Court File and Parties

COURT FILE NO.: FC-12-549-2 DATE: 2020/07/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KEVIN MICHAEL GUERTIN Applicant – and – MELANIE MARIE-PAULE DUMAS Respondent

Counsel: Fan MacKenzie, for the Applicant Maria Ilie-Draga as agent for Tanya Davies, for the Respondent Susan Galarneau, for the child, Mayla Guertin

HEARD: January 9 and April 30, 2020

AMENDED RULING on motioN TO CHANGE

The text of the original Ruling on Motion to Change of June 29, 2020 was corrected on July 10, 2020, in the title of proceeding and the explanation of the correction is appended.

Corthorn J.

Introduction

[1] The parties have one child together: Mayla Guertin, born August 7, 2009. The father commenced an application in 2012 to deal with custody, access, child support, and other issues. In March 2015, Justice Polowin made a final order on the consent of the parties (“the 2015 Order”).

[2] In 2016, the mother brought a motion to change. That proceeding was concluded by another consent order: Justice Hackland’s November 2016 order addressed counselling for the parties and potentially for Mayla, an RESP for Mayla, and a change to the term of the 2015 Order respecting communication between the parties.

[3] In July 2017, the father brought a motion to change. Both parties were unsuccessful in their respective requests for a change from shared/joint custody to sole custody. The mother was ordered to return Mayla to the catchment area of the grade school Mayla had been attending and continues to attend (“the 2017 Order”).

[4] The father now brings another motion to change, and the mother brings a cross-motion to change (collectively, “the Motions”). Changes sought relate to custody, the parenting schedule, Mayla’s education, child support, and Mayla’s extra-curricular activities.

[5] To their credit, on the return of the Motions, the parties resolved numerous issues in dispute. The agreement reached is reflected in the final order dated January 16, 2020 (“the 2020 Order”). The terms of the 2020 Order include the following:

• That there has, since the 2015 Order, been a material change in circumstances;
• That from September 1, 2018 forward, the father has had and shall continue to have primary care of Mayla;
• A regular, weekly parenting schedule providing for Mayla’s time with the mother;
• A schedule for major holidays;
• A term related to counselling for Mayla; and
• That the expenses for Mayla’s involvement in a cheerleading program fall within the scope of expenses under s. 7 of the Divorce Act, R.S.C. 1985, c. 3.

[6] As of the return of the Motions, both parties were employed in the restaurant industry. Subsequent to the return of the Motions, the COVID-19 pandemic struck. To ascertain what impact, if any, the pandemic had on the parties’ respective employment, the Court convened a telephone case conference.

[7] The case conference was conducted in early April of 2020. Both parties advised that they were no longer working. They were each seeking either employment insurance or another form of benefit potentially available because of COVID-19.

[8] To their credit once again, at the case conference the parties agreed to waive child support for April to August 2020, both inclusive.

[9] The following issues remain to be determined on the Motions:

1. Will the parties continue to share joint custody or will one of the parties be granted sole custody of Mayla?
2. What is the mother’s income for the purposes of child support from September 1, 2018 forward and her contribution to s. 7 expenses?
3. What is the father’s income for the purpose of his contribution to s. 7 expenses?
4. What amount of child support is the mother to pay from September 1, 2018 forward?
5. Will Mayla participate in a recreational or competitive cheerleading program in the 2020-21 season?
6. On what basis will the parties contribute to s. 7 expenses?

[10] The relevant, additional background information is addressed below on an issue-by-issue basis.

Issue No. 1 – Joint v. Sole Custody

a) Positions of the Parties

[11] The father’s position is that the court is required to consider the issue of custody afresh: see Thompson v. Drummond, 2018 ONSC 1975, at para. 43, quoting from Gordon v. Goetz, [1996] 2 S.C.R. 27, at para. 17. The father submits that, if the court considers the issue of custody afresh, it will find that

• the mother has repeatedly demonstrated a disregard for court orders,
• the mother is an unreliable communicator with the father and with others about Mayla, and
• the mother has repeatedly used Mayla as a pawn or an element of retaliation when the mother did not get her way.

