COURT FILE NO.: 4176/15
DATE: 2020-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSHUA CHRISTIAN ADAM FOURNIER
Applicant
– and –
ANNA-MARIE ELIZABETH BAILIE (FOURNIER)
Respondent
Elliot Vine, for the Applicant
Steven D. Kogon, for the Respondent
HEARD: January 21 & 22, 2020
REASONS FOR JUDGMENT
GRAY J.
[1] The issues in this matter, that was tried in two days, are:
a) where will the children attend school? and
b) should additional income be attributed to the respondent, for the purpose of calculating child support?
[2] These questions arise in the context of a Motion to Change a Final Order of Coats J. dated March 13, 2018.
Background
[3] This matter has been before the court for several years. Ultimately, all matters were purportedly resolved. Two final orders were issued, the first being an order of Coats J. dated October 24, 2016, and the second being the order that is sought to be reviewed, namely, the order of Coats J. dated March 13, 2018.
[4] In the first order, which was made on consent, the parties agreed that the two children of the marriage, Ryker (born July 30, 2010) and Zoie (born May 10, 2012) be in the joint custody of the applicant and the respondent, and they would be with each parent equally in terms of time. Remaining unresolved were the issues that were ultimately determined by the order dated March 13, 2018: the children’s school, child support, section 7 expenses, and other expenses and benefits.
[5] Paragraphs 1 and 2 of the Order dated March 13, 2018 are relevant to the current dispute. They read as follows:
The Applicant, Joshua Christian Adam Fournier, and the Respondent, Anna-Marie Elizabeth Fournier, shall keep the children, namely, Ryker Fournier born, July 30, 2020 and Zoie Fournier born, May 10, 2012 enrolled in their current school in Burlington with the Halton District Catholic School Board until further Court Order or agreement for a different school and community. Even though neither parent lives within this school’s boundaries, they prefer to continue to drive the children to this school until another clear option becomes available to them. Their criteria for choosing a change in school would include that this change would be a ‘lasting’ change and that this school would allow both parents to transport the children to school with a reasonable drive time.
Commencing May 1, 2018, the Applicant (“Joshua”) shall pay to the Respondent (“Anna”) on behalf of the children, Ryker Fournier born, July 30, 2010 and Zoie Fournier born, May 10, 2012 the set-off amount of child support for two children of $897 per month ($992 per month shall be paid by the Applicant to the Respondent and $95 per month shall be paid by Respondent to the Applicant). This calculation is based on Joshua’s 2017 T$ with an annual income of $65,070 and Anna’s imputed income of $13,000 per annum. Anna shall immediately inform Joshua and consent to a variation for the next month in the new set-off amount if she at any time becomes entitled to disability benefits.
[6] Sometime prior to the making of the Order dated March 13, 2018, the respondent moved to Fergus, Ontario, to be with her new partner. She brought a motion in 2017 for an order authorizing the children to attend school in Fergus. That motion was denied.
[7] Shortly after the Order of March 13, 2018 was agreed to, the applicant moved to Georgetown, Ontario.
[8] As will be apparent from paragraph 2 of the Order, it was agreed that the applicant was understood have an income of $65,070 per annum, and the respondent was imputed an income of $13,000 per annum. It was agreed, as set out in the Order, that “Anna shall immediately inform Joshua and consent to a variation for the next month in the new set-off amount if she at any time becomes entitled to disability benefits.”
[9] Subsequent to the making of the Order, and the applicant’s move to Georgetown, the applicant took the position that the children should henceforth attend school in Georgetown. Efforts to mediate the matter were unsuccessful. The issue now is whether the children should attend school in Georgetown.
[10] The applicant also takes the position that the respondent has done nothing to secure additional income since the order was made, and there now should be imputed an annual income to her at approximately the rate of the minimum wage, or $30,000 per year.
[11] For her part, the respondent takes the position that the children should continue to attend school in Burlington, and that no additional income should be imputed to her, since she is not entitled to disability benefits and nothing has changed regarding her ability to work. In the alternative, if it is determined that the children should not attend school in Burlington, they should instead attend school in Fergus.
