Court File and Parties
COURT FILE NO.: FS-16-10861
DATE: 2022-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CATHERINE ELIZABETH CLARK (BUTLER) Applicant
– and –
JASON STEPHEN BUTLER Respondent
COUNSEL:
Phaedra Klodner, counsel, for the Applicant
James Battin, counsel, for the Respondent
HEARD: May 30, 31, June 1 & 2, 2022 at Woodstock
Reasons for Judgment
HEENEY J.:
[1] To the credit of the parties and their counsel, several issues were resolved at the beginning of, and during, this trial, which has greatly narrowed the issues to be adjudicated.
[2] To begin with, the parties executed Partial Final Minutes of Settlement on May 30, 2022 in which they consented to a Partial Final Order that provided for equal parenting time during the holiday schedule (i.e. the summer school break, Christmas, etc.), on a week about basis, with respect to the child Walker, born August 30, 2014. It contains a number of other ancillary provisions regarding access to information, a prohibition against speaking negatively about the other parent in the presence of the child, and so on. This order effectively carries forward the same terms that were included in the final order of Desotti J. dated June 22, 2018, except that it is confined to the child Walker. As will be discussed below, the other child of the parties, Foster, born March 30, 2016, tragically passed away on January 1, 2019, when she was removed from life support.
[3] That order was signed by me on May 30 when it was presented to the court, although the parties are at liberty to incorporate those terms in the final order that will result from this judgment, so that they will have one comprehensive order to look to that defines their rights and obligations.
[4] The parties also agreed to fix arrears of child support owing by the respondent to the applicant, for the support of Walker, at $15,000 as of May 31, 2022. The only issue to be determined in that regard is the manner of repayment, which will be dealt with below.
[5] On May 31, the parties agreed that the imputed income of the respondent for purposes of child support is $62,000 per year. This would result in a table amount of support for one child of $576 per month, although this is subject to my decision as to the manner in which parenting time is to be allocated. The respondent is seeking, in his motion to change, a variation of the order of Desotti J., such that he would have care of the child on a week-about basis. If he is successful, that could lead to an order for child support that is different from the table amount. The applicant asks that the respondent’s motion be dismissed, and that the order of Desotti J. continue. It provides for Walker’s primary residence to be with the applicant, with the respondent having parenting time with Walker every other weekend from Thursday at 5:00 p.m. until Tuesday at 8 a.m. She did propose one minor change in the access schedule, such that the respondent would have an evening visit with Walker on Wednesday evening during his non-access week, from after school until 7:30 p.m. If she is successful, child support will be ordered at the full table amount.
[6] With respect to decision-making responsibility over the child, the parties consented to an order by Nicholson J. dated August 26, 2021, which provided that the applicant shall have “sole custody” of Walker. I pointed out to counsel that this was confusing, since the amendments to the Divorce Act, RSC 1985, c. 3 (2nd Supp), which replaced the terms “custody” and “access” with “parenting order”, “decision-making authority” and “parenting time”, had received royal assent on June 21, 2019, well before that order. It is the Divorce Act that is the applicable legislation in this proceeding, since the order of Desotti J. was an order for corollary relief made in the context of an application for a divorce.
[7] Counsel and the parties are in agreement that the intent of Nicholson J.’s order was to provide for sole decision-making responsibility to be awarded to the applicant, but was not intended to deal with parenting time or primary residence. They also agreed that I should make such an order in this proceeding using the appropriate terminology, so as to avoid any confusion in the future, and so as to consolidate all relevant orders into one. Accordingly, a final order shall go that the applicant shall have sole decision-making responsibility with respect to the child Walker. The other ancillary orders made by Nicholson J. shall also be incorporated in my final order, to the extent they are not redundant to similar provisions in the order flowing from Partial Final Minutes of Settlement dated May 30, 2022.
[8] The central issue that is before the court, therefore, is whether the respondent has proven that there has been a material change in circumstances since the order of Desotti J. was made, such that an order for week-about parenting time during the school year is now in the best interests of the child.
Background:
[9] The parties began cohabitation in 2011 and were married on May 30, 2015. Two children were born of this relationship, Walker and Foster, in 2014 and 2016 respectively. The parties separated on August 18, 2016. Both children were in the primary care of the applicant following the separation, and this status quo continued for both children until Foster’s death, and continued for Walker since then until the present time.
