Court File and Parties

COURT FILE NO.: FC-20-289

DATE: August 10, 2022

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Blessing Ibeh v. Queenedikan (Queen) Ndifreke Udosen

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: Both parties are self-represented

DATE HEARD: January 17, 2022

Reasons for Decision

James J

[1] This is a motion brought by the applicant to change an order made in the Court of Queens’ Bench in Alberta on June 22, 2018 (the “Alberta order”).

[2] According to the applicant’s Form 15, Motion to Change, the parties were married in 2011, separated in 2013 and divorced in 2016.

[3] The parties have two children, Blessing born July 2, 2012 and Jeremy born March 29, 2014.

[4] The Alberta order permitted the applicant to re-locate to Ontario with the children for employment purposes and provided for generous access for the respondent including summer and holiday access for the respondent in Alberta with the transportation costs being paid in whole or in part by the applicant. The applicant was to pay the entire transportation cost for the Christmas access in 2018. Starting in 2019 the cost of transporting the children to Calgary for Easter and Christmas access visits was to be shared as set out in the order.

[5] The respondent was also granted frequent telephone/Facetime/skype access twice a week and additionally on special occasions.

[6] The Alberta order provided that no child support was payable by the respondent so long as her income was below $11,000.00 annually.

[7] Extraordinary section 7 expenses were to be shared on the basis of 90% by the applicant and 10% by the respondent until the completion of the respondent’s educational training in 2020 and thereafter based on income. The applicant was to provide advance notice of the expenses that he incurred and that he wanted the respondent to contribute to.

[8] The parties were ordered to exchange income information annually.

[9] The respondent was ordered to commence payment of the “matrimonial debt” upon obtaining employment at the rate of $300.00 per month. The amount of the debt was not specifically stated. She was also to pay $1000.00 in legal costs.

Position of the Applicant

[10] The applicant requests the following:

a. Sole decision-making power for the children. He says that “it is difficult to make common sense agreements” with the respondent which makes joint parenting impossible. He says that she has not shown an interest in maintaining contact with the children but in his view, some form of re-introduction through supervised access would be good for the children.

b. Retroactive child support. The applicant is suspicious that the respondent has not disclosed her true income. Using the respondent’s income as the basis for calculating the amount due, he says the arrears from about August, 2018 to September, 2021 amount to $19,218.39.

c. Inputed income. He says it was not necessary for the respondent to return to school to get a technologist’s diploma when she already has an engineering degree. He requests that the respondent’s support and section 7 obligations be based on her current salary from August, 2018 to the present time.

d. Section 7 expenses. The applicant says that these expenses total $42,749 to the end of August, 2021. The average monthly amount is $1,300. He says he will “accept” a lump sum payment of $14,962 and ongoing payments at the rate of 45% of the average monthly amount or $585 per month.

e. Debt payment. The applicant says that the respondent was ordered to pay $300 per month once she had full time employment. She appears to accept that this should have started in February, 2021.

f. Costs. The respondent should pay costs to the applicant because he did his best to try and resolve matters without going to court. He does not suggest an amount.

Position of the Respondent

[11] The respondent’s position on the issues raised by the applicant is as follows. The respondent has also raised an issue with respect to her difficulties in seeing and communicating with her children.

a. Sole decision-making. The respondent says she deserves to play a role in decisions respecting the children. The applicant has interfered with her attempts to communicate with the children.

b. Retroactive child support. At the time the Alberta order was made, it was clearly contemplated that the respondent would be enrolling in a two year program at the South Alberta Institute of Technology to get a technologist’s diploma. She was able to obtain full time employment in February 2021. Her income in 2018 was $17,324 (student loans), in 2019 it was $18,839 and in 2020 it was $29,133 (casual employment) and for 2021 was $74,298. The applicant has failed to credit the respondent with four payments of $1,129 in 2021 totalling $4,516 as confirmed by the Family Responsibility Office records.

c. Imputed Income. The respondent says that the applicant’s claim that income ought to be inputted to her assumes that she has been fully employed since 2018 which is not the case. She said that returning to school to obtain a technologist’s designation would open up opportunities not available to her as an engineer. When her program was completed, the respondent commenced full time employment which significantly increased her income.

d. Section 7 Expenses. The respondent disputes the applicant’s claim because the expenses were not discussed and agreed to in advance.

e. Debt Payments. The respondent acknowledges being indebted to the applicant for an amount that was initially $10,000 but which, according to the respondent, has been reduced by $2,316.38. Repayment terms are set out in the 2018 Alberta order to commence upon full employment but the respondent wishes to have the payment reduced to $150 per month.

f. Access. The respondent says that the applicant has not complied with the access terms of the 2018 order. Access arrangements are a very important aspect of a request by the party to relocate the children to a place that is further away from the other parent. In this case the judge who approved the applicant’s request to move the children from Alberta to Ontario gave specific access directions to the parties.