[12] The evidence-in-chief at trial was submitted by way of affidavits that were filed at trial, and cross-examinations occurred at the trial itself. On behalf of the applicant, affidavits were filed by the applicant himself, and by the applicant’s father. On behalf of the respondent, an affidavit sworn by the respondent herself was filed.
[13] In his affidavit, the applicant deposes that the parenting issues were essentially resolved on a final basis on March 24, 2016 when the parties entered into the Final Order of that date, which provided for joint custody and equal parenting time with the children.
[14] In paragraph five of his affidavit, he states “This equal parenting plan has been in place now for 3.5 years and the children are doing well socially, in school and benefitting from maximum contact with each parent. I believe the respondent and I are good parents.”
[15] The applicant deposes that around the time of the motion “I also entered a new relationship and my new partner and I were considering moving to Georgetown where our parents resided and the cost of living was less.”
[16] He deposes that in his view the intention of the order was to create a temporary result to allow the parties to move and settle down and then negotiate the issue of where the children would go to school.
[17] The applicant deposes that he believes attending school in Georgetown is in the best interests of the children. He swears that the school in Georgetown is close to where he lives. It is called Saint Catherine of Alexandria, which is a school of top tier quality and is a Catholic school. The parties and their children are Catholic. The children attend church in Georgetown with the applicant, and the applicant says the children already have a good connection and friendships with children with whom they would be going to school in Georgetown.
[18] The applicant deposes that when the children are in Georgetown they play almost exclusively with their friends from Georgetown who live on their street. He says that when the children are with their mother, they live in the country in Fergus and mainly play with their step-brother. He says the children occasionally go to play with friends in Burlington after school when they are with their mother. Their mother has family in Burlington whom she visits with, so it is easier for her to be available for that kind of playdate.
[19] The applicant deposes that he works fulltime, and the respondent does not, which means that if the children go to school in Georgetown the applicant will be able to pick them up from school and interact with the school. He says the respondent will still be able to spend as much time with the children and interact with the school.
[20] The applicant deposes that because the children attend school in Burlington, neither parent is able to see the child as much as if they went to a more local school. They spend large amounts of time on the road.
[21] The applicant deposes that when the children are with the applicant, his partner drives the children to his father’s residence in Milton, and his father then drives the children from Milton to Burlington to go to school. The applicant deposes that his father is getting older and his health is deteriorating, and he does not believe his father will be able to spend as much time driving the children back and forth much longer. He states “Although, I am not saying that he will not be able to drive the children in the near future, it is impossible to say how much longer exactly he will be able to do so, and I think it would be wise to get a new arrangement in place for September of 2020 to be careful.”
[22] In his affidavit, the applicant takes the position that there has been a material change in circumstances, and in any event he states that no material change in circumstances is required in these circumstances.
[23] The applicant, in his affidavit, states that it is his position that the respondent should be imputed with an income greater than $13,000 per year. He states “At the time we entered into our previous order for support it was anticipated that the respondent would start earning more income either through eventually returning to work, or that she would obtain disability payments if she could not work for medical reasons.” He states that the respondent is now being supported by her new partner causing her not to have to work or obtain disability payments.
[24] On cross-examination, the applicant acknowledged that he did not attend church when he was with the respondent in Burlington. The children were baptized in Burlington. He was involved with school activities and parent-teacher meetings when he lived in Burlington.
[25] The applicant acknowledged that he lived in Milton with his parents after the separation. He moved to Georgetown in July, 2018. He commenced looking at Georgetown sometime in the Spring of 2018. It would appear that the agreement of purchase and sale with respect to his new home was executed on April 17, 2018. This was approximately one month after the Order of Coats J. dated March 13, 2018.
[26] The applicant acknowledged that the children are, at the moment, doing well in school. However, he states that school in Burlington is not sustainable in the long term, and he pointed out that the principal of the school must approve the attendance of the children each year. It is always possible that he could say no for any particular year.
