BARRIE COURT FILE NO.: FC-12-1007-01
DATE: 20220207
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: M.M.B.(V), Applicant
and
C. M.V., Respondent
BEFORE: The Honourable Mr. Justice P.W. Sutherland
COUNSEL: Self-represented, the Applicant
Kristen Normandin and Jared Teitel, for the Respondent
Stephen Codas for the Ontario Children’s Lawyer (OCL)
HEARD: December 9, 10 and 15, 2021 - virtual
DECISION ON Focused trial[^1]
Introduction
[1] This a high conflict family law proceeding with a tortuous and lengthy judicial presence.
[2] This proceeding arises from a Motion to Change commenced by the applicant/mother dated November 5, 2014 and a Response to Motion to Change dated May 28, 2015. The Motion to Change concerns the Final Orders of Corkery J. dated November 15, 2013 (dealing with parenting issues) and Wildman J. dated April 28, 2014 (dealing with financial and support issues). The Order of Corkery J. appears to have been made pursuant to terms of the Divorce Act[^2] in existence at the time.
[3] On September 21, 2021, Jain J. ordered a focused trial. Jain J. opined that: “This family needs to be freed from the Court process and only a final order will do this. They need this matter to be resolved on a final basis.” The issues for this focused trial, as agreed by the participants, are:
a. Should two children of the marriage, A.C. and R.E. be released from any Court Order as it relates to a parenting schedule and parenting time at the age of 16 years of age.
b. If not, what is the parenting schedule and parenting time which includes holidays and vacations.
c. Which parent has the decision-making authority as it pertains to A.C and R.E.
d. Ancillary terms of any order including conduct terms.
e. Calculation of any outstanding child support owing from June 2017 to the present, including any section 7 expenses taking into consideration the parenting time and parenting schedule.
f. Ongoing child support to be paid by the applicant and/or the respondent along with their prorated share for section 7 expenses.
Background
[4] The parties were married on July 29, 2000 and separated on September 10, 2011.
[5] A Divorce Order was granted on April 28, 2014.
[6] They have three children of the marriage: A.I. born in 2003 (18 years of age), A.C. born in 2005 (16 years of age) and R.E. born in 2007 (14 years of age) (collectively the children).
[7] The oldest child, A.I. has been “released” from being subject to any Court Order concerning parenting time and parenting schedule.[^3] A.I. is presently attending University in her first year.
[8] A.C. is presently in grade 11 and R.E. is presently in grade 9. Both are attending the same Secondary School in Barrie, Ontario.
[9] Both parents are employed fulltime and both appear to have partners.
[10] In May and June 2017, Bennett J. heard a 14 day trial flowing from the Motion to Change. On June 28, 2017, Bennett J. released a 189 page Decision.[^4] In those reasons, Bennett J. determined that there was a material change in circumstances. Justice Bennett made temporary orders and seized himself with this proceeding. Justice Bennett ordered costs against the respondent in favour of the applicant.
[11] In the trial Decision, Bennett J. on a temporary basis ordered:
a. The applicant has sole decision making for the children.
b. The applicant has sole custody of the children.
c. The applicant need not seek or consult with the respondent with respect to any decision to be made on behalf of the children.
d. All three children shall be in residential care of the applicant.
e. The applicant has sole authority to consent to the children’s travel.
f. The children shall have no contact with the respondent, his family, friends, including C.A., partner of the respondent/father, for a period not less than 90 days until after successful completion of the Structured Family Workshops and the post Workshops’ vacation period.
[12] After the release of the trial Decision, Bennett J. heard numerous temporary motions and conferences and rendered numerous temporary Orders and Endorsements (approximately 40).
[13] For some of those temporary Orders, Bennett J. ordered costs against the respondent. There were also Orders in 2018 that the respondent pay his share towards section 7 expenses, including Family Bridges.
[14] The respondent resiled himself from the process and had limited contact with the children. Contact was later resumed to three hours per week.
[15] The respondent did not appeal the trial Decision of Bennett J. nor did the respondent appeal the costs Decision flowing from the trial. The respondent also did not appeal the Orders made by Bennett J. concerning costs, payment of section 7 expenses and the amounts fixed for arrears of said section 7 expenses.
[16] The respondent did file motions for leave to appeal to the Divisional Court.
[17] The respondent sought leave to appeal the Order of April 30, 2020. On May 22, 2020, the Divisional Court rendered a ruling that the motion for leave to appeal was premature. The Divisional Court further stated that “any recusal motion brought based on reasonable apprehension of bias must be dealt with before or when the case is before the judge (the Case Management Judge). This is necessary to preserve the reputation of the administration of justice. However, no contested step has been scheduled before the judge and we see no urgency in addressing the bias issue prospectively as a stand-alone issue.”
[18] The Ontario Children’s Lawyer (OCL) brought a motion seeking increased parenting time to the respondent. This motion was contested. The respondent also brought a motion for an order that the OCL’s motion be heard after or together with the recusal motion.
[19] Given the motions were contested, Bennett J. rendered an Endorsement that he could not hear the OCL motion separately and that it could be held after or with the recusal motion. Justice Bennett also indicated that he could grant orders that were on consent.
[20] On July 27, 2020, Bennett J. granted, on consent, an Order for increased parenting time to the respondent. The parenting time increased significantly.
[21] The respondent and the two children subject to the Court Order concerning parenting time and schedule, for A.C. and R E., wanted further parenting time - a 50-50 arrangement. The OCL, on behalf of A.C. and R.E., brought a motion seeking the further parenting time. Given that the increased parenting sought by the respondent and the OCL was contested, Bennett J. refused to hear that motion per the Endorsement of the Divisional Court. Justice Bennett offered conference dates and dates to expedite the hearing of the recusal motion.
[22] The respondent sought leave to appeal to the Divisional Court and on November 5, 2020, the Divisional Court issued a ruling indicating that this court had options with respect to this proceeding. The options were: to request that the Regional Senior Justice appoint a new case conference judge, the recusal motion be expedited and the motion of the OCL be heard by another judge.
[23] Following the Decision of the Divisional Court, a new Case Management Judge was appointed, and I heard the OCL motion for expanded parenting time.
[24] Jain J. was appointment as the Case Management Judge in November 2020.
[25] The Court rendered its Decision concerning expanded parenting time on December 17, 2020. The Court granted the request of A.C. and R.E. and on a temporary basis ordered week on-week off parenting schedule.
[26] On February 17, 2021, Bennett J. recused himself from this proceeding. On March 22, 2021, the Court dismissed the respondent’s recusal motion.
[27] On September 18, 2019, Dr. Shely Polak was appointed and has been involved with this family since. Dr. Polak has submitted reports dated January 15, 2020, May 12, 2020, and November 25, 2020. Dr. Polak has not provided a report to this Court after the Order dated December 17, 2020. Dr. Polak continued to work with the family after December 17, 2020. The parents and the children have expressed an intention to continue to work with Dr. Polak regardless of the Order of this Court.
[28] This focused hearing is to deal with the issues of A.C. and R.E. being released from any Court Order concerning parenting time and parenting schedule. In addition are issues concerning parenting time and schedule for holidays and vacation, arrears on section 7 expenses and child support, and foregoing child support and section 7 expenses.
[29] The parents agree that the present parenting schedule as set out in my Order dated December 17, 2020 of week on-week off is working and is acceptable.
[30] The parties also agree that the respondent has paid the costs awards and section 7 expenses as ordered by Bennett J. in two payments. These two payments are: $58,496.78 on November 1, 2021 and $29,787.37 on December 3, 2021, just days before the commencement of this focused trial.
[31] For the reasons below, the Court does partially release A.C. from Court Orders dealing with parenting schedule and parenting time and does not release R.E. The Court also has calculated any arrears owing of child support and section 7 expenses. The Court orders the respondent to continue to pay child support on a reduced amount commencing January 1, 2022.
A. Should A.C. and R.E. be released from Court Orders?
Evidence at Trial
[32] The evidence at trial was a combination of affidavit evidence of the applicant, respondent, and clinician for the OCL, Ms. Gardner, along with oral testimony.
The Applicant
[33] The applicant’s evidence is that she does not have any issue concerning the week on-week off parenting schedule but does not agree that A.C. and R.E. should be released from the terms of any parenting schedule including any parenting schedule concerning holidays. The applicant was very clear that she is “fearful” of the removal of judicial oversight on the conduct of the respondent. She indicated that she is fully aware that both A.C. and R.E. do not want to be involved in the Court process for they have been a part of it for most of their lives. She does not have faith or trust in the respondent. She does not believe that the respondent, his partner C.A., or his family, have changed their behaviour. She is not confident that A.C. and R.E. have the ability, for they are still children, to not be swayed by the respondent, his partner or his family, as in the past, to remove her from any involvement with A.C. and R.E. The applicant has expended too many tears and resources in fighting to have a productive and independent relationship with all her children to lose it now. As the applicant stated in her Affidavit dated October 26, 2021, at paragraphs 107 and 108:
I fight an uphill battle. My children have engrained opinions of our past and what happened, and I firmly believe they are not independent and still hold me responsible and see me in a negative light. (A.I.) would not hug me or show affection for years and it is only the past few months after the death of a friend has she finally, for the first time in over 7 years, told me she loves me back when I tell her. My position continues to be to fight to hold on and protect the fragile relationship I have with our children, but they remain constantly at risk of becoming severely re-alienated. This risk could not be higher than it is now if we disengage from our controlled access parenting agreement.
