COURT FILE NO.: FC1562/16-01

DATE: September 26, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Evelyn Bealo

Evelyn Bealo in person

Applicant

• and -

Michael Badom

Michael Badom in person

Respondent

HEARD: September 19, 2022

TOBIN J.

1This is the respondent’s motion to change the existing parenting and child support orders.

The Current Orders

2The parties are the parents of two children, Rhinnah Barinem Badom, born August 5, 2005, and Riel Dumbari Badom, born December 6, 2008.

3After the parties separated in July 2016, a court case was started to deal with parenting and child support issues.

4The case was resolved with:

a) The final order of Hebner J. dated August 21, 2017 (“the Hebner J. Order”), made on consent following a settlement conference which provided:

• the applicant was granted custody of the children

• the respondent was granted reasonable access on reasonable notice at a minimum of alternate Sundays from 1:00 p.m. until 8:00 p.m.

• the parties were to communicate by text

In the court’s endorsement, it states that:

“the court noted that the respondent intends to pursue joint custody when his residence changes, and he will do so by a motion to vary a final order”;

− and −

b) The final order of Leach J. dated July 25, 2018 (“the Leach J. Order”), which provided:

• the respondent was to pay child support to the applicant in the amount of $638 per month, effective January 1, 2017, for the parties’ two children based on an annual income of $42,957;

• the respondent was to keep the applicant informed of the details of the terms and conditions of his employment;

• regarding access, the respondent was to provide the applicant with direct text notification no less than 48 hours before any intended access visit.

The Motion to Change

5The motion to change brought by the respondent requests that he and the applicant have joint custody (now shared decision-making responsibility) of the children and that they have equal parenting time. He also asks that the existing child support order be terminated, and any arrears rescinded.

6In her response to the motion to change, the applicant requests that the motion to change be dismissed. She also asks (i) that the minimum amount of time the respondent has with the children be expanded on weekends, (ii) that ongoing communication be by text and (iii) for child support.

The Trial

7Both parties appeared in person at the trial. When called for trial, neither party had filed a trial record. There were no up-to-date financial statements provided. The parties did not have up to date 35.1 or 35.1A affidavits. Neither party wanted the matter adjourned. That is understandable given how long the case has been outstanding and the parties’ older child will be 18 years old in a few months.

8The parties were informed in general terms about trial procedure, evidence, and the law related to the issues they raised.

9Inadmissible hearsay given in evidence is not being relied upon for the truth of what was said. These statements pertained primarily to what each said the children said to them. Threshold reliability was not made out regarding these statements.

10At trial, the respondent did not have any documents to tender because he said they were lost in a flood. He did have some text messages that were on his phone and a letter the applicant wrote to one of the children. He took a screen shot of each text message he referred to, wanted to be an exhibit, and emailed it to the registrar. The registrar was then able to upload the texts to the Court’s OneDrive.

The Issues

11The issues to be decided are as follows:

(a) Has there been a material change in circumstances that affects, or likely affects, the best interests of the children?

(b) If so, what parenting order is now in the best interests of the children? and,

(c) What child support should be paid?

Has There Been a Material Change in Circumstances?

Legal Considerations

12The parenting orders the respondent seeks to change were made under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

13Before the Court can change an existing parenting order, there must be a finding that 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) and Persaud v. Garcia-Persaud, 2009 ONCA 782, para 3.

14If a material change in circumstances is found, the Court then embarks on a fresh inquiry into what is in the best interests of the children.

15A change anticipated and addressed at first instance can constitute a material change in circumstances when that change occurs.

16The aging of a child does not automatically mean that a material change in circumstances has occurred, but it can be a factor. The Court recognizes that as a child ages, their needs can change in relation to each of the parents.

There Has Been a Material Change in Circumstances

17When the Hebner J. Order was made, the respondent was living with roommates. As stated above, the Court noted that when his residence changed, the respondent would seek a joint custody order. I infer from the endorsement and the order that the respondent’s premises at the time the order was made would not have been appropriate for a shared parenting schedule. The respondent intended to secure appropriate premises which would allow him to have the children in his care for extended periods.