[27] The applicant acknowledged that the respondent is still involved in school activities in Burlington, and attends parent teacher meetings. While in the respondent’s care, she takes the children to school and is in Burlington during the school day.
[28] The applicant acknowledged that as a result of his work schedule, he cannot drop the children off at school. His spouse takes the children to his father’s residence in Milton, and his father then drives them to school in Burlington.
[29] Dennis Fournier, the applicant’s father, filed an affidavit in these proceedings. He deposes that he has first hand knowledge of this matter as a result of his role in driving the children to their school in Burlington two or three times per week in the morning, and also visiting with the children and their father. He states that each morning the children are dropped off with him in Milton, and he gets up early at 6:00 a.m. to have time to get ready for the drive.
[30] Mr. Fournier states that he believes that there is a strong and loving bond between the applicant and the children. He states that he also believes that the children have a strong and loving bond with their mother.
[31] Mr. Fournier deposes that the lengthy drive to Burlington and back each and every day is long for the children. They are noisy in the car, they lose out on time to have fun and play with their friends and they are tired sometimes.
[32] Mr. Fournier deposes that when he agreed to help with driving the children to school in Burlington, it was his understanding that this was not going to be a permanent arrangement. He says it has already been a challenge to have to do this two or three times per week for more than three years while his wife’s health has worsened as well as his own. He says that he intends this to be his last year helping out with the drive one way or another. Mr. Fournier states that he has a job which he is not able to start on time because of the driving. He is not able to travel because he has to be available to drive.
[33] Mr. Fournier states he is getting older and he is concerned about his health. He says he has had some issues with his liver and blood and the long drive does not help. He states “I am getting more tired and anxious because I have a part time job which I am no longer able to start at 9:00.”
[34] On cross-examination, Mr. Fournier acknowledged that the applicant lived in his house before moving to Georgetown. He states that the children are dropped at his home by the applicant’s spouse around 7:00 each morning.
[35] The respondent, in her affidavit, states that her primary position is that has been no material change in circumstances to warrant a change to the existing location of the children’s school. She states that the only change in circumstances is the applicant’s move from Milton, where he resided at the time of the Order was made, to Georgetown. She states that the applicant either knew or ought to have known of his intention to move at the time the Order was made. She states that any additional time spent to drive the children from school to Georgetown is minimal, and that any change is not “material”.
[36] The respondent states that if it is determined that there has been a material change in circumstances, it is her position that it is in the children’s best interests to remain at the school in Burlington. She states that the children have been attending St. Mark Catholic Elementary School since they entered kindergarten. This marks the sixth year of attending that school for Ryker, and the fourth year of attending that school for Zoie. She says the children are well-adjusted, happy and involved at St. Mark as well as their school community.
[37] The respondent states that Zoie, who is in Grade 2, is involved in the school’s choir and is expecting to receive her First Communion in May of 2020.
[38] The respondent states that Ryker is in Grade 4 and is “really starting to come out of his shell.” Although he is soft-spoken, he is becoming more comfortable in taking part in class discussions and offering his opinions in front of his peers. The friends he has at St. Mark have become his support system, as Ryker can be quite sensitive.
[39] The respondent states that due to Ryker’s sensitive and shy nature, she is concerned that removing Ryker from his current school will negatively affect him and undo the progress he has made.
[40] The respondent states that the children are doing well at St. Mark, receiving all “E’s” (Excellent) and “G’s” (Good) on their report cards. She states that Zoie has not missed a single day of school and Ryker has missed only one day.
[41] The respondent states that both she and the applicant have been able to pick the children up from their current school and they both have the opportunity to be involved in the children’s school community.
[42] The respondent states that she is currently a member of the St. Mark parent council, as she has been for years prior. She is involved in planning the school’s fundraisers and assists in making decisions with respect to where monies earned from the fundraisers should be applied.