[10] The applicant commenced divorce proceedings in 2016. On April 26, 2017, Gorman J. granted a Partial Final Order, on consent, which provided that the respondent would pay to the applicant child support for the two children in the amount of $934 per month commencing April 30, 2017, based on income of $62,889 per year. That order is the subject-matter of the applicant’s current motion to change, which focussed on child support only. That motion to change has been effectively resolved, as outlined above.
[11] On April 12, 2018, Gorman J. made an order severing the corollary issues, and granted judgment for divorce, effective May 13, 2018.
[12] On June 22, 2018, the parties consented to a final order by Desotti J., which has already been referred to above, and which is the subject-matter of the respondent’s motion to change.
[13] On Christmas day 2018 an unimaginable tragedy occurred. The respondent accidently drove his pickup truck over the child Foster, not knowing that she had followed him from where he had left her on the porch of his residence. Walker was present, and witnessed this horrific incident. Foster suffered grievous injuries, which led to the decision of the parties to remove her from life support on January 1, 2019.
[14] The applicant was interviewed by the police in early January relative to the accident. In response to questions posed by the police, she provided information that led the police to charge the respondent with sexual assault. The respondent was arrested, and a no-contact order was made as a condition of his release, which remains in effect. The trial is scheduled for September, 2022.
[15] The no-contact order has been a considerable impediment to the parties in facilitating access and dealing with other issues relating to Walker. The applicant’s mother, Judy Clark, has acted as the intermediary between the parties in that regard.
[16] Given what Walker had witnessed, and given that the respondent was the driver of the truck that had run over his sister, the applicant suspended the respondent’s access to Walker, pending input from professionals as to how to move forward. Her counsel wrote to counsel for the respondent on February 11, 2019, suggesting the engagement of a clinical psychologist with experience in childhood trauma, and in a further letter dated February 14, 2019 suggested Dr. Richard Zayed to provide this assistance. The respondent refused to cooperate, and his ultimate response was to threaten a motion for contempt if his access was not immediately reinstated. He continues to this day to refuse some sort of joint counselling with the applicant.
[17] The applicant brought a motion to temporarily suspend the respondent’s access, which was heard by Bondy J. On July 22, 2019, he dismissed the applicant’s motion, and ordered a return to the access ordered by Desotti J., following a brief transition period. He also awarded costs against the applicant, which have been paid.
[18] The net result of this is that the respondent had no access for a period of about 7 months. Save and except for that period, the status quo since the separation has been that the primary residence of Walker has been with the applicant during the school year, and the respondent has been receiving access on alternate weekends.
Relevant provisions of the Divorce Act:
[19] Section 17(1)(b) provides that a court of competent jurisdiction may make an order varying a parenting order. Subsection 17(5) outlines the threshold that must be met by the party seeking to do so:
(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).
[20] Section 16 provides direction to the court regarding factors to consider in making a parenting order. Subsection 16(7) provides that a parenting order “includes … a variation order in respect of a parenting order”, so this section applies to the present variation proceeding. The relevant provisions of s. 16 (omitting the section relating to “family violence”, which is not relevant) is reproduced below:
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.
(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.
[21] Since Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, it has been settled law that, on an application to vary what was then known as a custody or access order, the court must first be satisfied that there was a change in the condition, means, needs or circumstances of the child and/or in the ability of the parents to meet the child’s needs, which materially affected the child, and which was unforeseen or could not have been reasonably contemplated by the judge who made the initial order. If that threshold is met, the court then embarks on a fresh inquiry into what is in the best interests of the child.
[22] This continues to be good law despite the legislative amendments that have occurred in recent years, as evidenced by the fact that it was cited by the Ontario Court of Appeal in the recent decision of L. v. S., 2022 ONCA 270 at para. 21 as the applicable test for determining if a material change of circumstances has occurred.
[23] Thus, it is not any change of circumstances that will justify a variation order. Here, it is obvious that the loss of Foster represents a dramatic change in the lives of this family. However, the question is whether that is a change that affects the condition, means needs or circumstances of Walker, and/or the ability of his parents to meet his needs, which has materially affected the child, and was not foreseen or could not be reasonably contemplated when the original order was made, such that a change in the current parenting order is necessary.
