyn, New York, U.S.A. and they never resided together.

7Bethany was diagnosed with triple XXX syndrome at six months inter-utero. Following birth, Bethany was subsequently diagnosed with autism spectrum disorder (ASD), learning disability, attention deficit hyperactivity disorder (ADHD), and anxiety.

8An application for custody, access, and child support was commenced by Michelle following the birth of the child.

9The application was resolved on consent by Final Order of Justice J.P. Nevins, dated December 18, 2013, that dealt with the issues of custody, access and child support, but made no provision for payment of s. 7 expenses.

10At the date of the original order the Michelle was employed as a dental hygienist and the O’Neil was employed as a physical rehab assistant.

11Michelle commenced the within Motion to Change on October 13, 2017, which Motion sought to vary the access provisions of the Order and sought disclosure of O’Neil’s income, tax returns and notices of assessments as required by paragraphs 8 and 10 of Justice Nevins’ Order.

12On January 31, 2019, by way of a mediated consent filed with the court, Justice Rowsell, varied the Respondent’s access to the child. Under the current access regime the Respondent O’Neil has access to the child Bethany on reasonable notice including but not limited to the following:

a. Every other weekend commencing March 9, 2019, starting on the Saturday of each weekend between the hours of 10 am and 1 pm. The Respondent shall advise the Applicant by 12 noon the day prior to the commencement of the access as to the estimated actual time of the access exchange;

b. In the event the Respondent is unable to exercise access he shall provide a minimum of 10 days’ notice of each cancellation;

c. The Respondent’s weekend access shall normally be until Sunday at 7 pm, however, if the Monday is a holiday his access shall include the holiday Monday until 7 pm;

d. The Respondent shall have two vacations outside of Canada with the child, one in July and one in August of each year up to 10 consecutive days each. There shall be at least 10 days between any two vacation periods. The Respondent shall advise no later than June 15th of each year of what vacation periods he wishes to schedule and the Applicant shall not unreasonably withhold her consent. The Respondent shall provide complete itinerary to the Applicant at least 14 days prior to the commencement of any such vacations;

e. The regular access schedule shall be adjusted so that the Applicant shall have the child for Mother’s Day weekend and the Respondent shall have the child for Father’s Day weekend;

f. In odd numbered years the Applicant shall have the child in her care for the first 8 days of the Christmas school break and the Respondent shall have the child in his care for the next 8 days of the break, this schedule shall reverse in even numbered years;

g. The Respondent shall have access every other Easter from Thursday evening until Tuesday morning when the Respondent shall return the child to school. The Respondent may travel with the child to the United States of America, but she shall be back in Canada for her bedtime of 8:30 pm on the Monday of Easter week-end;

h. The Respondent shall have access to the child every other American Thanksgiving which may include time in Buffalo, New York from Thursday evening until Sunday evening. The Respondent shall be responsible for delivering the named child to, and picking her up from school on the Friday of such a weekend;

i. Unless otherwise agreed the parties shall exchange the child for her access visits at the TTC station at the Scarborough Mall.

13The sole item outstanding from Michelle’s Motion to change is found at paragraph 10 of the Notice of Motion for disclosure regarding paragraph 10 of existing court Order.

14However, despite the absence of any request for readjustment of child support and/or for payment of section 7 expenses, Michelle’s submissions were focused on these two issues.

15The sole item outstanding from O’Neil’s Response to the Motion to Change is his request that the order for child support dated December 18, 2013 be terminated due to hardship caused by the additional travel costs to exercise access in Canada from the United States.

16O’Neil’s submissions did not seek to terminate child support instead he asked the Court to consider the expenses incurred by him when reviewing whether to apply any retroactive adjustment to child support and with respect to payment of the section 7 expenses.

ISSUES

ISSUES

17The issues to be determined by me on this Motion for Change are as follows:

a. Does the request for disclosure by the Applicant as contained in her Motion to Change and/or the request to terminate child support by the Respondent as contained in his Response entitle the Court to vary the child support Order of Justice Nevins dated December 18, 2013?

b. If child support is varied, should it be varied retroactively, or only on a go forward basis?

c. Is the Applicant entitled to claim contribution for payment of past, present and future section 7 expenses without seeking such relief by the Motion to Change?

