Verth v. Verth, 2021 ONSC 4380

COURT FILE NO.: FS-16-38608-1

DATE: 2021 06 18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Linda Ann Verth, Applicant

AND:

John Troy Verth, Respondent

BEFORE: Coats J.

COUNSEL: Susan Berry, Counsel for the Applicant

Respondent not appearing

Geoffrey Carpenter (privately retained), for the children T.V. and K.V.

HEARD: Uncontested Trial March 22, 2021 and May 27, 2021 – Ms. Berry appearing on both dates and Mr. Carpenter on May 27, 2021 only. Judicial Interview of T.V. and K.V. on May 25, 2021 – Mr. Carpenter appearing.

ENDORSEMENT

A. Procedural Background:

[1] This mater came before me on March 22, 2021 as an uncontested motion to change. On this date, the two oldest children attended. Ms. Berry, the Applicant’s counsel, advised that the children wished me to conduct a judicial interview with them. I advised that I was prepared to do so provided the children had independent counsel. Mr. Carpenter was thereafter privately retained to represent T.V. and K.V. The judicial interview was conducted on May 25, 2021. I have described the method of how it was conducted below. On May 27, 2021, Ms. Berry and Mr. Carpenter attended to make submissions. Mr. Carpenter’s submissions were limited to issues relating to parenting matters.

[2] After hearing submissions, I reserved my decision. This endorsement is my decision.

B. History of Proceeding and this Motion to Change:

[3] The parties were married on September 19, 1998 and separated on July 7, 2014. They have three children: T.V. born […], 2002; K.V. born […], 2004; and Q.V. born […], 2007.

[4] The parties resolved the litigation on a final basis by Minutes of Settlement, the terms of which Minutes were incorporated into a Final Order of Gibson J. dated June 26, 2018.

[5] Pursuant to the June 26, 2018 Order, the parties had shared decision making with regard to the children and the children resided with the parties in a week about arrangement. The Order provided that, in lieu of paying any child support to each other, the Applicant would continue to pay for the children’s clothing, school expenses, extra-curricular expenses, sports equipment and supplies, medical and dental expenses, and childcare expenses. Each party was responsible for providing the children with shelter and food while the children were in their care. Each party was to be responsible for their own vacation, entertainment, and gifts with/for the children. In terms of spousal support, the Order provided that the Applicant pay to the Respondent $3,334 per month in periodic support until June 20, 2030. The quantum and duration of spousal support was fixed and non-variable.

[6] The shared parenting arrangement became problematic in April of 2020, when the children were required to spend three straight weeks in the home of the Respondent to make up for a week of vacation and two weeks of quarantine after the Applicant and children had been in Florida on a family vacation when the COVID-19 pandemic hit. The children expressed concerns while at the Respondent’s home. K.V. returned to the Applicant’s home on April 17, 2020, followed shortly thereafter by T.V. and Q.V. the next day. The Respondent reacted by locking the children out of his home.

[7] The children disclosed to the Applicant the conflict occurring in the Respondent’s home. The Applicant sought permission from the Court to bring an urgent motion. On April 22, 2021, permission was granted for the Applicant to do so. A timetable was set for filing of motion material. The Applicant’s motion was to be served on the Respondent’s counsel. The Motion was served on the Respondent’s counsel and the Respondent, both by email. No response from the Respondent was received in the short timeline provided. His counsel notified the trial office that he had not been able to establish contact with the Respondent or obtain any instructions. Ms. Berry had not heard from the Respondent directly. Therefore, on April 24, 2021, I made a temporary order and put the urgent motion over to May 8, 2021 to provide the Respondent with another opportunity to file material. In the temporary order, I provided for all three children to live solely with the Applicant and suspended all access with the Respondent.

[8] On May 8, 2020, Mr. Verth did not attend the audio call. His former counsel, Mr. Harasymowycz, attended. He was not retained for the motion. He had not been able to reach the Respondent by telephone, email, or by express post. Ms. Berry had emailed the Respondent with no response. I made a further temporary order that the children remain with the Applicant with access suspended. The Applicant was to commence a motion to change the Final Order of Gibson J.

[9] The Applicant commenced the Motion to Change. The Motion to Change was served, with no response. By Order of Chozik J. dated December 3, 2020, the Applicant was authorized to proceed by way of an uncontested trial.

[10] The material initially filed for the uncontested trial was served upon the Respondent. The Respondent has not responded in any way to the urgent motion or motion to change.

C. Issues:

1. Has there been a material change in circumstances since the Final Order of Gibson J., dated June 26, 2018?

2. If so, is it in the children’s best interests that there be a change in the shared decision making and week about parenting provisions on a final basis?