[24] The fact that Foster’s death was not and could not be reasonably foreseen is obvious. Putting the rest of the test in practical terms within the context of this proceeding, the respondent has the onus of proving that Foster’s death has affected the condition, means needs or circumstances of Walker, and/or the ability of his parents to meet his needs, in a way that has materially affected the child, such that his best interests now require an increase in the respondent’s parenting time to a week-about basis.
[25] The Office of the Children’s Lawyer has been involved in this case since 2017. In the first report of the clinical investigator, Monica Szikszay, dated December 5, 2017, she recommended sole custody of the two children to the applicant, with the respondent to have access on alternate weekends from Friday at 6 p.m. to Sunday at 6 p.m. She also recommended that he receive mid-week visits on Tuesdays and Thursdays from 6 p.m. to the following morning. It would appear that the parties used this as a template for the consent order that was made by Desotti J. on June 22, 2018, in that the applicant received primary care of the children and the respondent received access on alternate weekends, except that the weekends were extended from Thursday to Tuesday in lieu of having mid-week visits.
[26] Ms. Szikszay became involved again in 2019 following the death of Foster, and prepared a report dated March 16, 2020 for purposes of the present motion to change. She again recommended sole custody to the applicant. She also recommended that the respondent receive access to Walker on alternate weekends from Thursday after school until Tuesday after school at 3:30 p.m. However, she recommended additional access during the weeks when there is no weekend contact, from Wednesday after school at 3:30 p.m. until Friday morning at 8 a.m. While she did not recommended week-about parenting time as sought by the respondent, her recommendations, if implemented, would amount to Walker spending close to 50% of his time with the respondent.
[27] I have several concerns about this report. To begin with, it is dated, being now more than two years old. Two years is a long time in the life of a 7-year old. Ms. Szikszay agreed, in cross-examination, that things of concern, such as the level of anger toward the respondent on the part of the applicant and her family, particularly Judy Clark, may have changed since her report was prepared. Second, while she contacted most of the professionals involved in counselling and treatment of the members of this family, including the maternal grandparents, she did not seek their opinion as to the impact on Walker of an increase in the respondent’s time with the child. This would, in my view, have been useful, since this is the first time Ms. Szikszay has ever dealt with the impact on a child of the traumatic loss of a sibling, and she could have benefitted from some additional guidance in formulating her recommendations. Third, her report provides no clear line of reasoning as to why it is now necessary, in Walker’s best interests, to have more time with his father. She did rely on the report of Dr. Leslie Balmer to the effect that contact with the respondent was integral to Walker’s healing, but she was unable to contact Dr. Balmer directly, and that report has not been filed in evidence, so I have no way of knowing precisely what was recommended or why. Ms. Szikszay conceded in cross-examination that having the respondent play an integral role in Walker’s healing does not necessarily mean spending more time in his care.
[28] The only other evidence in support of the respondent’s contention that there has been a material change comes from the respondent himself. His position, essentially, is that he is seeking more time with Walker because Walker wants more time with him. The evidence on that point is equivocal. During the preparation of her report, Ms. Szikszay discussed this with Walker. He said he likes spending time with his dad and the amount of time he spends with him is “just right”. In another interview, while they were discussing the fact that Walker was helping his dad build him a bedroom at the respondent’s residence, he said more time with his father “would be good.” Given the equivocal nature of his views, as well as his young age, I conclude that the views of the child, while they are certainly to be taken into account, should not be given a great deal of weight, and do not support the proposition that a material change in circumstances has occurred.
[29] Significantly, the respondent is able to point to no change in the ability of the applicant to provide for Walker’s needs, arising out of the death of Foster or otherwise. He similarly has provided no evidence that his own relationship with Walker is suffering under the current access regime, such that a change in parenting time is necessary. To the contrary, he testified that he has an excellent relationship with Walker, that his visits with his son have been “going great”, and that they have “a great bond”. I conclude from this that the parenting time he currently has with his son, which includes not just extended alternate weekends from Thursday to Tuesday, but also includes telephone contact almost every day, is working well to foster a healthy and beneficial father/son relationship.
