ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Audrey Tedford MacIntosh
Applicant
– and –
David Boyd
Respondent
Diana Carr for the Applicant
Self-represented
HEARD VIA VIDEOCONFERENCE: October 12-18, 20 and 22, 2021
REASONS FOR DECISION
O’Bonsawin J.
Background
1This trial was held to resolve child support, child support arrears, and parenting issues related to the parties’ son, D. (“the Child”), who is currently 10 years old and in grade 5. Ms. Audrey Tedford MacIntosh is the Applicant mother (the “Mother”) and Mr. David Boyd is the Respondent father (the “Father”).
2On April 24, 2012, the parties consented to Justice Blishen’s Final Order dated April 24, 2012. There were a number of issues resolved. However, for this trial, the relevant issues were the Mother has sole custody of the Child, a description of the Father’s parenting schedule, the parties would agree to the holidays and special occasions, the Mother has the right of first refusal in the event the Father is unable to care for the Child during his parenting time, and the Father is to pay monthly child support in the amount of $400 per month.
3The Mother seeks retroactive child support in the amount of $27,588 from January 1, 2018, the year she first asked the Father for his updated financial disclosure, to October 31, 2021. Moving forward, she also seeks child support based on the Father’s Line 15000 total income for 2020 in the amount of $112,045. The monthly child support owing is $1,005.37.
4For his part, the Father originally sought equal parenting time with the Child. However, at trial, he seeks more parenting time with the Child as opposed to the current parenting time as noted in Justice Blishen’s Final Order. More particularly, effective immediately, he seeks parenting time every Wednesday from 4:00 p.m. to 8:30 p.m. and alternate weekends from Saturday at 10:30 a.m. to Sunday at 4:00 p.m. He also seeks parenting time from December 24 at 8:00 p.m. to December 25 at 3:00 p.m. Commencing on January 8, 2022, he seeks alternate weekends from Saturday at 10:30 a.m. to Sunday at 7:30 p.m. Commencing on April 1, 2022, he seeks alternate weekends from Friday at 4:00 p.m. to Sunday at 7:30 p.m.
5For the reasons set out below, I adjust the Father’s child support obligations retroactive to January 1, 2018 and confirm his child support obligations moving forward. I also find it is in the best interest of the Child to have more parenting time with his father and agree with the Father’s proposed parenting schedule as noted above.
6By way of background, the Mother has a master’s degree in education counselling and works as a registered psychotherapist. She married Jason, her current husband, in 2016. She has a 25-year-old daughter, Emily, from a prior relationship. Emily resided with her mother until last summer. The Father works as a linesman for Ottawa Hydro. He has two sons, Tyler, aged 19, and Tanner, aged 21, with his ex-wife, Ms. Stacey Kerr. The Father separated from Ms. Kerr in January 2005.
7The parties met at the Russell Fair in 2006. At that time, Tyler was 4 years old, Tanner was 6 years old, and Emily was 9 years old. The Mother resided in Russell, Ontario with Emily. In 2008, the Mother and Emily moved into the Father’s house in Metcalfe, Ontario. They lived together for approximately one and a half years. The Mother moved out of the Father’s house in January 2010. During the summer of 2010, the parties saw each other and the Mother became pregnant with the Child in September. The Mother continued to reside in an apartment at her parents’ residence until the Child was born. She later purchased her own home in Russell in 2012. The Father continued to reside in his home in Metcalfe until he moved in with his mother and aunt in 2018. He has rented his house to tenants until recently and plans to move back into his house.
Positions of the Parties
8The Mother argues there has been a material change in the Father’s income since 2012 to permit this court to vary the ongoing child support obligations. The Father’s failure to disclose his salary increases undermines the Child Support Guidelines (“Guidelines”). In addition, the Father has not proved economic hardship relating to his ability to pay the retroactive child support and the increased child support moving froward. His financial difficulties relate to his personal life choices, not to undue hardship. The Mother highlights the Father has paid less than the Guidelines amount for the last 9 years.
9With regard to the Father’s request for a change in the parenting schedule, it is the Mother’s position that the Father has not proved that there has been a material change in circumstances. The Child attends the same school and daycare previously, has resided in the same area, has the same friends, and plays piano with the same teacher since he moved with his mother to Russell. The Child is thriving in this environment. Until the vacation to Prince Edward Island (“PEI”), the Father was having his parenting time with the Child.
10Lastly, the Mother argues Ms. Williams, the social worker of the Office of the Children’s Lawyer who evaluated this family, was not qualified to unpack the dynamic between the members of this family and did not connect her recommendation to increase the Father’s parenting time to the best interest of the Child.
11For his part, the Father argues he will suffer undue hardship if he has to pay retroactive child support and the Guidelines for child support moving forward. The Father was primarily responsible for paying all expenses related to Tanner and Tyler from 2005-2012. In 2010, he financially assisted Ms. Kerr. Since that time, the Father has not been out of his overdraft. When the Mother asked him for an increase in child support for the Child, they agreed he would increase the amount by an additional $100 per month. He continued to pay this amount until the Mother limited his parenting time with the Child after their return from the trip to PEI.
12It is the Father’s position that once he no longer has to pay his child support obligation for Tanner, he would use those funds to put towards the Child’s needs. Consequently, he can continue to provide the Mother with $500 per month for child support and increase it to $700 per month once he no longer pays child support for Tanner. Once Tyler finishes university, the Father will provide the Mother with $900 per month. The Father is of the view that the cost for each parent should relate to the standard of living in each home.
13Lastly, the Father agrees with Ms. Williams’ recommendation that it is in the Child’s best interest to increase his parenting time. It is unreasonable for a 10-year-old child not to have overnight visits with his father. The Father wishes to have the Child for Christmas.
Evidence at Trial
Witnesses
14Six witnesses testified during this trial. The Mother, her daughter Emily, Ms. Williams, Ms. Theadora Boyd (the Father’s mother), Mr. Derrick Boyd (the Father’s brother), and the Father.
15I will summarize the highlights of the testimony of each witness in the order they testified. The Mother testified as follows:
She currently resides in Russell with her husband Jason. He is a welder. Her 25-year-old daughter Emily resided with them until she moved out last summer.
She is a registered psychotherapist and is currently the Executive Director at Counselling and Family Services Ottawa.
The parties met at the Russell Fair in 2006. They hit it off and started dating quickly. They dated on and off for a couple of years. The Mother and Emily moved in with the Father and his two sons in 2008. They lived together for a year and a half and the Mother moved out in January 2010. During the summer of 2010, the parties decided to start seeing each other again and she became pregnant with the Child in September. The Mother did not move back in with the Father, but instead continued to reside in an apartment in her parents’ house. In 2012, the Mother purchased a house in Russell.
During their relationship, the Father used a significant amount of marijuana and alcohol. At times, things became physical and verbal. When the Child was six weeks old, the parties tried to reconcile. On the day the Father had his vasectomy, the Mother had a MRI appointment in Orleans. The Mother drove the Father to his appointment and brought him back to Metcalfe afterwards. He was on pain medication and was self-medicating. The Father was not allowed to pick up the Child because he was over 10 pounds. The Mother organized a friend to babysit the Child while she went to her appointment. The Father was upset when he found out about her plans and wanted to keep the Child with him. They argued and she finally left with the Child. She returned to a dark house at 9:00 p.m. and the Father had gone out to the baseball field to have drinks with his friends. She was upset. When he returned, they fought and he locked her out of the house while he remained inside with the Child. The Mother begged the Father to let her back inside of the house and he finally let her back in. The Father had the Child in his arms and refused to return him to her. The Father locked himself and the Child inside of the master bedroom and she broke the glass on the French doors to get inside of the bedroom. She cut her foot on the glass. She finally got the Child back in her arms and did not sleep the rest of the night. She left the following morning. After this incident, the Mother contacted a lawyer to start a court proceeding.