18Subsequent to the Hebner J. Order being granted, the respondent did obtain new premises. He now lives alone in a two-bedroom apartment that may be able to accommodate the children. For a period of approximately four to five months (from January 3, 2021 to early May 2021), the children resided with the respondent in his new premises.

19I also find that the passage of time – five years – has resulted in a material change in circumstances. When the Hebner J. Order was granted, both children were pre-teens. Now, Rhinnah is 17 and Riel will be 14 on her next birthday. As older children, their views and preferences, to the extent they can be ascertained, are entitled to more consideration now than when the Hebner J. Order was granted.

What Parenting Order is Now in the Children’s Best Interests

20Section 24 of the CLRA requires the Court to take into account only the best interests of the children in making a parenting order.

21Section 24(2) requires the Court to give primary consideration to the children’s physical, emotional and psychological safety, security and wellbeing, in determining best interests.

22Section 24(3) sets out relevant factors related to the children that are to be considered in a best interests analysis.

Decision-Making Responsibility

23After the parties separated, the children remained in the care of the applicant until January 2021. Early that month, there was an incident when Rhinnah went out of the home without the applicant’s permission. The child reacted to the applicant’s displeasure with her behaviour by going to the respondent’s home with her sister and staying there. When the applicant returned home on the day the incident occurred, she did not know where the children were, so she contacted the police. Based on advice she received from a police officer, the applicant did not immediately attempt to bring the children back to her home. However, over the following months, the applicant remained in close contact with the children and resolved whatever issues arose because of the January incident. By early May 2021, both children returned to the applicant’s care at her home.

24Since returning to the applicant’s care, the children have not seen the respondent very often. They have not spent an overnight with him. They text one another and he sees them for brief periods on occasion.

25The respondent’s work schedule is demanding. He is a registered practical nurse and employed as an independent contractor by an agency that assigns him to different jobs. Most often he works at an institution in Parkhill, but also has assignments in Hamilton and elsewhere.

26The children now live with the applicant in her three-bedroom home. All have their own bedroom.

27Rhinnah is in grade 12 and does “excellent” in school. She is involved in some extracurricular activities and is preparing to go to university next year. She also has a part-time job.

28Riel is in grade nine. She is adjusting well to being in high school. The only health issue she has is that she needs glasses.

29The sisters get along well.

30The applicant has a strong and positive relationship with the children.

31I accept that both parents love their children, and both want to be involved in their upbringing.

32Under the Hebner J. Order, it is the applicant who has decision-making responsibility for the children. The respondent asks that he share this decision-making responsibility with the applicant.

32The term decision-making responsibility is defined at s. 18(1) of the CLRA as follows:

18 (1) In this Part,

"decision-making responsibility" means responsibility for making significant decisions about a child's wellbeing, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities ...

33In Nderitu v. Kamoji, 2017 ONSC 2617, at para. 52, the Court set out a helpful summary of the guidelines found in the jurisprudence when a court is considering whether a joint custodial regime (now shared or joint decision-making responsibility) is in a child's best interests, as follows:

(a) the parties need not consent to an order for joint custody, but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other; (Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.));

(b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of [sic] conflict impacts are as likely to impact on the wellbeing of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child's interest ahead of their own, an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A.));

(c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.));

(d) where it is necessary to preserve the balance of power between the parties, particularly cases were [sic] both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.) and Fraser v. Fraser, 2016 ONSC 4720 (Ont. S.C.J.)); and,

(e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.)).

34In Warcop v. Warcop, 2009 6423 (ON SC), [2009] O.J. No. 638 (Ont. S.C.J.), at para. 94, the Court also addressed the nature of the communication that would indicate whether it would be in a child's best interests to make an order for joint custody, as follows:

The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

35Since the parties separated, it has been the applicant who has had decision-making responsibility for the children. This is what was provided for in the Hebner J. Order. There was no requirement that there be consultation before the applicant made decisions regarding the children. Parenting time arrangements were to be made through text messages. This arrangement is not one that is consistent with the parties being able to communicate effectively regarding the children.

