COURT FILE NO.: FC-12-2103-1

DATE: 2021/03/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Melanie Caresse Kieffer Wolf, Applicant

AND

Joseph Patrick McAuley, Respondent

BEFORE: Justice Engelking

COUNSEL: Self-represented Applicant

Susan E. Galarneau, for the Respondent

HEARD: December 18, 2020

ENDORSEMENT

[1] This is a Motion to Change the Final Order of Justice Sheffield dated January 13, 2016.

Background Facts

[2] The parties were married in 2008 and separated in 2012. Three children were born of their relationship, Savannah Elize Kieffer Wolf McAuley, born August 14, 2008, Felicity Susan McAuley, born July 15, 2010 and Colby Patrick McAuley, born April 10, 2012.

[3] On January 13, 2016, the parties entered into Minutes of Settlement which provided as follows:

• The children were to have their primary residence with Ms. Kieffer Wolf;

• The parents were to consult each other on all major decisions with Ms. Kieffer Wolf to have final decision-making authority in the event of an unresolved dispute on a major issue;

• Ms. Kieffer Wolf was to keep Mr. McAuley apprised on all major issues related to the children, but both parents were to have the right to obtain information from professionals involved with the children;

• Ms. Kieffer Wolf was not to change the children’s primary residence further than a 25-kilometre radius of her address without the prior written consent of Mr. McAuley, which was not to be unreasonably withheld;

• Mr. McAuley was to have parenting time on alternate weekends from Friday to Sunday, to be extended to include Friday and/or Monday in the event of a school or statutory holiday, and alternate Monday and Thursday evenings for a few hours;

• Each parent was to be given priority to care for the children if the other was unable to during the majority of his/her parenting time;

• Each parent was entitled to two non-consecutive weeks of uninterrupted time with the children in the summer;

• Other occasions and holidays, such as Mother’s Day, Father’s Day, March Break, Christmas, Easter and Thanksgiving were attended to, and essentially shared;

• Ms. Kieffer Wolf was to make an equalization payment to Mr. McAuley by a) roll over of $25,000 for her pension; and b) up to $15,000 from the proceeds of the sale of the matrimonial home. In the interim, Ms. Kieffer Wolf was not to further encumber the home;

• All arrears or overpayments of child support or extraordinary expenses were reduced to zero;

• Commencing January 1, 2016, Mr. McAuley was to pay table child support of $1,068 per month based on an estimated annual income of $55,000, to be adjusted yearly after the exchange of income tax information;

• Both parents were to maintain extended medical benefits for the children available through their respective employers;

• An order for divorce was to issue; and,

• The terms of the settlement were to be incorporated into a Final Order.

[4] A Final Order incorporating the terms of the settlement was granted by Justice Sheffield on January 13, 2016.

[5] Mr. McAuley’s evidence is that shortly after the agreement was reached, the parenting schedule became more flexible based on Ms. Kieffer Wolf’s irregular work hours, and that he was generally caring for the children approximately five or six days out of nine, with extra days on the weekends.

[6] Within a year of the Final Order having been granted, Ms. Kieffer Wolf commenced a Motion to Change the Final Order seeking to adjust the parenting time to reflect her work schedule. A Case Conference was held in March of 2017 and then the matter went dormant until an urgent motion was heard by Justice MacEachern on April 23, 2019.

[7] Ms. Kieffer Wolf, who has suffered form depression and anxiety for many years, was voluntarily hospitalized for approximately 10 days in March of 2019 due to a mental health crisis. After her discharge from hospital, Mr. McAuley was not permitting Ms. Kieffer Wolf to care for the children, notwithstanding the existing court order, and on April 2, 2019, an incident occurred at the home of Mr. McAuley and his current spouse, Amy MacKay, to which police were called. Ms. Kieffer Wolf attended the home to have the children return to her care, and a dispute ensued. Mr. McAuley was charged with assaulting Ms. Kieffer Wolf, though the charges laid against him were later withdrawn by the Ottawa Police Services on September 13, 2019.

[8] Ms. MacKay complained to police that she was assaulted by Ms. Kieffer Wolf during the incident and Ms. Kieffer Wolf was also charged with assaulting her. Although Mr. McAuley states that Ms. Kieffer Wolf was convicted of assault on Ms. MacKay, it is clear from his own materials that on December 23, 2019, Ms. Kieffer Wolf entered into a Section 810 CCC “Recognizance to Keep the Peace” for a term of 12 months in respect of this incident. Ms. Kieffer Wolf has also provided a copy of her “Criminal Record and Judicial Matters Check” dated December 7, 2020 at Exhibit #4 of her first affidavit sworn on December 15, 2020, which confirms she has no criminal convictions nor outstanding charges. To be clear, Ms. Kieffer Wolf has never been convicted of assaulting Ms. MacKay.

