Introduction

[1] The applicant (“mother”) and respondent (“father”) separated in February 2015. They have two children, 10 and 12 years old. On July 22, 2016, the parties signed a comprehensive Parenting Plan, and this was the basis for the consent Final Order of Mr. Justice Glustein dated July 22, 2016 (the “Final Order”).

[2] The Final Order provides that they will “parent the children jointly”, share parenting time and jointly make major decisions about the children.

[3] The Final Order requires the father to pay the mother set-off child support, and spousal support that is subject to a review. The support was based on the father’s income of $128,958 and the mother’s income of $23,407 (from Employment Insurance Benefits).

[4] In June 2017, the father was terminated from his employment. He has not been able to find a job and remains unemployed. The mother has returned to work and her income in 2020 was $89,655.

[5] In January 2020, the mother filed a motion to change the Final Order. She seeks “sole custody of the children”; “sole decision-making authority”; an order that the children reside with her full time until the father has a stable home environment; and a modification of the schedule to address long weekends and more flexibility. The mother also requests orders to deal with child support and s. 7 arrears.

[6] The father also requests a change to the Final Order. Based on his unemployment as of June 2017, he seeks to terminate spousal support as of June 30, 2017 and adjust the child support and s. 7 expenses owed. He contests most of the parenting changes that the mother requests.

[7] During the hearing of this motion to change, the parties settled the financial issues (child support, spousal support and security for support). They also agreed to change the summer vacation time, subject to receiving a Voice of the Child Report. These agreements are reflected in the consent orders made below.

[8] This decision deals with the parenting issues and whether the Final Order should be changed.

Temporary Orders

[9] After the mother issued her motion to change, several conferences were held, and orders were made.

[10] At a case conference, Nakonechny J. issued a temporary consent order (the “Nakonechny order”) dated August 4, 2020 that set out the following changes to the Final Order. First, the Family Responsibility Office’s enforcement of the Final Order was terminated immediately. Second, the parties agreed to use OurFamilyWizard for all non-urgent communications. Third, effective September 7, 2020, the children’s regular residential schedule was varied so they would reside with their mother on Mondays and Tuesdays, their father on Wednesdays and Thursdays and alternate weekends between the parents. This variation was subject to review at a settlement conference at which point the court would review how the children were adjusting.

[11] The parties attended a settlement conference before Kiteley J. held on October 5, 2020, November 4, 2020 and February 17, 2021.

[12] On October 5, 2020, the parents reported that the residential schedule change in the Nakonechny order had been implemented, was working well and was in the best interests of the children. The mother wanted this change to be final, but the father was not yet prepared to agree.

[13] Justice Kiteley’s November 4, 2020 endorsement described the two parenting issues for the motion to change as follows:

Issue #1: Whether there should be a variation of the final order dated July 22, 2016 (providing for joint parenting) to sole custody and full decision-making by the Applicant?

[13] In her material, the Applicant has explained her motivation behind seeking the changes in the parenting framework. She expresses concern about what she sees as the instability in the Respondent’s circumstances and how that is impacting the children. She is not proposing a long-term variation. She sees a resumption to a 50/50 parenting schedule once the Respondent’s circumstances have stabilized.

[14] The Respondent has provided explanations for his circumstances, denies that the children have been impacted and is opposed to any change in the parenting plan as to joint custody and decision-making. He is also opposed to any changes in the parenting schedule except for the modification that was introduced in September referred to below.

Issue #2: Independently of the variation of the custody and decision making, whether there will be modifications to the parenting schedule?

[15] The Applicant is asking to modify the schedule in the final order to address long weekends and to introduce flexibility.

[16] It appears that the parties agreed to the modification of the regular schedule introduced in September 2020 but they did not agree to make that change in isolation of other issues.

[14] On February 17, 2021, Kiteley J. made a referral to the Office of the Children’s Lawyer (“OCL”) requesting that they prepare a Voice of the Child Report. The OCL accepted this request and a report was provided after the hearing of this motion to change. The parties were given an opportunity to respond.