3. If so, should there be a variation to the child support regime?

D. The Law:

i. Legislation

[11] The relevant sections of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) are ss. 17(1), 17(4), 17(5), 17(6.1), and 16(1)-(7), which provide as follows:

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(c) a contact order or any provision of one, on application by a person to whom the order relates.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(5) Before the court makes a variation order in respect of a parenting order or contact order, 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, or of an order made under subsection 16.5(9).

17. (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(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.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

ii. Case Law

[12] To prove there is a material change in circumstance; the moving party must satisfy the three-part test:

(a) There is a change in the conditions, means, needs or circumstances of the child or parent to meet the needs of the child;

(b) That materially affects the child; and

(c) That was not foreseen or could not have been reasonably contemplated by the judge at the time of the initial order.

[13] In considering whether there is a change in circumstances, the court cannot rely on events that pre-date the Final Order. This would result in the court reviewing the correctness of the original order: Gray v. Rizzi, 2016 ONCA 152, at paras. 20, 23; Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, at para. 21.

[14] The court must consider whether the change advanced was material, meaning that if the information was known at the time, it would have resulted in different terms. A material change may also be found where the relationship between the payor spouse and the child undergoes a significant change: Willick, at para. 21.

[15] The change must be one where there is a degree of continuity and not merely temporary: Marinangeli v.Marinangeli, 2003 27673 (Ont. C.A.), at para. 49.

[16] The relevant portion of s. 14 of the Federal Child Support Guidelines, SOR/97-175 provides that there is a change in circumstances if the change would result in a different child support order if child support were fixed according to the Guidelines.

[17] A change in the residency of a child is a material change in circumstances that impacts child support. See: Cannone-Haddad v. Haddad, 2020 ONSC 63.

iii. Child Support Guidelines

[18] The amount of child support to be paid for children under the age of 18 is presumptively the amount set out in s. 3(1) of the Federal Child Support Guidelines.

[19] The amount payable for a child over the age of majority is determined in accordance with s. 3(2) of the Guidelines, which provides for the court to take into consideration the table amount payable pursuant to s. 3(1), or if the court determines that approach to be inappropriate, an amount that it considers appropriate in accordance with the condition, means, needs, and other circumstances of the children and the financial ability of each spouse to contribute to the support of the child.

[20] The Table amount of child support is presumptively payable in accordance with Schedule I of the Guidelines.

[21] Section 7 of the Child Support Guidelines provides that the court may, on either spouse’s request, provide for an amount to cover all or any portion of special and extraordinary expenses. The amount of the contribution is to be set in accordance with the relevant expenses, which expenses may be estimated, in proportion to each party's ability to contribute after deducting the contribution, if any, from the child.

[22] The court is to consider the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. For this family, the relevant s. 7 expenses include items (b)-(f) as set out in s. 7.

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses, and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[23] The court in Razavi-Brahimi v. Ershadi, 2007 ONCJ 406, 43 R.F.L. (6th) 439 provided a summary of the principles to be applied in determining a child’s contributions to his or her post-secondary education expenses. The principles enumerated emerged from Lewi v. Lewi, (2006), 2006 15446 (ON CA), 80 O.R. (3d) 321 (C.A.); additional reasons in 2006 CarswellOnt 3214 (C.A.). Paragraph 14 of Razavi-Brahimi, includes the following principles:

1. When the issue of contributions to post-secondary education costs for an adult child is before a court, the court is required to consider the provisions of subsection 3(2) [child the age of majority or over] as well as section 7 of the Guidelines.

2. Although the wording of these sections may differ, the analysis required under each is the same. The court has a broad discretion to consider the appropriate contribution, if any, of the child and of each parent to post-secondary education costs, after taking into consideration the means of the child and of each parent and any other relevant circumstance. A further factor relevant in such decisions is the reasonableness of the quantum of the expenses, taking into account the child’s and the parents’ means and any intention that the family may have formed on this issue prior to separation. There is no “formula” to establish the proper contribution from the child, if any contribution is required.

3. The court will require the same type of information and evidence about an adult child’s means as is required from the parents to deal properly with a request for parental contribution to post-secondary education costs.

4. If a child chooses a more rather than less expensive program of post-secondary education, that factor may indicate a greater contribution is required from the child, depending on the child’s means.

5. Although the “guiding principle” in the guidelines with respect to each parent's contribution to special expenses is that it be proportionate to income, some other proportion may be justified depending on the circumstances.