36The evidence provided in this trial convinces me that the parties still have trouble communicating effectively and without recrimination. Their primary method of communicating remains by text message.

37There is scant evidence of effective communication between them regarding the children. The evidence presented does not suggest that conflict or different points of view can easily be resolved. It would redound negatively on the best interests of the children if the parties were required to make joint decisions but were unable to do so effectively.

38Both parents have important views and information regarding decisions that need to be made regarding their children. It is in the best interests of the children that the respondent have the opportunity to know about important decisions that need to be made and have input into them. This can be achieved in the particular circumstances of this case by granting the applicant final decision-making responsibility regarding the children. However, before making significant decisions regarding the children’s wellbeing, she must consult and confer with the respondent. This consultation and conferring is to be by text messages, parenting communication applications (such as Talking Parents) or if both agree orally.

39In reaching this decision, I have also taken into account that the applicant has primary care of the children. She will have the greater responsibility for the children’s upbringing and for implementing the decisions made for their wellbeing and will have to live with those decisions.

40Finally, I have also taken into account and accept that the applicant is supportive of the respondent’s relationship with the children. She does want him to be involved with the children and be an important person in their lives. This can be achieved with him having input into important decisions to be made.

Parenting Time

41The respondent requests that the children be in the care of the parties equally.

42Section 24(6) provides that in allocating parenting time, the Court is to give effect to the principle that a child should have as much time with each parent as is consistent with their best interests.

43There are some challenges to the respondent’s plan:

• Since returning to the applicant’s care in or about May 2021, the children have not seen the respondent regularly or often. They have not spent overnight with him since their return to the applicant’s care.

• At their ages, the children are able to voice their wishes or, as they did in January 2021 and in May 2021 “vote with their feet”.

• There is no evidence that the children have tried to spend more or equal time with the respondent.

• There is no suggestion that the applicant is engaging in alienating behaviour with respect to the children and the respondent.

• The respondent’s request for equal time appears aspirational. It is the ideal he wants but did not provide adequate evidence of how this plan would work in the long run other than to say that he had them in his care during the four to five months in 2021.

• The status quo has provided the children with stability and security. They are doing well under the current parenting time plan.

• There is no suggestion that the children are other than well-adjusted and doing well in school. They can communicate and spend time with both parents.

44The parenting time plan should provide for flexibility so that the wishes of the children and the work schedule of the respondent can be taken into account. The existing term of reasonable access on reasonable notice allows for that flexibility. This will allow for mid-week, weekend and holiday parenting time, as arranged by the parties and the children.

45In order to encourage the children to attend with the respondent and to demonstrate both parents’ support of their relationship with him, the parenting time order should provide that the respondent have minimum parenting time of alternate weekends from Friday at 5:00 p.m. until Sunday at 8:00 p.m. or Monday at 8:00 p.m. if it is a statutory or school holiday.

46In the AFCC-O parenting plan guide, it states that it is critical that the parents and teenagers are clear where and under whose supervision the child is to be at all times. This can be achieved through text, a parenting application or if agreed to, oral communication between the parties.

47In the best interests of the children, by providing a balance of flexibility and at the same time some predictability, I would vacate paragraph 2 of the Hebner J. Order and paragraph 4 of the Leach J. Order, and replace them with the following:

1. The children shall reside in the primary care of the applicant. Their principal residence shall be with the applicant.

2. The respondent shall have parenting time with the children as follows:

(a) Reasonable access on reasonable notice, subject to the views and preferences of each child;

(b) At a minimum, it is expected that the respondent shall have parenting time with the children on alternate weekends from Friday at 5:00 p.m. until Sunday at 8:00 p.m. or Monday at 8:00 p.m. if it is a statutory or school holiday.

(c) The respondent shall keep the applicant informed, in advance, of all other times when he intends to have the children or a child in his care.