THE LAW

The Requirements for Compliance with the Family Law Rules

THE LAW

18The “primary objective” of the Family Law Rules is to enable the court to deal with cases justly.

19“Dealing with a case justly” includes:

a. Ensuring that the procedure is fair to all parties;

b. Saving expense and time;

c. Dealing with the case in ways that are appropriate to its importance and complexity; and

d. Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

20The court is required to apply the Family Law Rules to promote the primary objective and the parties are required to help the court promote the primary objective.

The Law Regarding Variation of Child Support

The Law Regarding Variation of Child Support

21Section 14 of the Ontario Child Support Guidelines (CSG) defines the circumstances that constitute a change of circumstances that give rise to a variation order in respect of a child support order.

22Pursuant to s. 14 of the CSG, as they apply to the present case, the following constitutes a change of circumstance that gives rise to the making of a variation order:

a. 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.

23This means that if the actual income of the Respondent differs from that contained in the original Order and the actual income would result in a different table amount being ordered for support, this is a change of circumstances sufficient to vary the child support under the terms of the original Order.

24In the present circumstances, pursuant to section 37 (2.1) of the Family Law Act (FLA), where the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines, the court may,

a. Vary a term of the order, prospectively or retroactively; and

b. Make any other order for the support.

Section 7 of the Child Support Guidelines

Section 7 of the Child Support Guidelines

25The GSG provides that the amount of an order for support of a child is

a. The amount set out in the applicable table; and

b. The amount, if any, determined under section 7.

26Where medical or dental insurance coverage for the child is available to either parent through his or her employer, at a reasonable rate, the court may order that coverage be acquired or continued (s. 6 CGA).

27Pursuant to s. 7 (1) of the CGA, in an order for the support of a child, the court may, on the request of either parent, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expenses in relation to the child’s best interest and the reasonableness of the expenses in relation to the means of the parents and those of the child and to the spending pattern of the parents in respect of the child during cohabitation:

a. Child care expenses incurred as a result of the custodial parent’s employment, illness, disability, education or training for employment;

b. That portion of the medical and dental insurance premiums attributable to the child;

c. Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription; drugs, hearing aids, glasses and contact lenses;

d. Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

e. Expenses for post-secondary education; and

f. Extraordinary expenses for extracurricular activities.

28For the purposes of s. 7 (1)(d) and (f) of the CSG, s. 7 (1.1) defines “extraordinary expenses” as:

a. Expenses that exceed those that the parent requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s income and the amount that the parent would receive under the CGA table.

29Where paragraph 7 (1.1.) of the CSG is not applicable, expenses that the court considers are extraordinary considering:

i. The amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount the parent would receive under the applicable table;

ii. The nature and number of the educational programs and extracurricular activities;

iii. Any special needs and talents of the child,

iv. The overall cost of the programs and activities, and

v. Any other similar factors that the court considers relevant.

30The guiding principle in determining the amount of an expense is that the expense is shared by the parents in proportion to their respective incomes. However, the court has the discretion to apportion the section 7 expense in a different manner than pro-rata to incomes, depending on the circumstances of the case: See Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. No. 4425.

31An order for contribution to special and extraordinary expenses under s. 7 of the CSG is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231.

32The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances: See Park v. Thompson, 2005 CanLII 14132 (ONCA).

33The onus to prove a special expense and the costs associated with it rests on the applicant: See Postma v. Postma (2008), 2008 CarswellOnt 771 (Sup. Ct.).

Availability of Retroactive Adjustment

Availability of Retroactive Adjustment

34As to the retroactive effect of an order varying support, fairness requires that the court balance the need to readjust past support with the need to ensure that support continues on an uninterrupted basis.