[9] On April 7, 2019, Mr. McAuley brought a Notice of Motion seeking an order that the parenting schedule be changed to week about or, in the alternative, that the children be with him from Thursday to Monday and Ms. Kieffer Wolf from Monday to Thursday, as well as an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). Justice MacEachern heard the motion on April 23, 2019 and her decision was released on July 12, 2019. In the interim, some shared parenting was occurring, based, according to Mr. McAuley in paragraph 13 of his reply affidavit sworn on December 17, 2020, “upon receiving some information from her doctor in her motion material.”[^1] In her endorsement dated July 12, 2019, Justice MacEachern found, on an interim interim basis, that it was in the best interests of the children to be in the care of Ms. Kieffer Wolf from Monday to Thursday each week and the care of Mr. McAuley form Thursday to Monday. This is the schedule that has been in place from the release of her endorsement to the hearing of this motion on December 18, 2020. Justice MacEachern also referred the matter to the OCL for a section 112 CJA clinical investigation. On December 2, 2019, Justice MacEachern fixed costs payable by Ms. Kieffer Wolf to Mr. McAuley for the motion at $8,300.

[10] On November 27, 2019, Sandra Kapasky, Clinician from the OCL released her “Discontinued Report of the Children’s Lawyer”. According to Ms. Kapasky, the investigation was discontinued due to Ms. Kieffer Wolf’s “inability to fully engage in this process”. At pages 14 and 15 of the report, Ms. Kapasky indicated:

This investigation is being discontinued as although this clinician has gathered a substantial amount of information from the parties and the collateral sources she was not able to fully investigate the issues which is required in order to make recommendations in regards to custody and access. Ms. Kieffer-Wolf has had a great deal of difficulty engaging in the process and therefore this clinician was not able to have discussions with her or receive her feedback about concerns noted above from the professional collateral sources and the child interviews. When this clinician attempted to review the information with her, Ms. Kieffer-Wolf became confrontational with this clinician accusing her of taking a “tone” when legitimate inquiries were asked such as if she had been able to make an appointment for the parent-teacher interviews. Ms. Lieffer-Wolf also accused this clinician of being biased and made accusations including suggesting that this clinician had been involved in an intimate relationship with Mr. McAuley. Ms. Kieffer-Wolf refused to answer certain questions noting that she was concerned that any information that she reported might be discussed with Mr. McAuley. She presented as frustrated with the process noting that she believed that this was an “open/shut” case and that the clinician should recommend that the children be in her custody without any further investigation.

[11] Ultimately, no recommendations were made by Ms. Kapasky. In a meeting on November 28, 2019, with her family physician, Dr. Ewa Ciechanska, whom Ms. Kieffer Wolf has been seeing biweekly since her release from hospital, Ms. Kieffer Wolf acknowledged that she reacted “very inappropriately” during her interview with Ms. Kapasky, noting that she felt triggered by her.

[12] A Settlement Conference was originally to be scheduled subsequent to the release of the discontinued report from the OCL, however, it was delayed as a result of the COVID-19 pandemic but eventually conducted by Justice MacEachern on October 8, 2020.

[13] Once the pandemic was declared, the children ceased to attend school in person for a time, and many of the exchanges for parenting time became a struggle, at times involving the parties’ counsel, and calls to the police and/or the Children’s Aid Society of Ottawa (“CAS”).

[14] The CAS has also had sporadic involvement with this family between 2012 and 2020 (thought the file was open for on-going services continuously between 2016 and 2018), and a copy of their records were filed with the court, with the long-time, overriding concern, which the CAS has more than once verified, being risk of emotional harm to the children as a result of significant conflict between the parents over custody and access issues.

Positions of the Parties

[15] Although this was a Motion to Change originally brought by Ms. Kieffer Wolf, Mr. McAuley also seeks to change the order of Justice Sheffield dated January 13, 2016. In her endorsement from the October 8, 2020, Settlement Conference, Justice MacEachern found that the original pleadings were out of date and no longer reflecting the issues in dispute. Rather than require the parties to amend their pleadings at that late date, she ordered that each party was to address in their respective affidavits in support of the motion the precise relief sought.

[16] Mr. McAuley did so in paragraph 2 his affidavit sworn on October 30, 2020. He seeks an order for:

• Sole decision making over the children with parenting time for Ms. Kieffer Wolf alternating weekends and shared holidays and special occasions;

• Ms. Kieffer Wolf to pay Federal Child Support Guideline table support for the children commencing April 1, 2019, and that any arrears of child support owed by him be reduced to zero;

• Ms. Kieffer Wolf to contribute proportionally to the children’s section 7 expenses, and to reimburse him for her proportionate share of $10,136.37 in section 7 expenses paid to October 2020;

• to have child support and section 7 contributions adjusted annually as of July 1 after exchanges of income information by May 1 of every year;

• Ms. Kieffer Wolf to pay $27,500 by way of a rollover from her Life Income Annuity (or such other instrument as her pension was transferred into) by no later than December 31, 2020;

• Ms. Kieffer Wolf to forthwith list the matrimonial home for sale, with all proceeds held in trust pending payment to Mr. McAuley of $15,000 plus interest calculated at 3% compounded semi annually from the date of Justice Sheffield’s order, as well as the $8,300 costs award of Justice MacEachern of December 2, 2019, and any costs from this matter;

• A restraining order;

• A Police enforcement clause;

• A divorce order;

• Costs for having had to obtain an order suspending enforcement of the existing child support order; and,

• Costs for the motion.