[30] I am not persuaded that the respondent has met the onus of proving that a change in the circumstances of the child since the making of the order of Desotti J., as required by the Divorce Act and as interpreted by the courts, has occurred. That is sufficient to dispose of his motion to change.
[31] However, in the event I am in error on that threshold question, I would not have found that a change in the parenting time regime to a week-about arrangement would have been in the best interests of the child. I arrive at that conclusion for the following reasons, structured around the factors set out in s. 16(3). I will consider only those factors that, in my view, have relevance to the particular facts of this case.
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability:
[32] The loss of his sister represented a monumental change in Walker’s life, and he continues to struggle to cope with its consequences. He has been in his mother’s primary care since the separation, a status quo amounting to almost 6 years. This has provided him with a sense of continuity and stability, something that he needs to counter that major disruption in his life.
[33] It is clear that he sees his mother’s home as his home. In the OCL report, the following is reported: “When he thinks of home, it is that of his mother’s home.”
[34] The applicant purchased (with the assistance of her parents) and moved to her own house in 2021, which she describes as a cute little 3 bedroom, 2 bath brick house, with a fenced- in back yard on a quiet cul de sac, so he can ride his bike without worry about fast vehicles, that is very close to his school. He has made lots of friends in his new neighbourhood and at his new school, but is still adjusting to those changes. Adding an additional change, by changing the primary residence status quo, would not be in his best interests.
(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:
[35] There is no question that Walker has a strong and beneficial relationship with both of his parents, but there are other important people in his life. The maternal grandmother, Judy Clark, has an extremely close relationship with Walker, and spends a great deal of time with him. Walker’s description of just how important his maternal grandparents are to him is summed up in the following passage from the OCL report:
If Walker had a nightmare in the middle of the night or he was ill, he said he would want his maternal grandmother to help and take care of him. When he is sad and wants to talk to someone, he would talk to his maternal grandfather.
[36] Judy Clark testified, and I found her to be an incredible woman. She has gone to extraordinary lengths to facilitate regular contact between the respondent and Walker, as the go-between necessitated by the no-contact order. Her sensitivity to the dynamics at play in this tragic scenario was impressive. While she admits to having harboured great anger toward the respondent, for what she perceives to be his negligence in the incident that took Foster’s life, I am satisfied that she has brought that under control, and that Walker’s best interests drive everything that she does.
[37] Aside from his maternal grandmother, Walker now has a new baby sister in his life. Ariana was born March 25, 2021, the product of a short relationship that the applicant quickly ended. The evidence is clear that they have become extremely close. Walker brags to his friends about his new baby sister, and is caring and protective of her. Ariana is not able to talk yet, but squeals with delight when Walker gets home from school. He is involved in her care, such as pouring her a bottle and taking it to her. He helped her take her first steps, stabilizing and helping her along, and takes pride in her development.
[38] Given the tragic loss of Foster, it is not surprising that having a new baby sister would serve to fill, in part at least, a great void in Walker’s life. In the applicant’s words, “it is nice to see him so happy again when they are together, and to see a little bit of light in his eyes again”.
[39] To reduce the applicant’s parenting time with Walker and have him spend half of his time with the respondent would have the effect of taking him away from his new sibling for half of the time, as well as from his maternal grandparents. That would not be in his best interests, particularly given the loss he continues to try to cope with.
[40] By contrast, there are no similar relationships on the respondent’s side of the family that would benefit from the additional time the respondent is seeking. Although he had been in a relationship with Jill Goodwin for several years, and they were engaged to be married, that ended in 2020, as did Walker’s relationship with her two young sons. Although the respondent said he still maintains contact with her, she has moved “up north”, several hours away. The respondent has a new partner, Andrea Somogyi. She testified at trial, and I found her to be a very impressive witness, who undoubtedly could have a lot to offer Walker in the long term. However, her relationship with the respondent is in its infancy, and they will not complete the process of moving in together until the end of June. Thus, she does not figure prominently in my consideration of this factor.
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; and, (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:
[41] I am considering these two factors together because, on the facts of this case, they are related. I am satisfied on the evidence that the respondent does not respect the role of the applicant as the custodial parent, and overtly shows a lack of respect for her in his failure to keep her informed as to significant information while Walker is in his care, as well as in other ways.