I have seen this year a change with (A.I.’s) attitude to me, especially regarding her University involvement and my inclusion, which I will discuss further below. I am fighting to hold on to whatever time I have left with our kids, to be able to be part of their sphere of influence and if my time is not protected with them at this time before their brains mature enough in their teens and twenties that they can look at our situation as an adult and see things with more realistic prospective, then it might be too late to maintain a relationship with them.
[34] The applicant went further and described instances since the change of the parenting schedule to week on-week off that illustrate her fear and evidence that the respondent has not changed.
[35] The instances the applicant presented are:
a. Mother’s Day;
b. the summer job/internship for A.I.;
c. attendance at R.E.’s baseball game; and
d. driving A.C. to school in the morning.
[36] Mother’s Day: The applicant testified that her time for Mother’s Day was unilaterally changed by the respondent and the children to only four hours that day. The children went out to dinner with the respondent and his partner and the respondent’s mother for Mother’s Day, and the applicant was relegated to only fours hours during the day. The applicant deposed that the respondent indicated to her that four hours during the day is “enough”.
[37] A.I. summer/internship job: A.I. had a summer job. Without consultation with the applicant, the respondent’s partner obtained a job for A.I. with her employer. This resulted in A.I. working for the respondent’s partner for the summer at the respondent’s home. This decision was made without the input or consultation of the applicant.
[38] Baseball games: Despite the Court Order of December 17, 2020 detailing that the residual parent for the children at the time of recreational activities will be the only parent in attendance, the respondent and his partner attended at the beginning of a baseball game of R.E. to discuss fundraising for the baseball club.
[39] Driving A.C. to school in the morning: The applicant testified that she was having issues with A.C. getting up in the morning to be ready to be driven to school with R.E. She indicated that she told A.C. if he is not ready when she and R.E. are ready, they will leave him, and he can find his own way to school. One morning A.C. was not ready. The applicant kept her promise. She and R.E. left without A.C. and told him he can find his own way to school. The applicant learned later that A.C. got a ride to school by the respondent.
[40] The applicant provided these instances to illustrate that the respondent and C.A. still take measures to undermine her relationship with the children, diminish the applicant in the eyes of the children and encroach on her parenting time with the children. Thus, the applicant testified, the respondent has not changed. He still does whatever he wants.
The Respondent
[41] The respondent deposed and testified that he supports the position of the OCL that A.C. be released from any parenting schedule order and that R.E., once he is the age of 16, also be released.
[42] The respondent testified that he has changed since the Order of Justice Bennett dated June 28, 2017. He has learned from his mistakes. The children have also changed and are older and more mature.
[43] The respondent further testified that with the assistance of Dr. Polak, he recognizes that much of the conflict is due to his behaviour.
[44] He testified that much of the applicant’s evidence recites the past and the 2017 Decision of Bennett J. He is not the same person or parent. He states that he has learned much with the assistance of Dr. Polak and the OCL. He is committed to Dr. Polak’s process.
[45] The respondent directs the Court to the conduct of A.I. since being released from the Court Orders. He indicates that his relationship with A.I and A.I.’s relationship with the applicant has improved tremendously. A.I. sees both parents regularly, especially when A.I. returns home from University.
[46] The respondent testified that an order for decision making is not necessary given the ages of A.C. and R.E. along with most of their decisions on health, religion and education have already been made. He agreed that all holidays should been shared equally between him and the applicant, with the input of the children. He acknowledged that the applicant and her family’s relationship with the children is as important as him and his family’s relationship with them.
[47] Under questioning from the OCL, the respondent conceded that from his conduct, the findings of Bennett J. in his trial reasons were deserved. The respondent takes full responsibility for his action and the consequences. He undertook to take a hard line with family members to be respectful to the applicant and her family. He agreed that since 2017, when the applicant had sole decision making for the children, there have been no issues and no major decisions had to be made.
[48] He had no objection to conduct conditions being incorporated in any order of the Court and he undertook to comply with those conduct conditions and have his family members or partner comply as well. He would accept responsibility if his partner and family member do not comply.
[49] He further agreed to not be a coach on any team of the children.
[50] He impressed upon the Court that he has not influenced A.C. or R.E. and that their views are completely their own and are independent.
[51] In response to the instances put forth by the applicant, the respondent indicated:
a. R.E’s baseball team meeting: The respondent did not attend that baseball game. He attended the meeting prior to the baseball game. The meeting was for fundraising for the Club. The meeting lasted 15 minutes and was completed approximately 30 minutes before the commencement of the game. Once the meeting was over, he left. The meeting was approximately 350 feet away from the area the players were warming up. The respondent also indicated that he attempted to communicate with the applicant about whether she was going to attend the fundraising meeting through Team Snap. The applicant never responded.
b. Mother’s Day: Mother’s Day landed on his week. He agreed that the applicant can have the children for the afternoon 12:00 pm to 4:00 p.m., which was extended to 5:00 p.m. as A.I. worked at 5:00 p.m. that day. He had plans for the evening with A.C. and R.E. with his partner and his family. The respondent indicates he agreed to this notwithstanding that the applicant would not let him visit or even speak to the children the previous Father’s Day.
c. A.C. morning school: He testified that he was not called. His Mother was called. His Mother took the steps for A.C. to get a ride to school. The respondent indicated that as he knows, A.C. tried to get him and the applicant to no avail. A.C. was unable to get an Uber. He had an exam that day. He was panicking and called the respondent’s Mother. As the respondent tells it, he was not involved.
A.I. summer job/internship: The respondent agreed that A.I. was working for his partner’s employer. She did work from his home given COVID.
[52] The respondent also answered questions from the Court. He agreed that he did not consult with the applicant on the summer/internship job for A.I nor did he consult concerning the respondent’s partner’s sponsorship of R.E.’s baseball club.
[53] The respondent made clear to the Court that he has changed. He has learned much about his past conduct and will do what is necessary to support the applicant and her families’ relationship with all three children.
The OCL
[54] The clinical investigator appointed by the OCL is Allyson Gardner. Ms. Gardner has assisted counsel in his representation of the children since June 2019. Her involvement flowed from the Order of Bennett J. in May 2019.
[55] Ms. Gardner is a Social Worker specializing in the field of custody and access since 2000. She is an experienced Child and Family Therapist, Collaborative Family Professional, Separation and Divorce Consultant and Custody and Access Assessor. In 2000, Ms. Gardner received a Master of Social Work from the University of Toronto.
[56] Her involvement is to provide the Court with the views and preferences of the children through her observations, meetings, and discussions with the children and their parents.
[57] Ms. Gardner testified that the views and preferences of the children are independent, that is, are not influenced, or pressured by others. Their views have been strong, consistent, and genuine. Their views and preferences appear not to be rehearsed or scripted.
[58] Ms. Gardner indicated that the children all wanted out of this legal process. Presently, given that A.I. has been released from the Court Orders, A.C. and R.E. wish to also to be released upon reaching the age of 16 years. For A.C., this will be immediate and for R.E., this will occur in less than two years.
[59] From A.C.’s perspective, at the age of 16, he can decide his own education, health, to remove himself from parental care and drive independently. If he, in law, can make these decisions, he sees no reason why he cannot also decide his relationship with both parents which include parenting time and schedule. A.C. contends that decisions are being made “by everyone but the person who is affected.”
[60] From R.E.’s perspective, he does not understand why the non-residential parent cannot attend sporting and recreational activities. He would like both sets of parents to be able to attend such activities at the same time. R.E. indicated that a sporting stadium is a “large stadium” that can accommodate both set of parents being in attendance.
[61] Ms. Gardner indicates that both A.C. and R.E. have made it clear that they want a meaningful relationship with both parents but do not want to be tied to dates and times imposed by a court order. Both A.C. and A.E. feel restricted in the lack of flexibility of their parents, especially their mother. There is a constant strict adherence to the terms of the Court Order.
[62] Both A.C. and R.E. indicate a desire to continue with Dr. Polak. Ms. Gardner testified that all three children respect and trust Dr. Polak and have found her involvement helpful and critical.
[63] Ms. Gardner testified that notwithstanding there has been no written Report from Dr. Polak since November 2020, she and counsel have been in contact with the children and confirmed that their views and preferences have not changed. Further, Dr. Polak continues to work with the family.
[64] Ms. Gardner indicated that A.C. and R.E. wish to have more control, more decision making over their relationship, dates, and times of parental time with both parents. If they wish to visit either of their parents during a non-court-ordered parental time, they wish to do so. A.C. and R.E. feel constrained from exercising their wish to contact either parental family outside of the Court-imposed schedule.