[17] Although Ms. Kieffer Wolf did not specifically set out the relief she seeks in her two affidavits sworn on December 15, 2020 (one dealing with the parenting issues and the other dealing with the financial issues), she indicated in paragraph 7 of the former that: “I believe that it is important that the children have a “home” with me and there is no reason or cause to deny me custody and primary residence of the children with me as in the past.” In her submissions, however, Ms. Kieffer Wolf indicated that she would like to see a 50/50 shared parenting regime in place so the children could benefit from having both parents in their lives. With respect to the financial issues, Ms. Kieffer Wolf’s position is that there are arrears of child support owing by Mr. McAuley, and what she is required to pay him pursuant to Justice Sheffield’s order needs to be adjusted in accordance thereto. Additionally, it is her position that until very recently Mr. McAuley provided no vehicle into which a rollover from her previous pension could be made, and that, if it cannot be made, then disposition costs must be taken into account.

Analysis

A. Parenting

[18] It is my view that the test for a material change as set out in Gordon V. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 has been met by both parties. My reason for coming to this conclusion is that it is clear in the materials of both Ms. Kieffer Wolf and Mr. McAuley that the latter’s parenting time provided for in the Final Order of Justice Sheffield dated January 13, 2016 had changed some time in or around late 2017/early 2018 to include the children being in his care significantly more than was provided for in the order.

[19] Mr. McAuley submits that Ms. Kieffer Wolf’s mental health crisis in March of 2019 also constitutes a material change, and he seeks to completely reverse the Final Order of Justice Sheffield on the basis of the said crisis and as a result of the behaviours of Ms. Kieffer Wolf since. I do not agree that Ms. Kieffer Wolf’s mental health crisis in 2019 constituted a change in the condition, means, needs or circumstances of the children or in the ability of Ms. Kieffer Wolf to meet those needs, which materially affected the children.

[20] Ms. Kieffer Wolf has suffered from depression and anxiety since her teenage years. Her condition became exacerbated in the fall of 2018 when she returned to her night shifts as a nurse at the Queensway Carleton Hospital, to the extent that she was experiencing suicidal ideation. The children had been spending March break of 2019 in the care of Mr. McAuley, and when Ms. Kieffer Wolf was sent for a consult in the Emergency department of the hospital on March 15, 2019, it was suggested that she be admitted voluntarily to address her crisis. Ms. Kieffer Wolf did the right thing: she left the children in the care of Mr. McAuley and she was voluntarily admitted to the hospital for psychiatric care.

[21] Prior to her admission to the hospital, the parties appear to have been doing relatively well (notwithstanding their conflictual relationship) in terms of the care of the children. As I have indicated above, from sometime near the end of 2017, Mr. McAuley was assisting in caring for the children when Ms. Kieffer Wolf worked shifts at the hospital, albeit most often and for quite some time in her home. In early 2018, the CAS determined that its’ file, which had been open in on-going services since 2016, could close as the parents were positively coparenting at that time. By May of 2018, it was noted by the CAS that the children were spending approximately 60% of the time in the care of Mr. McAuley and 40% in the care of Ms. Kieffer Wolf due to her work schedule. Around the same time, Ms. Kieffer Wolf agreed to a suspension of enforcement of Mr. McAuley’s child support obligation by the Family Responsibility Office (“FRO”). This ability of the parents to exchange and respectively care for the children appears to have broken down, however, as a result of Mr. McAuley deciding to not permit Ms. Kieffer Wolf to resume care of the children after her discharge from hospital at the end of March 2019.

[22] The medical records filed by Ms. Kieffer Wolf, and the CAS records, both demonstrate that there was no concern about Ms. Kieffer Wolf’s ability to parent the children upon her discharge. Indeed, the CAS file notes that on March 29, 2019 a call was received from Laura Macready, “Queensway Social Worker”, calling to see if the CAS could assist Ms. Kieffer Wolf in having the children returned to her care. The note indicates that Ms. Macready stated: “When she was discharged there were no worries regarding self harm or suicide and no worries in regards to her being a caregiver to her children.”

[23] The CAS did not involve itself, and unfortunately, Ms. Kieffer Wolf appears not to have shared the opinion of her medical care providers with Mr. McAuley (at least until she responded to his motion). Instead, out of frustration and with the knowledge that the existing court order supported that the children were to be in her primary care, Ms. Kieffer Wolf attended the home of Mr. McAuley and Ms. MacKay on March 29 and April 2, 2019. This, of course, resulted in the altercation which occurred on April 2, 2019, when Ms. Kieffer Wolf attempted to physically retrieve the children herself, and the ensuing urgent motion. While there is no doubt that this decision was not a good one on the part of Ms. Kieffer Wolf, neither was it helpful that Mr. McAuley unilaterally refused to return the children to Ms. Kieffer Wolf’s care after her release from hospital, going so far as to remove them from school to prevent Ms. Kieffer Wolf from accessing them. It is most unfortunate that the parents were unable to return to their pre-March 15, 2019 practice of jointly caring for the children upon Ms. Kieffer Wolf’s release from hospital, as the ensuing events appear to have exacerbated the situation and continue to contribute to the on-going conflict.