Legal framework

[15] Section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that the court may vary a final order.

[16] Before a parenting order is varied, s. 17(5) states that the court “shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order”.

[17] A change alone is not enough to seek a variation. The change must be material, as explained in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 13. The threshold test requires the moving party to prove the following:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[18] If this threshold test is met, the Court must then conduct a fresh inquiry into what relief is in the best interests of the child.

analysis

[19] The material change that the mother relies upon is the father’s failure to communicate about matters relating to the safety and well-being of the children.

[20] The most serious aspect of the father’s failure to communicate arose when he was evicted from his rental home in October 2019. He did not have stable permanent housing until October 2020.

[21] This was a very difficult time for the parties. The mother was injured in an accident in 2017 and was just starting to get back to work. The father lost his job in 2017 and remained unemployed. Financially, they were struggling.

[22] During this time, the father lived with different friends and the mother had limited information about where he was. The parenting schedule during this time of uncertainty did not change. The mother learned from the children that the father’s living situation was not stable. As the father moved to different locations, he did not keep the mother informed about his living circumstances in a timely manner. The father did not update the mother about his housing situation until June 2020.

[23] The father’s failure to keep the mother informed was contrary to para. 22 of the Parenting Plan that required the father to immediately give the mother his new telephone number and address as soon as the information was available.

[24] This serious lapse in communication understandably made it difficult for the mother to trust the father and accept that he was prioritizing the children’s best interests. His failure to communicate caused unnecessary stress for the mother.

[25] In October 2020, the father’s housing problem resolved when he moved to a rental condominium where he lives today. He remains unemployed.

[26] The mother also states that the father has been unwilling to communicate about other matters concerning the children that are addressed below.

[27] As noted, from October 2017 until about April 2020, the mother was not working because of an accident. The children were in daycare and she could not afford this expense. The mother asked the father to cancel daycare and allow her to care for the children before and after school. In addition, the 2-2-3 parenting schedule meant that one parent did not have the same daycare days every week. Once the mother returned to work, this schedule made it difficult for her to arrange daycare and balance work demands. The mother tried to discuss options with the father, but he did not cooperate. The father had also lost his job and yet a frank discussion about daycare did not happen.

[28] There were also communication problems when the mother requested changes to the summer schedule, as explained below.

[29] The parenting plan states that in the summer months, the children will reside with each parent for no less than two non-consecutive weeks. For the remaining summer month, the regular schedule applies.

[30] In odd years, the father has first choice for his two non-consecutive weeks and in even years, the mother has first choice. The choice must be communicated to the other parent by April 1. The mother is frustrated by the father’s failure to abide by the April 1 deadline. The evidence is that this occurred once. His delay in communicating his choice of weeks made it difficult for the mother to plan her summer parenting time. During the motion, the parties agreed to a term to address this problem. If a parent fails to meet the deadline, then that parent forfeits his/her right of first choice that year.

[31] The mother also asked the father to allow two changes to the summer schedule.

[32] First, she wants two consecutive weeks of summertime so she can take a longer vacation with the children. During the hearing of this motion, the father agreed to this change. A consent was signed allowing each parent two consecutive weeks of summer parenting time.

[33] Second, the mother wants a week about schedule for the rest of the summer so she can limit the cost of daycare and summer camps that she needs during her summer parenting time.

[34] The mother works and needs daycare or day camps for the children to attend during her summer parenting time. Because four of the summer weeks follow the regular parenting schedule, the mother must pay for a full summer camp week or a daycare week, even though the children are not with her for the entire week. The father does not need day camps or daycare, nor can he afford this expense. As a result, the mother is left to pay the full cost of camp or daycare in four summer weeks, when half of this time the children are with the father.