[43] The respondent states that the majority of Ryker and Zoie’s friends live in Burlington, as does her entire family. When she drops off the children at school, she remains in Burlington for the entire school day, so she is readily available in the event that the children need her.
[44] The respondent deposes that in the event it is determined that it is not in the children’s best interests to attend school in Burlington, it is her position that the children should attend school at St. Joseph’s Catholic Elementary School in Fergus.
[45] The respondent points out that according to the parenting plan attached as a schedule to the Final Order of Coats J. dated October 24, 2016, her home is the children’s primary residence for the purpose of school registration and mailing address unless otherwise agreed upon. There have been no agreed upon changes.
[46] In her affidavit, the respondent outlines certain facts that, in her view, make it more appropriate that the children attend school in Fergus rather than in Georgetown.
[47] The respondent states, in her affidavit, that there has been no change in her health, financial position, or relationship status since the making of the Order dated March 13, 2018, wherein her income was imputed at $13,000.
[48] The respondent deposes that as a result of her medical condition, she is unable to maintain gainful employment, and this is supported by a letter from her physician. The respondent acknowledges that she has been requested to provide a letter from her specialist indicating her ability to work, but she says it is very difficult to get an appointment to see the specialist as she is not considered a priority because her condition is stable.
[49] The respondent deposes that she is unable to supplement her income through the Ontario Disability Support Program, as her assets are higher than the prescribed limit. She says the prescribed asset limit for a single recipient is $40,000, and $50,000 for a couple. She says the funds held in her various bank accounts exceed the prescribed limits.
[50] The respondent deposes that her common-law partner does not pay her an income, nor has he ever paid her an income. She says her expenses are funded by the earnings she makes under Zoie Calla Designs and from her savings. On cross-examination, the respondent clarified that Zoie Calla Designs is her sewing business, which she conducts from her home.
[51] On cross-examination, the respondent acknowledged that it is not ideal that the children spend as much time as they do in a car going to and from school. However, she stated that in the circumstances it is satisfactory. She stated that it takes approximately 45 – 50 minutes to drive to the school from both Fergus and from Georgetown.
[52] The respondent acknowledged that in 2017 she wanted the children to attend school in Fergus. However, she states that things have changed, and it is now in the best interests of the children to remain in school in Burlington.
[53] The respondent stated that she pays for any groceries and expenses related to the children, and her partner pays for the mortgage on the home.
[54] The respondent acknowledged that she has received $100,000 in gifts from her uncle. She stated that the gifts were received in installments of $10,000, $20,000, $30,000 and $40,000. The last installment of $40,000 was at Christmas time in 2018, and was actually paid in January 2019. She stated that equal amounts were given to herself and her siblings. As of today there are no further gifts forthcoming.
[55] The respondent stated that she spends approximately 6-8 hours per week on her sewing business.
[56] The respondent states that as a result of her health issues, she has considerable pain, and she cannot work.
[57] On re-examination, the respondent stated that her net worth has decreased since the making of the Order.
Submissions
[58] Mr. Vine, counsel for the applicant, submits that there are three issues:
a) is it necessary to demonstrate a material change in circumstances, and if so, has one been established?
b) which school is in the best interests of the children that they attend?
c) should the court impute more income to the respondent?
[59] Mr. Vine submits that with respect to the first issue, it was intended that the issue of the children’s school be reviewable by the court regardless of whether a change in circumstances has occurred. He submits that this flows inexorably from the wording of the Order itself, which states that the children will remain enrolled in their current school in Burlington “until further court order or agreement for a different school and community.” The Order also states that the parties prefer to continue to drive the children to the school in Burlington “until another clear option becomes available to them.” The Order goes on to say that the criteria for choosing a change in school “would include that this change would be a “lasting” change and that the school would allow both parents to transport the children to school with a reasonable drive time.”
[60] Mr. Vine submits that the Order itself contemplates that a change will be appropriate under certain circumstances, and the nature of those circumstances is clearly set out. Mr. Vine submits that all that needs to be considered is whether the criteria that are set out in the Order have been reached or met. That would include whether a “clear option” has become available, and that a change would be a lasting change and that the school would allow both parents to transport the children within a reasonable time.