When the Child was a baby, she had to call the police because the Father showed up at her house intoxicated. She also told the Office of the Children’s lawyer about this.
The parties settled the matter on consent with her receiving primary custody of the Child and the Father having parenting time on Saturday from 10:00 a.m. to 4:00 p.m. and Wednesday from 4:00 p.m. to 8:00 p.m. The Father never accessed his Monday evening from 4:00 p.m. to 8:00 p.m. They agreed she would pay the daycare expenses and he would pay her $400 for monthly child support. Justice Blishen signed the Final Order on April 24, 2012. On the court date to sign the order, the Father was not present because he was at a hockey tournament.
The Child has attended the same school in Russell since kindergarten. He has had the same friends since they have lived in Russell. He takes piano and Spanish lessons at school and plays hockey.
In about 2015, the Father asked if they could look at an alternative to his Wednesday parenting time because he worked 10 consecutive days. The Mother agreed the Father could have his parenting time with the Child on Saturdays and every other week on Sundays to compensate for his missed Wednesdays. The Father often changed his visits with the Child at the last minute and even cancelled his visits. The Father saw the Child probably one time per week and at times, less than that. She tried to accommodate his requested changes. In 2018, she decided to return to the terms in Justice Blishen’s Final Order and began enforcing it in 2019. The Father’s Sunday parenting time was discontinued. The Child only had some overnight visits after the Father moved in with his mother and aunt. During approximately 6-8 months, the Father had 8-10 overnight visits. Prior to that, he asked to have overnight visits while he resided in Metcalfe, but she did not allow it because he had not installed a railing on the balcony of the second story master bedroom. She agreed there was a deadbolt installed about 5 feet high on the door leading to the balcony.
The Child told the Mother that he had dinner with his father and then left the Child to go play hockey with his friends on Friday night. The Father also plays hockey on Sunday mornings. The Child told her he did not understand why his father left him to watch the news with his grandmother. The Mother has the right of first refusal and eventually stopped permitting the overnights.
In 2018, the Father moved in with his mother and aunt in the south end of Ottawa. This is approximately a 30-35 minute drive from her house. The Father’s rental property in Metcalfe is a 12-13 minute drive from her house.
In February 2019, the Father had the Child overnight. He left the Child with his mother at 6:00 p.m. to go play hockey. The Father went to a bar after his game and a friend brought him to the hospital at 2:30 a.m. The Father had a heart attack and was hospitalized. The Child was distressed from hearing the family talk about his father being in the hospital. The Father had 1-2 more overnight visits with the Child in the spring until he returned from a trip to PEI with the Child.
The Father has not really been involved in any decision making for the Child. The Mother books all his medical appointments, she chose his school and his catholic faith. The Father has attended some of the Child’s medical appointments and attended to CHEO when the Child broke his arm. However, the Father has access to the Child’s school website and hockey schedule. Over the past two years, the Father has attended about half of the Child’s hockey games and when he has his parenting time, he brings the Child to his practices.
The Father asked to take the Child with him on vacation to visit his aunt in Charlottetown, PEI. The Mother agreed but asked him to put Snapchat on his phone so that she could track where the car was in case of a car accident. They left on July 22, 2019 and sent her a photograph at 6:39 a.m. to tell her they were heading out for their trip. The Mother was unhappy because on their way to PEI, the Father shut off the Snapchat and she could not track them. The Mother agreed that they stayed in communication with her all the way up to PEI. She was also upset because the Father stopped at his friend’s house that she did not know instead of going directly to his aunt’s house. When they returned home, the Mother felt like it was “one of the worst weeks of my life.” During the trip, the Child was only allowed to call her one time per day. The Child spoke of fun times, but also that he had to attend a men’s golf tournament and sit in the back of a golf cart all day. When they arrived near 7:30 p.m., the Mother did not want to engage with the Father, she just wanted the Child to get into the house safely. The Child started crying because of the conflict between the Mother and Father. The Mother was very upset.
The Mother thought that the Child was in danger with his father during the trip to PEI. She was concerned that the Father was travelling after he had a heart attack and concerned that he would consume beer when he was with friends and drive with the Child afterwards. She was also concerned about the Child’s emotional wellbeing. She conceded that the Father never put the Child in danger.
The Father’s life insurance policy states the beneficiaries are Tanner, Tyler, and the Mother.
The Child has a wonderful relationship with his maternal grandparents and with his sister Emily. The Child also has a great relationship with the Father’s two other sons. The Mother has a good relationship with Ms. Kerr. However, the Mother agreed that during her relationship with the Father, she was upset the Father was financially assisting Ms. Kerr.
The Father has been very involved in Tanner and Tyler’s sports activities. He coached them at competitive hockey, and they travelled for tournaments. The Mother agreed that sports are expensive.
On Friday evenings, the Child plays outside until 8:30 p.m., then they watch a movie and he is asleep by 10:00 p.m. He is a 10-hour sleeper. This occurs before the Father picks up the Child on Saturdays.
Christmas is a very special occasion in the Mother’s family. She is from a French-Canadian background and they celebrate on Christmas eve. The Mother generally hosts the gathering that includes her parents and extended family. They have a “réveillon”, a huge feast with music, dancing, and there is a tradition for the passing of the first gift. The Father does not celebrate on Christmas eve. As per the initial agreement between the parties, the Mother has the Child on Christmas eve and the Father picks him up at noon and spends the day with him. The Mother does not want to change their Christmas arrangement. The Mother agreed that the Father’s boys were spoiled at Christmas time.
During the Child’s meeting with Ms. Williams, he told her that when he was at a visit with his father at his paternal grandmother’s house, she “bopped” him on the nose and his nose bled. Ms. Williams advised the Mother that she had to report the disclosure to the Children’s Aid Society. They investigated. The Father did not tell the Mother about this event. The Child told his mother he was more upset with his grandmother because she never apologized to him.
The Mother believes the Father seeks joint custody 50-50 because he wants to avoid child support payments or any increase to his payments.
The Mother always speaks well about the Father to the Child.
The Mother has concerns about the Father’s ability to get angry easily and notes he is moody. She thinks the Father is a good father, but he has a very busy social and sports life that he prioritizes before the Child.
As a mental health professional with over 20 years of experience, the Mother believes that increasing the Father’s parenting time to 50-50 with the Child would lead to a significant change in the Child’s life and the quality of his life. It would lead to risk factors that could impact the Child’s future academic and general behaviour. On a practical level, organizing the Child for school in a 50-50 situation would not work.
In 2012, she agreed to a very small portion of the allowable child support payment and accepted $400 per month and no daycare costs. She was aware there was an expectation the Father would provide proof of income to her. In the spring and fall of 2018, the Mother wanted to increase the child support payable and asked him for proof of income. The Father questioned why she wanted an increase. In 2019, he offered to add an additional $100 per month and she agreed. She asked if they could adjust it through the Family Responsibility Office and he refused. The Father made approximately five payments and stopped providing the additional $100 in 2019.
The Father paid his share of s. 7 expenses but there was a lengthy time between the Mother’s request and the reimbursement. Since the beginning of this proceeding, the Father has paid his s. 7 expenses in a timely manner.
The Mother knows the Father is the primary payor for Tyler’s university fees.
In the summer of 2019, Emily moved out of her house and into her maternal grandparents’ apartment. The Mother never refused her parents to see the Child after Emily moved into their apartment because she was mad at them. She totally disagrees that her parents snuck in to see if she was at the Child’s game because she did not allow them to see the Child.