[12] The father submits that these and other factors demonstrate that joint custody has not been and will not be workable in the future. He asks for sole custody of Mayla.

[13] The mother acknowledges that she has historically been in breach of court orders. Her position is that the breaches were not premeditated.

[14] The mother denies that the parties have communication difficulties other than as relates to their disagreement over the type of cheerleading program in which Mayla participates. The mother’s position is that the father incorrectly equates the parties’ inability to agree in that regard with an inability to communicate generally. The mother distinguishes between the two and submits that she alone is not to be faulted for the parties’ inability to agree with respect to a cheerleading program for Mayla.

[15] The mother submits that, while the communication between the parties is less than perfect, their communication (a) is child-focused, (b) demonstrates that both parties are well-intended with respect to Mayla, and (c) demonstrates that the parties are capable of working together to raise their daughter. The mother asks that the existing shared/joint custody continue.

b) The Law

[16] A dispute with respect to custody is resolved on the basis of the best interests of the child. Subsections 24(2) - (5) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) set out the factors to be considered when addressing the child’s “needs and circumstances”, including a party’s past conduct and whether a party has been violent or abusive.

[17] The ultimate aim of the court when determining issues of custody and access is “to choose the course which will best provide for the healthy growth, development and education of the child so that [they] will be equipped to face the problems of life as a mature adult”: K.(K.) v. L.(G.), [1985] 1 S.C.R. 87, at para. 101.

[18] For an award of joint custody to be made, “[t]here must be some evidence before the court that, despite their differences, the parents are able to communicate with one another effectively”: Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11. Conversely, joint custody “should not be ordered where there is poor communication and the parents fundamentally disagree on too many issues affecting the child’s best interests”: Mitchell v. Carson, 2012 ONCJ 398, at para. 62.

c) Analysis

[19] This analysis is performed in two steps. First, I consider whether the parties meet the criteria for a continuation of the shared/joint custody ordered in 2015. Second, I consider what order with respect to custody is in Mayla’s best interests if the parties no longer meet that criteria.

i) Is Shared/Joint Custody Possible?

[20] Turning to the first step in the analysis, I find for the following reasons (a) that the parties are unable to communicate effectively about Mayla despite their differences, and (b) that they fundamentally disagree on too many issues – both big and small – affecting Mayla’s interests.

[21] Effective communication requires something more than clearly stating one’s view or clearly imparting information. For communication to be effective, it must be well-timed, the communicator must understand his or her audience, and the communicator must appreciate the context within which the relevant information is being communicated.

[22] In his submissions, the father attempted to portray the mother as the only poor communicator. There is, however, ample evidence demonstrating that both parties have been and remain ineffective communicators.

[23] Listed below are but a few examples of the parties’ inability to communicate effectively. The examples are taken from the four-volume record on the Motions. That record includes ten affidavits: seven from the parties; two from the father’s spouse, Ashley Guertin; and one from the maternal grandfather.

[24] A February 2018 exchange between the parties provides an example of the poor timing of their communication. That exchange related to Mayla’s trip to Kingston that month for a competitive cheerleading (“Cheer”) competition. A number of weeks prior to the date of the competition, the father and Ms. Guertin made arrangements to take the Friday afternoon off work, travel with Mayla to Kingston that afternoon, and stay with her in a hotel overnight. Yet, the father waited until less than a week prior to the date of the competition to (a) inform the mother of those plans, and (b) address with the mother the impact of those plans on her parenting time, which was to commence on the Friday after school.

[25] The mother responded by refusing to permit Mayla to be taken out of school early. The mother also refused, as an alternative, to drive Mayla to Kingston early on the Saturday morning of the competition. The dispute over this trip escalated beyond the parties and required the involvement of their respective counsel. The dispute is reflected in emails and letters that form a twelve-page exhibit to the father’s July 24, 2019 affidavit.

[26] In this instance, I find that both parties were ineffective communicators because they each failed to address the arrangements concerning Mayla’s participation in the Cheer competition in a timely manner.