[35] To solve the problem, the mother proposed that the entire summer be divided into weeks. Each parent would have two consecutive vacation weeks with the children, and this would allow a longer summer vacation. The remaining four weeks would alternate. This would allow the mother to only pay for weekly camps or daycare during her parenting weeks. The mother says that the father was not willing to discuss these changes. As noted, during the motion he agreed that the two summer weeks can be consecutive.

[36] The mother states that the father has also refused to allow changes to the parenting schedule when she has had an opportunity to take the children on a vacation during non-summertime. This happened twice. The mother needed additional parenting days to take the children on these vacations and says that the father would not agree. She says that this is another example of his refusal to cooperate and act in the best interests of the children. She also states that these examples show how the parenting plan lacks flexibility and limits vacation opportunities.

[37] In January 2017, the mother asked the father to switch one weekend in January 2017 so she and her family could take the children to Cabo San Lucas, Mexico for a vacation. Her family was paying for the accommodation. The flight left on a Saturday and returned the next Saturday. This meant that she needed eight consecutive days of parenting time and the father would not agree. He did not agree because the mother did not provide him with details about the trip including the exact dates. It appeared that if the trip happened, he would not see the children for five consecutive weekends.

[38] In the summer of 2019 (July 28-August 6), the mother had an opportunity to take the children on a trip to France with her extended family, who were paying for their accommodation. She needed nine days of parenting time and asked the father to switch days so the trip could go ahead. The father refused. He acted out of anger and told her to travel on her own time. On this motion, he agrees that his response to the France trip was too rigid.

[39] In summary, it is the mother’s position that the parents are required to be flexible and act in the best interests of the children. The parenting plan states that the parenting time can be altered on consent by email, but the father has not been flexible when changes are requested and is not always responsive to the mother’s requests. The mother relies on para. 5 of the parenting plan that states:

Flexibility

The Parents will be flexible in accommodating other family events or special occasions, within reason, and in consideration of the best interests of the Children.

[40] The mother also relies on para. 4(q) of the parenting plan that gives each parent five extra vacation days. It is the mother’s position that her vacation requests should have been accommodated because the father has an obligation to be flexible and she has five extra vacation days. Paragraph 4(q) states:

Other Vacation Days

4 (q) each parent may take a child out of school for up to five (5) days a year if that parent wishes to extend a vacation with the Children

[41] Each parent’s obligation to be flexible is clear. The father admits that he was not flexible when he refused to consent to the trip to France. However, the same cannot be said about the trip to Mexico because he did not have enough detail to consider the request.

[42] Based on the submissions, there is some confusion about what para. 4(q) provides. A parent’s use of the extra five days is limited to what is stated. Paragraph 4(q) is part of the section titled “Holiday/ Special Day Schedule.” This section sets out the parenting time for all the holidays and vacations in the year. This includes, for example, the school spring break. If a parent has vacation/holiday time, para. 4(q) allows the children to be taken out of school for up to five days to extend that vacation.

[43] As worded, para. 4(q) does not allow a parent to extend a summer vacation unless the school days are contiguous with the holiday. For example, if a parent had vacation time in the week immediately after the last week of school or immediately before the first week of school, then the children could be taken out of school for up to five days. It would also allow the parent whose parenting time falls on Family Day to take the children out of school to extend that vacation day. Paragraph 4(q) does not allow a parent to take the children out of school when it is not for the purpose of extending vacation time that the parent has under the parenting plan.

[44] As a result of these communication problems and the father’s unwillingness to be flexible, the mother requests a change of the Final Order. She wants sole decision-making authority and asks that the children live with her full time until the father’s circumstances have stabilized. These are the major changes she seeks. As well, changes to the parenting schedule are requested.

[45] The mother has not satisfied the threshold test in Gordon. My reasons follow.

[46] The communication problems surrounding schedule changes, daycare, day camps and vacations were unnecessary and unfortunate. Both parents have experienced financial difficulties. The father’s unemployment continues. The mother made a reasonable request to change the summer schedule so she could limit the cost of daycare and camps. This is the type of accommodation that should have been agreed upon.

