Court File and Parties

COURT FILE NO.: FS-18-25876-000

DATE: 20221208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAUL JOSEPH MULLAN, Applicant

AND: KELLY JEAN MULLAN, Respondent

BEFORE: M.D. Faieta J.

COUNSEL: Karen Ballentyne, for the Applicant Jeff Rechtshaffen, for the Respondent

HEARD: November 29, 2022

ENDORSEMENT

[1] With the trial in this proceeding to commence on March 6, 2023, both parties seek leave to bring motions given the terms of an Order from a Trial Management Conference held on August 24, 2022 which states that there shall be no further motions without leave of the court.

[2] The parties were married in July 2010 and separated in November 2020 or March 2021. They have one child, EM, age 13. The Applicant was born in Ireland. The Respondent was born in Vermont and was raised in the United States. The Applicant works in sales. The Respondent is a Ph.D. student at York University. Before their daughter was born the Respondent was a dancer and teacher. She has not worked outside the home since their daughter was born.

[3] The Applicant father seeks leave to amend his Application to seek the following additional relief: (a) an order that the Child have an equal parenting time schedule; (b) an order that the Child’s primary residence be with the Applicant; (c) an order permitting revisions to the proposed holiday and vacation schedule; (d) an order requiring the Respondent to pay full or offset child support depending on the final parenting schedule; (e ) an order that the parties contribute to the Child’s special expenses in proportion to their income; (f) an order requiring the Respondent to reimburse the Applicant for half of any amounts paid towards their joint consolidated debt. In addition, the Applicant seeks an order for a third Voice of the Child report to be completed by December 21, 2022 and if required a short adjournment of the trial.

[4] The Respondent mother seeks leave to bring a motion for an order for the payment of child support, spousal support, disclosure of monthly statements from a particular bank account going back to 2017, an order that the Applicant immediately obtain and maintain an insurance policy of at least $450,000 and an order that the Applicant indemnify the Respondent for any liability arising from a 2019 automobile.

Issue #1: Should Leave Be Granted to Amend the Application?

[5] Rule 11(3) of the Family Law Rules, O. Reg. 114/99, provides that court shall give permission to a party to amend a pleading unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

[6] A party should rarely be denied the opportunity to make their case: Greenglass v. Greenglass, 2010 ONCA 675, para. 18.

[7] The Respondent states that the expanded parenting role sought by the Applicant through these amendments will cause her to incur the expense of paying for an Amended Answer and will result in a longer trial as it will “force” the Respondent to adduce evidence related to the Applicant’s alleged alcoholism.

[8] I find that none of the reasons advanced by the Respondent are a sufficient basis to deny leave in this case. The Applicant’s motion for leave to amend his Application is granted.

Issue #2: Should a third Voice of the Child Report be ordered?

[9] The Applicant father seeks an order for a third Voice of the Child Report (“VOCR”) to be completed by December 21, 2022.

[10] In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained: Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.) (“Divorce Act”). A VOCR is one method by which a child’s views and preferences are placed before a court. A VOCR is prepared by a qualified neutral third party who presents the child’s views and preferences in a short report, typically without evaluation or recommendations, after having interviewed the child: A.E. v. A.B., 2021 ONSC 7302, at para. 64.

[11] There have already been two VOCRs prepared.

[12] In his Application, commenced in September 2021, the Applicant sought an order that he shall have joint decision-making responsibility for EM and regular parenting time with EM in alternate weeks from Thursday after school until Tuesday before school. In her Answer, the Respondent sought sole decision-making responsibility for EM and an order that the Applicant’s parenting time be in accordance the child’s views and preferences.

[13] The first VOCR was prepared by Debra Rodrigues on September 16, 2021. She interviewed EM twice. Ms. Rodrigue observed that EM wants to please each parent and that EM wanted Ms. Rodrigue to communicate to her parents the following views and preferences regarding the allocation of parenting time:

Every other weekend Thursday after school to Monday morning with Dad. The week that Mom has me (for the weekend), Thursday overnight with Dad. Halloween at Mom’s house. OK to go to Ireland with Dad. With Mom for American Thanksgiving and with Dad for Canadian Thanksgiving. Christmas Day with Mom in U.S.A. and see Dad before and after this. Two weeks’ vacation with Dad in summers.