[27] The same exchange provides an example of the parents’ collective failure to appreciate the context in which they were communicating at the time – specifically, about an event that was important to Mayla and for which she would have benefitted from their unequivocal and collective support. With Mayla having made the commitment to Cheer, it was the parties’ responsibility to support and guide Mayla through her participation in the activity. Instead, the parties allowed their personal animosity and disagreements about Cheer to impact their communication and detract from the discharge of their respective responsibilities to Mayla.

[28] The parties’ inability to communicate effectively is also demonstrated by their respective descriptions of disputes that arise between them when the exigencies of life result in one of them being a few minutes late for a pick-up or drop-off or requesting a last-minute change to the exchange location. Rather than viewing these events as unintended, everyday occurrences, one party often concludes that the other is being unreasonable. The stress created by the parties’ individual and collective inability to be flexible in the moment results in both a negative environment and a negative example for Mayla.

[29] I have selected but two examples of the parties’ poor and/or ineffective communication. Other examples are included in the evidence. A single example, on its own, may not be sufficient to support a finding of the parties’ inability to communicate in the context of this decision related to shared/joint custody versus sole custody. However, when the examples provided are considered collectively with the balance of the evidence, the evidence supports a finding that the parties are unable to communicate effectively for Mayla’s benefit.

[30] Given the foregoing, I find that the dynamic between the parties is such that they are unable to effectively communicate with one another despite their differences. I find, therefore, that shared/joint custody of Mayla is no longer in her best interests.

[31] I also agree with the father that the mother’s historical breach of court orders, an example of which is discussed below, demonstrates that the mother cannot be relied on to work in a collaborative and/or co-operative manner with the father.

ii) Mayla’s Best Interests

[32] I turn now to the second part of the analysis: a consideration of Mayla’s best interests in determining which of the parties shall have sole custody of Mayla. I begin with a review of the factors listed in s. 25(2) of the CLRA.

a) Love, affection and emotional ties

[33] Both parties love Mayla and have a good relationship with her. There have been periods in Mayla’s life when her relationship with the respective parties has been somewhat strained. I am satisfied, however, that Mayla enjoys her time with both parties at present. Mayla also has a good relationship with her stepmother. For at least a number of months, the mother had a new partner with whom Mayla appears to have had a reasonably good relationship. The mother’s relationship with that individual has, however, come to an end.

[34] Mayla lived with her mother as well as on her own, apparently, at her maternal grandparents’ home. The maternal grandparents are supportive of Mayla.

[35] Mayla’s extended family now includes her half-sister Raven; the father and Ms. Guertin had a baby girl in October 2019. Mayla is described by her counsel as a “proud big sister” to Raven.

[36] I find that this factor does not favour one party over the other.

b) Views and preferences of the child

[37] Mayla’s views and preferences, if any, with respect to custody are not before the court. I therefore find that this factor does not favour one party over the other.

c) Time in a stable home environment

[38] There is conflicting evidence concerning the extent to which the father was involved in Mayla’s life during her early years. For the purpose of the Motions, it is not necessary to resolve this evidentiary issue. More important are the uncontradicted facts with respect to the homes in which Mayla has resided, as well as the reasons for this residency, subsequent to the date of the 2015 Order.

[39] In summary, the evidence with respect to Mayla’s place of residence over time and the parenting schedule is as follows:

• In January 2016, the mother brought a motion to change the parenting schedule. She did so only two months after she consented to the schedule set out in the 2015 Order. The mother requested a reduction of the father’s parenting time from five to two nights in each 14-day rotation;
• In 2017, the mother moved, with Mayla, from her parents’ residence to a location outside of Ottawa and outside of the catchment area for the grade school that Mayla was attending. That move was made (a) without notice to the father, (b) without the father’s consent, and (c) contrary to the term of the 2015 Order governing mobility. This court found the mother to be in breach of the 2015 Order. She was ordered to return Mayla to the catchment area of her grade school: see Guertin v. Dumas, 2017 ONSC 4979; and
• The mother complied with the 2017 Order by returning Mayla to the relevant catchment area. Without notice to the father, however, the mother remained in a home outside of Ottawa and left Mayla at the maternal grandparents’ home (in the relevant catchment area). The mother did so at a time when she was the primary caregiver to Mayla.