The Mother was unhappy that the Father and the Child put up the Christmas lights together at the paternal grandmother’s house. The Mother sent the Father a text asking him to do fun things with the Child instead of doing chores. She thinks the Father should ask the Child what he wants to do when they spend time together.
Effective May 5, 2021, the Mother’s annual salary is $110,000. She no longer has her private practice. The parties’ incomes have been fairly similar in the past. In 2018, the Father’s Notice of Assessment noted he earned $112,321.07 and in 2019, he earned $105,632. As per his Income Tax Return for 2020, he earned $112,046.63. The Father also received the monthly rental income of $3,100 from his house in Metcalfe.
The Mother looked at property listings of last year in the same postal code as the Father’s Metcalfe house and found a range of values from $619,900 to $895,000.
The Mother does not have any savings or investments. She does, however, have a pension plan in her new position.
The Mother provided a chart that indicated based on the Father’s income for 2018, 2019, 2020, and the estimate for up to October 31, 2021, the arrears in child support equal $27,588.
Her husband contributes $1,000 monthly to assist with the heat and hydro expenses of her house.
With regard to the involvement of the Office of the Children’s Lawyer, the Mother agreed to it but did not think it was necessary. She thought it was potentially intrusive. The Father told the Mother that the Child wanted to spend more time with him. However, the Child never shared that wish with her. Instead, the Child likes to decide when he sees his father. The Child does not show enthusiasm to go on his visits with his father. Normally, she had to encourage the Child to attend the visits. When the Child returns from his visits with his father, at times he is in a good mood and a couple of times he came home crying. He told his mother he was worried that his father would keep driving down the 417 and not get off on the exit to drop him off at home and that he will end up in Montreal. This concerned the Mother.
The Mother notes that nowhere in Ms. Williams’ report does it state that the Child wanted to spend overnights with his father and that he wanted to spend 50-50 with him. Instead, the Child said he was “okay” to spend an overnight once in a while with his father.
The Mother wants the Child to maintain a relationship with his father and for them to enjoy their time together. She does not agree to any significant increase in parenting time. She feels it is important to consider the fact that the Child is a very mature and intelligent 10-year-old boy and that a lot more parenting time with his Father would be devastating to him. She also fears the outcome this would have on the Child’s mood. She does not oppose overnight visits as long as the Father stays with the Child overnight.
16Emily testified as follows:
She is 25 years old and works as an early outreach and health promoter. She attended school in Kingston, Ontario for two years. When she returned home for the summers and weekends, she stayed with her mother. When Emily returned home after she finished school in the spring of 2020, she moved into her grandparents’ apartment in their house. She wanted her own space. This move caught her mother by surprise, and it upset her mother a lot for a few weeks. Her mother was also upset at her parents because they knew Emily was going to move out and her mother thought they were involved in that decision. It was a bit of a roller coaster with her mother for the next few months. Emily recalls the time her grandparents went to see the Child’s ball hockey game and they were apprehensive about seeing the Mother at the game. Her mother’s feelings were hurt, and she had made that clear to her parents.
The Child speaks to her about a lot of things. The Child loves his father and wants to respect him, but also fears letting him down. He enjoys spending time with his father and extended family from time to time, but on his own accord. When it comes time for the Father to pick him up, Emily has to motivate the Child to get going.
When Emily and her mother lived with the Father, there were good times but for the most part she felt unhappy. She agreed that as a family, they played a lot of board games. The Mother and Father fought a lot. Emily felt relieved when they moved out. She now has a cordial relationship with the Father.
She sees the Child normally 1-2 times per week. She describes the Child as doing great. He loves having a snack and watching his shows after school, playing with the dog, and he has a really good routine after school. Emily describes her brother as a social butterfly who often plays outside with his friends. He is also very close to their maternal grandparents.
She thinks the Child tries to accommodate what the person wants to hear. In the past two years, the Child has become more vocal about his feelings.
17At the request of the Mother, I qualified Ms. Jennifer Williams as an expert witness in investigating matters in parenting time, contact with a child, supporting a child’s growth, and the development and education and making recommendations for that child. Ms. Williams testified as follows:
She is a trained social worker and has been a clinical investigator since 2009. She was hired by the Office of the Children’s Lawyer to conduct the investigation.
She interviewed both parents on three separate occasions and had observational visits with each parent and the Child. She interviewed the Child on four separate occasions. Ms. Williams received collateral information from the Ontario Provincial Police, the Children’s Aid Society of Ottawa, Valoris, Dr. Marie-Claude Gagnon, the Mother’s family physician, Dr. David Tobin, the family physician for the Father and the Child, the Child’s elementary school, the principal of the virtual school, the daycare, Jason, Tanner, Tyler, and Ms. Boyd.
Ms. Williams received the file in late August 2020 and conducted her first interview on November 11, 2020. The disclosure meeting took place on March 22, 2021.
According to her report, there are a lot of strengths in this family and both parties have extended family that play an active role in the Child’s life. The Child is happy, healthy, and well rounded. He is comfortable with both parents. The Child presented as very anxious about how both parents feel and he wants to make them happy. For this reason, Ms. Williams recommends that the Child attend ongoing therapy to assist him with this anxiety.
The Child told her he wants the parenting schedule to be flexible. Ms. Williams believes it is appropriate for the Child to cancel a visit with his father as long as it is made up.
It is acceptable for the Child to be cared for by a grandparent on either side for a short period of time.
In her report, she notes the Father admitted to using alcohol and marijuana until he had his heart attack. Dr. Tobin indicated the Father consumed five drinks of alcohol per week and 1/3 of a joint per day and there is no evidence that he is consuming more than that. Ms. Williams confirmed that she does not have any concerns about the Father’s drinking or having any substance abuse issues.
When asked if it is reckless to have an infant in a house with no baby gate or railing, Ms. Williams responded it depends on the home, if the door can be locked, and if it can be accessed by a child. She agreed there was no evidence to suggest that the Child was unsafe when he was in his care at the Father’s house in Metcalfe. It is a reasonable safety precaution to have put a deadbolt five feet high on the door leading to the balcony.
The Child told her he wants overnight visits with his father. He likes spending time with his father on Sundays because on Friday nights, he sees his friends and he is too tired on Saturdays. Ms. Williams agrees it is reasonable to ensure the Child does not have a sleepover with friends the night before there is a visit with his father because the Child is tired, and they spend limited time together.
It would have been reasonable for the Father to do his best to comply with what he agreed to with the Mother about the PEI trip. It would also have been reasonable if there were changes in the itinerary.
Tanner and Tyler told her that when they were younger, the Father was less relaxed than he is now, and he was more rigid with rules. They did not tell her that the Father had outbursts of anger, but that he could raise his voice and that scared them. Tanner did not appreciate at the time that his father was trying to set rules when he decided to move into his mother’s house because her rules were more relaxed. Tyler later moved in with his mother to be with his brother. Tanner and Tyler lived with their parents 50-50 until Tyler was 12 years old.
She agrees the Child’s input into the parenting time is relevant. However, Ms. Williams is concerned about the Child’s people pleasing characteristic, his desire to make both parents happy, and to ensure not to offend any parent. The Child is worried how his parents would react to the parenting schedule. She believes that the Child is more emotionally aligned with his mother and that more time spent with his father would assist in closing the gap with his father.
It will not hinder the Child’s growth if he spends more time with his father.