6. An order for a contribution to post-secondary education costs is just part of an order for “child support” pursuant to the guidelines. If a party claims a contribution from a parent for post-secondary education costs of an adult child, the court may consider — even if neither party puts this in issue — whether, pursuant to subsection 3(2) of the guidelines, support should be paid at the table amount, or whether that approach is inappropriate. If that approach is inappropriate, some different and perhaps reduced table amount may be ordered.

7. The fact that a child resides in university residence away from her parents for most of the year may be sufficient to establish that it is “inappropriate” to order payment of support in the full table amount, particularly if a parental contribution to post-secondary education costs, which include residence and meal plan costs, is claimed. In determining what “other amount” is appropriate, there is no standard formula (such as table support for four months a year that a child resides at home) that should be applied; the approach taken should depend on the circumstances. It is also open to a court dealing with the issue of support for such a child to determine that it is appropriate to have payment of support be in a full table amount, perhaps deducting from any section 7 expenses payable amounts that represent a duplication of payment for certain costs (such as food).

[24] Section 16 of the Guidelines provides that the starting point for the determination of annual income is set out in line 150 of the spouse’s tax returns. The court may also rely on other factors to determine income. For example, s. 17 of the Guidelines provides that the court can consider the spouse’s income over the past three years to determine what would be the fairest determination of income. This section is commonly relied upon where the spouse’s income fluctuates.

[25] Section 19(1) of the Guidelines permits the court to impute income to a party. It states:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[26] The list of factors set out in s. 19 is not fixed. Section 19 of the Guidelines allows the court to impute income it considers appropriate in the circumstances.

[27] Having considered all of the above factors, the court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments. A child support order must specify a number of details, as per s. 13 of the Guidelines:

13 A child support order must include the following information:

(a) the name and birth date of each child to whom the order relates;

(b) the income of any spouse whose income is used to determine the amount of the child support order;

(c) the amount determined under paragraph 3(1)(a) for the number of children to whom the order relates;

(d) the amount determined under paragraph 3(2)(b) for a child the age of majority or over;

(e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense; and

(f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.

E. Analysis:

i) Has there been a material change in circumstances since the Final Order of Gibson J. dated June 26, 2018?

[28] In my view, there has been a material change in circumstances both in regard to parenting and support.

[29] First, I will deal with the material change regarding parenting. As set out above, the children abruptly left the Respondent’s home on April 17, 2020 for K.V. and April 18, 2020 for T.V. and Q.V. They left the Respondent’s home due to the conflict in the home and the uncomfortable home environment. This has been detailed in the documents filed for the urgent motion and for this uncontested trial. The children have not had any parenting time with the Respondent since then. The Respondent locked the children out of his home. The Respondent told K.V. he had thrown away the children’s belongings. The children were able to sneak into the Respondent’s home to retrieve their belongings when the Respondent wasn’t there, as the police declined to enforce the order made to allow the children to retrieve their belongings. The children now reside full time with the Applicant. T.V. lives away from the Applicant’s home to attend university and when he is home he is with the Applicant. This is a material change for all three children. They have gone from spending equal time with both parties to not seeing the Respondent at all. The Respondent presently chooses not to have contact with the children.

[30] Second, I will now deal with the material change with respect to child support. Paragraphs 11-13 of the Final Order of Gibson J., dated June 28, 2018, provide as follows with respect to child support:

11. In lieu of the parties paying any child support to each other, the Applicant mother shall continue to pay for the children’s clothing, school expenses, extra-curricular expenses, sports equipment and supplies, medical and dental expenses and childcare expenses. Each party shall be responsible for providing the children with shelter and food while the children are in their care. Each party shall be responsible for their own vacation, entertainment and gifts for / with the children.

12. The Applicant mother may claim any tax credits and benefits associated with the children.

13. When each child commences post-secondary school, the parties shall pay expenses for post-secondary education including tuition, fees, residence and meal plan or rent and groceries, travel and books as follows:

a. The first source of funding shall be that child’s portion of RESPs which are jointly owned by the parties.

b. The second source of funding shall be that child’s portion of the children’s Trust which is jointly owned by the Respondent and his parents.

c. The third source of funding shall be a contribution from the child, including but not limited to scholarships, grants, savings, and income from part-time summer employment.

d. The fourth source of funding shall be a contribution from the parties, which contribution shall be made proportionate to income, with the Respondent’s income to be $50,000 or his actual income, plus spousal support, whichever is higher and the Applicant’s income shall be her actual income less spousal support. The parties shall exchange their income tax returns and Notices of Assessment in June of each year a child is attending post-secondary institutions for the purposes of determining their proportionate shares of post-secondary expense for the period of July to June of the next school year.

e. The parties shall discuss the expenses and funding for university in June of each year, when the approximate costs are known.