[61] In the alternative, if it is necessary to demonstrate a material change in circumstances, it is only whether a sufficient change has occurred with respect to the criteria set out in the Order.
[62] In either case, Mr. Vine submits that the threshold for considering the matter has been met. He submits that another clear option has become available, a change in school would be a lasting change, and the new school would allow both parents to transport the children to school with a reasonable drive time.
[63] Mr. Vine submits that it would be in the best interests of the children to attend school in Georgetown.
[64] Mr. Vine points out that the children’s grandfather no longer wishes to drive the children to school, and henceforth it will be more difficult, and indeed impractical, for him to do so. He is getting older, and his health is declining. He says, quite reasonably, that he assumed that the current driving arrangement would be a temporary one, and it was not in his contemplation that the requirement that he drive the children to school be on a permanent basis.
[65] Mr. Vine points out that the children have friends in Georgetown, who live on the same street as the applicant. He submits that the school in Georgetown that they would attend is a top-rate school, and there would be advantages to their attending there. Furthermore, the applicant, because of his work schedule, would have significantly more opportunities to participate in the activities of the school. The respondent, because she is not working, will have ample opportunities to participate in the activities of a school in Georgetown.
[66] With respect to the issue of imputing income to the respondent, Mr. Vine submits that it would be appropriate to do so.
[67] Mr. Vine submits that it was contemplated in the Order that the respondent would make efforts to become entitled to disability benefits. There is no evidence that she has done so.
[68] Furthermore, Mr. Vine submits that there is no compelling evidence that the respondent is unable to work. She has been asked to produce evidence from a specialist that she is medically unable to work, and she has not done so.
[69] Mr. Vine also submits that some income should be attributed to the respondent as a result of the recurring gifts that have been received by the respondent. He submits that the respondent’s evidence that the gifts will no longer be received is suspicious, and convenient. He points out that the receipt of gifts from the respondent’s uncle was not disclosed prior to the trial, and it should be inferred that the circumstances of the gifts are considerably suspicious and it should be concluded that they will likely recur.
[70] For these reasons, Mr. Vine submits that I should order that the children attend school in Georgetown, and $30,000 should be attributed to the respondent annually with respect to her income.
[71] Mr. Kogon, counsel for the respondent, submits that this Motion to Change should be dismissed.
[72] Mr. Kogon submits that this Motion to Change is brought under s.17 of the Divorce Act, and pursuant to s.17(4) and s.17(5) of that Act it must be shown that there has been a material change in circumstances in order that the court have jurisdiction to entertain the matter. He submits that the issue is jurisdictional, and unless it is established that there has been a material change in circumstances, the court has no authority to proceed further.
[73] Mr. Kogon submits that there has been no material change in circumstances demonstrated here. The only change in circumstances is the fact that the applicant has moved to Georgetown. The request that the children change schools is for the applicant’s convenience, and has little to do with the best interests of the children. Mr. Kogon points out that there is nothing in the Order with respect to the applicant’s father doing any of the driving, and the fact that the applicant’s father may not drive sometime in the future is irrelevant. It is for the applicant to decide the best way to convey the children to the school, and the fact that he may, sometime in the future, need to address that issue does not constitute a material change in circumstances.
[74] Mr. Kogon submits that in any event it will be in the best interests of the children that they continue to attend school in Burlington. He notes that it is agreed by both parties that the children are doing well in the school at Burlington. Their marks are good, and they have friends there. Zoie participates in the choir, and Ryker is becoming more outgoing notwithstanding his shyness. When the respondent transmits the children to the school, she remains in Burlington for the day with her family, and is well able to respond to any issues that may come up. She actively participates in school activities as they occur.
[75] As an alternative issue only, the respondent submits that if it is necessary that the children change schools, it would be in their best interests to attend school in Fergus.