The Child expressed to her that he very much enjoyed his trip with his Father, and they had a great time together. The Child was nervous that he had less contact with his mother because a couple of times during the trip, he went to bed without calling her and she would be upset. When the Child woke up, he felt anxious about how his mother would feel. Ms. Williams was aware that on the drive to PEI, the Father and Child communicated with the Mother all the way and the Child was “running” the phone. She agreed the Mother overreacted about the Snapchat getting turned off. The Mother cited this trip as a rational to return to the terms in Justice Blishen’s Final Order and she cited safety issues. If the Mother was concerned about the Child’s health and safety by permitting the Child to go on the trip to PEI with his father, perhaps the Mother should not have allowed the Child to go on the trip.
The Mother showed Justice Blishen’s Final Order to the Child. It is not a normal practice for a parent to show a child a custody order and this possibly could have influenced the Child. Ms. Williams also asked the Child if he had discussed these proceedings with the Father. The Child responded that his father told him to be open and honest about how he feels, and the Father did not guide him in any way.
The Mother told Ms. Williams that she could possibly agree to the Child having overnight visits with the Father.
She agrees the Child told her that the Father plays more with him than his mother.
She believes the Mother is overinvolved with her children. She gave the example that the Mother has a close adult relationship with Emily and speaks to her several times daily. This is rather excessive.
It is not normal for the Father not to have overnight access with his 10-year-old child. There is no reason for overnight visits not to occur. In addition, there is no reason for the Father to only have access to the Child every second weekend. Ms. Williams believes it is in the Child’s best interest to have overnight visits with the Father. In addition, it is reasonable for the Father to have the Child over with a friend for a sleep over.
The Child is anxious about spending more time with his father because the Mother’s anxiety stems from her response to his visits and the Child has his own anxiety about being apart from his mother.
It is reasonable for the Father to ask the Child to stop responding to his mother every 45-60 minutes during their 9-hour visit when she asks him where he is and who he is with. It is reasonable to ask the Child to send a check in text to advise the Mother he has arrived safely and then to text her to advise when he is on his way home.
The Child generally enjoys spending time with his father at his paternal grandmother’s house. It is appropriate for the Child to spend alone time with his paternal grandmother. He especially enjoys playing card games with her. The Child was upset about the incident with his grandmother “bopping” him on the nose. The concerns were not verified by the Children’s Aid Society.
Ms. Williams questions the Child quite a bit about his comment that he is scared that his Father would continue past the 417 exit and keep him. She believes the Mother’s anxiety about this possibility could be projected onto the Child and he would have thought that.
She agrees the fact the Father has limited time with the Child and is often driving with him limits the Father’s ability to have supportive conversations with the Child.
The Child did not indicate to her that his father yells a lot. She believes the Child is influenced by the Mother’s anxiety about the parenting time with the Father.
Ms. Williams agrees the Child may not seem interested to see the Father for his visits because he does not want to hurt his mother’s feelings by appearing excited to see his father.
When the Mother met with Ms. Williams, she advised her the Father went to jail because he attacked someone. However, she agreed the Mother did not tell her it was in fact the Father that had been attacked.
With regard to the physical dispute between Tanner and the Father, she noted Tanner acknowledged it was his fault and felt very remorseful for his actions. He did not blame his father for the incident.
There is no evidence to support the Mother’s allegation the Father put his children “in the backseat” in order for him to play baseball or hockey.
There was no concrete evidence that neither parent speaks negatively about the other in the presence of the Child. However, Ms. Williams has concerns about the fact the Mother showed the Child Justice Blishen’s 2012 Final Order and the anxiety the Child may exhibit knowing how his mother feels about increasing his visits with his father. It is important to ensure the Mother is not giving such information to the Child and she must be careful about not sharing her feelings with the Child.
She recommends the Child attend counselling in order to assist him to deal with his anxiety because he is placed in the middle of a conflict and this would give him a safe place to talk about these things.
She stands by her recommendations in the report.
She believes that Christmas should alternate yearly.
18Ms. Boyd testified as follows:
She describes a normal day when the Child visits at her house with his father. When he arrives, he is in a good mood and gives her and Aunt Mary a hug. If it is nice out, the Father and the Child play outside either playing hockey or basketball. The Father also takes the Child to an outdoor skating rink and plays tennis with him. Afterwards, they have dinner that she prepares for them. The Father and the Child then return to playing, wrestling, or go back outside. The Child loves to play cards and they all have a good time together.
She recalls the Father and Child putting up the Christmas lights. The three of them sang carols and the Child went up the ladder and put the star on top of the tree. The Child was nervous, but he was proud of putting up the star on the tree. The Father and the Child then went to an outdoor rink to play hockey.
She seldom has any alone time with the Child, and she would like to have more. Ms. Boyd misses when the Child used to stay overnight. He has his own bedroom in her house.
After the trip to PEI, the Child did not visit them as much and he was no longer staying overnight.
The Child enjoys having family dinners together; he especially loves it when Tanner and Tyler go over for dinner.
The evening her son had his heart attack, they finished dinner and he left between 7:00-7:30 p.m. The Child went to bed at 9:00 p.m. because he had an early hockey practice the next morning. The Child was not upset when his father went out. Ms. Boyd woke up at 5:00 a.m. and the Father was not home. She checked her messages and there was one from the Father advising her he had gone to the hospital and that it was nothing serious. He asked his mother to take the Child to his practice in the morning. Ms. Boyd thought there was something wrong and called her other son, Derrick Boyd. He told her that the Father was in surgery, he would pick her up to bring her to the hospital. Shannon would stay with the Child and bring him to his practice at 7:00 a.m. Ms. Boyd asked Shannon not to say anything about the surgery to the Mother and to the Child. The Mother called Ms. Boyd and wanted an update on the Father’s condition. She wanted to bring the Child to see the Father in the hospital. Since the Father was on life support, Ms. Boyd did not want the Child to see him that way. At one point, a registered nurse called Ms. Boyd to ask why the Mother was calling them hourly. Mr. Boyd had to get involved and speak to the Mother to tell her not to go to the hospital. When the Father was well enough, he asked to see his sons. Before the Child was allowed to enter the hospital room, the Father asked the registered nurse to remove his oxygen and other things because he did not want his son to see him with those things on him.
After the Father was discharged from the hospital, he wanted to show the Child he was fine, and he went with Mr. Boyd to see the Child’s hockey game. Mr. Boyd went with the Father to help him get in and out of the truck. When the Child visited the Father at her house, the Child was beaming because he was happy that his father was home.
Since the Father has been living with her, he spends the majority of his time sitting in his truck in the laneway. He normally comes home from work and he is in bed at 9:30 p.m. and up at 5:30 a.m. because he works very hard 10-hour days.
With regard to the Children’s Aid Society investigation into her “bopping” the Child on the nose, she was surprised when the Father told her about it because she did not even know she had “bopped” him. At the time, they were playing nerf guns in the house. Ms. Boyd was taking a bowl out of the fridge and she pushed the Child’s nerf gun away and it supposedly hit his nose.
With regard to the Father’s house in Metcalfe, they have been busy cleaning the house after the tenants moved out. The house needs a new roof and carpets. The decks, the laneway, and the basement must be fixed. There are also a couple of broken windows. Her son must invest a lot of money to fix the house. With all the work that is required on the house, it will affect its selling price.
She is proud of her son and believes he is a very good parent and has given up a lot for his children.
19Mr. Boyd testified as follows:
He and the Father have not spoken much over the past year and a half because they each have had their own issues to deal with.
He has seen the Father interact with the Child and they are always communicating, playing road hockey, and watching movies. They are very active. The Child likes to play fight with his two brothers and Mr. Boyd’s two children. The Child is very involved in family dinners. There are often family birthdays that are celebrated as a family at Ms. Boyd’s home. Mr. Boyd describes the Father as a very “hands on dad”. There are also family gatherings at Mr. Boyd’s house where the kids play in the pool, the hot tub, hockey, and bowling.