[24] In her endorsement of July 12, 2019, Justice MacEachern set out the existing parenting time regime, and indicated at paragraph 17: “If the children are not in school on Friday, the transfer shall take place at an agreed upon neutral location. If the parties are unable to agree to the transfer location that is approximately midway between their respective residences, they may return before me to do so.” The parties agreed upon the parking lot of a Loblaws store mid-way between their homes as the transfer point. Although many references are made in Mr. McAuley’s materials to a requirement that third parties facilitate the transfer of the children, particularly by Ms. MacKay in her communications to counsel and with police attached as exhibits to Mr. McAuley’s affidavit of October 30, 2020, I see no reference to same in Justice MacEachern’s Endorsement. At the time that Justice MacEachern heard the motion, Mr. McAuley had been charged with assaulting Ms. Kieffer Wolf and some non-contact conditions were in place. It, therefore, made sense that Mr. McAuley might engage a third-party facilitator to exchange the children so that he would not expose himself to the risk of a breach of those conditions. His chosen third-party was Ms. MacKay. Once, however, Ms. Kieffer Wolf was also charged with assaulting Ms. MacKay, she too was then subject to non-contact conditions. In his affidavit sworn on October 30, 2020, Mr. McAuley states at paragraph 32: “In order to avoid further false allegations against me, I have refused to have any close physical contact with the Mother, including during access exchanges.” Thus, even when the charges against him were dropped, Mr. McAuley continued to rely on Ms. MacKay as his third party.

[25] Mr. McAuley’s choice required Ms. Kieffer Wolf to also engage a third-party facilitator, which was most often her partner, Lindsey, but sometimes also another friend. Things became very difficult after the pandemic was declared and the children were no longer attending school. At times it was not possible to find a third-party available at the appointed hour, and many times there was conflict over when, where and by whom the exchange would occur, including conflict which involved the police. In my view, these difficulties were exacerbated by Ms. MacKay being Mr. McAuley’s “third party” at the same time that Ms. Kieffer Wolf was subject to non-contact conditions in relation to her. While this may have been convenient to Mr. McAuley, it certainly was not to Ms. Kieffer Wolf. Mr. McAuley (and Ms. MacKay), however, appear to blame Ms. Kieffer Wolf for all of the difficulties that arose over the issue of parenting time exchanges, with no understanding of the hardship that was being experienced by Ms. Kieffer Wolf, or how they were contributing to the problems. The actions of all three adults, unfortunately, only made things worse for the children, as they were being exposed to that on-going (and very resolvable) conflict.

[26] Mr. McAuley has requested, as part of his relief on this motion, a restraining order against Ms. Kieffer Wolf, for both himself and Ms. MacKay. The majority of the evidence he relies on in support for same, however, relates to the difficulties around exchanges, which he contributed to creating. The children have since, of course, returned to in-person attendance at school and the difficulties appear to have correspondingly dissipated. At the motion on December 18, but for one very inappropriate message from Ms. Kieffer Wolf in February of 2020 in response to a Valentine’s Day social media post by Ms. MacKay, I received no other independent evidence of Ms. Kieffer Wolf harassing or molesting Mr. McAuley or Ms. MacKay such that I can find a restraining order is warranted.

[27] Ms. Kieffer Wolf has been the parent with decision making authority over the children since the 2016 order of Justice Sheffield. The evidence before me supports that she has made appropriate decisions for the children, in consultation with Mr. McAuley, since the order was made. These include receiving services from Crossroads, changing the school of the two younger children from French to English when it was apparent that they would benefit more from same and engaging school social workers and/or counselling services for Savannah and Felicity. I find that there is no material change in the condition, means, needs or circumstances of the children or Ms. Kieffer Wolf’s ability to meet them which materially affect the children with respect to decision making authority since the Final Order of Justice Sheffield dated January 13, 2016.

[28] With respect to the parenting issues, the only material change which requires a “fresh inquiry” into the best interests of the children is the distribution of parenting time between the parents. Recent amendments to the Divorce Act direct the court to consider family violence in assessing the best interests of children, including its impact on the ability and willingness of the person engaged in family violence to care for and meet the needs of the children, and the appropriateness of making an order requiring cooperation on issues affecting the children. Factors to be considered include:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[29] Ms. Kieffer Wolf has alleged a history of family violence, the impacts from which she continues to suffer. Indeed, she has alleged physical abuse by Mr. McAuley, which includes choking, and, on one occasion, Mr. McAuley having broken her arm during an assault. Mr. McAuley denies ever chocking Ms. Kieffer Wolf and alleges that it was, in fact, Ms. Kieffer Wolf who attacked him during one incident and when he put his arm up to defend himself, Ms. Kieffer Wolf hit it and broke her arm. Regardless of which version of this particular event is accurate, there is no doubt that family violence occurred during the relationship between these parents. Ms. Kieffer Wolf alleges that Mr. McAuley has continued to exhibit coercive and controlling behaviour, mainly by referring to her as “crazy” or “mental” either to or within hearing range of the children. This appears to be supported by Felicity, who noted in her interview with Ms. Kapasky that her “father says her mother is an “idiot” and that she needs mental help.”[^2] In addition, on page 14 of her report, Ms. Kapasky noted that information from collaterals, being Jean Paul II Catholic School and Guardian Angel Catholic School, raised concerns “about possible negativity by the father about the mother’s mental health due to statements the children have made to the school staff.”[^3]