[31] In my view, this was an order made pursuant to s. 15.1(7) of the Divorce Act, which states as follows:

15.1 (7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

[32] The material change in circumstances is that since April of 2020, the Respondent has not been providing any shelter or food for the children as they are not in his care. He has not paid for any vacation with the children. He has not been responsible for his portion of the children’s entertainment as he was when the children spent half of their time with him. He has not provided any gifts for the children. The Applicant is now responsible for all of the children’s shelter, food, vacations, entertainment, and gifts.

ii) Is it in the children’s best interests that there be a change in the shared decision making and week about parenting provisions on a final basis?

[33] In my view, the Final Order of June 26, 2018 needs to be changed to reflect the children’s best interests, as best interests are defined in s. 16(1) of the Divorce Act.

[34] T.V. is now attending university. He is just completing his first year. He lives away from home and returns to the Applicant’s home on a part-time basis. K.V. is in grade 11 and is a competitive hockey player. Q.V. is in grade 8. He has been diagnosed with a mild intellectual disability, ADHD, epilepsy, and has started showing additional signs of anxiety since September of 2018.

[35] I am satisfied that it is in the children’s best interests that the Applicant have sole decision-making authority with regard to the children and that the children should live solely with her and have no contact with the Respondent. This reflects the status quo since April 2020.

[36] The Respondent has made no effort to contact the children. There has been a total of approximately six emails sent to the Applicant and K.V. He texted the Applicant his new address in January of 2021. He did not contact T.V. for his high school graduation, did not contact K.V. for K.V.’s 16^th birthday, did not contact the children at Christmas or contact T.V. at the start of T.V.’s university.

[37] The children are doing well in the Applicant’s care. She is able to provide for their physical and emotional needs. The Applicant has always been responsible for organizing the children’s education and health care. She enrols the children in their activities. She will continue to perform these functions. She ensures the children have ongoing relationships with family and friends. The Applicant maintains the children’s relationship with the Respondent’s parents. The Respondent’s parents have no contact with the Respondent. The Applicant is attending to Q.V.’s special needs.

[38] The Respondent has since 2009 suffered from serious mental health issues. His mental health deteriorated to the point that his parents had him involuntarily hospitalized in 2014 for six weeks. The Respondent was diagnosed with mixed disturbance of mood and conduct combined with narcissistic and compulsive personality traits.

[39] Since the child K.V. has started counselling, the Applicant has been advised through the counselling of the Respondent’s abuse of K.V. The Respondent’s mental health is unpredictable, and the children have been subjected to the Respondent’s neglect and abuse.

[40] The Applicant has detailed the conflict and mistreatment by the Respondent of the children in her Change Information Form. The details, focusing on the time since the Final Order, are at para. 15, sub paras. 22-48 as follows:

22. John has became increasingly obsessed with K.V.’s participation in rep hockey, and the potential for her to go to play hockey in university. He is very critical of her when she does not measure up to his expectations for her. Most conversations at his house revolve around K.V.’s hockey and what university she should attend. This leaves Q.V. and T.V. feeling excluded, especially since T.V. is headed to university in the fall of 2020, long before K.V. John would happily drive K.V. halfway across the province to play hockey but complains when he was required to drive T.V. 10 minutes to T.V.’s job as a lifeguard.

23. In February 2019, John started planning some hockey camps in the United States for K.V. to attend in the summer of 2019 which would be my responsibility to fund. K.V. and I decided to attend two of the three camps that John wished her to attend. Attached hereto as Exhibit “E” are some of his text messages about such camps. Attendance at two of the camps was several thousand dollars and attending all three was too expensive. K.V. and I called John to explain our decision and he became irrationally angry, swearing and calling me vile names (fucking cunt) on the phone, all overheard by his daughter, further stating that he knew I would never spend any money on the children. During a few weeks of the summer of 2019, T.V. was working and living with John while Q.V. and I accompanied K.V. to attend these two hockey camps in the US. T.V. advises, and I do verily believe that most conversations he had with John during that time were entirely about K.V.’s hockey, despite T.V. trying to discuss other topics with his father.

24. John took the children out for dinner on Labour Day weekend 2019, and the children reported to me the conversation at dinner was very difficult with John challenging the amount that K.V. had worked out in the summer. T.V. stood up to his father and defended his sister which culminated in John advising the children that he did not trust them. John dropped the children off in my driveway, left in anger and had no interest in seeing them the rest of that week. While the week about schedule continued following this Labour Day dinner, John demonstrated his black and white thinking and abruptly and without explanation cutting off his involvement with K.V.’s hockey, terminating his attendance at her practices or games for several months.