He describes the Child as very active and always wants to play with his cousins or his brothers. If they are not there, he gets bored sitting still and always wants to do something with his father.
He recalls the day of the Father’s heart attack. He had to deal with the Mother because she was constantly calling the hospital to check up on the Father. Mr. Boyd received a call from a registered nurse at the hospital asking why the Mother was checking on the Father’s status.
He describes how the Father has struggled to upkeep his house in Metcalfe. This house is important to the Father because he built it with their father.
The Father would do everything to protect his sons and ensure their safety. He has heard the Father tell his boys he loves them especially when he gets off the phone with them. Mr. Boyd recalls the Father forfeiting overtime at work to coach his children. The Father has not placed his sons in the “backseat” to his own social life. If there is a conflict between the child’s schedule and the parent’s schedule, he and his brother skip their schedules for their children’s schedules.
The Father plays hockey on Friday nights but Mr. Boyd is unsure if he still plays on Sunday mornings.
20The Father testified as follows:
He built his house in Metcalfe with his father. They moved into their new house on November 1, 2001 and his father died on January 1, 2002. He and Ms. Kerr separated on January 5, 2005. He kept Tanner and Tyler in the house with him. Ms. Kerr later moved around a lot. It was a difficult separation.
He covered all of Tanner and Tyler’s expenses and needs. When Ms. Kerr picked up their sons, the Father often gave her money for their outings together.
He coached his sons’ hockey and baseball teams. He bought all their equipment.
In 2010, Ms. Kerr had difficulties and he paid for her to go into rehabilitation for 28 days. One day, he received a phone call from his mother, and she asked him to go over to her house. Ms. Kerr was there with all her bills spread out on the table and required his help. The Father gave Ms. Kerr money and she promised to repay him. When he returned home, the Mother was very upset with him because she told him he was enabling Ms. Kerr.
In 2010-2011, he and the Mother got back together. At that point, they were just trying to make something work that was not going to happen. When he found out the Mother was pregnant, he acknowledged his responsibility towards the Child. After their last big argument, the next few months were horrible. The Father took every opportunity to see his Child while maintaining the sports activities for Tanner and Tyler. At that time, he also asked Ms. Kerr to repay him and she did not.
When the Mother testified that she called the police on the Father, she was just trying to paint a negative picture of him. In fact, it is not as she described, and he was outside joking with them.
At the time of the custody battle about the Child, the Father felt let down by his counsel and he had no rights unless he had money to fight the battle. He had no money and settled with the Mother in 2012. Justice Blishen’s Final Order is very one sided and it should have been more about the Child, rather than the money. He regrets this settlement to this day. For example, he never thought that he would get into trouble for putting up Christmas lights with the Child.
2012 was a tough year for the Father. He had to drive 40 minutes to the Mother’s apartment in her parents’ house to pick up the Child and then 40 minutes back to his house in Metcalfe. He then drove another 40 minutes to return the Child to the Mother. Every time he asked the Mother for more time with the Child, she offered an excuse. She said that his house was not safe. However, when she lived with him, it was safe enough for their children.
The Mother has always known the Father pays for his two boys with Ms. Kerr.
During the trial, the Mother says that he did not even show up for the court hearing in 2012. In 2008, his hockey team was scheduled to go play the world championships in Quebec. He could not attend because his dog required knee surgery. Four years later in 2012, the same opportunity arose for his team to travel to Boston. He asked the Mother if he had to attend court for the signature of their agreement. She told him he did not have to attend. The Mother is trying to paint a picture of him as being a bad person.
From approximately 2012-2014, he dated Jodie and she and her daughter lived with him for two years.
In May 2012, he was injured at work when he was hit by three cables that had come undone. He suffered a traumatic brain injury and had a concussion. He was off work until January 2013. It was a stressful time because he had headaches, he had no money, and was trying to be a good father to his children. He relied on friends to help him coach.
In 2014, when Tanner was 14 years old, he decided to move in with Ms. Kerr and this broke the Father’s heart. Tyler also later moved in with Ms. Kerr. Tanner liked the fact there were no rules at Ms. Kerr’s house.
He missed a lot of overtime in 2015-2016 when he committed to coach his boys.
In 2017, he had shoulder issues related to the wear and tear caused by his very physical work. This led to him not being able to take overtime shifts. Tanner was talking about attending college and Tyler about going to university. They were 17 and 15 years old at the time and they were to start driving. The Father felt he had no option but to rent out his house in Metcalfe.
When his sons were playing AAA hockey, it was very expensive because of the tournaments. He had to pay for three nights of hotels, meals, and gas. The Mother and Emily also accompanied them to these tournaments. This was financially draining for him.
In 2018, he was getting more parenting time with the Child on Sundays. At that time, the Mother was flexible because she was in a relationship and was happy. The Father offered, and she accepted, to take the Child on professional development days. He also had more overnights.
He spends a lot of time with the Child in the truck because of the driving back and forth. The Mother should be responsible to do some driving.
It saddens him when he has a fantastic time with the Child and after he drops him off, he receives a text from the Mother questioning him about his time with the Child. The Mother has kept him as a scheduled play date for the Child. The Child talks to the Father more like a friend than a parent. The Father believes that he deserves better.
He was in shock when he found out that the Mother and Ms. Kerr had become friends because his relationship with Ms. Kerr was an issue of contention for the Mother during their relationship.
With regard to their trip to PEI, the minute he turned off to stop as his friend’s house, he became a border line amber alert. His friend had asked the Father to drop off a picture at his house. The Father and the Child had been driving for thirteen hours and when his friend invited them to stay the night, he agreed. They had a barbecue and the Child played with his friend’s son and two other friends. The next morning, they continued their route to his aunt’s house on the other side of the island. They stayed the rest of the week at his aunt’s house. The first evening there, the Mother contacted the Child on his iPad and she asked him to show her all of the rooms in the house. They also played at his uncle’s memorial golf tournament. The Child played with him and he did not drag the Child in the back of his cart as was alleged by the Mother. On their way back, the closer they got home, the Father could see the Child become anxious. The Child was worried about how his mother would react.
After the trip to PEI, the Mother was mad at the Father and bullied him. If he did not allow her to have control over his visits with the Child, she would sink him financially.
The Mother’s first request for financial information was not in 2018 as she alleged; it was on July 29, 2019, the day they returned from PEI.
In 2019, he had a heart attack that was sudden and unexpected. That evening, he had the Child for an overnight visit. The Father asked the Child if it was okay for him to go to bed after his show and that Ms. Boyd would stay with him. The Father then went to play hockey and went out for pizza and beer with his friend from PEI and the other guys. On his way home, he told his friend that he was not feeling well and that they should go to the General Hospital. The Father’s chest was tight, and he was scared because his father had died young of a heart attack. The Father was transferred to the Ottawa Heart Institute by ambulance and he had a quadruple bypass surgery. The first thing he recalls after waking up was Ms. Boyd telling him that the Mother kept asking to see him with the Child. The Father responded that he absolutely did not want them to see him in such a state. He spent the next couple of days in the intensive care unit and then spent six days in the recovery unit. When it was time to see the Child, he asked the registered nurse to remove the tubes from him and she agreed.
He does not have his 2020 taxes completed yet because of his heart attack last February. His workplace has a new program to provide T4s.
He is not a deadbeat dad.
He did not provide all the receipts for purchases he made for the Child. The Father stopped making the extra payment of $100 after the trip to PEI because the Mother reverted to the terms in Justice Blishen’s Final Order, therefore, so did he. The text messages he provided as evidence demonstrate that each time he asked for more parenting time with the Child, the Mother responded that they were to follow the agreement.