[42] The following examples will illustrate the respondent’s refusal to keep the applicant informed:
- In the summer of 2020, during the height of the COVID-19 pandemic, the respondent took the child to Quebec for a week. Quebec was, at the time, a hot spot for COVID. Not only did the respondent not request the applicant’s permission to take the child out of the province, a trip which probably contravened the government guidelines in place at the time, he never even told her about the trip, before or after it occurred. The applicant didn’t find out about it until Walker told her about it upon his return;
- During an access visit, Walker was bit on the face by a dog, owned by the friend that the respondent was visiting at the time. The respondent appropriately treated the wound by cleansing it and applying an anti-biotic, but never told the applicant about it. Once again, she learned about it upon Walker’s return home;
- During March break of 2020, the respondent had Walker at the same friend’s residence, and Walker was driving an ATV. He and another young child drove their ATVs directly at each other, apparently playing “chicken”. The vehicles collided and Walker was thrown into a ditch. Once again, the respondent never disclosed this to the applicant, and she only learned the details when Walker returned home. Significantly, Walker said he “fell asleep for a couple of minutes” following the collision, indicating that he may well have been knocked unconscious for a short period. Clearly, it was incumbent on the respondent to immediately report such a significant accident to the applicant, and even more so given the tragedy that happened to Foster that also involved a motor vehicle. The failure to do so demonstrates utter disrespect for her role as the custodial parent;
- In a similar vein, Walker fell off a toboggan during the winter while sledding with his father, and lost a tooth. Once again, the applicant only found out about this from Walker himself;
- The respondent moved on May 1 to a new residence, but never advised the applicant of his new address until the first day of trial. Clearly, the custodial parent is entitled to know where the child is staying during access visits. The failure to keep her advised of this important information again demonstrates his disrespectful attitude towards her.
[43] His lack of respect for the applicant, and for her role as mother and primary caregiver to Walker, is also demonstrated by his refusal to pay any child support to her since the death of Foster. Following that tragedy, the respondent, who is an unlicensed electrician, quit work completely for a period of one year. The applicant, meanwhile, forced herself to get a job, because she needed to support herself and Walker, and obtained a position at Cowan Insurance in March of 2019.
[44] Given his lack of work, the respondent’s reported income in 2019 was only $15,064. Even at that level, however, he should have been paying the table amount of child support of $80 per month. His reported income in 2020 was $27,576, for 2021 it was $58,216, and for 2022 it is imputed to be $62,000, yet he continued to pay not one cent in child support, up to and including the trial of this action. He claims, in his book of documents filed as Ex. 3, to have sent an e-transfer to the applicant on August 10, 2020 in the paltry amount of $350, but the applicant did not accept the payment. The applicant testified that she received no such transfer, and that if she had it would have been automatically deposited into her account, because that is the way her account is set up. I believe her. The respondent, in his evidence, testified that he actually tried to send two payments of $350 not one, which is at variance with his own documentary evidence, and undermines his credibility. In any event, even if he had indeed sent one or two such payments, that would have been nowhere close to satisfying his child support obligations according to the Guidelines, a fact that both he and his lawyer would have been well aware of.
[45] The evidence is clear that the respondent had the means to pay child support but was choosing not to do so. On April 13, 2021 he paid $3,024 to his personal trainer. He also managed to find $10,000 to pay his father back a loan in that amount that he incurred to pay a retainer to his lawyer. Apparently paying a debt to his father is a higher priority than paying child support for his own son. In other words, his father gets paid while the mother of his son can wait.
[46] To add insult to injury, the respondent not only refused to contribute to Walker’s support during this 3 ½ year period, but he actually sought to claw away for himself part of the Child Tax Benefit (“CTB”) that the applicant was receiving and, given the lack of child support, was extremely dependent upon. The applicant received notification from the Canada Revenue Agency regarding an investigation as to whether she was actually eligible to receive the CTB. While they have recently concluded their investigation and determined that she was, in fact, eligible, the disturbing fact is that she had to undergo this investigation in the first place. It is clear on the evidence that this investigation was initiated by the respondent, and he admitted so on cross-examination. He tried to downplay it by suggesting that he was on the Canada Revenue Agency website, “doing paperwork”, when a form “popped up” about the children. He says he filled it out and submitted it, but had no idea that it would impact on the applicant’s CTB.