35On a request for retroactive support (including section 7 expenses) the court shall consider the following:

a. Whether there is a reasonable excuse why support (or variance) was not sought earlier;

b. Whether there is blameworthy conduct on behalf of the payor;

c. The circumstances of the child to determine whether such an award is justified, including the child’s needs at the time the support should have been paid;

d. Hardship occasion by a retroactive award.

ANALYSIS

Authority to Vary the Child Support Order dated December 18, 2013

ANALYSIS

36In response to the Michelle’s Motion to Change, the Respondent filed his 2014 – 2018 ITRs and Notices of Assessment from IRS and provided a copy of his most recent 2019 paystub. To the extent that Michelle requested disclosure – such relief has been satisfied.

37Following completion of the mediated settlement dealing with the access issues, and on June 17, 2019, Michelle filed a financial statement that attached, for the first- time receipts relating to various expenses for Bethany that Michelle claimed were section 7 expenses. However, Michelle did not amend her Motion to Change to request payment of the expenses.

38At the hearing of the Motion to Change, Michelle sought that the child support Order be varied back to 2014 and adjusted to reflect the Respondent’s actual income earned. Michelle also sought payment of certain expenses paid by her for Bethany’s activities claimed as section 7 expenses on a retroactive and ongoing basis.

39Despite O’Neil’s request to terminate child support by his Response to the Motion to Change, he did not advance this argument and instead sought to maintain child support at the current level. O’Neil argued that he would experience great hardship if there was an order for payment of retroactive child support or if child support were increased. As for payment of the claimed section 7 expenses, O’Neil consented to contribute to some of the expenses and indicated that he had insurance through his employment that may allow payment of some of the requested expenses.

40For the purposes of this Motion to Change, considering the primary objective of the Family Law Rules, despite faulty pleadings, a just disposition of this case will include consideration of whether the child support contained in the original Order should be varied and whether the Order should be amended to provide for payment of section 7 expenses.

41Proceeding in this manner despite the frailties contained in the Motion to Change and Response, will save time and expense, allow the procedure to be fair to all parties, and will deal with the case in an appropriate manner without causing undue delay or duplication.

Variance of Child Support to Provide for Retroactive Child Support

Variance of Child Support to Provide for Retroactive Child Support

42The Respondent’s actual income for the period 2014 to present is as follows: 2014: $24,456; 2015 $34,117; 2016: $36,030;2017: $40,101; 2018: $40,683; and 2019: $40,683.

43O’Neil argued that any adjustment of his child support would create undue hardship upon him as he is required to exercise his access (every other week-end plus holidays) in Canada despite the fact that he lives in the United States. This causes O’Neil to expend an inordinate amount of money to enjoy his access visits with his daughter. O’Neil testified that he shares a close and loving relationship with his daughter. He further testified that he has sacrificed much to ensure that his relationship continues. O’Neil lives in a basement apartment at his parent’s home in Brooklyn, New York, so that he can afford to exercise access to his daughter. O’Neil filed several receipts and documents, including his financial statement, that support his submissions regarding hardship.

44Michelle seeks retroactive child support to 2014 and claims that the Respondent enjoys a higher standard of living than her and that he travels regularly on vacation. Michelle claims that the Respondent is a “Disney Dad” who spends his money spoiling their daughter while she toils to make ends meet and pay for the child’s basis needs. Michelle seeks retroactive child support to 2014 – and otherwise seeks an adjustment in ongoing child support to reflect O’Neil’s actual income despite not having made a claim for retroactive support (or a variance) by her Motion to Change.

45Having heard and considered Michelle and O’Neil’s evidence in this regard and having reviewed the various receipts and financial documents filed, including the parties’ financial statement, I accept and am satisfied that O’Neil is required to expend great amounts of money to exercise regular access with his daughter and to attend the court proceedings in Ontario.

46I am greatly concerned that any Order by this court for a retroactive adjustment of child support will cause further undue hardship to O’Neil and will affect his ability to continue his ongoing access visits with his daughter.

47I have therefore determined that there shall be no retroactive adjustment to the child support payable by O’Neil pursuant to the original child support Order dated December 18, 2013.