[76] With respect to the issue of imputing additional income to the respondent, Mr. Kogon submits that there has been no material change in circumstances that would justify this. There has been no change in the respondent’s health or her income. It has not been shown that the gifts from her uncle will continue.
[77] For the foregoing reasons, Mr. Kogon submits that the Motion to Change should be dismissed.
Analysis
[78] There are three issues for determination:
a) is it necessary to demonstrate a material change in circumstances?
b) should the children be transferred from their current school, and if so, to which school? and
c) should additional income be imputed to the respondent?
[79] I will consider each issue in turn.
A) Is it necessary to demonstrate a material change in circumstances?
[80] The Order dated March 13, 2018 was made under the Divorce Act. Accordingly, section 17 of that Act applies. The relevant provisions of s.17 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,
o (a) a support order or any provision thereof on application by either or both former spouses; or
o (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 child support order
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
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. [Emphasis added]
[81] The provisions of the Order that are sought to be amended fall within the terms of s.17(4) (child support orders) and s.17(5) (custody orders).
[82] With respect to the order regarding the school to be attended by the children, this falls under the term “custody order”, and thus is governed by s.17(5). The issue as it relates to the attributing of income to the respondent affects the amount of child support payable, and thus is governed by s.17(4).
[83] Section 17(5) is clear: 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”. The requirement that there be a material change in circumstances has been clearly set out in binding caselaw, including Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164; and Persaud v. Garcia-Persaud, 2009 ONCA 782, 81 R.F.L. (6th) 1. The requirement to show a material change in circumstances is jurisdictional. In the absence of such a showing, the court has no power to proceed further.
[84] There is a narrow exception to the requirement that a material change in circumstances be shown, where the court has authorized a “review”. That is what the applicant submits is the situation here.
[85] However, review orders are to be narrowly construed and rarely ordered. In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, Binnie J. for the Supreme Court made it clear that review orders are to be limited. At para. 36 of his reasons he stated: “Review orders under s.15.2 have a useful but very limited role”, and at para. 39 he stated: “Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s.15.2 court considers it essential (as here) to identify an issue for further review, the issue should be tightly delimited in the s15.2 order.”
[86] This approach was re-emphasised in the Court of Appeal’s decision in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.). At para. 70 of her reasons, Lang J.A. stated:
Review orders in effect turn an initial order into a long-term interim order made after trial. Accordingly, they should be the exception, not the norm. They are appropriate when a specified uncertainty about a party’s circumstances at the time of trial would be certain within an identifiable time period. When one is granted, it should include specifics regarding the issue about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved.
[87] Counsel for the applicant submits that what is at issue here is a review, rather than a motion to change pursuant to s.17 of the Divorce Act. He relies on M.(J.M.) v. M.(K.A.A.) (2005), 2005 NLCA 64, 259 D.L.R. (4th) 344 (NLCA). That case, among others, was discussed in the decision of the Divisional Court in Children and Family Services for York Region v. G.S. (2011), 2011 ONSC 1732, 3 R.F.L. (7th) 294 (Ont. Div. Ct.). It was pointed out in that case that the issue in M.(J.M.) v. M.(K.A.A.) was whether the power to make a review order is consistent with the provisions of s.17 of the Divorce Act. In other words, was it open to a judge to authorize a review of his or her order without the requirement that a material change in circumstances be shown? Rowe J.A. (as he then was) held that a judge could authorize a review of his or her order without the necessity of showing that there was a material change in circumstances. However, the order in that case itself provided as follows:
- In the event that the father fails to fully comply with this order and/or Alexander displays continued and worsening signs of alienation from the mother, the mother has leave to apply for directions, or possibly in the change in the access schedule to the father based upon Alexander’s best interests without having to establish a material change in circumstances. [Emphasis added]
[88] It is to be noted that in that case the order itself specifically authorized a review, without a requirement that a material change in circumstances be shown. That is unlike the situation here.
[89] In my view, the scope for the making of review orders is narrow. As required by the Supreme Court of Canada in Leskun, supra, if an order is to be reviewed the scope of the review should be narrowly circumscribed and set out in the order.