[40] After the father learned that Mayla had been living without her mother at her maternal grandparents’ home, the parties agreed that Mayla would live with and be in the primary care of the father. That agreement is effective retroactive to September 1, 2018. As a result, Mayla has, for almost two years, been in the primary care of the father in a home shared with Ms. Guertin and, more recently, with Mayla’s half-sister Raven.

[41] The stability and consistency that Mayla has experienced in the primary care of the father for almost two years now, contrasts with Mayla’s experience in the primary care of her mother. The mother made unilateral decisions about where and with whom she and Mayla would live. For several years, the mother relied on either the maternal grandparents or her then-common-law partner for a home. The mother is not, at present, in a position to reliably provide a home for Mayla.

[42] I therefore find that this factor militates in favour of the father being granted sole custody of Mayla.

d) The provision of guidance, education, and the necessaries of life

[43] At present, both parties face economic uncertainty. Since February 2020 (i.e., before the COVID-19 pandemic) and for medical reasons, the mother has been unable to work. The father’s economic uncertainty arises from the impact of the COVID-19 pandemic on his employment in the restaurant industry. Both parties face financial uncertainty to one degree or another for the foreseeable future.

[44] There is, however, no evidence to indicate that either party will fail to provide Mayla with the necessaries of life when she is with them. Even if the mother is unable to provide a home for Mayla, the mother has a support network to which she can turn. The maternal grandparents have historically been supportive of Mayla and have permitted both the mother and Mayla to reside with them at times.

[45] With respect to Mayla’s education, the mother admits that, during her parenting time since September 2018, she has not always ensured that Mayla arrives at school on time on Monday mornings. The mother also admits that the father was not made aware of Mayla’s occasional absences from school on Mondays during this same period.

[46] Regardless of the mother’s explanation for this conduct, I find that her behaviour demonstrates a lack of understanding on her part of (a) the importance, generally, of Mayla’s education, (b) the need to set an example of self-discipline for Mayla, and (c) the collaborative effort required by the parties and Mayla’s teachers to support Mayla’s education.

[47] The mother’s inability to find personal stability gives me cause for concern. She may not have the emotional and/or psychological resources to both manage her life and, at the same time, provide the guidance to Mayla that is expected of a parent.

[48] It appears that, when Mayla resided with the maternal grandparents and the mother resided elsewhere, the mother involved Mayla in deceiving the father in this regard. Without making a specific finding on this point, conduct of this nature adds to the court’s concern over the mother’s inability to provide appropriate guidance, including setting a proper example.

[49] The father shares a home with Ms. Guertin, has the responsibility of a mortgage, and is responsible for two children. He has demonstrated the ability to look beyond his own needs, maintain an adult relationship for a number of years, and establish a physically stable home for his family.

[50] I find that this factor weighs in support of the father being awarded sole custody of Mayla.

e) Proposed plan for care and upbringing

[51] The parties agree that Mayla should continue her schooling with the Ottawa French Catholic School Board, at her current grade school, and at Garneau High School. Neither of the parties provided other details concerning a proposed plan of care and upbringing.

[52] Both parties addressed extra-curricular activities for Mayla, with the focus of their respective submissions being on Cheer.

[53] The father proposes that Mayla be permitted to continue with Cheer if she so chooses. He is prepared to underwrite the majority of the expenses for Mayla’s continued involvement in Cheer. The father has no objection to Mayla pursuing alternative activities if she wishes to do so.

[54] The mother reluctantly agreed, a number of years ago, to Mayla transitioning from recreational to competitive cheerleading. The mother is nevertheless concerned about the expenses associated with competitive cheerleading. She is also concerned that Mayla practices or attends competition during the mother’s parenting time. Lastly, the mother would like Mayla to pursue other activities so as to broaden her experience and explore new things.

[55] The issue of Mayla’s continued involvement in either a recreational cheerleading program or Cheer is addressed separately below.

[56] I find that this factor does not favour one party over the other.

f) Permanence and stability of the family unit

[57] For the reasons set out above under subsections (c) and (d), I find that the father is able to provide a permanent, stable home for Mayla. This factor also favours the father being awarded sole custody of Mayla.

g) Ability to act as a parent

[58] Both parties have had their shortcomings with respect to understanding what it means to be a parent. The substance and style of communication between them demonstrates that they both frequently fail to put Mayla first. The parties have both historically been unable to abandon their mutual animosity and lack of respect in service of Mayla’s best interests.