25. Q.V. also had a very difficult time with the week-about schedule, particularly when it first began. Q.V. has a difficult time in general communicating and expressing his feelings. K.V. and T.V. advise me that this is amplified when Q.V. is residing in John’s home with Q.V. showing anxiety and shaking when having to explain or make a request to John. John tries to get Q.V. to participate in certain activities, but can become frustrated when Q.V. does not want to participate. For example, on Family Day 2019, John wanted to take Q.V. to a local hockey game, Q.V. didn’t want to go, so John just went himself and left Q.V. at home alone in his room for the day.

26. T.V. is a mature forward-thinking young man who as a result of his academic and extra-curricular achievements has been accepted to a highly selective university program in the fall 2020. With his interest in financial planning, T.V. has been researching the potential of OSAP grants and loans to help fund university fees. In the fall of 2019, when T.V. advised his father that he would need John’s tax returns for OSAP applications, T.V. learned that John has not done his taxes for several years. Initially John refused to help T.V. and complete his taxes saying he didn’t need to do them. He then told T.V. to do his taxes but that he had no receipts. When John asked T.V. what he would like for Christmas 2019, T.V. said the only thing he wanted was John’s taxes completed. T.V. did not get any Christmas presents from his dad last year nor his taxes. When John asked T.V. what he would like for his birthday in […] 2020, T.V. asked for the taxes to be completed. John reluctantly agreed but they have not been completed.

27. During the regular week about schedule, I have quite a bit of interaction with the children even in the weeks they are at John’s. Besides the midweek dinner and extra-curricular events, I am involved in all of their medical appointments. Regardless of what home the children are in during the week, I have assistance with their homework and university, job and co-op applications.

28. John’s black and white thinking often result in communication with him being difficult and meaningful discussions exploring a topic are impossible. When you are not in agreement with his opinion, he will often put you down making you feel inferior for having your opinion. For example, as T.V. was thinking about universities, discussions with John would always be centred on his alma mater as being the best choice. As a result, T.V. and K.V. have learned that it is easier not to have a discussion with John because you are just told your opinion is wrong and instead it is best to eat their food as fast as they can and escape to their rooms.

29. March break 2020 was my turn to have the children for holidays. John agreed to the trip and the children and I drove to Florida and stayed with John’s parents at their second home in the state. While John has continued to have no contact with his parents, I have continued to maintain the children’s relationship and connection to their grandparents.

30. When I returned home with them on March 22, 2020, we complied with a 2 week self -isolation such that the children were in my care from March 13, 2020 until April 5, 2020 continuously. John agreed with the self-isolation period and facilitated same by bringing us groceries and having contact with the children only by way of texts / telephone/backyard visits with greater than 6 feet separation.

31. However, John insisted that he had the right to have the children in his care for three weeks straight, although he agreed with my concern that 3 weeks was a long time.

32. The children returned to John’s home on April 5, 2020 for dinner. In that first dinner, T.V. advised me that John lectured them for a long time on why they should not have gone to Florida and John stated that he would have hit me if the children had ended up catching COVID-19 from the trip to Florida. This statement brought up the traumatic memories from the summer of 2014. T.V. advised me that evening that he didn’t know how they were going to last 21 days.

33. The children would see me during our mid week dinners and we had an Easter Sunday dinner. Periodically they would bike or walk over to visit and K.V., in particular would come over to get assistance with her online homework. The children contacted me on numerous occasions to report their concern with staying for 3 weeks at their father’s home at a time when school and their extra-curricular activities were cancelled. Q.V. was counting down the days from 21. T.V. advised me that all three children were spending most of their time in their rooms, alone, only to come to have means and have difficult or silent mealtime discussions. K.V. observed that previously Q.V. would often spend time on the couch with John, but was now not spending any time with John other than meals and would sometimes instead stay in K.V.’s room.

34. T.V. also advised me, and I do verily believe, that John was unable to provide Q.V. with any assistance with online learning such that T.V. tried to assist Q.V. between April 6 and April 17. I spoke to Q.V.’s teacher on Sunday April 19^th in the afternoon and she confirmed that Q.V. was needing assistance from a parent, she didn’t see any evidence of John’s participation and she was very appreciative of T.V. supporting Q.V.’s learning.