Discussion and Analysis

Jurisdiction

[12] The variation order granted by Justice D.K. Miller on June 22, 2018 gave permission to the applicant to move with the parties’ two children to Ontario but stipulated at paragraph 10 that “Alberta shall remain the jurisdiction for the determination of any parenting dispute.”

[13] One of the items raised by the applicant in his “motion to change” is that he is requesting that jurisdiction ought to be transferred to Ontario because the children now reside here.

[14] The respondent did not refer to this provision in her responding material and has not requested that the matter remain under the jurisdiction of the Court of Queen’s Bench of Alberta. Instead, the respondent filed responding material with this court in Ontario addressing the parenting and support issues. I conclude from this situation that the respondent has willingly submitted or “attorned” to the jurisdiction of this court to adjudicate the case brought by the applicant in Ontario. While I am prepared to assume jurisdiction in relation to this motion, I am not prepared to declare that Ontario is the proper place for matters that may be raised in the future because I have not had the benefit of submissions from the parties on the jurisdictional issue.

Material Change in Circumstances

[15] The Divorce Act requires that a final order may only be varied if there has been a material change in circumstances that was not foreseeable when the order that is being sought to be varied was made.

[16] There are a number of circumstances that have changed since 2018. The respondent has completed her schooling and returned to the workforce although this was anticipated at the time of the 2018 order. While the pandemic interrupted ordinary air travel, the applicant made it clear in November, 2018 that he would not honour his obligation to pay his share of the cost of flights to Calgary. It is likely that this development both surprised and disappointed the respondent. The respondent was slow to adjust her child support payments to reflect her actual income. The children have not spent nearly as much time with their mother as was anticipated when the 2018 order was made. They are four years older than when the approval to move to Ontario was given. In all the circumstances I am satisfied that it is appropriate to consider a variation of the previous order but only to the extent that a variation is warranted.

Retroactive Child Support

[17] On the issue of foreign income, the party alleging that the other party has received income that has not been disclosed has the onus of proving the receipt of unreported income. The applicant’s suspicions do not amount to proof. I accept the respondent’s claim that she has not received income from Queensgate Design and Construct (NIG.) Ltd. of Nigeria which is corroborated with correspondence to the Nigerian Corporate Affairs Commission.

[18] I do not accept the applicant’s contention that the respondent’s decision to return to school was inappropriate or unnecessary. The respondent’s explanation makes sense to me. Workplace attitudes towards engineers, especially female engineers from abroad, can be challenging. I do not think that the respondent’s decision to return to school to get a technologist’s designation was an intentional effort to avoid paying child support. She was able to obtain a position within a brief time following the completion of her program. I am not prepared to require the respondent to pay child support on some basis other than her income as determined by C.R.A.

[19] On the issue of arrears of child support, I understand that the respondent does not dispute that she did not pay any child support while at school. The evidence indicates that the respondent’s income was as follows:

2018- $17,324. Monthly child support was $243 per month or $2,916 for the year.

2019- $18,839. Monthly child support was $291 per month or $3,492 for the year.

2020- $29,133. Monthly child support was $447 per month or $5,364 for the year. These amounts total $11,772.

2021-$74,298. The respondent commenced full time employment in February. Upon commencing full time employment, the monthly child support became $1,129 per month. Based on the respondent’s 2021 gross income, her 2021 child support obligation was $13,548 ($1,129.00 x 12 months). The respondent commenced paying child support in October, 2021 and paid four payments of $1,129, leaving a balance owing of $9,032 for 2021. By my calculation the total arrears of child support for the period 2018 to 2021 is $20,804.

[20] It appears that the respondent’s 2022 child support payments (which are based on her 2021 income) are up to date as of June, 2022.

[21] The respondent anticipates that her 2022 income will amount to $83,514. Child support payments based on the respondent’s 2022 income shall commence with the January, 2023 child support payment.

[22] The monthly child support payments in 2023 will be based on the respondent’s 2022 notice of assessment from C.R.A. Payment of child support based on the previous year’s income shall continue in subsequent years unless changed by agreement or court order. The parties must exchange their notices of assessment by June 30 each year.

Section 7 Extraordinary Expenses

[23] The June 22, 2018 order by Justice D.K. Miller provided that the respondent’s share of these expenses shall be at the rate of 10% until she finished her program at SAIT and thereafter on the basis of the parties’ respective incomes. The applicant has not provided a detailed calculation of how much the respondent owes for the time she was at school when her share of these expenses was fixed at 10%. The evidence does not make it clear when the respondent actually finished her program at SAIT.