[65] Ms. Gardner suggested that the Court agree that A.C. and R.E. be released from any Court-Ordered parental time and schedule upon reaching the age of 16 years, have equal time with both parental families during holidays and vacation and that the family continue seeking assistance from Dr. Polak, namely the parents, A.C. and R.E. Ms. Gardner also suggested that the Court impose conduct conditions and that either parent may attend the sporting and recreational activities of A.C. and R.E. any time they so desire.
Pertinent Statutory Provisions and Legal Principles
[66] On a Motion to Change, the Court must first determine if there is a material change of circumstances from the original Final Order(s).[^5] The parties agree that in the circumstances of this proceeding, there is no issue that a material change of circumstances exists. Given the reasons of Bennett J. dated June 28, 2017 and the agreement of both parties, there is no question that the first step of ascertaining a material change of circumstances from the Final Orders of Corkery J. and Wildman J. has been met.
[67] A decision regarding parenting time and parenting schedule shall be made in accordance with the best interests of the child pursuant to sections 16, 16.1, 16.2 and 16.3 of the Divorce Act.[^6] Section 16 reads:
Best interests of child
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.
Primary consideration
(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.
Factors to be considered
(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.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(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.
Parenting time consistent with best interests of child
(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.
Parenting order and contact order
(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.
[68] The Supreme Court of Canada in Young v. Young[^7] has stated that the best interests of the child is the sole consideration in the determination of custody and access.
[69] In assessing the best interests of the child, the Court is to take into consideration the factors set out in section 16(3) which include the history of child care, the age and stage of development of the child and the child’s views and preferences, giving due weight to the child’s age and maturity, unless those views and preferences cannot be ascertained.
[70] With older children, as is here, the views and preferences of the children are to be given more weight and consideration of the Court. As the child reaches the age of 16 years and is closer to the age of majority, 18 years, the determination of the best interests of the child can become more problematic, especially when the views and wishes of a child are different than the wishes and views of one or both parents.
[71] In considering the views and preferences of the children, the Court must consider the independence and consistency of the stated views taking into consideration all relevant circumstances.[^8] The Court must ascertain the views of the child are strong, consistent and without manipulation or influence. The views and preferences must be independent and genuine. Notwithstanding the views and preferences of a child, the final determination of the parenting time and arrangement lies with the parents or the Court. The Court should not abdicate its responsibility to simply follow the views and preference of a child. It is incumbent on the Court to assess each case individually, in light of all the relevant circumstances, to determine what is in the best interest of the child, in those given circumstances.
[72] In N.L. v. R.R.M[^9], Justice Perkins dealt with a situation where the views and preferences of the children were substantially different than those of the parent or that of the arbitrator. The Court acknowledges that the facts of the case are not to the case at bar. In N.L. v. R.R.M., the children did not wish to see their father notwithstanding an arbitrator’s award order that the children see their father. The children would not attend and if forced to do so by police, would run away. The award was incorporated into a Court Order on consent. At the time of separation, the children were 14 years of age and 12 years of age. At the time of the hearing in front of Perkins J., the children were 18.5 years and almost 17 years of age. The oldest was in post secondary school living with the mother and the youngest was not living with either parent. In determining the best interest and the children’s rights. Perkins J. stated, at paragraphs 137 and 138:
[137] If it is not already apparent from the proceeding pages, I will say so expressly here: I have been struggling with how to balance or reconcile the powers and duties of the Court under the Divorce Act to make a custody and access order in the best interest of the children, on the one hand, with, on the other hand, the children’s growing entitlement to personal autonomy and respect their views and preference. It is interesting that courts are asked to make, and do make, orders at the behest of an alienated parent that they likely could not make at the request of two parents while will living together (for example, the order in B (SG), above, authorizing the mother to consent to treatment for a child whose doctor thought him capable of consenting to treatment). One can also think of situations involving a 16 year old, who is beyond the reach of a child protection proceeding under the Child and Family Services Act, but who could be apprehended and placed with someone, or enrolled in a treatment program, under a custody order.
[138] It is difficult to know when to insist on what parents, or their experts, or the court, thinks is in a child’s best interest, and when to leave off, letting the child assert the right to decide and possibly decide wrongly. Courts have recognized that older children will often make their own residential choice, regardless what the court says and let their feet do the talking…
[73] In the final analysis, Perkins J. decided that it was in the best interest of the children that the existing Court Order not be continued and neither parent have custody or access rights. Each child be their “own masters in that respect.”[^10]
[74] The Court will now turn to its observations and conclusions on the issue of whether A.C. and R.E. should be released from any Court Order concerning parenting time and parenting schedule at the age of 16.
Observations
[75] The Court wishes to begin with some observations.
[76] From the evidence presented, which is not contested, the children are, in their own right, well accomplished, regardless of the family litigation and the conduct of their father.
[77] A.I. is in University and is doing well. She appears to be involved in and excels in athletics. She has a good relationship with both parents. Her fractured relationship with her mother appears to be on the mend if not healed, as evidenced from the testimony of the applicant.
[78] A.C. is a very bright young man. He appears to be mature and focused. He is in tune with what he wants and has been consistent in that view. He is doing very well in school and wishes, currently at least, to enter the medical profession. He has played sports in the past but was not enrolled in any sports at the time of this trial nor appeared to have an intention to do so in the foreseeable future.
[79] R.E., the youngest of the three, the Court has been told, is also doing well in school. He appears to be the most athletic of the three. He plays many sports, but baseball appears to be his sport that he most enjoys and excels. It appears, at this time, he may very well obtain a scholarship to play baseball at an educational institution. He also appears to be focused and consistent on his views and preferences.
[80] The applicant has fears that her effort along with the tears and resources expended to re-establish a positive relationship with the children will be lost if the Court relinquishes oversight. The Court cannot say that this fear is unfounded or is an irrational fear. The history of the litigation clearly supports this fear. The herculean efforts exerted by the applicant in fighting, as she puts it, to have a relationship with her children is evident. In addition, the applicant is concerned that the views and preferences of A.C. are independent.
[81] The Order of Bennett J. setting out the parameters was made in 2017. Many things have changed since 2017. The world has changed and so have the children, and particularly A.C. and R.E. They are older. They have been involved in therapy and have had the assistance of Dr. Polak and the OCL. They have been involved in a week on-week off parenting arrangement for a year, which by all accounts has been working well. The relationship with the applicant has changed drastically since 2017. The children have a positive consistent relationship with the applicant. A relationship they did not have in 2017.
[82] The respondent also appears to have changed. He appears to be aware that his past conduct was not in anyone’s best interest, his, the children nor the applicant. He appears to have recognized that the interest of his children needs to be above his own interest. He appears to have recognized the importance of the applicant and her family relationship with the children. He appears to have recognized that family litigation and the best interests of his children is not a zero-sum game.
[83] During the testimony given at this trial, it is crystal clear that both parents are extremely proud of their children, their accomplishments as well as their character as individuals. Both parents agree that they have “awesome” children, as they both put it.
[84] This Court, however, has an obligation and must ascertain whether the respondent has changed, enough. What is in the individual best interests of A.C. and R.E. in all the circumstances?
Conclusions
[85] The circumstances of the family are much different than what faced Bennett J. when he rendered his Decision in June 2017. As indicated above, the children have changed and have matured. The involvement of third-party professionals, including Dr. Polak and the OCL has had an evident positive affect on the dynamics of this family. It appears that the purpose and intention of the terms of the Order of Bennett J. has come to fruition, that is, the applicant has a positive consistent relationship with her children. As stated before, a relationship she did not have in 2017.
[86] Like Perkins J. in N.L. v. R.R.M, the Court is left with a dilemma. The Court too has been struggling with how to balance the powers and duties the Court has with that of the views and intentions of A.C. and R.E. Unlike the facts Perkins J. had, neither A.C. and R.E. have voted with their feet and the history in the case at bar is one where the respondent has been found by a Justice of this Court to have alienated the children from the applicant. Based on the evidence presented at this trial and on the Reasons of Bennett J, this Court accepts and agrees with the finding of Bennett J. that the respondent alienated the children from the applicant.
[87] But as stated, the situation has changed. The children, and specifically A.C. and R.E. have changed. They are older. They have a better understanding of the circumstances as it concerns their parents.
[88] Has the respondent changed, enough? Is there a likelihood of a repeat parental alienation against the applicant if the Court relinquishes judicial oversight?
[89] The Court has misgivings on whether the respondent has changed, enough. The Court states this misgiving is based on the respondent’s conduct, namely the instances stated earlier, and not his words. The respondent has said all the right words in his testimony. He has clearly indicated he has learned. He was wrong in his conduct and that he has changed accordingly. But is this authentic and genuine?
[90] The instances that give the Court concern are the ones dealing with Mother’s Day, the summer/intern job for A.I. and the sponsorship of R.E.’s baseball club.
