Court File and Parties

COURT FILE NO.: FC-11-819-3 DATE: 2020/12/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cody Cavanagh, Applicant, Represented by John Summers -and- Ruth Wagner, Represented by Kevin Kavanaugh

BEFORE: Justice P. MacEachern HEARD: October 16, 2020, by Zoom videoconferencing

E N D O R S E M E N T

[1] The Applicant father brings a motion to change the access order of Justice Minnema, dated February 19, 2016. He seeks unsupervised alternate weekend and mid-week access to the parties' child, age 10.

[2] The Respondent mother opposes the father's motion to change. She has filed a Response seeking an order requiring the father to pay child support retroactive to January 1, 2016, based on his income[^1].

[3] On September 21, 2015, Justice Sheard made an order on consent for the father to have temporary access to the child every second Saturday at the supervised access program, every second Sunday from 1 pm to 4 pm, non-supervised but in a public place, and every second Thursday from 4:30 pm to 6:30 pm, non-supervised but in a public place. The September 21, 2015 Order also provides, on consent, that there be a temporary order that no child support was payable by the father until August 1, 2015, as he was on social assistance.

[4] On February 19, 2016, after a four-day trial, Justice Minnema ordered that the temporary orders made by Justice Sheard become final and that the father also have telephone access twice per week.

[5] The father commenced this motion to change in October of 2019. The mother's response is dated November 20, 2019.

[6] The applicable legislation is the Children's Law Reform Act (access) and the Family Law Act.

[7] The issues to be determined are:

1. Has there been a material change in circumstances that affect or is likely to affect the child's best interests? If there has been a material change in circumstances, what access is in the child's best interests, taking into consideration the factors under s.24(2) of the Children's Law Reform Act?
2. What child support is payable. What should the commencement date be for any child support order?

Issue 1: Has there been a material change in circumstances that affect or is likely to affect the child's best interests?

[8] I do not find that the Applicant father has met the onus on him to establish that there has been a material change in circumstances since Justice Minnema's order that affects, or is likely to affect, the child's best interest.

[9] The father argues there has been a material change because the child is four years older. He has consistently exercised access. The mother has acknowledged a change because she no longer requires access at the supervised access centre and he has addressed concerns about his reckless behaviour and substance abuse.

[10] The fact that the child is older is not, in and of itself, a material change. Instead, the inquiry must focus on whether the child's needs or circumstances or his parents' ability to meet those needs has been altered in a fundamental way to affect the child materially.

[11] Justice Minnema's reasons provide a detailed review of the situation before him, including:

• The father's criminal history, which started, as an adult, when he was 18. It included convictions for forgery, stealing a rifle, stealing money, and failing to comply. The father indicated he was abusing drugs at the time and stealing to support his habit. The father was also convicted for driving without a license in May of 2013; a speeding charge in June of 2013 (going 89 kph in a 50 kph zone); charges in June of 2013 for domestic assault and smashing a vehicle with a baseball bat; conviction related to these incidents, for assault, possession of a weapon, and property damage, in February of 2014; his charge on February 1, 2014 (and later conviction) for failing to provide a breath sample; conviction for speeding and failing to have proof of insurance in September of 2014 (94 kph in a 60 kph zone), and a conviction related to another domestic abuse incident, for threatening, failing to comply, and wilful damages to property (smashing a car window).
• The father's reckless behaviour, including, in addition to the conduct that leads to the criminal charges above, a serious accident in May of 2011 while driving a four-wheeler that resulted in hospitalization, a jet ski accident in June of 2014 when he almost died, hurting his eye with a branch he pulled out of a fire, being cut in a fight while drinking rye, allowing his ice fishing hut to fall through the ice on a lake, cutting his hand badly on broken glass, trying to reach and clean eaves-trough by placing a ladder on the roof of his car, accidentally shooting a friend in the leg with an air-soft gun causing injury, breaking his shoulder and ribs in a snowmobile accident, driving on a public road at speeds up to 180 kph, more than 100 kph over the speed limit, passing other cars while doing so and taking photos of his speedometer to post on Facebook, and texting while driving.
• Concerns regarding the father's alcohol consumption and use of drugs, including its relation to reckless and violent behaviour, despite the father's claims of complete abstinence from alcohol at the time of trial.
• The father's minimalist efforts to address the concerns of the mother, the C.A.S., and the court, including delays in complying with court orders or requests for drug testing, attending parenting and anger management courses, and his poor attendance at these courses.
• Concerns about the father's credibility, finding that he was evasive on specific points and untruthful on others.
• The father's failure to take responsibility for his conduct, instead blaming the mother, for why he did not have full, unsupervised access.
• The father's inability to refrain from disparaging the mother in texts and on Facebook.
• The father had shown marked immaturity through his criminal, violent, and reckless behaviour since filing his Application in 2011 that lead Justice Minnema to find that the child would not be safe and well cared for by him completely unsupervised for long periods, or that such access would be in the child's best interest.