[59] Both parties must understand that Mayla has the “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focussed way and with the least amount of acrimony and stress”: Hamilton v. Guthro, 2014 ONSC 3569 (Ont. S.C.), at para. 354.

[60] None of the evidence suggests that Mayla suffers in any way when she is in the care of one party or the other. However, both parties have provided evidence of the difficulty Mayla has in dealing with what she observes and knows to be the acrimony between the parties.

[61] To discharge their respective obligations towards Mayla as her parents, the parties need to improve their communication on both large and small issues. If they can achieve some level of personal growth in that regard, they will each be a better parent to Mayla.

[62] I find that this factor does not favour one party over the other.

h) Relationship by blood or adoption order

[63] This factor is not relevant on the Motions.

d) Summary

[64] Based on the evidence and findings above, I find that it is in Mayla’s best interests that the father be granted sole custody of Mayla.

[65] The power that this custody order confers on the father is not a “right” granted to him for his own benefit: see Thompson, at para. 50. I am confident that the father recognizes the importance of Mayla’s relationship with her mother.

[66] The court expects of the father that he will, amongst other things,

a) appreciate the sense of loss experienced by the mother because of the change from shared/joint custody to sole custody in favour of the father,

b) conduct himself with the requisite degree of flexibility to ensure that the mother continues to have regular parenting time in accordance with the 2020 Order,

c) keep the mother informed of significant decisions respecting Mayla’s care, well-being, and upbringing, and

d) continue to encourage Mayla’s relationship with her maternal grandparents.

Issue No. 2 – The Mother’s Income

[67] The father asks the court to impute an income of $50,000 to the mother for 2018. To support that figure, the father relies on the mother’s reported income (including salary and tips) for 2018; the mother’s potential to earn more income if she were to work full-time hours; an allegation that the mother earned unreported income as a bookkeeper for her former boyfriend’s business; and the annual expenses identified in the mother’s financial statement.

[68] In the alternative, the father asks the court to impute an income to the mother of $30,000, with the salary and tips being $12,000 and $18,000 respectively. On that basis, the father submits that the ‘Guideline’ income is $36,295. The father provided a DivorceMate calculation in this respect. He did not cite the relevant provision of the Guidelines.

[69] The mother’s reported income on her 2018 tax return was slightly in excess of $25,000. The mother was working four days per week. She was, at the time, seeking to increase her work hours.

[70] The mother’s position is that there is no evidence to support a finding that she is either intentionally underemployed or intentionally unemployed: see Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 23. She submits that it is reasonable to impute an income of $30,000 for 2018, which accounts for salary and tips.

[71] The mother’s financial statement dated October 2019 includes the following information:

• Line 150 income in 2017 was $9,682;
• Gross income from all sources in 2018 was $12,800;
• Monthly income as a bartender in 2019 was $1,450 (salary plus tips), which equates to an annual income of $17,400; and
• In addition to her income from bartending, the mother received $635 monthly ($7,620 total) from the Child Tax Benefit or Tax Rebate.

[72] In her financial statement, the mother identifies expenses totalling $55,000, with very little assets from which to draw in funding those expenses. The total expenses are more than triple her stated income.

[73] I draw an inference and find that, to fund her lifestyle as described in her financial statement, the mother earns employment income in excess of $12,800 (the 2018 figure) and in excess of $17,400 (as per the financial statement). I find that it is reasonable to impute additional income to the mother. I do not, however, agree that it is reasonable to impute an income of $50,000.

[74] I agree with the mother that it is reasonable to impute income totalling $30,000. I find that there is insufficient evidence to look beyond the $30,000 and to break this figure down into specific amounts for salary and tips. The mother’s income for the purpose of child support calculations and s. 7 expenses in 2018 shall therefore be $30,000 – without any ‘allowance’ for a portion of the income being received in the form of tips.