[30] Ms. Kieffer Wolf is not “crazy”. She suffers from depression and anxiety, and Dr. Ciechanska recommended on April 2, 2019 that she go for trauma counselling.[^4] She was originally seeing a Dr. Armstrong for counselling, but was having difficulty consistently keeping appointments with her. However, she commenced psychotherapy with Stacey Kirkpatrick as of August 1, 2019, and to December 8, 2020, had attended 22 appointments with her. Dr. Ciechanska provided a note dated December 8, 2020 which confirms that Ms. Kieffer Wolf’s recurrent depression is being managed with a combination of medication and therapy.[^5] Ms. Kirkpatrick provided a letter also dated December 8, 2020,[^6] in which she confirms her belief that Ms. Kieffer Wolf’s PTSD[^7] is linked to intimate partner violence. Ms. Kirkpatrick reports:

Ms. Kieffer Wolf has made significant progress in the almost year and a half we have been working together. She went from being easily triggered, becoming very upset and tearful to better managing her emotions, taking better care of herself and developing healthy coping strategies. She deicide to move from a highly stressful job as an Intensive Care unit nurse to [a] more relaxed nursing position in long term care homes that allow her to work less shift work. She has reported that her nightmares have decreased. We have used cognitive behaviour therapy to help her manage her negative thoughts and to help her improve her symptoms.[^8] Ms. Kieffer Wolf has continued with regular therapy and is open to doing the work to continue to improve her mental health. I have no worries about Ms. Kieffer Wolf’s abilities to parent her children and care for them.

[31] I have no evidence either that family violence has been directed towards the children or that they fear for their own safety. They have, nevertheless, clearly been exposed to family violence, including during the altercation which occurred on April 2, 2019 outside of the home of Mr. McAuley and Ms. MacKay. The children are very aware that their parents had “a big fight” and that they do not get along, although they used to. These parents made a very concerted and deliberate effort to act in the best interests of the children and effectively co-parent in 2017/2018, and that effort was not lost on the children. While I recognized how difficult it will be, based on the broken trust on both sides emanating from the April 2, 2019 incident, I implore them to attempt to do so again. Savannah has been described as perpetually “sad”, Felicity has stated that she “hates” her life and Colby is noted to be “stressed with a short fuse”. The children continue to be severely impacted by the breakdown which occurred between their parents, but it is within the power of Ms. Kieffer Wolf and Mr. McAuley to repair that, or at least diminish the on-going effects of it.

[32] As I have indicated above, from about May of 2018 and until March 14, 2019, a shared parenting regime of sorts had been in place, notwithstanding the Final Order of January 13, 2016. A change in that order is warranted to reflect the time that the children have been spending with each of their parents. Ms. Kieffer Wolf has proposed a week on/week off schedule. I find that this is the schedule which would be in the best interests of the children for the following reasons:

(a) both parents are committed to the children and make every effort to meet their needs when the children are in their respective care;

(b) the children appear to be happy spending time in the care of each of their parents. What they are not happy about, and what is negatively affecting them, is the conflict which exists between Ms. Kieffer Wolf and Mr. McAuley (and now, Ms. MacKay);

(c) Ms. Kieffer Wolf has changed her employment since March of 2019, and now works predominantly day shifts;

(d) spending equal time with both parents, in a very structured and predicable way would benefit the children; and,

(e) the exchange date would be consistent, and for the most part at school. Additionally, doing so only once a week, on the same day, would reduce the contact of the parents and the potential for conflict.

[33] Although Mr. McAuley has requested a police enforcement clause as part of his relief, Mr. Justice Sheffield’s Final Order of January 13, 2016 already contains one. Thus, although it is available to them, I again implore these parents to put the needs of the children ahead of all else, and to refrain, if possible, from further involving the police in their disputes, not only because doing so may act as a trigger to Ms. Kieffer Wolf, but because it only serves only to further traumatize the children.