35. K.V. began telling me in the week of April 6 that John was constantly harassing her about doing hockey workouts. He told her she was not working hard enough, even though the coaches had acknowledged that the season was cancelled. K.V. advised me, and I do verily believe, she felt that John was treating her like me, with constant put-downs.

36. It was apparent to me that without the structure of school and the extra-curricular activities, John’s treatment of the children was deteriorating. John was increasingly critical and negative towards the children and not empathetic to the enormous change that the COVID-19 restrictions have made to the children’s lives. John and I reside close to one another and the children began to more frequently come over to my house for a visit in the second week they remained in their father’s care.

37. On Friday April 17, K.V. received an email from her father, in which he told her she should drop out of rep hockey and any plans of playing hockey at university because she was not working hard enough. K.V. arrived at my home on Friday very upset and furious with her father, stating she was not going back. I encouraged K.V. not to send an angry response to her father and instead take some time to calm down and she could spend a day with me but she had to email her father so he knew where she was.

38. The next day, Saturday April 18, 2020, T.V. and Q.V. arrived at my door. T.V. related that when Q.V. had asked if he could have a sleep over at my house, T.V. stepped in to advocate and support Q.V. and there had been an argument that ended with his father calling T.V. a fuck face.

39. Both Q.V. and T.V. were extremely upset, and T.V. advised me it was unbearable at their father’s. I reminded them all that their father can be erratic at times, but that he loves them and that they had agreed to live with him half the time. We all agreed that everyone should return to their father’s the next day for a final week of access.

40. T.V. texted his father that evening to advise him they would spend the evening in my care and be there at lunch the next day to spend the rest of the week in his care. The children were all extremely worried about returning to John’s care, but I was insistent upon it and reminded them they could always contact me if there were further issues.

41. On Sunday April 19, 2020, at about 1:00pm, we went to John’s home. When we arrived at the house, the car was in the driveway. The children found the front door locked which was very unusual. T.V. used his key to unlock the door but the children were still unable to enter as it was chained from the inside, something that has never happened before.

42. The children knocked on the door and yelled to their father to let them in but there was no reply. We all went back to my house. T.V. sent a text message attached hereto as Exhibit “F” to his father. There was no reply.

43. I tried to contact John since that time, to no avail. I sent him the following email on April 20, 2020 which is attached hereto as Exhibit “G”. There was no reply.

44. On Wednesday April 22, 2020, I still had not heard from John, and I became increasingly concerned about being in violation of the court order, as the children remained in my care. I was also increasingly concerned about the children returning to their father’s care. On April 22, 2020 I contacted the Halton Regional Police and requested that the Crisis Outreach and Support Team check on John. At the same time I requested that my lawyer seek leave to bring an urgent motion.

45. An Urgent Motion was heard on April 24, 2020 and May 8, 2020 before Justice Coats. John did not participate in either motion, notwithstanding his former counsel had been advised and tried to contact him to no avail. Attached here to as Exhibit “H” and Exhibit “I” are the temporary Orders of Justice Coats dated April 24, 2020 and May 8, 2020 The shared parenting schedule has been temporarily suspended.

46. Following the hearing of the motion, K.V. and T.V. made several attempts to access the home with the assistance of police to obtain the there belongings as the court had ordered the children to have access to the home for such purpose. John refused to permit the children to access to obtain their belongings and the police declined to force the issue given John previously assaulted the police in 2014 when he was being apprehended for hospitalization.

47. John has not contacted the children except to tell K.V., in response to a request that she be permitted to pick up her belongings, that he had thrown everything away, justifying his actions by blaming the children for everything that occurred, as per the text changed attached hereto as Exhibit “J”. This was in fact not the case, as T.V. and K.V. did access John’s home on May 26, 2020 when he was not home to obtain their belongings.

48. The children do not wish to return to a shared parenting regime and at this time there is no prospect of doing so as John remains non-communicative. The best outcome for the children is that they reside primarily with me and have some contact with John as the state of his mental health permits and in accordance with the children’s wishes.

[41] As set out above, T.V. and K.V. requested that I conduct a judicial interview of them. I did so on May 25, 2021. In attendance were the registrar, the reporter, T.V., K.V., their lawyer, Mr. Geoffrey Carpenter, privately retained, and myself. A transcript of the interview has been filed in a sealed envelope in the paper version of the file, not to be opened other than by an appeal court or further court order. T.V. and K.V. were aware that I would be providing a general and brief summary of the interview in my decision.