[47] These communication problems, while important, do not rise to the level necessary to pass the threshold in Gordon. It is unfortunate that the children have missed travel opportunities and the trip to France should have been accommodated by the father. Further, the father should have responded to the mother’s scheduling changes to deal with the cost of daycare and day camps. However, these problems did not change the “needs or circumstances of the child[ren] and/or the ability of the parents to meet the needs of the child[ren]” and there is no evidence that the problems “materially affect[ed] the child[ren]”. Communication problems to a lesser extent existed before the parenting plan was finalized and the problems that continued could have been reasonably contemplated.

[48] The father’s failure to communicate his housing problem and keep the mother informed is more serious. While the evidence shows that the mother had some awareness of the problem, it was the father’s obligation to immediately inform the mother and he did not do so. Fortunately, during this time frame, the father found temporary accommodations with various friends. While this had to be a disruption for the children, I am not satisfied that it passes the threshold in Gordon. The children were cared for, continued to attend school, and their basic needs were met. Further, the father has now found stable accommodation, alleviating the mother’s genuine concerns.

[49] Finally, there is no compelling evidence that the communication problems have involved decisions about major topics such as education, health, religion or significant extra-curricular activities. While the mother complains that the father does not support the children with homework, there is conflicting evidence to the contrary. Aside from the odd minor complaint, there is no evidence that the communication problems extended into the area of major decision making. This supports my conclusion that the threshold test has not been met.

[50] I acknowledge that an ongoing serious failure to communicate with the other parent and, a persistent refusal to be flexible and accommodate reasonable changes to a schedule, could pass the threshold in Gordon. That is not what has happened in this case and will hopefully not happen in the future.

[51] Finally, it is important to emphasize that the parenting plan is flexible. Parenting time can be altered on consent by email. The Plan can accommodate reasonable requests for changes, if the parents are flexible and act in the best interests of their children.

voice of the child report

[52] As noted, the parents have agreed to some changes in the parenting plan. Before accepting that these changes should be final, the Voice of the Child report must be considered. The court must take into consideration whether the changes are in the best interests of the children. The views and preferences of the children is a factor among others to consider: Divorce Act, s.16(3)(e).

[53] There are two agreed schedule changes: the change to the regular schedule in the Nakonechy order (making this change final) and the change allowing the two summer vacation weeks to be consecutive. The third change is not agreed to. The mother wants the remaining four summer weeks to be scheduled as full weeks, to minimize the cost of daycare and camp.

[54] The regular schedule was 2-2-3-2-2-3. In August 2020 it was changed to 2-2-5-5. This new schedule is working well. The children prefer this new schedule because there is less moving back and forth between homes. The children report that they moved back and forth too much under the original schedule. This was difficult and, for one child, it was the hardest thing for him to handle since the separation. Sharing time equally with their parents was viewed positively. One child described it as “amazing”.

[55] This amended schedule includes an exchange time of 9 a.m. At the hearing of the motion, the mother requested that this time be moved to 3:30 p.m. when the exchange day falls on a day when there is no school. She says that the children like to sleep in, and this is the reason for the request. I refuse to allow this change. The Voice of the Child report does not identify this as a preference of the children.

[56] Clearly, the change to the regular schedule, as set out in the Nakonechny order, is in the best interests of the children. This change shall be implemented on a final basis. It is also important that use of OurFamilyWizard for all non-urgent communications continue.

[57] The summer schedule change is less straight forward. The parents have agreed to each have two consecutive summer vacation weeks. This will allow them to take the children on longer vacations. The mother also wants the rest of the summer to be week about.

[58] The 10-year-old (soon to be 11) child is fine if they alternate weeks during the summer months. However, he prefers one rather than two weeks with each parent. He does not have any difficulty being away from the other parent for a week.