[90] In this case, there is nothing in the order that specifically authorizes a review. That being the case, the matter is governed by s.17 of the Divorce Act. A material change in circumstances must be shown, as required by both s.17(4) and 17(5).
[91] To some extent, the order itself contemplates the sort of change in circumstances required to be shown with respect to the school issue. On its face, the requirement that the children be enrolled in their current school in Burlington is to be in place “until further court order or agreement for a different school and community.” The parties prefer to continue to drive the children to this school “until another clear option becomes available to them.” Criteria for changing a school would include that the change be a “lasting” change, and that the school would allow both parents to transport the children to school with a reasonable drive time.
[92] Some of these criteria are more in line with the convenience of the parties rather than the best interests of the children. The issue of driving the children to school is, for the most part, related to the convenience of the parties, although it can have an effect on the best interests of the children if the driving time is extraordinarily long. In the final analysis, however, as required by s.17(5) “the court shall take into consideration only the best interests of the child as determined by reference to that change.”
[93] For these reasons, as it relates to the issue of the school, the applicant must show that a material change of circumstances has occurred since the making of the Order.
[94] With respect to the issue of attributing more income to the respondent, it is governed by s.17(4). Pursuant to that provision, “the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred.” In my view, what must be shown is a material change in circumstances that would justify an increase in the income attributed to the respondent, that would result in a change to the child support order based on the applicable guidelines.
[95] Counsel for the applicant relies on the last sentence of paragraph 2 of the Order to submit that a material change in circumstances is not required. That sentence reads “Anna shall immediately inform Joshua and consent to a variation for the next month in the new set-off amount if she at any time becomes entitled to disability benefits.”
[96] For reasons similar to those explored already I am not persuaded that this sentence obviates the need to demonstrate a material change in circumstances. At best, it identifies one change in circumstances that would justify an amendment to the order. That change in circumstances would be an entitlement of the respondent to disability benefits.
[97] However, the argument of the applicant goes further. He argues that an amendment to the Order is justified because the respondent has not made sufficient efforts to become entitled to disability benefits. That argument, in my view, must be addressed under the question of whether there has been a material change in circumstances, assuming one is necessary.
[98] For the reasons articulated, I hold that it is necessary for the applicant to demonstrate that there has been a material change in circumstances in order to vary either or both paragraphs of the Order.
B) Should the children be transferred from their current school, and if so, to which school?
[99] In my view, no material change in circumstances, as contemplated in s.17(5) of the Divorce Act, has been demonstrated. According to the plain wording of the subsection, what must be shown is “a change in the condition, means, needs or other circumstances of the child of the marriage.”
[100] The two children are going to the same school that they attended when the Order was made. In the case of Ryker, he has been in attendance for six years. In the case of Zoie, she has been in attendance for four years. At the time the Order was made, they had been in attendance for four and two years respectively.
[101] When the Order was made, they were being driven to school. When they were with the applicant, they were being driven from Milton at the time the Order was made. They were, and still are, being driven from Fergus when they are with the respondent. Now they are being driven from Georgetown to Burlington when they are with the applicant and from Fergus to Burlington when they are with the respondent. I do not regard the slightly additionally distance as being material. In either case, they are driving approximately the same distance, for approximately the same length of time, whether from the applicant’s residence or the respondent’s residence.
[102] At the time the Order was made, the children were doing very well in school. They still are. Their marks are excellent. They have friends in the school, and they participate in school activities. In the case of Ryker, he is doing even better than he was at the time the Order was made. He has overcome some of his shyness.
[103] The only change to the situation that pertained in 2018 is that the applicant has moved from Milton to Georgetown. In my view, that is not a change that relates to the condition, means, needs or other circumstances of the child as it relates to their attendance at school.
[104] As clearly held in Gordon, supra, Litman, supra, and Persuad, supra, this is a jurisdictional finding that precludes the case being considered any further. For this reason alone, the Motion to Change with respect to the school issue must be dismissed.