Issue No. 3 – The Father’s Income

[75] In the 2015 Order, the father’s income was imputed to be $36,000. On the mother’s 2016 motion to change, her request to have a higher level of income imputed to the father was dismissed.

[76] The mother does not address the father’s income in either her notice of motion or her factum. On the return of the Motions, she did not request a change to the income imputed to the father. The father is not seeking any relief in relation to his income for the purposes of s. 7 expenses.

[77] The father’s income shall therefore remain as set out in the 2015 Order: $36,000.

Issue No. 4 – Child Support

[78] The father seeks child support from the mother from September 1, 2018 forward. In her notice of cross-motion, the mother asks that her child support obligations be the Table Amount based on her line 150 income from her 2018 tax return.

[79] There is no evidence to support a conclusion that the mother’s 2018 income should be anything other than $30,000 for the purpose of child support. The mother shall pay child support to the father from September 1, 2018 in the Guideline amount based on an annual income of $30,000. This amount is subject to paras. 2.14 – 2.16 of the 2015 Order with respect to a review of child support obligations.

[80] In the event that the parties are unable to agree on the amount of child support to be paid by the mother, they may contact the office of the Trial Co-ordinator to schedule a case conference before me respecting the steps to be taken to resolve that issue.

Issue No. 5 – Recreational or Competitive Cheerleading

[81] When Mayla first began participating in cheerleading as an extra-curricular activity, she did so at the recreational level. Approximately four years ago, with the reluctant agreement of the mother, Mayla began participating in Cheer.

[82] The only issues on the Motions about which Mayla’s views and preferences were made known to the court are those respecting Cheer. In that regard, I note that Mayla has, since 2017, been represented by the same counsel. Mayla is described by her counsel as a polite and respectful child, a “big fish” at her school, and “adamant” about continuing with Cheer. Mayla refers to Cheer as her “passion” and with both “excitement” and “pride”. Mayla has friends in Cheer and outside that community.

[83] The importance of Cheer in Mayla’s life is reflected in the submissions made on her behalf on the return of the Motions. It is also reflected in the submissions made on Mayla’s behalf before Master Fortier in August 2019. Mayla was aware of her parents’ court appearance on that date. She was reported to be “extremely stressed” by the prospect of not being able to return to Cheer for the 2019-20 season.

[84] On the return of the Motions, the court was informed that Mayla was once again aware of the court appearance and “extremely worried” that she might not be permitted to complete the 2019-20 competitive season. Mayla did not want to let her teammates down by leaving the team partway through the season.

[85] For the oral reasons given at the conclusion of argument on the Motions, the 2020 Order provides for Mayla to continue Cheer for the balance of the 2019-20 season. That season was undoubtedly cut short because of the COVID-19 pandemic. What remains to be determined is whether Mayla continues in Cheer or returns to a recreational-level program.

[86] The father is supportive of Mayla continuing with Cheer. He is prepared to share the cost of Cheer with the mother as follows:

• The parties each pay their respective shares of the cost of a recreational cheerleading program as a s. 7 expense; and
• The father is solely responsible to pay the difference between the cost of a recreational cheerleading program and Cheer.

[87] The father’s willingness to share the expenses in that manner negates the mother’s expense-based opposition to Mayla’s continued participation in Cheer.

[88] The mother does not object to Mayla pursuing extra-curricular activities. However, she objects, for non-monetary reasons, to Mayla’s continued participation in Cheer. The mother submits that there is no merit to Mayla continuing in Cheer because that activity will not lead to either a scholarship with a post-secondary institution or to a lucrative career.

[89] The mother also objects to Cheer because the competitions – whether in Ottawa or elsewhere – are, on occasion, on a weekend when the mother has parenting time with Mayla. The mother considers that such competitions interfere in her parenting time with Mayla. The mother’s evidence is that the father is not open to re-scheduling the mother’s parenting time in those circumstances.

[90] I will first deal with the mother’s view that Mayla’s participation in Cheer is without merit.

[91] Mayla will turn 11 years old in August 2020. She did not choose Cheer with a view to either post-secondary education or a career. Having been introduced to Cheer through a recreational-level program, Mayla developed a passion for the activity and enjoys the friendships she has gained. Based on the submissions made on her behalf on the return of the Motions, Mayla has clearly learned the importance of teamwork and the significance of committing to a team.