B. Child Support

[34] With respect to the financial issues, there is a material change in relation to child support which flows from or matches with the change in parenting time. The parties were both vague in their affidavits as to when that occurred in a concrete way. Mr. McAuley stated only that the parenting schedule became flexible “soon after this [2016] agreement was reached”, with him caring for the children “5 to 6 days out of 9 days, with extra days on weekends”.[^9] Ms. Kieffer Wolf, on the other hand, disputed this, stating: “Contrary to the allegations of the Applicant [sic] Joseph McAuley, the children in the past years since 2012 have been in my daily care and consideration until March 2019 at which time I was hospitalized with depression and anxiety.”[^10] The most specific evidence I was able to find was contained within the file of the CAS, wherein, as I have indicated above, it was noted that the children were spending significant time in each parents’ care by about May of 2018. I, therefore, find that a variation of the child support ordered by Justice Sheffield is warranted as of the spring of 2018.

[35] Pursuant to the Final Order of Justice Sheffield, commencing January 1, 2016, Mr. McAuley was to pay table child support of $1,068 per month based on an estimated annual income of $55,000, to be adjusted yearly after the exchange of income tax information. Justice Sheffield’s order provided for enforcement of the order by the FRO. Ms. Kieffer Wolf included in her materials a statement of arrears from FRO to August 13, 2020 which indicates that $12,816 is owed by Mr. McAuley to Ms. Kieffer Wolf. However, the statement indicates that on March 19, 2018, after an “ADJ WITHDRAW CONSENT”, the arrears owing were $0.00. In other words, all of the $12,816 arrears owing accrued after March 19, 2018. By that time, the parties were essentially in a shared parenting situation. I, therefore, find that any and all arrears owing for child support by Mr. McAuley subsequent to March 19, 2018 should be fixed at $0.00.

[36] Although Ms. Kieffer Wolf agreed to withdraw the enforcement of child support from FRO in 2018, she subsequently requested that the enforcement be reinstated. On July 30, 2020, Justice M. Smith granted an order on consent, on an interim and without prejudice basis, providing that all enforcement of support be suspended pending further order of the court, that all money collected by FRO subsequent to January 1, 2020 be immediately remitted back to the payor and that future enforcement continue through FRO. Mr. McAuley has in this motion requested an order for the costs to which he was put to obtain that interim without prejudice order from Justice M. Smith, which he estimates to be $850 and which I am prepared to grant. Ms. Kieffer Wolf ought not to have sought enforcement pending the outcome of this proceeding.

[37] With respect to on-going child support as of April 1, 2019, Mr. McAuley provided a sworn Financial Statement dated October 30, 2020, in which he indicates that his annual income is $79,408.32. He has provided no further income information. The only sworn Financial Statement before me for Ms. Kieffer Wolf is one dated March 24, 2017, in which her annual employment income is noted to be approximately $84,445. As has been noted above, Ms. Kieffer Wolf has since changed her employment and I am unaware if her income has also changed. I suspect that it is very close to that of Mr. McAuley. On that basis, and on the basis of the shared parenting regime set out above, which would result in a set-off amount of child support pursuant to section 9 of the Federal Child Support Guidelines, I decline to make an order for on-going child support at this time. However, if I am wrong and there is a significant difference in the parties’ respective incomes, a further appointment to address the issue of a proper amount of set-off child support can be arranged through the office of the Trial Coordinator prior to the Final Order being issued and entered.

C. Section 7 or Extraordinary Expenses

[38] Justice Sheffield’s order of January 13, 2016 provided at paragraph 25 that: “Commencing February 1, 2016, the parties shall share the children’s extraordinary expenses in proportion to their respective incomes. Neither party will incur such an expense without prior written authorization of the other parent, consent not to be unreasonably withheld. Such expenses will include the after tax cost of reasonable daycare costs.” While Ms. Kieffer Wolf has alleged that Mr. McAuley failed to make any payment for his pro rata share of special expenses over the years[^11], she has provided no particulars. Mr. McAuley, on the other hand has made a claim to be reimbursed by Ms. Kieffer Wolf for specific extraordinary expenses for which he has paid since March of 2019. He seeks a reimbursement of Ms. Kieffer Wolf’s proportionate share of $10,136.37, for which receipts for same are attached at Exhibit “U” of his affidavit sworn on October 30, 2020. As I have found that the parties’ incomes are roughly equal, Ms. Kieffer Wolf’s proportionate share would be 50%, or $5,068.19. Although I have no knowledge as to whether Ms. Kieffer Wolf provided her written authorization for these expenses, they are such, for example summer camps, swimming, tumbling, etc., that her consent, if withheld, could be found to be unreasonable. She, therefore, will be required to contribute to same.

D. Equalization

[39] Ms. Kieffer Wolf has raised in her materials relating to the outstanding financial issues, some evidence with respect to matters which pre-date the Final Order of January 13, 2016. I agree with Mr. McAuley’s submission that they are not relevant to the Motion to Change before the court, and I decline to deal with them.

[40] The Final Order of Justice Sheffield of January 13, 2016, however, provides at paragraphs 16 through 21:

16. The Mother will pay the Father an equalization payment consisting of;

a. $25,000 by way of rollover from her pension, more particularly as set out below;

b. Up to $15,000 from the proceeds of sale of the matrimonial home located at 37 Poole Creek Crescent, Stittsville, Ontario, K2S 1T7, legally described as Parcel 55-1, section 4M-373, Lot 55, Plan 4M-373, Goulbourn, Ontario, PIN 04463 – 0257 (LT), but no more than half the net proceeds of the sale from an arm’s length third party. The Mother cannot further encumber the home, nor transfer it to a non-arm’s length person. This Order may be registered on title to secure the Father’s interest in the matrimonial home.