[42] Both T.V. and K.V. are bright and articulate children. They are thoughtful and reflective. It was a privilege for me to meet them. The depth of the conflict that they experienced in the Respondent’s home was profound and the Respondent’s mistreatment of them and their brother, Q.V., extremely problematic. T.V. and K.V. spoke openly to me and shared their views and preferences. Their views and preferences were genuine and well thought out. They provided an articulated rationale for their view and preferences, well supported by their first-hand experiences.

[43] I have very serious concerns about the children resuming any contact with the Respondent without there first being a referral to a child protection agency. If the Respondent seeks contact with the children, such a referral must take place. I urge the child protection agency to meet with all three children should the need ever arise, even though T.V. and K.V. are over 16, so that a complete picture is available in regard to Q.V. and to what has occurred in the Respondent’s home.

[44] The order I am making accords with T.V. and K.V.’s view and preferences. Their views and preferences align with their best interests.

iv) Should there be an adjustment in child support?

[45] The Applicant is an operating manager with General Electric Canada earning approximately $196,000 per annum.

[46] The Respondent is not working. In the Final Order of June 26, 2018, the Respondent consented to having his income imputed at $50,000 plus spousal support for the purposes of the proportionate sharing of post secondary expenses for the children.

[47] I am of the view that the Applicant is entitled to base child support in the Guideline amount for the two youngest children and using the part-time (summer) formula for T.V. The order I am making provides for Guideline child support for all three children from May 1, 2020 to August 30, 2020. The child T.V. went to university in September 2020.

[48] It is appropriate to use the full Guideline amount for all three children from May 1, 2020 to August 30, 2020 because all three children were living with the Applicant. It is appropriate to use the full Guideline amount for the two youngest children as of September 1, 2020 as they continued to reside with the Applicant full time. In accordance with s. 3(2)(b) of the Guidelines I have used a part-time (summer) formula for T.V., on the basis that he spends vacation time in the Applicant’s home.

[49] The order also provides for the circumstances of K.V. beginning university and living away from home. Base support will be payable for Q.V. and on a part-time (summer) formula for T.V. and K.V.

[50] In terms of imputing income to the Respondent, I am prepared to input income to the Respondent at the amount of $50,000 per annum for child support purposes. As set out above, this is amount that the Respondent agreed to have imputed in 2018 for the purposes of calculating his proportionate share of post-secondary expenses. There is no evidence that his financial circumstances have changed since 2018, when the Respondent agreed that his income be imputed at this amount for the purpose identified in the Order.

[51] There are additional reasons for imputing income to the Respondent at $50,000 per annum. The Applicant provided a supplementary affidavit, sworn March 26, 2021, to address, in part, the issue of imputing income to the Respondent for child support purposes. The Respondent’s resume, provided in 2016, is attached. The Respondent has extensive work experience. He was a proprietary trader from 1999 to 2008. He earned a high of $505,501 in 2006. He then opened a sign printing company from 2010 to 2014. The business was not successful. The Respondent filed only one financial statement in the initial proceeding, sworn August 26, 2016. In it he indicated he had an income of $26,000 per annum from employment delivering wine. The Respondent also has significant assets. In 2015 he had an RRSP of $401,468.89. He owns an antique boat which the Applicant estimates is worth $100,000. The Respondent received $383,085.71 from his share of the sale proceeds of the matrimonial home in August 2018.

[52] In my view, it is reasonable to impute income in the amount of $50,000 per annum to the Respondent. His most recent Financial Statement prior to the Final Order showed him earning $26,000. He is also able to make income from his investments. In 2017, he began renting a place in Oakville for $3,200 per month. To do so he would have to have sufficient income. The Respondent has not responded in any way to the Motion to Change. He has not provided a Financial Statement or any financial disclosure.

[53] It is appropriate that the Respondent contribute to the children’s activity costs and university expenses. He agreed to contribute to university expenses in proportion to income as set out in para. 13 of the Final Order. The Applicant has documented the children’s extra-curricular activities and expenses since April of 2020. She has provided a detailed summary and future estimate. The expenses qualify under s. 7 of the Guidelines. K.V. plays competitive hockey. T.V. was a competitive swimmer. T.V. is going to university. The Applicant has calculated T.V.’s current and future estimated university expenses and K.V.’s future university expenses. She has documented Q.V.’s baseball expense and the children’s cell phone and car insurance expenses.

[54] The Applicant has prepared a budget with T.V. for university, which includes the costs of tuition, residence, and additional expenses. She has factored in contributions from the family RESP, from a trust fund managed by the paternal grandparents and funds from T.V. himself. The remainder she has calculated on a proportionate basis to be paid for by the Applicant and Respondent.