[59] The 12-year-old child says that during the summer, five days is not enough time to take a vacation with one parent and so he is happy with seven days for each parent’s summer vacation weeks. However, the 12-year-old child wants to follow the 2-2-5-5 schedule for the rest of the summer.

[60] I have taken the views of the children into consideration. Their views are different. One accepts alternating weeks for the entire summer and the other does not. The mother requires this change to help manage the daycare/camp costs. Both children think that one week is enough for a vacation and prefer this over a two-week vacation. The 12-year-old is in part driven by his belief that five days is not enough time for a vacation and so seven days is acceptable.

[61] The views of the children are but one factor. These children have a strong and healthy relationship with both parents. Their needs are met by the parents who are doing their best to provide a stable environment. Family vacations are important. The parents agreed to the two consecutive weeks because it provides a better opportunity to travel and spend time at a family vacation home. I am concerned that these children do not appreciate the advantage of a two-week vacation. While the children currently have some hesitancy about a two-week vacation, it should be provided in the parenting plan. Trips and cottage time should be discussed and planned with the children to increase their comfort level.

[62] This leaves the mother’s request to change the schedule for the remaining four summer weeks, to week about. One child is fine with this change and the other is not. On a practical level, this change is important. The mother works and must pay for daycare or camps. This is part of her plan of care and the children’s best interests are respected in this plan.

[63] If the regular schedule is followed, the mother is left paying for care for the full four weeks, when she only has the children half of this time. This is unfair and unnecessarily increases her cost of care. The father proposes that the cost can be eliminated if he cares for the children during the mother’s time. This too is unfair as it is the mother’s time with the children.

[64] I have decided to make the change requested. Assuming the calendar permits, a two-week summer vacation should not be followed with a single week with the same parent. While I appreciate that there is no underlying material change, the parents have already agreed to revise the summer schedule, without a material change. This last change flows from what they have agreed to and is a necessary variation.

Conclusion

[65] In summary, the variations allowed are set out in the following orders. All other variations requested are denied. Where the variation is on consent, it is noted.

ORDERS

The final order of Glustein J. (the “Final Order”) dated July 22, 2016 is varied as follows:

The following shall be added to paragraph 2 of the Final order: “The parents shall use OurFamilyWizard for all non-urgent communications concerning the children and the parenting plan”.

Variations of the Parenting Plan

On consent, paragraph 3 of the Parenting Plan, Schedule A to the Final Order, is varied on a final basis as follows:

(a) the Children, shall reside with the applicant (“Mother”) on Mondays and Tuesdays overnight (if there is no school, the parenting time will begin at 9:00 a.m. on Monday);

(b) the Children shall reside with the respondent (“Father”) on Wednesdays and Thursdays overnight (if there is no school, the parenting time will begin at 9:00 a.m. on Wednesday);

(c) the Children will reside with the parents on alternating weekends, from Fridays (pick up at school; if there is no school then the pick-up time shall be 3:30 p.m.) to Mondays (drop off at school; if there is no school the exchange shall be at 9:00a.m.).

On consent, paragraph 4(i) of the Parenting Plan, Schedule A to the Final Order shall be deleted and replaced with the following:

4(i) the Children will reside with each parent for no less than two (2) consecutive weeks during the Children’s summer school vacation. The Father and the Mother will advise each other by April 1 of their chosen weeks, with the Father to have first choice of weeks in odd-numbered years and the Mother to have first choice of weeks in even-numbered years. If a parent who has first choice of weeks in a given year does not communicate his or her choice to the other parent by April 1, that parent will forfeit their first choice of weeks. In making plans, each parent will take into account the Children’s camp and other scheduled activities.

The following is added to paragraph 4(i) of the Parenting Plan, Schedule A to the Final Order:

For the remaining summer vacation weeks, a week about schedule shall apply. The children shall reside with each parent one week at a time. The scheduling of these weeks shall be agreed to by April 1 each year. If an agreement is not reached, the mother shall set the schedule in even numbered years and the father shall set the schedule in odd numbered years.