17. On the date of separation, Stephanie Melanie Caresse McAuley owned a pension under the Healthcare of Ontario Pension Plan. The Plan Administrator will make the Lump Sum transfer from Stephanie Melanie Caresse McAuley pension to Joseph Patrick McAuley RRSP. The details of which are specified as follows: Td Direct Investing Transit 0563 RRSP account 05H1FS/U.

18. To effect the Lump Sum Transfer, the parties will complete and file, by February 29, 2016 with the Plan Administrator, a Pension Form 5 (Application to Transfer the Family Law Value), a copy of which is attached as a Schedule to this Order.

19. The parties will cooperate and complete all documents necessary to facilitate the Lump Sum Transfer, including the completion and delivery of all necessary Pension Forms, together with any supporting documentation and additional information required or requested by the Plan Administrator.

20. Stephanie Melanie Caresse McAuley will not do anything to cause this pension to cease to be available for division in accordance with this Order. In the event that Stephanie Melanie Caresse McAuley does jeopardize the availability of her pension for division in accordance with this Order, the Husband’s Spousal Support release in the Minutes of Settlement signed will be set aside and an appropriate amount of Spousal Support determined and/or the equalization payment will be recalculated to take into account the Family Law Value of Stephani Melanie Caresse McAuley’s pension interests. Cost associated with this recalculation and collection of monies due will be paid by the Mother to the Father, on a full indemnification basis.

21. If Joseph Patrick McAuley dies before Stephanie Melanie Caresse McAuley and before the lump sum transfer under the PBA id completed, the lump sum transfer will be paid to Joseph Patrick McAuley’s Estate.

[41] Neither the pension transfer nor the cash payment provided for in the order of Justice Sheffield have to date been made. Mr. McAuley submits that Ms. Kieffer Wolf has collapsed her pension plan such that a pension transfer in no longer available. He submits further that, contrary to the order, Ms. Kieffer Wolf has further encumbered the matrimonial home, which is in her sole name. He seeks an order that the matrimonial home be sold and that all sums owing to him be paid from the proceeds of sale.

[42] Ms. Kieffer Wolf’s evidence is that her Healthcare of Ontario Pension Plan remains available, at least to satisfy her obligation to Mr. McAuley, but that he has provided no vehicle into which it can be transferred “until most recently”.[^12] Ms. Kieffer Wolf states this despite that the Final Order of January 13, 2016 itself identified an RRSP account for Mr. McAuley into which the transfer could be made. In paragraph 16 of her affidavit, Ms. Kieffer Wolf indicates: “When I terminated my employment with the Queensway Carleton Hospital I was required to separate my account within the HOOP pension fund but maintained my account to be able to fulfill my obligations to the Respondent.” I do not know exactly what Ms. Kieffer Wolf means by this statement. However, she continues in the same paragraph to say: “The Pension Account was fully able to make the required transfer at all times.” This being the case, there is no reason for Ms. Kieffer Wolf to not immediately make the necessary transfer. Mr. McAuley shall have seven days to provide to Ms. Kieffer Wolf identifying information for the RRSP account into which he wishes the sum to be transferred, and Ms. Kieffer Wolf will have 30 days from receipt of the information to make the transfer by way of rollover from her pension, which, of course, will not be subject to taxation. If, contrary to her assertion, she has “collapsed” her pension into some other vehicle, such that accessing the funds would have tax implications for her, she will have to bear that burden, not Mr. McAuley. He is entitled to a $25,000 transfer, and a $25,000 transfer he shall get.

[43] With respect to the cash entitlement, Justice Sheffield’s order did not require Ms. Kieffer Wolf to sell the matrimonial home. It only provided that Mr. McAuley is entitled to receive up to $15,000 from the proceeds of the sale of the matrimonial home. Given that Ms. Kieffer Wolf had in 2015 arranged to list the home for sale, it seems logical that a sale may have been contemplated at the time the Minutes of Settlement were entered into. However, Ms. Kieffer Wolf has to date not sold the matrimonial home, of which she is the sole owner. The effect of Justice Sheffield’s order is to recognize that Mr. McAuley was entitled to an equalization payment of $40,000, $25,000 of which was to be by pension rollover and $15,000 of which was to be in cash. The sale of the matrimonial home was a mechanism through which the parties agreed the latter could be provided. The bottom line is that Ms. Kieffer Wolf owes Mr. McAuley $15,000 in cash (plus post-judgment interest) as part of her equalization payment to him and she must pay it forthwith. What arrangements she makes to do so will be up to her. However, if she does not do so, the home will have to be sold so that Mr. McAuley can access the proceeds of sale to satisfy what is owed to him.