[55] The order I am making anticipates K.V. going to university and has a provision for what will happen then in terms of child support. The order anticipates K.V. living away from the home to attend university, returning to the Applicant’s home on a part-time basis. The calculations of university costs for T.V. and K.V. include a contribution by the children.

[56] For the special expense that cannot be estimated, there is a provision in the order for costs to be shared on a proportionate basis.

[57] The Applicant attached DivorceMate calculations to her Factum summarizing the s. 7 expenses now and when K.V. goes to University. The details of the special expenses are summarized in two charts at Exhibit K to the Applicant’s Change Information Form, including how the Respondent’s $1,200 per month contribution was calculated.

[58] The Applicant is not seeking to vary spousal support as it was for a fixed amount and duration.

F. Conclusion:

[59] For the reasons set out herein, final order to go per draft order filed and signed and attached to this Endorsement. SDO to issue.

G. Costs:

[60] The Applicant has filed three bills of costs.

[61] The first Bill of Costs is for the urgent motion in the spring of 2020. The Applicant is requesting costs in the total amount of $5,033.02 for fees and HST.

[62] The second Bill of Costs is for the preparation for the Uncontested Trial up to March 22, 2021. The Applicant is requesting costs in the total amount of $4,878.21, which includes fees, disbursements and HST.

[63] The third Bill of Costs is for the period following the second Bill of Costs to the final appearance at the Uncontested Trial on May 27, 2021. The total claimed is $8,074.98, including fees and HST and excluding Mr. Carpenter’s fees plus HST. Mr. Carpenter’s fees, including HST, are $4,452.20.

[64] The Applicant is requesting costs on a full indemnity basis. In addition, the Applicant initially asked that the Respondent pay all of Mr. Carpenter’s fees; however, she subsequently agreed that this expense should be shared. It is appropriate that the Respondent contribute to Mr. Carpenter’s fees as it was important for the children’s views and preferences to be established and for them to have counsel to prepare them for and to attend with them at the judicial interview.

[65] In my view, the Applicant is entitled to costs pursuant to Rule 24(1) of the Family Law Rules. She has been wholly successful.

[66] I decline to award costs on a full indemnity basis. The Court of Appeal in Beaver v. Hill, 2018 ONCA 840, at para. 11, stated that there is no provision in the Family Law Rules, “that provides for a general approach of ‘close to full recovery’ costs.” At para. 13, the Court of Appeal, notes the express exceptions in the Rules – rule 24(8), bad faith or rule 18 (14), besting an offer. The offer to settle exception is not relevant in the case before me.

[67] Rule 24(8) provides as follows:

24(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[68] In Jackson v. Mayerle, 2016 ONSC 1556, Pazaratz J. described bad faith at paras. 55 – 61 as follows:

55. The Applicant submits that much of the Respondent’s unreasonable behaviour was so extreme as to constitute “bad faith”. Pursuant to Rule 24(8), if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

56. But Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) 2007 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); Cozzi v. Smith 2015 ONSC 3626 (SCJ).

57. In S.(C) v. S.(C) (supra) Perkins, J. defined bad faith as follows:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

58. Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).

59. There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).

60. To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison 2015 ONSC 2002.

61. Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or, an intentional breach of court order with a view to achieving another purpose: Piskor v. Piskor, (supra); Erikson v. Erikson 2001 39078 (ON SC), 2000 29675 (SCJ); Hunt v. Hunt 2001 39078, [2001] O.J. No. 5111 (SCJ).

[69] I do not find that the Respondent in this case before me acted in bad faith. He has not responded to the litigation. This Motion to Change has proceeded unopposed. He has not challenged the Applicant’s claims. He did violate an Order by not permitting the children access to his home to obtain their personal belongings. This issue did not consume much court time. It appears that his own mental health issues have created the circumstances necessitating the emergency motion and motion to change. This does not rise to the high threshold level of bad faith.

[70] Therefore, I award costs on a partial indemnity, basis calculated as follows:

First Bill of Costs Total amount claimed on Full Indemnity Basis $5,033.02

Second Bill of Costs Total amount claimed on Full Indemnity Basis $4,878.21

Third Bill of Costs Total amount claimed on Full Indemnity Basis $8,074.98

Total Full Indemnity Basis $17,986.21

x .66 = $11,870.90

[71] I have used sixty-six percent of full indemnity costs for partial indemnity costs.

[72] Therefore, the Respondent shall pay to the Applicant costs fixed in the amount of $11,870.90, plus $2,226.10, which is one half of Mr. Carpenter’s fees plus HST, for a total amount of $14,097.00, payable within 30 days.

Coats J.

Date: June 18, 2021