[14] One day later, the Respondent contacted Ms. Rodrigues to challenge the accuracy of her VOCR as she reported that EM told her that her preference was to have parenting time with the Applicant every other weekend and every other Thursday rather than every other weekend from Thursday to Monday. Ms. Rodrigues responded:

… You are not to question her about it. Children feel caught in the middle and want to please, so they often say what the parent wants to hear. … I have serious concerns about your intention to allow her to have her own voice and at this point she likely won’t want to say anything different that what you discuss with her. … Trust that she can speak freely has been broken. I stand by the report.

[15] At a Case Conference on February 11, 2022, Davies J. granted a consent order that, amongst other things, provides that: (1) the Applicant will have parenting time with EM on alternate weeks from after school on Thursday until the beginning of school on Tuesday; (2) the Respondent is grant leave to amend her Answer to include a request for permission to relocate to the United States with their EM.

[16] At a Settlement Conference on April 11, 2022, Kraft J. noted that the VOCR was outdated given that the new issue of EM’s proposed relocation arose after the VOCR had been completed. The parties agreed to the Court making a request to the Office of the Children’s Lawyer (“OCL”) to conduct a VOCR.

[17] Heather McInnis prepared the VOCR on behalf of the OCL. EM was interviewed on May 31, 2022 and on June 3, 2022. The VOCR states:

EM reported that she would be fine to move or not but thinks her mother would be “frustrated” if they did not move, stating that the move is more about her mother. Stating that her mother has asked EM about moving, EM said she would be fine with a move in high school although also feels she has to think about it and go over the details.

EM reported that she truly wants both parents to be happy and for things to be fair. She thinks about her parents and does not want either one to be in a difficult situation, like if her mother stayed in Toronto or how her father would be if she moved to Vermont. EM wants her mother to be supported by her extended family yet stated that she would be fine to stay in Toronto if her mother was also fine with it.

EM reported that she would like the judge to know that she does not want either parent to be sad or mad about anything. She talks to her mother and although she knows her father understands, EM said they do not have these types of conversations. EM also has a therapist to talk to, EM stated that she felt more distressed the last time a Voice of the Child report was done, reflecting that she had to talk about the parenting time

… EM likes the amount of time she shares with both parents but suggested a change of days, stating that she would like to stay with her mother on Thursdays, as she does not have dance class that day after school and would like to be with friends, who live near her mother. Further, EM said her father could drive her to dance class during the week as her mother does not have a vehicle.

Regarding a possible move to Vermont, USA, EM clearly stated that she wants to finish Grade 8 at [School], her current school and with her friends. EM does not want to move next year and said she would only entertain a move when she enters Grade 9 as some of her friends would be moving to new schools anyway. [Emphasis added]

[18] The Applicant states that EM has become closer to him over the last few months and that in mid-October 2022, EM told him that she wanted to spend more time with him. The Applicant states that EM told him that he could share her wishes with the Respondent however she was concerned about how the Respondent would react to her wishes. On November 4, 2022 the Applicant asked for the Respondent’s consent for an updated VOCR, which he would pay for, in the event that the Respondent did not accept that EM wishes to spend more time with him. On November 11, 2022 the Respondent advised that she would not consent to the amendment of his pleadings to seek equal parenting time nor would she consent to a third VOCR.

[19] The Respondent submits that she does not want EM to participate in a third VOCR given the distress that she expects that EM will suffer if EM expresses that she does not support the parenting time order sought by the Applicant.

[20] EM is 13 years old and was described in the second VOCR as a “mature, articulate, sensitive and reasonable young girl” who “thoughtfully responded to the questions”. There is no evidence that EM told the Applicant that she wished to participate in a third VOCR. The right to have EM’s voice heard at this trial belongs to her, not her parents. It may be that EM feels that there is nothing more that she wishes to say to the court or that she does not wish to suffer the distress of making her views on parenting issues known to her parents. On the other hand, EM may have developed firmer views and preference on whether she wishes to relocate to Vermont in high school. She may also have views and preferences regarding the Applicant’s new request for equal parenting time. I will err on the side of caution and shall order that a third VOCR be prepared by Jennifer Barkin, as requested by the Applicant, unless EM advises Ms. Barkin that she does not wish to participate. This case has clearly been a high-conflict divorce and unfortunately EM has not been spared of this conflict by her parents. I direct that neither party shall attempt to encourage, discourage or otherwise discuss with EM whether she should participate in the preparation of a third VOCR nor discuss or otherwise attempt to influence her views and preferences regarding the parenting issues described above. The only information to be shared by the parties in relation to a third VOCR is what I have said in this paragraph along with Ms. Barkin’s contact information, including her email address. The parties shall equally share the cost of this third VOCR subject to adjustment at trial.