[47] I do not believe this evidence. A form like this does not just “pop up”. You have to go looking for it. I conclude that he was attempting to claim part of the CTB for himself, based on a claim of shared parenting, knowing that he was not paying child support himself, and that the applicant was therefore highly dependent on this income. This not only shows disrespect for the applicant and for her role as custodial parent. It also shows that the respondent places a higher priority on money than he does on Walker’s best interests, since both child support and the CTB are needed to provide for Walker’s day to day needs.
[48] For a week-about shared parenting arrangement to work, the parties must be able and willing to communicate with each other, and must respect and support the parenting role of the other party. I am not satisfied that the respondent is able or willing to do either.
(d) the history of care of the child:
[49] I have discussed this factor already. The history of care is that Walker has been in the primary care of the applicant for the 6 years that have elapsed since the separation. This factor strongly militates in favour of a continuation of that regime.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained:
[50] I have discussed this factor already. As noted, I find the child’s views to be equivocal, and give little weight to them.
(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:
[51] There is no evidence regarding any real concerns about the ability of the applicant to care for and meet the needs of the child. There is, however, evidence that point to a serious lack of good judgment on the part of the respondent regarding Walker’s psychological well-being.
[52] The first incident relates to Foster’s tragic death. After Foster was run over, the respondent asked Walker if he was holding her hand. The obvious implication of such a question is that Walker should have been holding Foster’s hand, so that if he wasn’t he might be partly to blame for what happened. Walker’s response indicated that that is the implication he was left with from the question. The respondent admitted saying this, but says he was just flabbergasted in trying to figure out how Foster got around in front of his tire. He says he realizes it was the wrong thing to ask a young boy. That is an enormous understatement. To make even the slightest suggestion or implication that a then 5-year old boy bore any responsibility for what happened could have devastating consequences for the child, and leave him with a lifetime of guilt.
[53] The second incident is related, and came from the evidence of the maternal grandmother, Judy Clark. She was with Walker when the respondent was coming to pick him up for an access visit. The respondent arrived, driving the same white truck he had been driving when Foster was killed. Walker saw this, and knew it was the same truck, with the same big tires that drove over his sister, and said so to his grandmother. She was of the view that this “triggered” an adverse reaction in Walker.
[54] The respondent admits having driven this truck to pick up Walker, after having left it parked for a year and a half at the mechanic’s garage following the accident. He said Walker had started asking questions about the truck, and where it was, and the respondent asked Walker if it was okay if he started driving it. Walker said it was, so he started driving it again, and has been using it for access visits ever since.
[55] This is very troubling. It should have been obvious to the respondent that exposing the child to the same vehicle that killed his sister had the potential to be very damaging to him. It is no answer to say that he asked Walker if it would be okay, given his young age, and given the likelihood that Walker would respond with the answer he thought his father wanted to hear. Without doubt, the respondent should have disposed of that truck immediately or shortly after the tragedy, to ensure that Walker could never be haunted by the sight of it. At the very least, he should have consulted with Walker’s caregivers and counsellors beforehand, to get their opinions as to whether he should do this.
[56] There is a final incident that is less concerning than the two just discussed, but which similarly demonstrates a lack of good judgment by the respondent and an inability or unwillingness to consider Walker’s feelings. Again, it came from the evidence of Judy Clark. The respondent had failed to pick up Walker for Father’s Day, and Walker asked him why. The respondent said, “it’s Father’s Day and I’m a father, so I went up north.” Ms. Clark said it was heartbreaking to see Walker’s reaction.
[57] The respondent acknowledged having missed that one Father’s Day visit, but provided no real response to Judy Clark’s report of his insensitive comment.
[58] I have no doubt that the respondent is, in general, a good father, who dearly loves his son and has his best interests at heart. Nevertheless, I am of the view that he needs to be more sensitive to Walker’s feelings and perspective, and to give more thought to the impact that his words might have on Walker before he utters them.