With regard to his life insurance policy, he purchased extra life insurance after Tanner was born. He wants his three sons on the policy and not the Mother.
He has two lines of credit, one in the amount of $109,850 and one for $329,000. The Father does not have a mortgage on his house in Metcalfe. He owes the City of Ottawa $30,986.21 in property tax arrears for his house. He chips away at these amounts each month.
His house in Metcalfe needs a new roof, new appliances, and carpets. The last tenants damaged his house. In 2018, Purple Bricks assessed the value of his house between $495,000 and $520,000, if it had a new roof. Due to the state of his house, he could not get anything near $628,000 as suggested by the Mother. The Father does not want to be forced by the Mother to sell his house. He wants the Child to have good memories in that house similar to those that Tanner and Tyler had growing up there.
August is a difficult month for him financially because he pays Tyler’s university fees, hockey fees, and school related fees like shoes and boots. When he finally starts to recover from these expenses, it is near Christmas.
He currently pays $600 to Ms. Kerr for child support, $300 for Tanner and $300 for Tyler. Tyler is attending a university out east and Tanner works for a construction company in British Columbia. Tanner worked on an apprenticeship as a carpenter. Tanner may attend Algonquin College in January. When Tanner and Tyler ask the Father for money, he sends them what he can to help out. He still pays for Tyler’s university hockey and baseball fees. For example, he also paid Tanner’s legal fees of $1,500 related to the incident on the Father’s birthday when they drank together, and Tanner was aggressive with the Father and was later arrested for driving under the influence of alcohol.
Exhibits
21The parties submitted 22 exhibits during the trial. They consisted of a variety of documents such as Justice Blishen’s Final Order dated April 24, 2012, Ms. Williams’ report dated May 18, 2021, information regarding the parties’ incomes, expenses and finances, the Father’s house in Metcalfe, the Father’s life insurance, text messages between the parties, and charts.
22The most important evidence relates to the Final Order signed by Justice Blishen and agreed to by the parties on April 24, 2012. The relevant portions of the order are as follows:
1.a. The Applicant shall have sole custody of the child.
1.b. The Respondent shall have access to the child at the following times:
i) every Wednesday evening from 4:30 pm to 8:30 pm, which will be changed to 8:00 pm on September 1, 2012;
ii) on alternate Saturdays from 11 am to 4 pm;
iii) on holidays and special occasions as agreed between the parties.
1.c. Effective November 1, 2012, if the Respondent has maintained the access schedule set out in 1(b) above, he shall have one additional evening of access in alternate weeks, which shall start on Mondays from 4:30 pm to 8 pm
1.l. The Respondent shall give the Applicant the right of first refusal in the event that he is unable to care for the child during his scheduled time(s) for access and in the event that the Respondent is unable to care for the child during his sports activities, either playing himself or coaching.
2.a. For so long as the child is enrolled in a full-time program of education and unmarried; the Respondent shall pay to the Applicant child support for the child. Commencing on June 1st, 2021, and on the first of each month thereafter, the Respondent will pay $400.00 per month to the Applicant.
- For as long as child support is to be paid, the payor and recipient if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Analysis and Findings
Legal Framework
23The starting point is the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). As per s. 24(1), when the court must make a parenting order with respect to a child, the court “shall only take into account the best interests of the child in accordance with this section.” The factors related to the circumstances of the child are listed in s. 24(3) and include:
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, 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 co-operate 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.
24With regard to the variation of an existing order, the court can only make an order to vary a parenting order if “there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order”: CLRA, s. 29(1).
25The Supreme Court of Canada noted the test for a “material change” in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, as a change that is substantial, continuing, and that “if known at the time, would likely have resulted in a different terms”: at paras. 32-33. This test was further explained in Dedes v. Dedes, 2015 BCCA 194, 372 B.C.A.C. 70, at para. 25, where the British Columbia Court of Appeal stated:
As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount to an appeal of the original order. [Citation omitted.]
26Section 10(1) of the Child Support Guidelines, Ont. Reg. 391/97, deals with the issue of undue hardship and the variation of child support. The court can award an amount of child support that is different from the Guidelines if it finds that the parent would otherwise suffer undue hardship. As per s. 10(2), circumstances that may cause a parent, spouse, or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising parenting time with respect to a child;
(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;
(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
27In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court of Canada dealt with the issue of child support and retroactive child support. It determined that the Guidelines simplify the issue of child support. The court stated in paras. 44-45:
[T]he Guidelines generally make only two numbers relevant in computing the amount of child support owed: the number of children being supported, and the income of the payor parent….
As income levels increase or decrease so will the parents’ contributions to the needs of the children, just as they would if the family had remained together. [Citation omitted.]
The implications of this approach are profound. Except for situations of shared custody, where additional considerations apply, a parent’s increase in income will not only increase his/her share of the child support burden; it will increase the total amount of support owed…. [U]nder the general Guidelines regime, when a payor parent does not increase the amount of his/her support when his/her income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms.
28The Supreme Court also noted that an increase in income that changes the amount of child support payable is a material change in circumstances: at para. 66. Additionally, the court found that courts should try to craft a retroactive child support award in a way that minimizes hardship.
29The Mother also referred me to the following caselaw: Camirand v. Beaulne (1998), 1998 CanLII 14919 (ON SC), 160 D.L.R. (4th) 749; Morrone v. Morrone (2007), 44 R.F.L. (6th) 389; Balo v. Motlagh, 2004 ONCJ 166, 10 R.F.L. (6th) 243; Michel v. Graydon, 2020 SCC 24, 40 B.C.L.R. (6th) 1[; Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183; Henderson v. Micetich, 2021 ABCA 103, [2021] 7 W.W.R. 567; Abumatar v. Hamda, 2021 ONSC 2165; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; Wiegers v. Gray, 2008 SKCA 7, [2008] 4 W.W.R. 225; and Brown v. Lloyd, 2015 ONCA 46, [2015] W.D.F.L. 832.
30The Father referred me to the following caselaw: Reid v. Fortune, 2018 ONCJ 486; Bojarski v. Bray, 2015 ONSC 264, [2015] W.D.F.L. 965; Gaudette v. Wensley, 2006 ONCJ 228, [2007] W.D.F.L. 1912; Kimmerly v. Henschel, 2016 ABQB 540, [2016] W.D.F.L. 5709; and Locke v. Goulding, 2009 NLTD 157.
Credibility
31In this matter, credibility played a large role. I will start by reviewing the Mother’s credibility. For the reasons that follow, I do not find that she was a credible and reliable witness. The Mother exaggerated her testimony to shed poor light on the Father. For example, she talked about the Father’s issues with alcoholism and marijuana. This was contradicted by the collateral information from Dr. Tobin noted in Ms. Williams’ report that the Father cut back significantly on his use of alcohol and marijuana. The Mother also testified the Father put the Child in the “backseat” of his personal activities, such as hockey and his social life. His priority was himself and not the Child. The Mother testified the Father left the Child alone with his grandmother to watch the news while he went out to play hockey. Ms. Boyd and Mr. Boyd both testified that this was untrue and when there was a conflict between the Father and the Child’s schedules, the Child’s schedule prevailed. Ms. Boyd testified that on the evening the Father had his heart attack, he left shortly before the Child went to bed to play hockey. This was not a weekly occurrence. I recognize that Ms. Boyd and Mr. Boyd have an interest to say positive things about the Father. However, Ms. Williams noted during her testimony there was no evidence of this. The Mother, on the other hand, painted herself as flexible when it came to the Father’s parenting time with the Child. This is contradicted by the text messages that were entered into evidence. The evidence supports that when the Father and the Child returned from their trip to PEI, the Mother was upset. It is after this event that she reverted to the terms of Justice Blishen’s Final Order and stopped all overnight visits.