[12] Justice Minnema denied the father's request for unsupervised access in his home and continued the interim orders on a final basis, with the addition of telephone access. Justice Minnema also provided the following direction to the father:

"Before he seeks a variation of the current arrangement, the father would do well to provide the mother with a report from a psychologist. Another parenting program showing more commitment would also be helpful. The court would need to see a better plan, perhaps a job and a different residence, and some period of stability without alcohol consumption and criminal or reckless behaviours. The father needs to provide reasons for the mother and the court to trust him, with unfettered access and confidence that he will make good decisions related to the child. He can only start by making good decisions relating to himself. Importantly, the father needs to focus now on creating a workable plan that will allow him to move the access away from the [supervised access program] as that cannot continue indefinitely."

[13] The father has not provided the mother with a psychologist's report. He has not provided evidence that he has completed further parenting courses or anger management courses. The father has not provided any evidence of steps he has taken to address his alcohol consumption or drug use, which have been problematic in the past. The father access plan is simply to have visits at his home and increase his access time.

[14] The father does not address the concerns with his criminal, reckless and violent conduct, except to respond in argument that the only evidence presented by the mother is that he has had two speeding tickets since 2017 and had been charged with theft of a tent trailer in July of 2017. This ignores that the father also had two charges in 2017 for stunt driving and speeding, making four tickets in total since Justice Minnema's order. The father's driving record and the theft charge support a continued concern about his reckless behaviour and the child's risk while in his care.

[15] Instead of providing the court with convincing evidence that he has taken concrete steps to address the risks of harm to the child that underlie the 2016 order, the father's focus continues to blame the mother for his current access. This is evidenced by the father's statement that "The Respondent has unilaterally placed unreasonable restrictions on my time with Nathan. She has always made it difficult for me to see Nathan, and I have to resort to attending court to see my son."

[16] The focus of the father's argument was that the mother needs to justify why he should not have more time with the child, rather than accepting that the onus lies on him to show there has been a material change. This approach is concerning given the father's history of failing to take responsibility for his conduct instead of blaming the mother. It also speaks to a lack of insight and does not support a finding that the father has addressed previous concerns.

[17] The mother acknowledges that she no longer requires access to be through the supervised access program and instead allows the Saturday access to take place in a public place elsewhere. I do not find that this equates with a material change, mainly because the supervised access program was discontinued because the father cancelled five consecutive visits, resulting in the closed file. The 2016 order also allowed for access outside of the supervised access program – cessation of that program is not a material change.

[18] I also do not find that the mother agreed to the child attending the father's campsite in the summer of 2019 to be a material change.

[19] The father is now employed, which is a change since the 2016 order. However, this factor alone, without evidence that supports that the father has addressed the risks, is not a material change.

[20] I am also not prepared to find that the father’s care of his younger son, from a different relationship, is a material change given the absence of evidence before me regarding the father's parenting of his younger child.

[21] At the outset of the motion, the father objected to several statements made in the mother's and Ms. Yule's affidavits on the basis that they were improper, as they did not comply with the rules of evidence admissible on a motion to change. This was primarily because the statements are hearsay and do not identify the source of information. This objection is warranted, and I have not relied on this content, with the exception, as agreed by the father, of texts that emanate from the father himself.

Issue #2: What child support is payable? What should the commencement date be for any child support order?

[22] The father did not pay any child support after Justice Sheard's order, which stated that no child support was payable because he was on social assistance. That order was made final by Justice Minnema's order.

[23] The father has been working since 2016 but has not paid child support. An interim order was made to pay child support of $499 per month commencing March 1, 2020, based on an annual income of $54,072 (based on his financial statement).

[24] The mother seeks child support retroactive to January 1, 2016, based on the father's income. In 2016, his annual income was $23,758. In 2017, his income was $30,333. In 2018, it was $40,241.