(d) The respondent shall notify the applicant, in advance, if he is not able to exercise parenting time with the child.

(e) At such other time or times as the parties agree in advance, in writing, through text messages or a parenting application.

Child Support

48The respondent’s evidence is that he earns $55 per hour and that he cannot predict when he will work. He asks that his child support obligation be reviewed every three months with the Director, Family Responsibility Office, so that his support more closely matches his income. This is not possible or practical. The Director, Family Responsibility Office, does not deal with variations of child support. It deals with enforcement.

49In 2021, the respondent’s total earnings as disclosed in his December 24, 2021 paystub was $100,323.02.

50The respondent anticipates that his 2022 income will be “$80,000 to $90,000 or more”. He did not provide a current pay statement. As there is some uncertainty about the amount of income the respondent will earn this year, I will impute income to him for 2022 in the amount of $90,000, subject to adjustment when his actual income is determined. For 2022, he shall pay monthly child support of $1,351 for his two children to the Applicant.

51With respect to rescission of arrears requested by the respondent, there is no basis made out in this case that child support arrears be rescinded. He has not provided adequate disclosure or reason why child support should be rescinded. However, any arrears owing based upon this or the Leach J. Order which have accrued to date shall be paid at the rate of $200 per month until paid in full. The repayment schedule may be reviewed when one or both of the children are no longer entitled to child support.

52Based on the respondent’s 2021 income, he should have paid $1,475 per month in child support during those months the children were not in his care, that is, from May 2021 until December 2021.

Order

53For these reasons, the following order shall issue:

1. The order of Hebner J., dated August 21, 2017 shall be varied by deleting paragraphs 1 and 2 thereof and replacing them with the following:

(a) The applicant shall have final decision-making responsibility with respect to the children.

(b) The applicant shall consult and confer with the respondent before making significant decisions about the children’s wellbeing. This consultation shall take place through text messages, a parenting application or, if agreed to by the parties, orally.

(c) The children shall be in the primary care of the applicant and their principal residence shall be with her.

(d) The respondent shall have parenting time with the children as follows:

i. Reasonable access on reasonable notice, subject to the views and preferences of each child;

ii. At a minimum, it is expected that the respondent shall have parenting time with the children on alternate weekends from Friday at 5:00 p.m. until Sunday at 8:00 p.m. or Monday at 8:00 p.m. if it is a statutory or school holiday.

iii. The respondent shall keep the applicant informed, in advance, of all other times when he intends to have the children or a child in his care.

iv. The respondent shall notify the applicant, in advance, if he is not able to exercise parenting time with the child.

v. At such other time or times as the parties agree in advance, in writing, through text messages or a parenting application.

2. The Leach J. order shall be varied by deleting paragraph 4.

3. The respondent’s obligation to pay child support under the Leach J. order, terminated December 31, 2020.

4. Commencing on the first day of May 2021 and on the first day of each month to, and including, the first day of December 2021, the respondent is to pay child support to the applicant for the two children in the amount of $1,475 based upon:

(a) Provincial Child Support Guidelines clause 3(1)(a); and,

(b) Respondent’s income of $100,323.

5. Commencing on the first day of January 2022 and on the first day of each month thereafter, the respondent shall pay child support to the applicant for the two children in the amount of $1,351 based upon:

(a) Provincial Child Support Guidelines clause 3(1)(a); and,

(b) Respondent’s imputed 2022 income of $90,000.

6. The respondent’s 2022 child support obligation shall be reviewed and recalculated upon the respondent providing proof of his actual 2022 income no later than January 18, 2023.

7. The respondent’s request to rescind all arrears that have accrued to date under the Leach J. Order and this order is dismissed.

8. Any arrears owing under this order or the Leach J. Order which have accrued to date shall be paid at the rate of $200 per month starting on the first day of November 2022 and on the first day of each subsequent month until paid in full. The repayment schedule may be reviewed when one or both of the children are no longer entitled to child support.