32The Mother also testified that she was not upset by Emily’s move into the maternal grandparents’ apartment in the summer of 2019. When it was put to her in cross-examination that her parents would sneak in to watch the Child’s ball hockey game because the Mother was upset with them, the Mother replied “I am saying that is absolutely not true”. However, Emily testified that her mother was upset with her parents regarding Emily’s move into their apartment. She also recalled the time at the Child’s ball hockey game that her grandparents were apprehensive about seeing the Mother at the game. Her mother’s feelings were hurt, and she had made that clear to her parents.
33With regard to the Child being tired on Saturdays when the Father had his parenting time with him, the Mother testified that on Friday evenings before the Father had his parenting time, the Child was in bed by 10:00 p.m. However, Ms. William’s testified the Child told her that he is tired on Saturdays because he stays up late with his friends on Friday nights.
34During her testimony, the Mother often put on her hat as the therapist. She commented about the negative impact a change in the parenting schedule would have on the Child. This, however, was contradicted by Ms. Williams’ testimony and report.
35I turn to a review of the Father’s credibility. Overall, I found him to be a credible and reliable witness. He admitted in his testimony when he was wrong. For example, he readily agreed he did not add the rental income of $3,100 per month he received from January to August 2021 in his Financial Statement. He was unsure how to fill out the form as a self-represented litigant and I accept his explanation.
36In addition, the Father did not try to paint himself as the perfect father. The Father, like all parents, has faults and he owned up to those faults. Furthermore, his evidence was substantiated by the various exhibits, such as his banking information, the text messages between the parties, and Ms. Williams’ report. The Father did not try to hide his income, he simply took exception to the fact that his overtime would be included in his salary used to determine his child support obligations.
37As for the other witnesses, I have no reason to believe that they were not credible.
Child Support
38The first issue to be determined is the appropriate child support payable by the Father to the Mother for the Child moving forward. The Mother argues there has been a material change in circumstances since the issuance of Justice Blishen’s Final Order dated April 24, 2012. I agree. The Father’s income has increased since 2012. He testified that prior to 2012, he earned a lot less than $95,000 because he was unable to do much overtime because he was coaching his sons. I find the increase in the Father’s salary from 2012 to 2021 constitutes a material change in circumstances.
39The Father argues he will suffer from undue hardship if he has to pay the child support as per the Guidelines. According to the Father’s 2020 Notice of Assessment, he earned $112,045. He does not pay Ms. Boyd any rent. In addition to his work salary, the Father received $3,100 per month in rental income from his house in Metcalfe until August 2021. He has his two outstanding credit lines and arrears in property taxes for his house in addition to his truck payment. His other expenses relate to regular monthly expenses. I realize that he continues to pay child support for Tanner and Tyler in the amount of $600 per month. Based on the evidence, the child support for Tanner should end shortly and the child support for Tyler should end in 3-4 years. I cannot find that based on a salary of $112,045 and a review of the Father’s expenses, he would suffer from undue hardship. Consequently, I find moving forward, the Father must pay the Mother child support for the Child based on his 2020 income of $112,045.
Retroactive Child Support
40I turn to the question of whether retroactive child support is owing. Paragraph 4 of Justice Blishen’s Final Order noted that for as long as the child support was to be paid, “the payor and recipient if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.” The Father concedes he did not provide his income disclosure to the Mother. She testified that she first asked the Father for his financial disclosure in 2018 and this is the reason she seeks retroactive child support to January 1, 2018. In 2019, the parties agreed that the Father would increase his child support payment by $100 per month. The Father provided banking evidence to support he made these payments to the Mother from February 7, 2019 to July 11, 2019. There are texts between the parties showing the Mother requested a copy of the Father’s 2018 T4 on July 29, 2019. The Father testified that the Mother did not ask for financial disclosure until after he returned from the PEI trip with the Child and the Mother was angry. As noted previously, I do not find the Mother to be a credible witness. Based on the banking evidence and the texts between the parties, I find that the Mother only first asked for the Father’s income information on July 29, 2019 after the parties agreed to the additional $100 per month of child support and after the PEI trip. Based on the overall evidence, I find the Father must pay retroactive child support from August 1, 2019 to October 31, 2021. Based on the chart provided by the Mother, the amount of retroactive child support for 2019 is $3,025 (5 months x shortfall of $605/month). The amount of retroactive child support for 2020 is $7,152 (12 months x shortfall of $596/month) and the amount of retroactive child support for January 1-October 31, 2021 is $6,000 (10 months x shortfall of $600/month). The total retroactive child support owed by the Father is $16,177.
Parenting
41Lastly, with regard to the issue of parenting. The Mother argues the Father has not proved there is a material change in circumstances related to this issue. I disagree. For example, the parties consented to paragraph 1.b.iii) of Justice Blishen’s Final Order stating that holidays and special occasions will be as agreed between the parties. The parties do not agree with regard to Christmas. Since 2012 when this order was signed, the Father has not had Christmas eve with the Child.
42Ms. Williams’ report is very helpful on the issue of parenting. It is clear that both parents love the Child dearly. When looking at the testimonies and the evidence provided, I agree with the Father that the Mother attempted to paint him in a negative light. The Mother takes the position that it would be detrimental to the Child if there was an increase in the Father’s parenting time. I disagree. Ms. Williams, who conducted a thorough investigation and created a comprehensive report, testified that it would be beneficial to the Child.
43The Mother told Ms. Williams she would not allow the Child to stay overnight with the Father until he moved into his mother’s home due to safety concerns. She cited concerns regarding the Child’s safety as the reason; he had three staircases and refused to install baby gates or put a railing on the balcony. The Father testified that he still had the hardware of the baby gates on his walls at the house and he had installed a lock five feet high for the Child not to be able to access the balcony. I find her allegations are baseless.
44Furthermore, the Mother told Ms. Williams that she was frustrated with the fact the Father had gone out to play hockey on three occasions when the Child was in his care and on the evening of his heart attack, the Father went drinking, used cocaine, and got into a fight after his hockey game. There is no evidence to support the Mother’s allegations. There is evidence the Father went to play hockey the night of his heart attack and he did so just before the Child went to bed and stayed with Ms. Boyd. The Father does not see an issue with allowing his mother to care for the Child for a short period of time. Ms. Williams agreed this was not an issue and was to be encouraged in order for the Child to spend alone time with his grandmother. The Mother requests to maintain the status quo with respect to the parenting schedule and would feel comfortable allowing the Father to have overnight visits once in a while and see how that goes. However, she wants to ensure that the Father stays with the Child the whole time. I find the Mother wants to control the whole situation when it comes to the Child. I will discuss this further below. This is not reasonable. It is neither reasonable that the Father must stay with the Child the whole time. Ms. Williams supports that the Child spend alone time with his grandmother.
45The Mother testified the Father did not use all his parenting time with the Child. The Father explained he did not previously have his visits with the Child on Wednesday evenings because of his work schedule and the Mother permitted him parenting time at other times to accommodate the missed visits. The trip to PEI was a major game changer in the Father’s parenting time. Beforehand, the Mother was somewhat flexible but I agree with the Father, she changed access to suit her own needs or reduce his parenting time when she was displeased with him. In addition, I find that once she was not able to control what occurred on the trip to PEI, i.e. follow them on Snapchat, her fury led to her being unreasonable. The evidence was that the Child was controlling the phone on the way to PEI. He was using the data by playing with other apps like Spotify. Once the data ran out, the Father shut down Snapchat. This was not unreasonable because they continued to communicate with the Mother on their drive to PEI. The Mother says she chose to return to the original parenting schedule due to safety concerns that arose while the Child was in the Father’s care. During her testimony, the Mother said she was concerned about the Child travelling with the Father to PEI because of his heart attack earlier that year. I find this was just an excuse. If she had safety concerns, she could have refused to permit the Child to travel to PEI.