[91] On the instance concerning A.C. not waking up in the morning to get to class on time, the Court makes no findings. It could very well be that the respondent was not aware of the incident. It could very well be that the respondent’s Mother dealt with it unbeknownst to the respondent. The Court acknowledges that the respondent’s Mother did not testify or provide an affidavit and further, that this incident was not in the Affidavit of the applicant in support of her evidence in-chief. The incident was presented in the testimony of the applicant. Thus, the evidence is not clear as it relates to the respondent.
[92] However, the other three incidences were in the Affidavits of the applicant. The respondent did not contest the evidence of the applicant concerning Mother’s Day but did contest the implication concerning the other two incidences.
[93] On the Mother’s Day incident, the relegation of the applicant’s time to four hours as being “enough” gives the Court concerns. Was there a lack of concern that it is Mother’s Day and that the applicant may have wished to have the children for dinner? Was this a tit for tat because as the respondent testified, which was not disputed by the applicant, that he did not have time with the children for Father’s Day 2020 when it fell on the applicant’s parenting schedule? Is this an example of the failure of the parents to communicate with each other effectively? Is this another example of the failure to be flexible?
[94] The incident concerning A.I.’s summer/internship job and R.E.’s team sponsorship is similar. The respondent confirmed that he did not consult with the applicant before deciding to have his partner’s company employ A.I. or sponsor A.E.’s baseball club. Was this an indirect attempt to diminish the applicant in the eyes of the children by showing the respondent is the one that can employ and sponsor through his partner? Was this a means to have A.I. spend more time with the respondent and his partner than the time spent with the applicant? The past conduct of the respondent makes these, perhaps innocent decisions for the benefit of the children, suspect. The Court agrees with the applicant that it has only been a year since regular parenting was equal. Does the passage of only one year make the professed change of behaviour and understanding of the respondent’s behaviour credible and lasting?
[95] The Court finds that the instances can be interpreted as the respondent continuing with his behaviour of doing what he wants with no consideration of the applicant. In contrast, there also is clear lack of flexibility and effective communication between the parents. For various reasons, some of which may be justified, the parents are locked in a battle with the children being the collateral damage. It is hard for the Court to then conclude the incidences show clearly that the respondent has not changed and still does what he wants. But the Court does conclude that the relationship between the parents seems to not have changed significantly.
[96] The Court will deal with each child separately.
A.C.
[97] The Court has no concerns that the views and preferences of A.C. are independent and genuine. From the evidence presented, the Court accepts the views and preferences as coming from A.C. The applicant also does not dispute that the views are genuine.
[98] The issues, as the applicant has contended, is if given the opportunity will the respondent again alienate A.C. from the applicant? This question is the dilemma that the Court is wrestling with. Taking the views and preferences of A.C. into account and not forcing him to vote with his feet, should the Court release him for orders concerning parenting time and schedule?
[99] The Court suspects that A.C. would directly tell the Court that there must be faith and trust in his decision making. He has a good and positive relationship with his Mother. He cherishes that relationship and will not allow that relationship to falter. He is old enough to drive, leave his parents’ care and make decisions of his health. Why cannot he be trusted and bestowed with the necessary faith to continue with that relationship with the applicant regardless of any actions of the respondent?
[100] This is the crux. When should the Court cease abiding by the insistence of, as Perkins J. coined: “what parents, or their experts, or the court, thinks is in a child’s best interest, and when to leave off, letting the child assert the right to decide and possibly decide wrongly.”
[101] The Court has attributed significant weight to the views and preferences of A.C. and conclude that for A.C. the time is after he finishes grade 11. The Court accepts that A.C. is an amazing child. He is focused, mature and of age to make certain decisions in his best interest, whether his decisions are right or wrong. They will be his decisions. A.C. will be entering grade 12 in September 2022. A year later, he will be at a post secondary institution. He will probably, at that time, be living away from both his parents, as A.I. is doing. He then will be making good and bad decisions. Decisions that he will have to live with and deal with. That is life. This is the ongoing maturity of individuals. The Court sees A.C. as no different.
[102] The Court is confident that A.C. will continue to see his Mother regularly and continue the positive consistent relationship he has with both parents. The time may not be equal as per a week on-week off schedule. The Court is also confident that the relationship with the applicant will not negatively change. The Court is confident that A.C. will make the right decisions of seeing both parents and should be free from the weekly parenting schedule.
[103] Accordingly, the Court determines that A.C. will no longer be subject to and is released from the regular parenting schedule of week on-week off as of August 1, 2022.
R.E.
[104] R.E. is fourteen years of age. He will be subject to the Court-ordered parenting time and schedule.
[105] The Court accepts that R.E. is an amazing child as well. He is doing well in school and seems to a have a future in athletics, be it a scholarship from a post secondary educational institution or professional career in athletics.
[106] However, R.E. is not of an age that he should be released from a Court Order concerning parental time or schedule. And, the OCL, on his behalf, has not asked for such a release at this time.
[107] According to R.E.’s views and preferences, he wishes to be released in the same way as A.C. The difficulty the Court has with making such an order is that R.E. implicitly seeks that the Court will know the future. What will the family situation be in two years? What will R.E.’s conduct, behaviour and maturity be in two years? This cannot presently be known.
[108] For this reason, the Court is not inclined to order that R.E. be released before the commenced of grade 12, as A.C. has been released. R.E. will be subject to a regular parenting schedule of week on-week off.
[109] However, the Court urges the parents to listen and be receptive to the views and preferences of R.E. It may be that R.E. be released at the similar period of time as with A.C. if, at that time, both parents agree that R.E. is mature and focused enough to do so; assuming that R.E. wishes to be released at that time.
[110] The Court will leave that determination for another day. It is anticipated and hoped that when that time arises, enough time has elapsed that the parents will be able to reasonably decide a similar fate for R.E. that the Court has determined for A.C.
[111] If the parents are unable to agree and R.E. wishes to be released from Court Orders concerning parental time and parental schedules, either may bring a Motion to Change to determine whether R.E. should be released on or after August 1, 2023 or as may be directed by a Case Management Judge, if one is appointed.
B. Parenting Schedule - Holidays and Vacations
[112] The parents agree that holiday and vacation time with A.C. and R.E. should be shared equally.
[113] The parents have each provided a proposed parenting schedule in their respective draft orders which included a parenting schedule for holidays and vacations.
[114] The vacation and holidays schedule will continue to apply to both A.C. and R.E.
[115] The Court notes that neither parent included a summer vacation schedule other than the regular parenting schedule. Neither party has requested consecutive weeks with A.C. and/or R.E. Accordingly, the Court has not provided any specific parenting time with A.C. or R.E. for the summer holidays.
[116] The Court has reviewed their draft orders and has determined a holiday and vacation schedule. Attached to these reasons as Schedule “A” is that parenting schedule.
C. Decision-Making
[117] From the evidence of the parents, there is really no dispute concerning decision-making. Bennett J. granted a temporary Order that the applicant be the decision maker. The reality is that, and more so with A.C., there will not be many major decision making that will be required concerning health, education and religion. If such a decision is necessary, it will be made with A.C.’s input and that of third party specialists.
[118] The respondent did not oppose that the applicant remains the decision maker with consultation with the respondent. The applicant testified that of course she would consult the respondent and have input for A.C. and R.E. Accordingly, the Court so orders that the applicant will consult the respondent before any major decision is made concerning A.C. and R.E.’s health, education and religion along with input from A.C. or R.E., and that of third party specialists, as is applicable.
D. Ancillary Orders and Conduct Terms
[119] The parents have included terms in their respective draft orders that relate to conduct and ancillary terms. The terms of their respective draft orders are very similar. The Court has reviewed those draft orders and attached to these reasons as Schedule “B” are terms that the Court will include in the Order.
[120] The Court wishes to highlight a few. The first is the term that the parents be flexible with A.C. and R.E. in complying with the terms of the Order. Life changes. Life ebbs and flows. The Court encourages the parents to not take a strict dogmatic adherence to the terms of the orders as it relates to A.C. and R.E. requesting a change to see either parents or their families on times that the requested parent is not the residential parent. The Court encourages the parents to keep an open and flexible mind when it comes to the parenting terms and schedule. At the same time, the Court says to both A.C. and R.E. that they both must be cognizant that sometimes flexibility as they may want is not feasible. They too must keep an open and flexible mind.
[121] The term concerning attendance at recreational and sporting activities of A.C. and R.E., the Court has ordered that either parent and their family members may attend such event and activities whenever they wish. However, there is a conduct term that they be respectful of the others’ space and distance. Both sets of families are to be considerate of the other and keep a reasonable distance between them. As R.E. indicated, the stadiums and facilities are large. In that large stadium or facility each set of parents and their families should be able to locate a space that does not encroach upon the other.
[122] Concerning Dr. Polak, the parents have both requested a term that the family continue with Dr. Polak. The Court has decided to make it part of a Court Order that the parents, A.C. and R.E. will continue with Dr. Polak and end their involvement with Dr. Polak when all concerned, including Dr. Polak, agree that continuing with such sessions are no longer necessary.