[92] I find that Mayla has benefitted and continues to benefit from participation in Cheer. Mayla is fortunate to have an extra-curricular activity about which she is passionate and from which she benefits personally.

[93] There is no evidence that Mayla’s participation in Cheer is affecting her schoolwork. Whether it is Cheer, or another extra-curricular activity, the parties, as responsible parents, must ensure that the pursuit of an activity does not negatively impact Mayla’s schoolwork. In that regard, I note that, prior to the above-mentioned Kingston competition, the father inquired with Mayla’s teacher about work that Mayla might be missing and the steps required to make up for that work. The father appears to understand the importance of ensuring that Mayla’s school work does not suffer as a result of her participation in Cheer.

[94] Mayla’s interests may change over time. The parties, as responsible parents, must guide and support Mayla as she transitions from one activity to another or attempts to pursue more than one activity at a time.

[95] In the circumstances, I find that preventing Mayla from continuing with Cheer would be unnecessarily harsh. That said, both parties need to adjust their attitudes in relation to the overlap between Mayla’s participation in Cheer and the mother’s parenting time.

[96] First, the mother needs to understand that the activities carried out during her parenting time with Mayla are not dictated solely by how the mother wishes to spend that time. Parenting time involves supporting Mayla’s interests, including taking her to Cheer practices and competitions. Mayla’s commitment to an activity is to be supported by both of her parents.

[97] It is clear that Mayla was introduced to Cheer by Ms. Guertin, who is said to have participated in the activity in her youth. The mother appears to believe that the father is prioritizing Ms. Guertin’s choices for Mayla over the mother’s own choices for Mayla. I draw an inference and find that the mother’s negative attitude towards Mayla’s participation in Cheer is driven, in part, by personal resentment towards Ms. Guertin in that regard if not more broadly.

[98] The mother needs to move past that personal resentment, be supportive, and set a positive example for Mayla. If the mother considers Mayla’s involvement in Cheer objectively, the mother will realize that Mayla was introduced to the activity at a recreational level, progressed to a competitive level, and developed an affinity for the activity and what it offers. Rather than being resentful of Mayla’s involvement in Cheer, the mother would be well-served, both personally and in her relationship with Mayla, to be grateful for Mayla’s introduction to an activity that continues to have a positive impact as she grows up.

[99] The mother is not alone, however, in terms of needing to do more to improve the environment in which Mayla participates in Cheer. The mother feels that she is an outsider to the Cheer community – including the parents of the other children who participate in the program. The father and Ms. Guertin have a much greater sense of belonging to that community. To the extent they can, the father and Ms. Guertin need to take steps to ensure that the mother develops a sense of belonging within the community.

[100] It is also important that the parties approach Mayla’s participation in Cheer with the flexibility required to permit the mother to have parenting time both when Mayla is attending a competition and on weekends when Mayla is not attending a competition. In this regard, a greater degree of flexibility is required from the father than he has demonstrated to date.

[101] I turn now to the significant expenses associated with Cheer – in the thousands of dollars per competitive season. The parties agree that Mayla’s participation in a cheerleading program falls within the scope of s. 7 expenses. Their agreement in that regard can, however, only extend so far as the expenses incurred are “reasonable and necessary”.

[102] Reasonableness takes into consideration the parties’ means. I agree with the mother that both parties are of modest means, and that incurring expenses of $5,000 or more on an annual basis for a single activity is not reasonable. It is not reasonable to expect either of the parties to fund an activity that is as expensive as Cheer. The father is, however, prepared to fund Cheer as something above and beyond a s. 7 expense.

[103] In summary, I find as follows:

• It is reasonable for Mayla to participate in at least one extra-curricular activity;
• It is reasonable for the parties to share, as a s. 7 expense, the cost of Mayla’s participation in a recreational-level program – whatever the activity; and
• If Mayla pursues Cheer, then the father shall be solely responsible for funding the difference between the cost of a recreational-level cheerleading program and the total of the costs associated with Cheer (i.e., registration, travel, et cetera).