On consent, paragraphs 3-8 of the Final Order shall be deleted and replaced with the following:
There shall be no Table child support payable from one party to the other effective April 1, 2021. Given the parties’ incomes, their ability to each maintain a residence for the Children, the waiving of the child support overpayments pursuant to the Final Order, and the shared parenting arrangement, these arrangements meet the Children’s needs and are reasonable in the circumstances.

Paragraphs 6-8 of the Final Order shall be deleted and instead the following terms shall be effective April 1, 2021:

(a) subject to paragraph 7(a), the parties shall share equally the Children’s special and/or extraordinary expenses as agreed upon, in writing, and having regard to their respective incomes and ability to pay and whether these expenses are reasonable and necessary. A reconciliation of these expenses shall take place by June 30th and December 31st annually, with the parties to have paid receipts/invoices for each expense for which contribution is claimed;

(b) the Father shall pay for the youngest child’s cellular telephone expenses and the Mother shall pay for the oldest child’s cellular telephone expenses. The Father shall be responsible for providing the youngest child with a cellular telephone in May 2021 and the Mother shall be responsible for providing the oldest child with a cellular telephone (which he has); and

The annual review, disclosure and adjustment provisions in the Final Order shall continue with the following exceptions:

(a) the proportional sharing of the special and/or extraordinary expenses shall never be less than 50/50 but may be adjusted upward if the Father’s income is greater than the Mother’s income in the future; and

(b) there shall be no Table child support payable by the Mother to the Father for as long as the shared parenting arrangement is in place, but if the Father’s income is greater than the Mother’s income in the future the parties may adjust the Table child support.

Paragraph 10 of the Final Order shall be varied to delete the phrase “In addition to the adjustment referred to in paragraph 4, above” at the beginning of the paragraph.
All claims for arrears/credits for overpayments of Table child support, contribution to special and/or extraordinary expenses and a change to the tax benefits/credits in the Final Order are dismissed.
The Mother may claim the Child Tax Benefit for both Children for the tax years 2017, 2018 and 2019. Otherwise there shall be no change to paragraphs 12-14 of the Final Order. If the CRA reassesses the Mother for this benefit for 2017, 2018 and 2019, the Father, through counsel, shall correspond with the CRA to confirm this provision.

Spousal Support

Spousal support shall be terminated effective August 1, 2020. For clarification, paragraphs 18-30 of the Final Order shall be of no force and effect.
Any claims for ongoing spousal support by either party as of August 1, 2020 shall be dismissed.

Security for Support

Paragraph 37 of the Final Order shall be varied such that the term “$500,000.00” shall be replaced by $100,000.00 with respect to the Father’s obligation.
Paragraph 38 of the Final Order shall be varied such that the term “$500,000.00” shall be replaced by $100,000.00 with respect to the Father’s obligation and to delete any references to spousal support.
Paragraph 40 of the Final Order shall be varied such that the term “$500,000.00” shall be replaced by $100,000.00 with respect to the Father’s obligation.
Paragraph 42 of the Final Order shall be varied to delete any references to spousal support.

Miscellaneous

If costs are requested and cannot be agreed, the parties shall exchange costs submissions and e-file them with the Court by June 9, 2021, at https://www.ontario.ca/page/file-family-court-documents-online and Toronto.SCJ.FAMILYINTAKE@ontario.ca

C. Horkins J.

Date: May 17, 2021

Sidway v. Sidway, 2021 ONSC 3583

Case Summary

Introduction

Temporary Orders

Legal framework

analysis

voice of the child report

Conclusion

ORDERS

Variations of the Parenting Plan

Miscellaneous

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1

Introduction

Temporary Orders

Legal framework

analysis

voice of the child report

Conclusion

ORDERS

Variations of the Parenting Plan

Child Support Variations on Consent

Spousal Support Variations on Consent

Miscellaneous

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1