[123] The Court is requesting that the Senior Family Judge in Barrie appoint a Case Management Judge, which may very well be Justice Jain, given Justice Jain is the Case Management Judge presently. This is a decision to be made by the Senior Family Judge in Barrie.
[124] The Court acknowledges that both parties agree to an appointment of a Case Management Judge given the factual matrix and history.
[125] The Court agrees that it has the discretion to appoint a case management judge, be it myself or another Judge.[^11]
[126] The Court is of the view that a Case Management Judge will be useful to deal with any issues or bumps in the road on an expedited basis. The Court is of the view that dealing with such issues and bumps quickly and efficiently will be in the best interest of A.C. and R.E. along with both the parents and their respective families. This should minimize judicial involvement in the lives of the parents, their respective families, A.C. and R.E.
[127] Currently, the Court does not find complete removal of judicial oversight to be in the best interest of A.C. or R.E.
E. Calculation of Child Support and Section 7 Expenses from June 2017
Child Support
Undisputed Facts
[128] Both parents are employed full time.
[129] The income of the applicant is as follows:
a. 2018 - $98,131.
b. 2019 - $99,780.
c. 2020 - $148,797.53 inclusive of a $50,000 RRSP withdrawal. But for child support purposes, her income is $98,797.52.
[130] The income for the respondent is as follows:
a. 2018 - $227,368.
b. 2019 - $211,156.80.
c. 2020 - $228,998.10.
[131] The respondent is paying full table amount for three children in the amount of $3,094.00 per month commencing July 1, 2018 pursuant to the Order of Bennett J. dated September 25, 2018 with the adjustment for child support and section 7 expenses on July 1st of each year.
[132] A.I. has been splitting her residence between the parents since the Final Order dated November 19, 2020 and has been residing away at University during the school year since September 2021.
[133] A.C. and R.E. have been residing equally between the parents since my Order of December 17, 2020.
[134] There has been no adjustment to the Child Support Guidelines Table amount of child support since the Order dated September 25, 2018.
Pertinent Statutory Provisions and Legal Principles
[135] The Federal Child Support Guidelines[^12] (Guidelines) provide a simplified method for which parents and the Court can quantify child support. Generally, under the Guidelines the underlying principle is that the support obligation should fluctuate with the payor parent’s income.[^13]
[136] The fluctuation of income also applies in situations where there may be a shared parenting arrangement where the parents’ time with the children are more equally shared. However, there does exist further considerations than the amounts described in the Guidelines.[^14]
[137] Section 3(1) of the Guidelines sets out the presumptive rule that with children under the age of majority, the calculations set out in the Guidelines apply for table amount and section 7 expenses. This presumption applies unless the Court considers the approach inappropriate taking into consideration the Guidelines and the circumstances. It is the exception not the rule to depart from the Guidelines. The onus is on the parent seeking to not have the presumption apply.[^15]
[138] Section 3(2) of the Guidelines indicate that with children over the age of majority, the table amount applies or an amount the Court considers appropriate “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”
[139] Section 16 of the Guidelines determines the calculation of income, namely the total income in a payor’s T1 General form issued by the Canada Revenue Agency, subject to consideration of sections 17 to 20 of the Guidelines.
[140] Section 9 of the Guidelines concerns the situation where there is a shared parenting arrangement. This is an issue where both parents have parenting time with the children which is more than 40% of the time over the course of a year.
[141] The Supreme Court of Canada in Contino v. Leonelli-Contino[^16] set out some factors the Court is to consider in shared parenting arrangements. These include:
a. The Court must look at all factors in section 9 which include the applicable amount set out in the Child Support Table (the Table) for each parent, the increased costs of shared arrangement and the conditions, means, needs and other circumstances.
b. It is not simply a calculation of the child support table amount of each parent with a set off. Such calculation is the starting point not the end point.
c. The Court should be flexible.
d. The continuing ability of the recipient parent to meet the needs of the children.
e. The different standard of living of each parent can modify the set off amount.
f. The total costs of raising children and its affect in shared parenting arrangements. Are the costs greater?
g. The budgets and actual expenditures for both parents and the over-all increase in total costs, if any.
h. Child expense budgets. Demand further information when the party’s information is deficient. Make common sense assumptions about costs incurred and apply a multiplier.
i. All other relevant circumstances for each individual case.[^17]
Position of the Parents
[142] The applicant’s position is that the amount of child support should not decrease from the amount dictated by the Table. The applicant argues that she has incurred significant costs and cash issues due to the respondent not paying the amounts Ordered by the Court in a timely fashion. She had to borrow money from her father ($225,000) to pay legal costs and expenses for the children due to the respondent not paying the costs and expenses when ordered to. She also contends that her expenses will not significantly decrease. Her costs of a larger home for the children and other child-related costs will not significantly decrease. A.I. still comes home during weekends and time off from school. Her accommodation, food and miscellaneous costs will continue to exist. The respondent makes more than twice the applicant’s income. She will suffer financially more than she has already suffered due to the conduct of the respondent.
[143] The respondent argues that his costs will increase since he will have the children half the time with the week on-week off arrangement. His costs will, by common sense, definitely increase. He testified that he has incurred a debt to his parents in the sum of $350,00 for legal fees. He also states that he will be paying the majority of many section 7 expenses which include A.I.’s university costs and A.C.’s university costs starting in 2023. He contends that a fair means to spread the costs is a set off child support based on each parent’s income and the corresponding Table amount. The respondent submits that the applicant’s position of no change in the Table amount is contrary to the Guidelines.
Application
[144] It is clear from the case law that there is no set formula to determine the amount of child support to be paid by the parents in a shared parenting arrangement.
[145] There is no dispute in this case that as of December 17, 2020, a shared parenting arrangement was created by the week on-week off schedule. That shared parenting arrangement continues given the Court’s Decision.
[146] There is also the factor that A.I. is over the age of majority and that A.I. is attending University and residing away.
[147] The Court does not agree with the contention of the respondent that the applicant’s position that there should be no change in the Table amount is contrary to the Guidelines. The applicant’s position is a viable argument, given the case law and Contino.
[148] The issue for the Court is whether there is sufficient evidence to alter from the Table amount given the fact that the parenting time has changed and A.I., more than 18 years of age, is attending University away from the residence of both parents.
[149] In considering A.I.’s situation, the respondent has directed the Court to the decisions in Fanelli v. Valente[^18], Cox v. Webber[^19], and Chow v. Rider.[^20]
[150] In Fanelli, Mitrow J. discussed the application of section 3(2) of the Guidelines and decision concerning the appropriate application of the subsection and calculation of child support for children who are over the age of 18 years of age and are residing away from the residence of the parents to attend school.[^21] The facts are that the child was over the age of 18 years and attending dental school full time away from the residence of the parents. The Court has generally found that the Table amount for child support is inappropriate. The conclusion is that the table amount should be reduced when the children are attending school and if return to a parent during the summer months, the Table amount should be reinstated during those months. Thus, Mitrow J. determined that the entitlement to child support for the child while attending school must be determined under section 3(2) (b).
[151] In Chow v. Rider, S.B. Sherr J. adjudicated a situation where the child was 19 years of age and attending school full time away from the parents and concluded that the presumptive Table amount was inappropriate for the child who was over the age of 18 years of age and attending school away from the parents. S.B. Sherr J. found that in the circumstances, it was appropriate for the father to pay a reduced amount for child support when the child was away at school and the full table amount of child support when the child returns home from school during the summer months. S.B. Sherr J. also stated that:
[60] Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important in cases of this nature.
[152] In Cox v. Webber, Shaw J. considered a situation that the father was paying full child support when their son was attending, away from the residence of the mother, to attend university. One of the issues for the Court to determine was not a variation of child support but the responsibility of the father concerning section 7 expenses. The issue was not whether the full amount of child support per the guideless should be used or another approach. This case was not helpful to the dispute on whether the respondent should pay full child support or not.
[153] In the circumstances of this case, the Court is convinced that the full Table amount of child support should not apply in A.I.’s situation. A.I. is no longer bound by any Court Order concerning parenting time and schedule. She is attending school away from both parents. The parents have been contributing to her expenses for university. The fixed percentage of contribution will be determined later in these Reasons. Without doubt, given the difference in income, the respondent will be ordered to contribute a majority of those expenses. The Court is also persuaded that the applicant will be incurring expenses for A.I. when she comes home during holidays, weekend, and time off from school. The applicant will also be incurring greater expenses when A.I. returns home for the summer, which she did in the summer of 2021.
[154] The Court concludes that the support for A.I. should be determined according to section 3(2)(b) of the Guidelines.
[155] Regarding A.C. and R.E., section 9 of the Guidelines comes into play. Neither are over the age of 18 and both are residing with both parents. However, the question to answer is how section 9 relates to the circumstances regarding A.C. and R.E.
[156] Contino makes it clear that the Court should embark on a three-step analysis as described in section 9.
[157] The analysis in section 9(a) is not in issue, as discussed above. Both parents had parenting time with A.C. and R.E. at least 40% of the time the previous year.