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child:
[59] This factor has some relevance, in that the applicant has commenced civil proceedings against the respondent on behalf of herself and as litigation guardian for Walker, for damages for negligence arising out of Foster’s death. The respondent is critical of the applicant for doing so, alleging that it escalates the battle and causes Walker and everyone involved to keep reliving those tragic events. I disagree. While the respondent is the named defendant, the practical reality is that the applicant is suing the respondent’s insurance company. Walker has clearly suffered from his sister’s loss, and has a legitimate claim for damages if the accident was caused by the respondent’s negligence. Those damages could be important to Walker to provide, among other things, a source of funds for counselling and other needs that may arise in the future, as well as to provide some monetary compensation for the loss of care, guidance and companionship he has suffered, and will continue to suffer, from the loss of his sister. In my view, the applicant has acted in the child’s best interests in commencing this lawsuit.
[60] The other specified factors in s. 16(3) are not relevant to the facts of this case. On a consideration of the factors that are relevant, I am of the view that it would not be in the best interests of the child to increase the respondent’s parenting time to a week-about arrangement as requested by the respondent. I am satisfied that the status quo is working in Walker’s best interests, and that any change in the parenting arrangements would be difficult for him, particularly since he continues to struggle with the loss of his sister. I am satisfied that Walker benefits from the additional time he has with his mother, new baby sister and grandparents, and that the status quo represents a stable, loving and supportive environment that meets all of his needs.
[61] The respondent relied on the principle set out in s. 16(6) of the Act in support of his request for week-about parenting time. That subsection states that “a child should have as much time with each spouse as is consistent with the best interests of the child”. However, the "maximum contact" principle, and now its current statutory iteration, has never meant that parents will always have equal time with a child. The principle has always been qualified by the child's best interests, and indeed the statue expressly says so.
[62] In Gordon v. Goertz, (supra at para. 24) McLachlin J. said the following about the predecessor version in the Divorce Act:
... Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.
[63] Having found that a change in the current parenting time regime would not be in the child’s best interests, the respondent’s motion to change the order of Desotti J. is dismissed. I will accede to the applicant’s concession that the respondent have one mid-week visit with Walker on the Wednesday of the week following his access weekend, from after school until 7:30 p.m. The order of Desotti J. is otherwise affirmed.
[64] On consent of the parties, an order shall go that, once there is no legal impediment to communication, the parties shall communicate on all matters concerning the child by way of an online communication tool, such as Our Family Wizard, Talking Parents, or something similar.
Child Support:
[65] In view of my ruling on parenting time, the parties agree that an order shall go that the respondent pay support to the applicant for the child Walker in the amount of $576 per month, commencing June 1, 2022. This is the table amount of support for one child based on the respondent’s imputed income of $62,000 per year.
[66] Section 7 special expenses should be allocated between the parties on a pro rata basis based on their respective incomes. Based on their current income, the respondent shall pay 70% of such expenses and the applicant shall pay 30%.
Child Support Arrears:
[67] As already noted, the parties settled this issue such that the respondent will pay arrears of child support fixed at $15,000, as of May 31, 2022. The remaining issue is the manner in which those arrears should be paid.
[68] The respondent suggests that he should repay this amount in monthly instalments of $150. The problem with that suggestion is that it would take 100 months to pay the arrears at that rate, without considering post-judgment interest. The applicant proposes that he pay $5,000 per year. However, for purposes of budgeting and enforcement, a monthly instalment toward the arrears is preferable to an annual lump sum.
[69] I am of the view that the respondent should pay these arrears in monthly instalments of $350, commencing June 1, 2022. That will bring his total monthly support obligation to $926, which is slightly less than the $934 per month he was paying for two children prior to Foster’s death, which he was able to pay for almost two years following the interim order, on annual income that is almost identical to the imputed amount for 2022.
[70] The applicant has requested an order that the child support order be enforced through the Family Responsibility Office, but it is not necessary for me to do so since such a provision will automatically be included in the order when it is taken out.
Costs:
[71] I encourage the parties to resolve the issue of costs, in a manner that will encourage cooperation and mutual respect on a going-forward basis, rather than creating further animosity between them. If they are unable to do so, I will accept brief written submissions on costs from the applicant within 15 days, with the respondent’s brief response within 10 days following, and any reply within 5 days thereafter. Failing that, the parties shall be deemed to have resolved the issue of costs as between themselves.
T. A. Heeney J.
Released: June 17, 2022