46Ms. Williams also highlighted her concerns regarding the fact the Child told her that the Mother showed him the agreement (Justice Blishen’s 2012 Final Order). I also find this very concerning. A parent should not involve children in the court process by talking to them about it and certainly never showing them agreements or court orders. In addition, the Mother’s professional experience should have cued her that this is absolutely unacceptable. The Father, on the other hand, told the Child to be open and honest through the process with Ms. Williams.
47The Father testified he is concerned the Child sees him as a playmate rather than a parent. I understand his frustration and why he thinks so. The Father has limited time with the Child and when they are together, they are constantly playing hockey, cards, etc. The Father would like to have down time with the Child before bedtime and have more supportive conversations with him such as the Child has with his mother. This is a reasonable request.
48Ms. Williams expressed concerns about the Child wanting to please both parents and the Child’s anxiety about how his mother will react to him showing happiness and looking forward to his visits with his father. The Child was also anxious before he arrived home from PEI because of how his mother would react. The evidence supports that his anxiety was warranted. The Mother overreacted when they arrived, and this upset the Child. The latter told Ms. Williams that “the trip was really fun, but also said he knew his mother was going to really miss him when he was away as she always misses him when she can’t see him. His mother was very angry when they returned from the trip and it really upset him” (p. 10 of Ms. Williams’ report). It is Ms. Williams view that the Mother has to be more careful to ensure she does not transfer her anxiety onto the Child. I agree.
49The Child told Ms. Williams he likes to be flexible with the schedule, as he may want to spend time with friends or go on a different day. He also said he liked seeing his dad every week on Sundays like he used to. The Child indicated he was “okay” to sleepover with his father because they have had fun in the past and he did not feel uncomfortable to do so. He was also okay for things to remain as they are now.
50The Mother takes the position she should always have Christmas eve with the Child because of her family’s traditions and this was the agreement. The Father seeks to have alternate Christmas eves with the Child. Paragraph 1.b. of Justice Blishen’s Final Order states: “The Respondent shall have access to the Child at the following times…iii) on holidays and special occasions as agreed between the parties.” There was no determination in the Final Order as to what the Father’s parenting time would be during Christmas. It was the Mother’s sole determination of what his parenting time would be during Christmas. It is unreasonable that a 10-year-old child cannot have alternating Christmases with his parents.
51Based on my reasoning above, I grant the Father’s request to increase his parenting time that will be described more in depth in the Order below.
52Lastly, Ms. Williams recommended that the parents arrange for counselling for the Child with a counsellor experienced in high conflict separation and divorce. She thought this would be helpful to assist the Child deal with his anxiety. I strongly encourage the parties to follow this recommendation.
Order
53Based on the above, paragraphs 1.c. and 1.f. of Justice Blishen’s Final Order dated April 24, 2012, are struck since I find they are no longer relevant. In addition, paragraphs 1.b., 1.l. and 2a. of Justice Blishen’s Final Order are replaced with the following:
1.b. The Respondent shall have parenting time with the Child in accordance with the following schedule:
i) Every Wednesday from 4:30 p.m. to 8:30 p.m.;
ii) Starting on November 6, 2021, every second weekend from Saturday at 10:30 a.m. to Sunday at 4:00 p.m.;
iii) Starting on January 15, 2022, every second weekend from Friday at 4:30 p.m. to Sunday at 7:30 p.m.
iv) If there is no school on any given Friday or Monday because it is a holiday or a PD day, the Father’s parenting time with the Child shall begin on the Thursday, after school or on the Tuesday before school, whatever the case might be.
v) On the weekends, the parties shall each be responsible to drive the Child one way for the parenting time. The pick-ups and drop-offs shall be at either the Applicant’s residence or the Respondent’s residence, unless the parties agree otherwise in advance and in writing.
vi) For the Christmas holidays, each parent will have three days for Christmas with the Child, from 3:00 p.m. on Christmas Eve to 3:00 p.m. on Boxing Day. The Respondent will have the Child for Christmas in odd years (starting in December 2021) and the Applicant in even years (starting in December 2022).
vii) During the Christmas holiday, each parent will have three days for New Year’s from 3:00 p.m. on New Year’s Eve to 3:00 p.m. on January 2nd. The Applicant will have the Child for New Year’s in odd years (starting in 2021) and the Respondent will have the Child in even years (starting in 2022).
viii) During Father’s Day, the Child will be with the Respondent, from 1:00 p.m. on Father’s Day to the next day. During Mother’s Day the Child will be with the Applicant, from 1:00 p.m. to the next day.
ix) During the summer months (July and August), each parent will have the option to take two weeks of holidays with the Child, consecutive or not, with the Respondent having first choice of summer weeks in even numbered years (starting in 2022) and the Applicant having first choice in odd numbered years (starting in 2023). A parent’s choice of vacation weeks shall be confirmed in writing by no later than May 1st of each year, failing which the other parent shall have first choice. A parent’s chosen summer vacation week(s) shall begin on the Friday of his/her regular weekend (as per the regular schedule) and end at 5 p.m. the following Friday or the next (if that parent chooses to take two consecutive weeks with the Child). If a parent takes his/her two summer weeks consecutively, the regular weekend schedule will change so that the Child is never more than 14 days without seeing the other parent during the summer months.
x) The parties will alternate having the Child in their care for the full March Break with the Respondent having the Child in even numbered years (beginning at March Break 2022) and the Applicant every odd-numbered years. The Child’s March Break begins at 9:00 a.m. on the Monday and ends at 5:00 p.m. on the Friday of the school break. To be clear, a parent having care of the Child during the March Break will not affect the regular (weekend) parenting schedule. The Applicant’s right of first refusal does not apply during this time. If the Child is in a March Break camp for that week, the parent who has the Child in his/her care for the March Break will be responsible for any associated fees.
xi) Either parent may call the Child daily when he is not in his/her care between the hours of 7:00 p.m. and 7:30 p.m., if he/she wishes to do so. The Child shall be free to call, text, or message either parent at any time, any day, without restrictions. The residential parent shall facilitate the Child’s wish to communicate with the other parent.
xii) There shall be no change in the above parenting schedule unless both parties consent in writing, in advance.
1.l.The Respondent shall give the Applicant the right of first refusal in the event that he is unable to care for the Child during his scheduled parenting time. Furthermore, the Applicant shall give the Respondent the right of first refusal in the event that she is unable to care for the Child when he is in her care.
2.a.i) The Respondent must pay the Applicant child support for the Child based on his 2020 income of $112,045 starting on November 1, 2021.
2.a.ii) The Respondent shall pay the Applicant the amount of $16,177 for retroactive child support. He shall pay $200 per month starting on November 1, 2021 until the full amount is paid.
Costs
54If the parties are unable to agree on costs, I will accept written submissions not exceeding five pages (exclusive of Bills of Costs and Offers to Settle) within the following timelines:
The Mother to provide by November 19, 2021;
The Father to provide by December 3, 2021;
The Mother’s brief reply, if any, to be provided by December 10, 2021.
Justice M. O’Bonsawin
Released: November 3, 2021
COURT FILE NO.: 283-2019
DATE: 2021/11/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Audrey Tedford MacIntosh
Applicant
– and –
David Boyd
Respondent
REASONS FOR DECISION
O’Bonsawin J.
Released: November 3, 2021