[105] Notwithstanding this holding, if it were necessary for me to determine whether it is in the best interests of the children to be moved from their current school, I would answer that question in the negative.
[106] As articulated earlier, the children have been at their current school for a considerable period of time. They are doing very well there. Their marks are excellent. They participate in school activities. They have friends there.
[107] When they are driven to school by the respondent, she stays with her family in Burlington. Thus, if there is any emergency that occurs, she can attend to their needs immediately. After school, they have quick access to their maternal extended family, if it is advisable to spend to time with them after school. Their mother is involved in school activities herself.
[108] If the children were to be required to attend school in either Fergus or Georgetown, they would undoubtedly lose contact with many of their friends that they have made over the years in Burlington. I accept that they have made some new friends in Georgetown, and a few new friends in Fergus. It is not sufficient, however, to require that they give up their friendships that they have acquired in Burlington.
[109] As far as the driving is concerned, I have no compelling evidence that the drive is particularly deleterious to the interests of the children. During the drive, they have the advantage of being able to discuss matters with their mother or their grandfather as the case may be. The length of time disclosed in the evidence is not particularly long.
[110] As far as the issue regarding the driving by the applicant’s father is concerned, this has little to do with the best interests of the children. At this point, the issue of whether the applicant’s father will continue to drive in the future is hypothetical. At most, Mr. Fournier indicated that he is not willing to continue driving beyond the current academic year.
[111] If that is indeed the case, there may well be a material change in circumstances if that were to occur. However, in my view, the issue would then be whether there needs to be a change in the residential arrangements regarding the children, rather than whether or not they should change schools. If, as I have found, it is in the best interests of the children that they remain in the school in Burlington, and if the applicant is unable to secure alternative means of transportation, it may mean that the children would need to reside on a more frequent basis with the respondent rather than to require the children to change schools. However, that issue is not before me.
[112] For the foregoing reasons, I hold that the children should not be transferred from their current school.
C) Should additional income be imputed to the respondent?
[113] As noted earlier, in my view the applicant must demonstrate a material change in circumstances in order to require the court to consider this issue.
[114] In my view, the applicant has not shown that there is any material change in circumstances.
[115] At the time the Order was made, the respondent was not employed. She remains unemployed.
[116] At the time the Order was made, the respondent was making less than $13,000 per year but she agreed to attributed income at the rate of $13,000 per year. That remains the case.
[117] At the time the Order was made, the respondent did not qualify for disability benefits. That remains the case. According to her unchallenged testimony, the level of her assets is too high for her to qualify for ODSP.
[118] The only change asserted is the suggestion that the respondent has made insufficient efforts to acquire additional income. The respondent says she is medically unable to secure fulltime work, and she has provided medical evidence in order to corroborate her evidence. Although the applicant complains that the respondent has not produced any evidence from her specialist, I am nevertheless persuaded to accept her evidence on the point. It would have been open to the applicant to move to require the respondent to produce the requested material, but he did not.
[119] Based on the respondent’s evidence, I am persuaded that the gifts from her uncle will not continue. Thus, I conclude that it is not appropriate to take them into account in attributing income to her.
[120] I am not persuaded that the applicant has shown that there is any material change in circumstances that would justify the court inquiring into the issue under s.17(4) of the Divorce Act.
Disposition
[121] For the foregoing reasons, this Motion to Change is dismissed.
[122] I will entertain brief written submissions with respect to costs, not to exceed three pages together with a costs outline. Mr. Kogon will have five days, and Mr. Vine will have five days to respond. Mr. Kogon will have three days to reply.
Gray J.
Date: January 29, 2020
COURT FILE NO.: 4176/15
DATE: 2020-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSHUA CHRISTIAN ADAM FOURNIER
Applicant
– and –
ANNA-MARIE ELIZABETH BAILIE (FOURNIER)
Respondent
REASONS FOR JUDGMENT
GRAY J.
Released: January 29, 2020