Variance of Ongoing Child Support

Variance of Ongoing Child Support

48With respect to the issue of payment of ongoing child support for the period January 1, 2010, forward, I am of the view that while O’Neil has established hardship as it applies to the retroactive effect of any child support Order, insufficient evidence was provided with respect to hardship on an ongoing basis.

49For this reason, the child support order dated December 18, 2013, shall be varied to reflect the table amount of child support required to be paid based on O’Neil’s 2019 income of $40,683 USD which converted to Canadian Dollars @ 1.3 equals $52,887 per year for child support payable of $488 per month (CDN).

Section 7 Expenses

Section 7 Expenses

50As for Michelle’s (oral) request for payment of section 7 expenses, the original Order dated December 18, 2013, did not require contribution by O’Neil for section 7 expenses nor did Michelle request contribution by her Motion to Change.

51Further, many of the expenses do not qualify as being “extraordinary expenses” as contemplated by section 7. As such, I shall only require O’Neil to pay Michelle for the following specific expenses which O’Neil agreed to contribute 50% on consent basis. The total re-payment due by O’Neil to Michelle totals $996.50 made up as follows:

a. ½ of the Calvary Day Camp ($125) of $62.50;

b. ½ of the little Critter Camp ($176) of $88;

c. ½ of the skating invoice ($371) of $185.50;

d. ½ of the Ajax Pre-Can skate ($149) of $74.50;

e. ½ of the Private Swimming Lessons ($178) of $89; and

f. Orthotics ($549 and $495) of $522.

Payment of Future Section 7 Expenses

Payment of Future Section 7 Expenses

52With respect to Michelle’s request that O’Neil contribute towards future section 7 expenses, I first note that O’Neil has medical and health benefit insurance available for his child through his employment – which has not yet been obtained.

53When I queried why O’Neil hadn’t added Bethany to his medical insurance coverage, he advised that he didn’t have a copy of her birth certificate. When I requested that Michelle provide a copy of the birth certificate to O’Neil she advised that she already told O’Neil that he could obtain the certificate online.

54A rather lengthy and frustrating discussion ensued regarding this issue.

55Clearly, Bethany must be added as dependent member to O’Neil’s health and medical benefits through his employment.

56As the parties have not been able to deal with the issue of insurance in a reasonable or rational manner, I hereby Order as follows:

a. the Applicant Michelle Buckley shall take all necessary steps to transfer and deliver to the Respondent O’Neill Blackwood, a copy of the birth certificate of the child Bethany Grace Blackwood, date of birth August 12, 2010 – both long form and short form - within 10 days of the date herein;

b. the Respondent O’Neil Blackwood shall within 20 days of the date herein take all necessary steps to add his dependent daughter onto his employment health and medical benefits and shall complete such documents and pay such amounts as may be required to add Bethany Grace Blackwood, date of birth August 12, 2010, to the Respondent’s benefits;

c. the Respondent shall, within 30 days of the date herein, provide written confirmation to the Applicant from his employer or health and medical benefits provider, that their daughter Bethany Blackwood, has been added to the Respondent’s health and medical benefits.

57Following the steps outline above at paragraph 56, the Respondent O’Neil Blackwood shall make application to his health and medical benefits to seek approval for coverage for Bethany of the ABA therapy. In this regard Michelle shall within 10 days of the date of this Order provide all necessary documents, medical information and estimates relating to the ABA therapy to O’Neil who shall take all necessary steps to submit a claim for payment of the therapy and/or services. O’Neil and Michelle shall cooperate and work together in the gathering of necessary information and documents to seek coverage through insurance.

58In the event that the ABA therapy expense is not approved and/or is paid in part – the cost or remaining for one session (13 weeks) only shall be divided 50/50 to be paid by each of the parties, with O’Neil receiving a yearly credit towards before contribution on account of the amount required to be expended by him to continue insurance coverage for Bethany.

59Once Bethany has been added to the Respondent’s medical and health insurance benefits, all future s. 7 expenses shall be submitted by Michelle to O’Neil for submission to the health and benefit provider for contribution and/or repayment within 5 days of receipt and O’Neil shall provide proof of submission to the insurer to Michelle. Any funds received by O’Neil from the insurer for repayment of the s. 7 expenses will be remitted to Michelle within 5 days of receipt.