[25] The mother's position is that the existing child support order, which provides no child support to be payable, was based on the father not having any income. She argues that the father should have been aware of his obligation to pay child support based on his income. She does not claim to have given him notice before her pleading. Still, she argues that the father has acted in a blameworthy manner that warrants child support being payable back to January 1, 2016.

[26] The father agrees child support is payable as of January 1, 2020, but opposes an earlier commencement date. He argues that he has not had effective notice of the mother's claim because she did not file a formal notice of motion returnable on the motion date. I disagree. The mother's request for child support is set out in her response, and there is an interim order for child support. This motion was set down to be the final hearing on this motion to change. Given the access schedule, child support is based on the father's income. The father did not ask for an adjournment.

[27] The father also argues that he has high costs for access, given the requirement that access occurs in a public place. I do not find that the father has established undue hardship due to access costs.

[28] The Supreme Court of Canada provided further directions when considering retroactive child support claims in its decision in Michel v Graydon 2020 SCC 24, 2020 S.C.C. 24. These include:

• The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
• Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).
• Child support obligations arise upon a child's birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and recover monies owed but unpaid.
• Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (par. 132).
• The obligation to support one's child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it because child support is a continued obligation owed independently of any statute or court order. While a court may forgive a child support debt, it remains true that such a debt is owed from the moment it ought to have accrued – no matter the length of the delay.
• Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their income increases. At any given point in time, the payor knows what their support obligation should be, while the recipient parent may not (par. 32). Failure to disclose material information is the cancer of family law litigation (par. 33).
• The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor's interest in certainty (par. 34).
• The effective notice date is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (par. 36). In D.B.S., the court established that the date to which a child support order should be retroactive is, by default, the date when the effective notice was given to the payor (par. 118). This is the date as of which the child support obligation ought to be enforced. It is explicit in the majority's judgment that the date of effective notice constitutes a compromise between the date of the recipient's Application for child support and the date the amount of child support ought to have increased (par. 127).
• D.B.S. set a "soft limit" or rough guideline of recovery of three years (par. 127).
• The idea behind some form of notice is fairness. It is about having and sharing accurate information so everyone can meet their legal obligations and plan accordingly. Payors should rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are owed (par. 128).
• It is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support by the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (par. 130 and 131).

[29] I find it appropriate to award child support to the mother retroactive to March 1, 2016. This is the first day of the month following Justice Minnema's judgment. I am not prepared to go behind Justice Minnema's decision to order an earlier date. Justice Minnema's order was based on the father's evidence at trial that he was not working at the time. He was capable of working but did not want to lose his legal aid certificate.

[30] The evidence before me is that the father's income in 2016 was $23,758. Accordingly, I find a change in circumstances within the meaning of the child support guidelines after Justice Minnema's order was made. I do not have evidence of when the father started working. He has provided his annual income for the year. Given this, I find it is fair and appropriate to require him to pay child support based on his 2016 income, commencing March 1, 2016.

[31] I do not find that it is unfair to the father to require him to pay child support back to March 1, 2016. The father was aware of his obligation to pay child support, dependent on his income. This is particularly so given the wording of Justice Sheard's order. I do not find any unfairness to the father to require him to pay his legal debt of child support that he should have been aware was accumulating as of the date he began to earn income at a level that required table support.

Disposition

[32] Accordingly, I make the following orders:

1. The father's motion to change the access under the Order of Justice Minnema, dated February 19, 2016, is dismissed;
2. The mother's motion to change the child support provisions of Justice Minnema's order of February 19, 2016, which made Justice Sheard's interim order for child support dated September 21, 2015, final, is granted. Justice Minnema's order is hereby varied to provide that commencing March 1, 2016. The father shall pay child support to the mother for the benefit of the child, N, born June 23, 2010, based on his 2016 income being $23,758. Child support should be updated annually to reflect changes in the father's income, including that in 2017, his income was $30,333, and in 2018, it was $40,241. I leave it to the parties to work out the details of the child support order. If they are unable to agree, either may seek an appearance before me to finalize the order.

Costs

[33] If the parties cannot agree on the motion's costs, the Respondent may file submissions concerning costs on or before December 14, 2020. The Applicant may file submissions concerning costs on or before December 21, 2020. Both parties' cost submissions shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Dated: December 2, 2020 __________________

Justice P. MacEachern

[^1]: The Respondents sought child support back to August 1, 2015 in her response, but changed this to January 1, 2016 in her affidavit and factum filed on this motion