[158] Section 9(b) concerns A.C. and R.E.’s budget and expenses and the actual spending patterns for both A.C. and R.E.
[159] The applicant’s evidence is that she still incurs expenses for A.I., not only the expenses when she attends the applicant’s residence such as food and utilities, but for clothes, gifts, and dinners along with university costs. Further, that her expenses for A.C. and R.E. are not significantly different. She pays for the meals, clothes, and personal costs even though they are now 50% of the time with the respondent.
[160] Having said this, the applicant has provided very little evidence concerning the expense budgets and spending as it directly relates to the children and specifically A.C. and R.E.
[161] The respondent’s evidence that due to A.C. and/or R.E. being with him 50% of the time, he has incurred further costs is sparse. Again, like the applicant, there is very little evidence to indicate what extra costs he has incurred and the amounts. There is no substantial evidence on the expenses for A.C. and R.E. and the amounts for these expenses.
[162] Though, the Court will agree that for the respondent there will be some measure of increase in the expenses and costs to the respondent for having A.C. and R.E. 50% of the time and that there is also some measure of decrease for the applicant. This measure of decrease, the Court suspects, will not be significant, based on the evidence presented at this trial, namely from the applicant. The increase to the respondent may be more significant but the extent is a guesstimate, at best.
[163] Section 9(c) mandates the Court to examine the conditions, needs and means and other circumstances. The conditions for a change in the amount less than the Table amount is not favourable to the applicant. Not only will she receive less per month, but the Court is cognizant of the fact that the respondent failed to comply with Court Orders. His last payment for the outstanding orders of this Court was made just days before the commencement of this trial. The applicant had the financial burden to incur these costs and seek financial assistance from her father due to the blatant failure of the respondent to comply with the Orders of this Court.
[164] Moreover, the change from week on-week off as for A.C. and R.E. has only been in place for a year. A.I. was released from the Court Orders in 2020 and started University in September 2021.
[165] Taking all this into consideration, the Court concludes that there shall be a decrease in the amount of child support but that decrease shall not commence until January 1, 2022. There has been no evidence provided that indicates that there has been an increase in expenses for the respondent for A.I. Though the Court may agree that there has been added costs to the respondent, the time that A.I. spends with the respondent and the associated increased expenses has not been provided. In addition, there is no dispute that A.I. is still a child of the marriage and child support continues. Further reasons for not commencing until January 1, 2022 are the conduct of the respondent as outlined above, the fact that the change of parenting time is just over a year old, A.I. just started University in September 2021 and the financial issues the applicant had to deal with due to the conduct of the respondent.
[166] The commencement of January 1, 2022 the Court deems as fair and reasonable in the circumstances.
Calculations
[167] Based on the income of the respondent, his monthly amount of child support for 2018, 2019, 2020 and 2021 is as follows:
a. 2018 - $227, 368 for three children residing in Ontario is $3,828.
b. 2019 - $211,157.80 for three children residing in Ontario is $3,591.
c. 2020 - $228,998.10 for three children residing in Ontario is $3,851.
d. 2021- same as in 2020. The respondent’s 2021 income has not yet been determined.
[168] Accordingly, the respondent’s obligation for child support for each year was:
a. 2018 - $22, 968 - (for six months from July 2018).
b. 2019 - $43,092.
c. 2020 - $46,212.
d. 2021 - $46,212.
Total is $158,484.
[169] The respondent appears to have paid pursuant to the Order of Bennett J. in the monthly amount of $3,094:
a. 2018 – $18,564.
b. 2019 – $37, 128.
c. 2020 – $37, 128.
d. 2021 – $37,128.
Total is $129,948.
[170] The difference is as follows:
a. 2018 – $ 4,404.
b. 2019 – $5,964.
c. 2020 – $9,084.
d. 2021 – $ 9,084.
[171] As of December 31, 2021, the respondent owes the applicant from the calculation of the Table as set out above the amount of $28,536.
[172] The respondent contends that from the FRO statement dated October 21, 2021, he has paid $101,918.89. The statement indicates that as of October 13, 2021, the respondent owes $52,768.46. If the Court reduces this amount by the amounts the respondent paid to December 31, 2021[^22], then the amount using the FRO statement is $39,812.27.
[173] However, the applicant is seeking the sum of $17, 802.08 calculated yearly with July as the calculation date rather than January of each year. The Court accepts this amount requested by the applicant.
[174] As of January 1, 2022, the respondent’s income for child support is $228,998.10. For three children is as set out above. For two children the amount is $3,025.
[175] The applicant’s income for 2022 will be her 2021 income which is $98,797.52. For three children, the child support amount is $1,902. For two children, the child support amount is $1,457.
[176] A purely mathematical set off amount for three children is $1,949 and for two children is $1,568.
[177] The financial statement of the applicant indicates monthly expenses of $10,237.70 while her monthly income excluding child support is $8,807.00.
[178] Before determining the ongoing monthly amount for child support, the Court will ascertain the extend of the section 7 expenses.
[179] The Court will now turn to section 7 expenses.
Section 7 Expenses
Present and Ongoing
[180] The agreed upon ongoing section 7 expenses for R.E. and A.C are not greatly significant.
[181] For A.C., it is agreed to be $300.00 per year or $25 per month.
[182] For R.E., it is estimated to be $3,000.00 per year or $250 per month.
[183] For A.I. the costs have not been agreed to. From the evidence given, it appears that the applicant paid $7,000 towards tuition and residence in August 2021, and the respondent and/or A.I. paid $6,700.75 for January 2022. The amount paid for January 2022 seems to be for tuition, residence, and student fees.[^23] The respondent indicates that he has paid $15,000 towards A.I.’s schooling.
[184] There is no issue between the parents that A.I.’s post secondary costs are section 7 expenses and that each agree to contribute to those section 7 expenses.
[185] The parents also agree that A.I. should contribute to the costs of her education. The evidence is that A.I. made $10,000 last summer. There is no agreement between the parents on the percentage or amount that A.I. should contribute.
[186] There is no issue concerning the program that A.I. is involved in, the costs of the program or that she is residing away from home. Both parents indicated they encourage the children to reside away from home to attend post educational pursuits.
[187] Thus, the only issue the court needs to determine is what, if any, should the contribution be from A.I.
[188] The respondent suggests that the parents contribute in total for the entire program, the amount of $30,000 to be divided pro rata to income. However, the Court has no information on the costs for each year or the ability of A.I. to contribute either through work, scholarships, grants, or student loans. There is an estimate that the costs per year for A.I.’s university is $20,000.
[189] What is known is that A.I. did receive a scholarship which was used to contribute to the costs of her education.
[190] The Court has a broad discretion in ascertaining whether a child should contribute to the costs of their post secondary education. This discretion, however, must be based on evidence.[^24] Factors that the Court may take into consideration are:
a. The program itself and the costs of the program. Is the program reasonable and desirable to the child? Are the costs reasonable or excessive considering some of the factors below? How long is the program? Does the program have paid internship?
b. The collective income of the parents.
c. The amount of child support paid or to be paid by the payor.
d. The ability of the child to contribute such as RESPs, employment income, grants, scholarships, and student loans. Has the child availed themselves of such ability to contribute to the costs?
[191] Besides the external scholarship, there is no other evidence that A.I. has contributed any further monies towards the costs of her post secondary education. There was no evidence on the amount of RESPs, if any, and the ability of A.I. to obtain scholarships, loans, grants, student loans or on the income A.I. earned, how much is attributable to her university costs.
[192] Given the evidentiary gap, the Court is not inclined to make an order concerning any contribution of A.I.
[193] The Court is of the view that a child should contribute, and that contribution should be on a sliding scale. This percentage may increase each year to a percentage close to the child paying a sizeable percentage in the fourth year, taking into consideration any RESPs, scholarships, or grants A.I. may receive. This increasing scale allows for A.I. to be aware ahead of time of what is expected for her contribution to the post secondary expenses and give her time to obtain the necessary monies for contribution.
[194] The Court recommends that the final agreement be made between the parents with A.I.’s involvement with the assistance, if necessary, of a mediator, or the Case Management Judge.
Past Section 7 Expenses
[195] Based on the incomes of the parents, their percentage for section 7 expenses is as follows:
a. 2018 – 34% to the applicant and 66% to the respondent.
b. 2019 – 29 % to the applicant and 71% to the respondent.
c. 2020 and 2021 – 29% to the applicant and 71% to the respondent.
[196] Each parent is claiming monies for past section 7 expenses. The applicant is claiming the amount of $20,482.24, which the respondent accepts responsibility for $15,642.44. The respondent is claiming the sum of $15,028.97 which the applicant accepts responsibility for $6,283.79.
[197] Accordingly, the dispute with the applicant’s request is $4,839.80. This amount contains expenses for lodging and transportation to sporting tournaments.
[198] For the respondent’s request, the dispute is the sum of $8,745.18. This amount contains a variety of section 7 expenses that the applicant opposes as being properly claimed. The applicant argues that the section 7 expenses claimed before the Order of September 25, 2018 cannot be claimed. The applicant contends that Bennett J. dealt with all section 7 expenses up to that point.