60In the event that payment of any requested section 7 expenses are not approved by the Respondent O’Neil’s insurance, the parties will only contribute to Bethany’s special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent.

DISPOSITION AND ORDER

DISPOSITION AND ORDER

61For the reasons for decision above, I hereby Order as follows:

a. The Order of Justice Nevins dated December 18, 2013, is hereby varied to delete paragraph 9 therein and to replace it with the following paragraph 9:

i. The Respondent O’Neil Blackwood shall pay child support to the Applicant Michelle Buckley for the support of the child Bethany Grace Blackwood, born August 12, 2010, in the amount of $488 (CDN) per moth, commencing January 1, 2020. This amount is in accordance with the Ontario Child Support Guidelines for one child and based on the average income of the payor at $40,401 USD, which which converted to Canadian Dollars @ 1.3 equals $52,887 per year for child support payable of $488 per month (CDN).

b. The Respondent shall pay the sum of $996.50 to the Applicant on account of a 50% contribution to re-imbursement of agreed upon section 7 expenses, said sum to be repaid at the rate of $50 per month commencing June 1, 2020, until repaid in full.

c. the Applicant Michelle Buckley shall take all necessary steps to transfer and deliver to the Respondent O’Neill Blackwood, a copy of the birth certificate of the child Bethany Grace Blackwood, date of birth August 12, 2010 – both long form and short form - within 10 days of the date herein;

d. the Respondent O’Neil Blackwood shall within 20 days of the date herein take all necessary steps to add his dependent daughter Bethany Grace Blackwood, born August 12, 2010, onto his employment health and medical benefits and shall complete such documents and pay such amounts as may be required to add Bethany Grace Blackwood to his medical and health benefits;

e. the Respondent shall, within 30 days of the date herein, provide written confirmation to the Applicant from his employer or health and medical benefits provider, that their daughter Bethany Blackwood, has been added to the Respondent’s health and medical benefits;

f. the Respondent O’Neil Blackwood shall make application to his health and medical benefits to seek approval for coverage for Bethany of the recommended ABA therapy. In this regard the Applicant Michelle shall within 10 days of the date of this Order provide all necessary documents, medical information and estimates relating to the ABA therapy to the Respondent O’Neil who shall take all necessary steps to submit a claim for payment of the therapy and/or services, within 10 days of Bethany being added to his medical and health benefits. The Applicant and Respondent shall cooperate and work together in the gathering of necessary information and documents to seek coverage through insurance.

g. In the event that the ABA therapy expense is not approved and is paid in part – the cost or remaining for one session (13 weeks) only shall be divided 50/50 to be paid by each of the parties, with O’Neil receiving a yearly credit towards before contribution on account of the amount required to be expended by him to continue insurance coverage for Bethany. Following completion of the one session determination of whether any further sessions shall be engaged shall depend on the report of the therapist and the consent of the parties.

h. Once Bethany has been added to the Respondent’s medical and health insurance benefits, all future s. 7 expenses shall be submitted by the Applicant Michelle to the Respondent O’Neil for repayment and/or pre-approval for insurance coverage to the Respondent O’Neil who shall submit any requests for contribution or repayment to his insurer within 5 days of receipt and will provide proof of submission to the insurer to Michelle.

i. In the event that payment of any requested section 7 expenses are not approved by the Respondent’s insurance, the parties will only contribute to Bethany’s special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent.

62Subject to any Offers to Settle exchanged between the parties that may affect costs, as the results were mixed there shall be no costs ordered.

63If either party wishes to argue costs, the party seeking costs shall have 10 days to serve and file written submissions limited to three pages with a Bill of Costs and Cost Outline attached. Any Responding Party shall have 5 days from service upon them to serve and file a Response limited to three pages with a Bill of Costs and Cost Outline attached. Any Reply is to be served and filed within 3 days from service of the Response limited to one page.