Issue #3: Should leave be granted to the Respondent mother to bring a motion for interim child support, spousal support, disclosure of monthly statements from a particular bank account going back to 2017, an order that the Applicant immediately obtain and maintain an insurance policy of at least $450,000 and an order that the Applicant indemnify the Respondent for any liability arising from a 2019 automobile?

[21] At a Case Conference held on February 11, 2022, the parties agreed to an interim, without prejudice order that includes the following terms:

Support – Commencing on March 1, 2022, Mr. Mullan will pay Ms. Mullan $2,400 per month in spousal support and $1,515 per month in child support, based on Mr. Mullan earning an annual income of $180,000. Mr. Mullan will be responsible for 70% of the s. 7 expenses for their daughter. Ms. Mullan will be responsible for 30% of the s. 7 expenses for their daughter.

The quantum of support will be reviewed on a semi-annual basis on July 1st and January 1st commencing on July 1, 2022. If Mr. Mullan had made the equivalent of more than $180,000/year in salary and commission, the support payments will be adjusted accordingly

[22] The Respondent seeks to amend the temporary child support and spousal support orders both prospectively and retrospectively. These issues are the proper subject of trial which is less than three months away. Similarly, the Respondent’s request for leave to bring a motion that the Applicant fully indemnify her for all liability arising from his use of a jointly owned automobile is not urgent as he is paying for its financing and insurance costs. The Applicant has arranged for life insurance in the amount of $250,000.00, rather than $450,000.00, for the benefit of the Respondent. At this point, the resolution of these issues can wait for trial. These motions for leave run counter to the primary objective of the Family Law Rules and should not have been brought at this point.

[23] The Applicant states that he has been unable to obtain monthly statements covering the period from January 1, 2017 to date for a Toronto Dominion Bank account because the bank states that the account belongs to his employer, not him. The Respondent states that the Applicant had control over this account and that statements for this account were received at their home. I direct that the Applicant provide the Respondent with an irrevocable authorization to make inquiries of the bank and to have the bank deliver a copy of the requested statements to the Respondent.

ORDER

[24] Order to go as follows:

(1) Leave is granted to the Applicant to amend his Application to seek the following additional relief:

(a) An order that EM have an equal parenting time schedule with transitions occurring on a weekly basis on Fridays after school (or 5:00 pm if there is no school)

(b) An order that EM have primary residence with the Applicant in the event that the Respondent moves out of the Greater Toronto Area.

(c) Minor modifications to the proposed holiday and vacation schedule.

(d) An order that the parties contribute to EM’s agreed upon special expenses in proportion to their incomes.

(e) An order requiring the Respondent to reimburse the Applicant for her half of any amounts paid towards their joint consolidated debt.

(2) A Voice of the Child Report shall be completed by Jennifer Barkin by December 23, 2022 unless EM advises Ms. Barkin that she does not wish to participate. Neither party shall attempt to encourage, discourage or otherwise discuss with EM whether she should participate in the preparation of this VOCR. The only information to be shared by the parties with EM in relation to this VOCR is the information in paragraph 20 of this Endorsement and Ms. Barkin’s contact information, including her email address. The parties shall equally share the cost of such report subject to adjustment at trial.

(3) The Applicant shall provide the Respondent with an irrevocable direction authorizing the Toronto Dominion Bank to release all bank statements from January 1, 2017 to date for Account Number 5206503.

(4) The Applicant shall immediately obtain and maintain an insurance policy on his own life such that the Respondent is designated as the sole irrevocable beneficiary carrying a death benefit of $250,000.00.

[25] I ask that counsel make every reasonable effort to resolve the issue of costs failing which the Applicant shall deliver her costs submissions by December 12, 2022, the Respondent shall deliver his responding submissions by December 19, 2022 and the Applicant shall deliver her reply submissions by December 22, 2022. Each submission shall be no more than three pages exclusive of any offers to settle and an outline of costs.

Mr. Justice M.D. Faieta

Date: December 8, 2022