Pertinent Statutory Provisions and Legal Principles
[199] Section 7 of the Guidelines concern special or extraordinary expenses. Section 7 reads as follows:
Special or extraordinary expenses
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Universal childcare benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal childcare benefit or any eligibility to claim that benefit.
[200] In awarding s. 7 special and extraordinary expenses, the Court calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the Court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.[^25]
[201] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expense(s) are within the categories set out in section 7 and that the claimed expense(s) are necessary and reasonable, having regard to the parental financial circumstances.[^26]
Analysis
[202] On September 25, 2018 Bennett J. determined the amount of section 7 expenses owing at that time along with the percentage owed by each parent. The determination flows from Bennett J.’s Decision dated June 28, 2017. From my review of the June 17, 2017 Decision along with the Endorsement of Bennett J dated September 25, 2018, the Court agrees with the applicant. As of September 25, 2018, the respondent had the opportunity to deal with any claims for section 7 expenses. The respondent provided evidence and made submissions concerning his claim for section expenses. As Bennett J. stated at paragraph 14 and 15:
[14] The respondent provides documentation related to expenses incurred by him for the children’s section 7 expenses prior to trial that took place in May and June 2017.
[15] The respondent was ably represented by counsel during that two-week trial. No submissions were made seeking contribution at that time from the applicant for these expenses. The Court therefore will not be making any Order relating to expenses that were incurred prior to the conclusion of the June 28, 2017 trial.
[203] Bennett J. then went on to determine section 7 expenses requested by the applicant for 2018. The respondent provided submissions with respect to those expenses. It appears that, though given the opportunity, the respondent made no submissions or claim for section 7 expenses for 2018.
[204] For the hearing on September 25, 2018, Bennett J. requested materials and submissions from both parents to adjudicate section 7 expenses being claimed by both of them up to September 2018. As noted, the applicant responded. The respondent did not present a claim for such section 7 expenses. It appears that at that time, the respondent made the decision not to claim for section 7 expenses up to September 2018.[^27] The Court agrees with the applicant, the respondent was given the opportunity to make such a claim by Bennett J. He chose not to do so. Section 7 expenses up to September 25, 2018 were determined by Bennett J. The Court is of the view that the respondent is estopped from making such a claim now pursuant to the principle of issue estoppel. Bennett J. adjudicated that issue. This Court refuses to adjudicate that same issue again.
[205] The Court agrees with the submissions of the respondent concerning the disputed claims for section 7 expenses by the applicant. These claims are mainly for hotel costs and other expenses for attendance at weekend sporting events. These costs were incurred not only for the child but also for the parent that attended. The Court concludes that these claimed expenses are neither reasonable nor necessary for the children. The Court can appreciate that the parent may wish to attend but that fact on its own does not categorize the claimed expenses as reasonable and necessary. Thus, the Court declines to order that the respondent is responsible for those expenses. The amount for which the respondent is responsible is $15,642.44.
[206] Concerning the claim of the respondent. For the reasons above, the Court declines to allow those expenses for they encompass expenses prior to September 25, 2018. The expenses after that date were incurred in 2020 and 2021, and the applicant has agreed to pay these costs. Hence, the amount for which the applicant is responsible is $6,283.79.
Conclusion for Ongoing Child Support and Section 7 Expenses
Section 7
[207] There is no dispute that the proportionate rate for the parents commencing January 1, 2022 will be 30% to the applicant and 70% to the respondent.
[208] There is also no dispute that the estimated costs for section 7 expenses for the year for A.C. is $300 and for R.E. is $3,000. Consequently, the Court finds that each parent shall be responsible per their respective percentages to a maximum total amount of $300 for A.C. and $3,000 for R.E. The parent requesting the section 7 expense shall advise the other parent in writing before incurring the expense. Proof of the expense and payment must be provided before payment from the other parent is requested. Once provided, the parent making the payment shall provide that payment within seven days.
[209] It is also anticipated that A.C. will be attending a post secondary institution in September 2022. The Court recommends that the parents utilize the same process as with A.I. to agree on their respective contributions once there is information concerning the anticipated costs.
[210] If the parents cannot agree on the section 7 expense requested for the post secondary costs and/or contribution of A.C. to that cost, a mediator or the Case Management Judge may aid the parents.
Basic/Table Child Support
[211] The provisions of the Guidelines that deal with the determination of ongoing child support for the children are section 3(2) and 9.
[212] A.I. is attending full time at a University away from home and A.C. and R.E. have equal parenting time until September 1, 2022. At that time, A.C. is released from the Court imposed parenting time and is free to ascertain his time with both parents. A.C. has indicated that he will be splitting his time with his parents similar to a 50-50 basis but that his schedule may not strictly happen in the same manner as the imposed parenting schedule of week on-week off.
[213] Thus, for the purposes of determining child support, the Court suspects and finds that A.C.’s time with the parents will be shared more than 40% of the time with each parent, though may not necessarily be 50-50 with each parent.
[214] Having said this, the Court agrees that the full table amount for three children if all three reside with the applicant and do not spend more than 40% of the time with the respondent is not appropriate in the new circumstances.
[215] However, the Court also does not find that a strictly mathematical set off for two children is appropriate. The Court comes to this conclusion based on the fact A.I. continues to be a child of the marriage and there has been no evidence provided that indicates that the expenses to the respondent will be significantly greater. The Court is cognizant that there may be an increase in expenses, but quantification of those expenses has not been provided through any evidence.
[216] Moreover, the only evidence presented is the income of the parents, but no evidence has been presented that indicates the global income of both households that attribute to the expenses of each parent’s household.
[217] The parents have made it clear through their evidence that they require some form of finalization. Neither wishes to prolong this trial and urge the Court to make decisions that will move this matter to some form of closure. The Court could request further evidence from the parents, but considering the circumstances, the Court decided not to do so and to decide the issue based on the evidence provided and to a certain extent on common sense.
[218] The mathematical set off for three children is $1,949 and for two children is $1,457.
[219] A.I. will be attending to see her parents during the school and summers. Accordingly, the amount of two children set off is not appropriate.
[220] The amount for set off for three children is also not appropriate. A.I. is not living full time with either parent. Even though she is released from Orders, she is still a child of the marriage. Both parents are also contributing to A.I.’s university costs on the percentage stated. The respondent is ordered to pay for the majority of the parental share of those costs.
[221] The applicant has incurred debt due to the conduct of the respondent. She also has ongoing expenses for the house that, according to her financial statement, is more than her income.
[222] But again, the household income for each parent has not been provided.
[223] In comparing the standard of living of both parents, it seems clear to the Court from the evidence provided that the respondent has a higher standard of living, given his income and his relationship with C.A. For example, the respondent has been on various vacations. The applicant has not.
[224] Taking all these factors into consideration, the Court finds that an appropriate amount with no increase when A.I. returns home for the summer is $1,850 per month commencing January 1, 2022.
Interest
[225] The applicant is claiming interest on the outstanding amounts ordered by the Court and not paid by the respondent in a timely basis. The Court sees no reason why the applicant should not receive interest for the failure of the respondent to pay the amount awarded in a timely basis, as ordered by the Court.
[226] The respondent does not dispute the calculation of interest.
[227] The Court Orders that the respondent should pay to the applicant interest in the amount of $7,382.45.
Disposition
[228] From the reasons above, the Court makes the following Final Order:
a. The parents shall have regular parenting time with A.C. and R.E. pursuant to the parenting schedule of week on-week off as set out below:
b. A.C. will no longer be bound by and is released from the regular parenting time set out in paragraph (a) above on August 1, 2022.
c. R.E. will be subject to the regular parenting schedule in paragraph (a) above until further Order of this Court. The parents and/or R.E. may bring a Motion to Change to attempt to have R.E. released from the schedule after August 1st of the year that R.E. is entering grade 11.
d. The vacation/holiday terms as set out in Schedule “A” attached hereto.
e. The conduct terms in Schedule “B” and child support review terms in Schedule “C” attached hereto.
f. The respondent shall pay child support for the three children, A.I., A.C. and R.E. in the amount of $1,850 commencing January 1, 2022. The applicant is forbidden from seeking an increase in that child support amount for the period of the 2022 summer months that A.I. returns to the residence of the applicant and respondent from university.
g. The respondent shall pay to the applicant the sum of $17,802.08 being the adjustment of Child Support for the years 2018, 2019, 2020 and 2021, as described in the reasons above.
h. The respondent shall pay to the applicant the net sum of $9,358.65 for monies owed for section 7 expenses from September 2018 to December 31, 2021, except for A.I.’s university costs.
i. The respondent shall pay interest to the applicant in the sum of $7,382.45 for interest.
j. Section 7 expenses will be paid by the parents on a percentage basis of 29% to the applicant and 71% to the respondent commencing January 1, 2022.
k. For 2021, the estimated costs for section 7 expenses for A.C. is $300 and for R.E. is $3,000. Each parent shall be responsible per their respective percentages to a maximum total amount of $300 for A.C. and $3,000 for R.E.
l. The parent requesting the section 7 expense shall advise the other parent in writing before incurring the expense. Proof of the expense and payment must be provided before payment from the other parent is requested. Once provided, the parent making the payment shall provide that payment within seven days.
m. The terms concerning section 7 expenses as set out in Schedule “C” attached hereto.
n. The parents, with input from A.I., will attempt to resolve the amount of A.I.’s post secondary expenses and A.I.’s and each parent’s contribution, present and ongoing, for that expense. If the parties cannot resolve the issue, they may seek the assistance of a mediator or the Case Management Judge.
o. For the anticipated university costs for A.C. commencing September 2022, the parents may follow the same process used for A.I.
p. SDO to issue.
q. Either parent may request from the Senior Family Judge in Barrie that a Case Management Judge be appointed.