[24] The applicant was also specifically directed in the 2018 order to provide advance notice to the respondent of any proposed s. 7 expense before it was incurred. The applicant’s materials do not provide evidence that he complied with this requirement.

[25] In her amended endorsement on August 12, 2021 Justice Fraser ordered the applicant to provide a specific list of all s. 7 expenses he was claiming, together with any supporting documentation so that the actual expense could be verified. I have no evidence that the applicant complied with this order. I acknowledge that his affidavit of November 24, 2021 included “representative receipts and documents related to various Section 7 expenses paid by the applicant in the past three years” but this falls short of what Justice Fraser required him to do. It also demonstrates the difficulties associated with claims for expenses that are not properly documented with copies of invoices at the time the expense is incurred. There is no evidence that the applicant provided copies of invoices etc. when the expenses were incurred. The onus of proof rests with the applicant because he is the party claiming to be entitled to reimbursement. I find that the applicant has not adequately proven his entitlement to compensation for these expenses.

[26] In addition, I find that there is no merit to the applicant’s claim for expenses he says he incurred when the respondent did not exercise her summer and holiday access (see Exhibit H to the applicant’s November 24, 2021 affidavit). When the applicant declared that he would not pay his share of the boys’ travel expenses he undermined the access arrangements set out in the 2018 order. He cannot place sole responsibility on the respondent for the access visits that did not occur.

[27] Justice Miller attempted to put a workable mechanism in place in his 2018 order for the applicant to be reimbursed for proper s. 7 expenses (see para. 12 of his order). Before and after school childcare expenses are an obvious example of an appropriate s. 7 expense that can amount to a large sum on an annual basis. Going forward, the respondent shall pay her proportionate share of a proper s. 7 expense within 30 days of her receipt of an invoice documenting that the expense was actually incurred.

Repayment of Matrimonial Debt

[28] This issue was addressed in the 2018 Alberta order and ought to remain in effect but with an adjustment to the amount of the ongoing payments from $300 per month to $150 per month commencing September 1, 2022. This reduction in the monthly payments is a recognition that the respondent also has arrears of child support that require monthly payments as well.

[29] In addition, the respondent is behind in her monthly matrimonial debt payments and these arrears are to be paid by the respondent by December 31, 2022.

Access Difficulties

[30] It appears to me that the applicant’s dissatisfaction with the lack of child support payments from the respondent and her decision to return to school led him to mistakenly believe that he could ignore what the judge had ordered regarding his access obligations. In an email dated November 14, 2018, only a few months after the 2018 order allowed him to move to Ontario with the children, the applicant made this statement, “I write to inform you that I am simply not able to afford the airfare for the two boys to visit Alberta during the Christmas recess.” This comment was made in the face of a court order that required that the applicant was to pay the cost of transportation to Calgary for Christmas, 2018. Opting out of this requirement was not an available option for the applicant.

[31] In the same email the applicant served notice that he was not prepared to pay the airfare for any future court-ordered access visits. This position set the tone for future access difficulties. The applicant complains that the respondent did not give the required advance notice for summer visits, but the respondent is justified in saying that she didn’t attempt to schedule summer visits because the applicant had already stated that he wouldn’t contribute to transportation costs.

[32] It is not clear in the evidence whether special arrangements need to be made for young children to travel by air when they are unaccompanied by an adult. The Alberta order does not refer to any special travel arrangements for children. For the sake of clarity, any reference in this decision to a party’s obligation to pay for travel costs includes any additional costs associated with young travellers.

[33] It is a duty and obligation of the parent with primary parenting responsibility to ensure that the other parent receives the access visits that have been ordered by the court. The applicant needs to remember this legal principle when future access issues arise.

[34] While it is understandable that after relocating to Ontario, the applicant experienced a financial squeeze, but he compounded his mistake when he suggested to the respondent that she “get back to (him) with any options you may have.” It was the applicant’s responsibility, not the respondent’s, to come up with mutually agreeable alternatives.

[35] The applicant reneged on paying the following:

a. Round trip transportation costs for Christmas in 2018 and the round trip transportation costs of court-ordered summer access in 2019, 2020, 2021 and 2022

b. One half the transportation costs for the Easter/Spring break in 2019, 2020, 2021 and 2022; and

c. One half the transportation costs for Christmas in 2019, 2020 and 2021.