[44] Mr. McAuley seeks an order pursuant to section 9(1)(d)(ii) of the Family Law Act that the matrimonial home be sold to satisfy Ms. Kieffer Wolf’s obligation to him. In the event that Ms. Kieffer Wolf does not satisfy Mr. McAuley in full within the timelines set out in this court order, there will an order requiring Ms. Kieffer Wolf to sell the home to do so.

E. Divorce

[45] Mr. McAuley has requested an order for Divorce and filed an affidavit in support of same. The Divorce is granted with the corollary relief as to parenting and support provided herein.

Final Order

[46] For all of the reasons given above, there shall be a final order pursuant to the Divorce Act and Family Law Act as follows:

1. Paragraph 5 of the Final Order of Justice Sheffield dated January 13, 2016 is varied to indicate that the parents shall have week on/week off parenting time, with the exchange to occur on Monday morning at the children’s schools. If the children are not in school on the Monday of the exchange, it shall occur in a mutually agreed upon location halfway between the parents’ residences and at an agreed upon time;

2. Compliance with Paragraphs 16 through 21 of the Final Order of Justice Sheffield shall occur as follows:

a. Mr. McAuley shall have seven days from the date of this decision to provide Ms. Kieffer Wolf with particulars as to the RRSP account into which she is to transfer $25,000;

b. Ms. Kieffer Wolf shall have 30 days from the receipt of the particulars from Mr. McAuley to cause the transfer of $25,000 into his RRSP account to occur;

c. As per paragraph 19 of Justice Sheffield’s order, the parties will cooperate and complete all documents necessary to facilitate the transfer;

d. Within 30 days of this order, Ms. Kieffer Wolf shall pay to Mr. McAuley $15,000 in complete satisfaction of his equalization payment;

e. Within 30 days of this order, Ms. Kieffer Wolf shall pay to Mr. McAuley 3% post-judgment interest on his equalization payment of $40,000 from January 13, 2016 to the date of this order; and,

f. If Ms. Kieffer Wolf fails to comply with this order by April 30, 2021, the matrimonial home shall be immediately listed for sale pursuant to section 9(1)(d)(ii) of the Family Law Act to satisfy the above obligation.

3. Any and all arrears for child support and extraordinary expenses up to and including April 1, 2019 are fixed at $0.00 (zero);

4. Paragraph 23 of the Final Order of Justice Sheffield is varied to indicate that commencing April 1, 2019, the parties shall pay set-off support pursuant to section 9 of the Federal Child Support Guidelines, which is set at nil based on the parties’ similar incomes;

5. Ms. Kieffer Wolf shall reimburse Mr. McAuley the sum of $5,068.19, being her 50% share, for extraordinary expenses from April 1, 2019 to December 30, 2020. The parties shall continue to contribute to extraordinary expenses as per paragraph 25 of the Final Order of Justice Sheffield dated January 13, 2016;

6. Ms. Kieffer Wolf shall pay to Mr. McAuley $850 in costs for the expense to which he was put to obtain the consent interim order of Justice M. Smith dated July 30, 2020; and,

7. The parties shall be divorced.

Costs

[47] If the parties are unable to reach an agreement as to the liability or quantum of costs payable on the motion, they may make written submissions of no more than three pages, along with copies of their Bills of Costs and Offers to Settle, to me at intervals of 10 days from May 1, 2021, and I shall make an order.

Engelking J.

Date: March 23, 2021

COURT FILE NO.: FC-12-2103-1

DATE: 2021/03/23

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Stephanie Melanie Caresse Kieffer Wolf, Applicant

AND

Joseph Patrick McAuley, Respondent

BEFORE: Justice Engelking

COUNSEL: Self-represented Applicant

Susan E. Galarneau, for the Respondent

ENDORSEMENT

Engelking J.

Released: March 23, 2021

[^1]: At paragraph 12 of the Endorsement of Justice MacEachern dated July 12, 2019, reference is made to a note from Ms. Kieffer Wolf’s doctor dated April 4, 2019.

[^2]: Exhibit “L” to the affidavit of Mr. McAuley sworn on October 30, 2020, “Discontinued Report of the Children’s Lawyer” dated November 27, 2019, p.12

[^3]: Ibid., p 14

[^4]: First affidavit of Ms. Kieffer Wolf sworn on December 15, 2020, Exhibit 1

[^5]: Ibid., Exhibit 2

[^6]: Ibid., Exhibit 3

[^7]: Ibid., Exhibit 1, QC Hospital Discharge Summary dated March 25, 2019, page 2, Dr. Kovacs noted “significant symptoms of posttraumatic stress disorder”

[^8]: Ibid., p. 5

[^9]: Affidavit of Mr. McAuley sworn on October 30, 2020, paragraphs 23 and 24.

[^10]: Affidavit of Ms. Kieffer Wolf sworn on December 15, 2020, paragraph 3.

[^11]: Second affidavit of Ms. Kieffer Wolf sworn on December 15, 2020, paragraph 13

[^12]: Second affidavit of Ms. Kieffer Wolf sworn on December 15, 2020, paragraph 17