Issue No. 6 – Section 7 Expenses

[104] The difference between the parties’ respective imputed incomes is nominal in the context of their respective shares of s. 7 expenses. In light of the father’s willingness to fund the difference between a recreational-level cheerleading program and Cheer, I find that it is reasonable for the parties to share equally in all other s. 7 expenses.

[105] The father asks that the mother be required to pay a stated, fixed amount as her share of the s. 7 expense related to cheerleading. I note, however, that the costs associated with participation in recreational-level cheerleading may change from year to year. I am therefore not prepared to fix an amount that the mother is required to pay on an annual basis towards Mayla’s participation in cheerleading.

[106] It is incumbent upon the father to develop a method and means of communication with the mother to resolve her share of all s. 7 expenses, including that related to cheerleading. It is incumbent upon the mother to be responsible and reasonable with respect to her share of the costs associated with Mayla’s participation in cheerleading.

Order Made

[107] Taking into consideration the terms of the 2015 Order and the findings made in this ruling, I order as follows:

1. Paragraph 1.1 of the March 25, 2015 order of Justice Polowin (“the Order”) shall be replaced with the following: 1.1 Kevin shall have sole custody of Mayla.
2. Paragraph 2.1 of the Order shall be replaced with the following: 2.1 For purposes of determining child support for Mayla, Kevin’s annual income is $36,000.00 and Melanie’s income is $30,000.00.
3. Paragraph 2.2 of the Order shall be replaced with the following: 2.2 Effective September 1, 2018, Melanie shall pay to Kevin, child support for Mayla: a) The Table amount of amount and options for payment to be agreed upon as between the parties; [1] b) Her share of the special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below; until a terminating event or a change in child support under this Order.
4. Paragraph 2.4 of the Order shall be amended to include, sub-paragraph (d) as follows: d) The expenses associated with a recreational-level cheerleading program.
5. The balance of the Applicant’s Motion to Change and the Respondent’s Cross-Motion to Change shall be dismissed.

[108] As noted at paragraph 80, above, if the parties are unable to agree on the amount of child support to be paid by the mother, they may contact the office of the Trial Co-ordinator to schedule a case conference before me respecting the steps to be taken to resolve that issue.

[109] At the case conference conducted in late April of 2020, it was agreed that I would remain seized of this matter until December 31, 2020, solely with respect to a further motion, if required, to address child support. It was agreed that a further motion to revisit the issue of the mother’s child support obligations could be brought, without it being a motion to change. That agreement was reached because of the potential for one or both of the parties to experience protracted financial consequences as a result of the COVID-19 pandemic.

[110] Given that the parties have agreed to waive child support for the months of April to August 2020, both inclusive, the next month in which a child support payment will be due from the mother to the father is September 2020. Therefore, if either of the parties wishes to seek a further revision to the amount of child support payable by the mother effective September 2020, they have until December 31, 2020 to do so before me. The party seeking bringing the motion in that regard shall serve a notice of motion – a motion to change is not required. If no such motion is brought before me on or before December 31, 2020, then the parties are required to proceed by way of a motion to change and I am not seized of the issue.

Costs

[111] If the parties are unable to agree on the costs of the Motions, they shall make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs and any case law referred to in the submissions;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure;

c) The father shall deliver his costs submissions by 4:00 p.m. on the twentieth business day following the date on which this ruling is released;

d) The mother shall deliver her responding costs submissions by 4:00 p.m. on the thirtieth business day following the date on which this ruling is released; and

e) The father’s reply submissions, if any, shall be delivered by 4:00 p.m. on the thirty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn

Released: July 10, 2020

APPENDIX

In the title of proceeding on the first page:

1. The name of Marie Ilie-Draga has been corrected to read Maria Ilie-Draga; and
2. Maria Ilie-Draga has been identified as agent for Tanya Davies, for the Respondent.

[1] As indicated in the substantive portion of the ruling, the monthly amount of child support payable is based on the mother’s income of $30,000 without regard for the breakdown between salary and tips. Paragraph 2.1 of the Order provides the support payor with the option of paying the full amount on the first day of the month or in two equal instalments on each of the first and the fifteenth of the month.