[36] As a result of the applicant’s failure to contribute to the financial costs of the respondent’s access rights, the respondent has lost valuable time with her children that can never be replaced. Some compensation for this loss is appropriate. In some cases the Alberta order required the applicant to pay the full round-trip cost of the travel and in other cases (as specified in the order), the applicant was to pay for half the total cost. Round trip expenses for two children during expensive travel times, including travel to and from Deep River to either the Ottawa or Toronto airports, are hereby (somewhat arbitrarily) valued at $1,500.00 for a total of $7,500.00 (5 x $1,500.00). Half this amount or $750.00 for missed Easter and Christmas travel costs that the applicant was supposed to pay for amounts to $5,250.00 (7 x $750). The combined totals amount to $12,750.00. The pandemic made air travel a safety hazard and many flights were cancelled so an allowance for travel difficulties due to the pandemic warrants a reduction in favour of the applicant which I arbitrarily set at $3,000.00. This reduces the estimated savings for the applicant for air transportation that he was supposed to pay for to $9,750.00.

[37] In my view it is appropriate to hold the applicant accountable for his failure to pay his share of the children’s travel expenses to visit their mother just as it is appropriate to hold the respondent accountable for her failure to pay court ordered child support. Failure to provide some sort of compensation to the respondent simply rewards the applicant for his non-compliance. Accordingly, I find that the child support arrears owed by the respondent ought to be reduced by the estimated cost of air travel that the applicant was supposed to pay for. This adjustment is set at $9,750.00($12,750.00 - $3,000.00) which will be credited against the child support arrears owed by the respondent.

[38] The respondent alleges that the applicant makes it difficult for her to communicate with the children and requests that a third party intermediary be used to coordinate access visits and phone calls. Parenting coordinators sometimes fulfil this role but I am not prepared to make an order in this regard. Parenting coordinators are usually retained and paid for by the parties directly. I note that the parties agreed to a temporary arrangement for weekly Zoom calls with the applicant being responsible to ensure that the children have access to appropriate technology to facilitate the calls. This temporary consent arrangement shall be incorporated into the final order. Assuming that the respondent places the calls at the agreed time, the applicant has primary responsibility to ensure that the calls are successful and enjoyable for the children. Neither party shall disparage the other or discuss adult issues in the presence of the children.

Sole Decision Making

[39] The applicant requests that the existing order which requires him to consult with the respondent when making decisions about the children ought to be changed. He says that the respondent has virtually abandoned her parental responsibilities. I do not view the evidence in the same way as the applicant. In my view, there are no compelling reasons to change the existing decision-making arrangements.

Disposition

[40] The respondent shall pay child support of $1,129.00 monthly for two children based on an income of $74,298 until December 1, 2022. Starting on January 1st, 2023 the payments shall be adjusted to reflect the respondent’s actual 2022 income with subsequent annual adjustments in January of each year based on her previous year’s notice of assessment.

[41] The respondent’s arrears of child support are fixed in the sum of $11,054 ($20,804 - $9,750) to be paid at the rate of $300 per month commencing November 1, 2022. This payment shall be in addition to the payments for ongoing child support and the matrimonial debt.

[42] Future matrimonial debt payments shall be reduced from $300 per month to $150 per month commencing September 1, 2022.

[43] The arrears of monthly matrimonial debt payments are to be paid in full by December 31, 2022.

[44] The respondent’s share of s. 7 expenses incurred prior to the date of this decision is fixed at zero.

[45] The respondent shall pay her proportionate share of future s. 7 expenses based on the parties’ previous year’s income as disclosed by their notices of assessment. Payment shall be made within 30 days of her receipt of copies of invoices. The respondent’s prior consent to a s. 7 expense is required, which consent shall not be unreasonably withheld. The Alberta order provides some guidance on the types of expenses that qualify as s. 7 expenses.

[46] The parties shall confer to set a date on which the children will travel to Alberta for the Christmas holidays this year as well as their return date and provide proof to the other party that the tickets have been purchased no later than September 30th. The applicant shall be responsible for the cost of transporting the children to Alberta and the respondent shall be responsible for the cost of transporting the children back to Ottawa or Toronto, as the case may be. Since this is an even year, the respondent shall have access for the first half of the school break.

[47] Communications between the respondent and the children shall be as ordered by Justice Fraser at the case conference, namely, weekly zoom calls with the children at 4:00 P.M. on Saturdays to be facilitated by the applicant who will ensure that the children have access to appropriate technology. The parties may make other and additional arrangements if they both agree.

[48] Neither party shall disparage the other nor discuss adult issues in the presence of the children.

[49] The decision-making responsibilities shall remain unchanged.

[50] Except as specifically altered by this decision, the terms of the previous order shall remain in effect.

[51] Success on the motion having been divided, there shall be no order respecting legal costs. This provision relates only to this motion and does not affect any outstanding costs orders.

Justice M. James

August 10, 2022