Costs
[229] If the parties cannot agree on costs, the applicant is to serve and file her submissions of costs within 30 days from the date of this Decision, and the respondent will have 30 days thereafter to serve and file his submissions. The submissions are to be no more than five pages, double spaced, exclusive of any cost outline and offers to settle. Any case law is to be hyperlinked in their submissions. There is no right to reply. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
Released: February 7, 2022.
Schedule “A”
Holiday and Vacation Schedule
Thanksgiving
- The children shall spend alternate years in the care of each party during the Thanksgiving weekend from Friday after school on Thanksgiving weekend until A.C. and R.E. return to school the following Tuesday morning. The Father shall have Thanksgiving weekend on odd numbered years and the Mother shall have Thanksgiving in even numbered years.
Winter Break and Christmas
- A.C. and R.E. shall equally share the holiday with both parents. One parent from after-school on the last day of school before the holiday (normally a Friday) until December 25th at 2:00 p.m., and with the other parent from December 25th at 2:00 p.m. for eight (8) consecutive nights ending at 2:00 p.m. January 2nd. A.C. and R.E. shall then reside with the first parent for the balance of the break, if any, ending on Monday morning at the commencement of school. The regular schedule shall thereafter resume. Starting at Christmas 2022 the Mother shall have the first week and the father shall have the second week. Alternating yearly thereafter.
Family Day
- There will be no special provisions for the Family Day holiday, and it will follow the regular parenting schedule.
Easter
- The Easter holiday will alternate yearly, in even years A.C. and R.E. will be with the applicant Mother, and in odd years with the respondent Father.
Victoria Day
- As per previous agreement there will be no special provisions for the Victoria Day holiday, and it will follow the regular parenting schedule.
March Break
- A.C. and R.E. shall reside in the care of each party in alternate years during the March School Break for the entire March Break holiday, from Friday after school until the return to school Monday morning. The Mother shall have in even numbered years and the Father shall have odd numbered years. Thereafter, the regular parenting schedule will resume.
Mother’s Day
- If Mother’s Day falls on the Father’s weekend, the children shall be in the care of their Mother from 11:00 a.m. to 9:00 p.m. The Father will drop off the children at their Mother’s house along with any requested equipment (e.g., golf clubs, baseball equipment.) Their Mother will return A.C. and R.E.to their Father’s house along with the equipment at the end of the visit.
Father’s Day
- If Father’s Day falls on the Mother’s weekend, the children shall be in the care of the Father from 11:00 a.m. to 9:00 p.m. The Mother will drop off the children at the Father’s house along with any requested equipment (e.g., golf clubs, baseball equipment.) The Father will return A.C and R.E. to the Mother’s house along with the equipment at the end of the visit.
Other Days
- The parents may agree to any other days or times. Such agreement shall be made in writing.
Schedule “B”
Parenting Guidelines and Principles
In relation to any dispute, conflict, or concern pertaining to the parties’ children, A.I., A.C. and R. E. (the children), the children’s needs and best interest shall be paramount. A.I. is released from the terms of this order and this order shall pertain to A.C. and R.E., but the parties will apply the same guidelines and principles to A.I.
The parents shall recognize the children’s need for good and ongoing relationships with both parents. The parents shall engage in all possible practical efforts to actively foster and facilitate the relationships between the children and the other party and/or members of the other parent’s extended family.
The parents shall refrain from any subtle or open denigration of the other party and/or members of their extended family in any communication with children and/or in their presence. The parents will also not permit, allow, or condone any third party any subtle or open denigration of the other party and/or members of their extended family in any communication with children and/or in their presence.
The parents shall refrain from any manner of conflict, subtle or open, in the presence of the children, and accordingly, relate to one another in a reasonable and cordial manner in all instances in which children are present or nearby, even when the parties think they are asleep and not listening.
The parents shall respect the privacy of the other party and, as such refrain from engaging the children in any discussion or questioning about the other party’s personal life or activities. The parents shall refrain from any form of interference, direct or indirect, open, and subtle, into the life, activities, or routines of the other party.
The parents shall mutually share with one another through Our Family Wizard or any other application they may agree, important information related to significant events in A.C’s or R.E.’s lives. Communication will be kept to a minimal amount and only when necessary and related to the children. Both parents will enable notifications, so they are alerted when a message has been issued. Neither will contact the other through any other means unless there is an emergency and the other parent has not received the OFW message or the agreed upon app. In this case the party will call or text the other and state there is an urgent message on Our Family Wizard or the agreed upon app.
The Court’s Jurisdiction for Parenting Orders
The applicant Mother shall have sole decision making of A.C. and R.E., including medical, dental, and educational.
The applicant Mother will consult with and seek the respondent Father’s opinion with respect to any decisions to be made on behalf of the children. The applicant will consult with and seek with A.C. and R.E. and consider their views and preferences.
Dr. Shely Polak
The parents and A.C. and R.E. shall participate in the therapeutic process with Dr. Shely Polak, as directed by Dr. Polak. The terms of this Final Order shall remain applicable to A.C. and R.E. and their participation shall continue, including after the age of 16 and 18 years old if necessary, or until determined by agreement of Dr. Polak.
The respondent Father will cover the cost Dr. Polak’s retainers once all party’s workplace benefits have been exhausted. Retainers shall be paid promptly.
Decision Making
- The applicant Mother shall retain:
a. A.C.’s and R.E.’s birth certificates and health cards
b. A.C.’s and R.E.’s passports
c. A.C.’s and R.E.’s health cards
The applicant shall have possession and control of the said passports and birth certificates, for the purposes of renewing the said passports and health cards dispensing with the respondent father’s consent for such renewals.
The applicant has the sole authority to consent to A.C.’s and R.E.’s travel. The applicant does not require the consent of the respondent to travel outside of Canada and that consent is hereby dispensed with. The applicant must consider the views and preferences of both children and make every effort to facilitate any reasonable requests to travel from the respondent Father and shall not act unreasonably to making such a decision for the Father to travel with the A.C. and R.E.
The respondent father will provide an itinerary to the applicant Mother at least 14 days before departure including all travel details, flight numbers, dates of travel, hotel information, and contact information to call etc. as soon as possible after details are finalized. The applicant will also provide an itinerary and forward all travel details to the respondent father at least 14 days before departure.
If the father plans a vacation outside Canada with A.C. and/or R.E., he will provide the applicant with a draft letter, or, if necessary, a travel authorization, for the applicant to execute and/or have notarized at least 14 days before departure.
Medical and Healthcare
If a major medical decision must be made with respect to A.C. or R.E.’s medical care and treatment, the Mother shall strongly weigh the views of the relevant physician, dentist, or other healthcare providers. The applicant will also strongly consider the views of the children, and the views and opinions of the respondent.
The parents will promptly notify each other immediately in the event of a medical emergency involving the children.
Education
The applicant Mother shall have sole decision making of A.C. and R.E., including educational needs.
Both parents may be a part of the Parent Portal and receive notices, newsletters Report Cards and information from the school.
R.E. and A.C. attend Bear Creek Secondary School. If either of them wishes to attend another school, their views and opinions will be strongly considered by the applicant.
Parents shall attend on the school premises to drop-off and pick-up A.C. and R.E. during their parenting week.
Both parents shall attend graduations and parties, and their families will be polite and respectful at these events.
Parents will arrange separate parent/teacher interviews if one is requested by the teacher unless determined by mutual agreement or requested by the school.
Extracurricular Activities
Either parent may shall attend school extracurricular activities of the children.
The parent will remain polite and respectful at these events and take all necessary measures to ensure their respective family member and friends are respectful and polite to the other parent and their family members and friends.
The parents and their respective family members and friends shall reman a fair and significant distance away from each other while attending these activities. Only with the written consent of both parents may this term be altered or removed.
A.C’s and R.E’s sporting and recreational equipment will follow them between their respective residences. The party who has the children in their care at the end of their parenting time will deliver A.C. and/or R.E., with any equipment, school items etc. to the home of the party beginning their parenting time. If the children are taking the bus from school, the parent whose home they are leaving will deliver the equipment etc. to the other parent’s home unless other arrangements are made via Our Family Wizard or any other app agreed upon.
The respondent will not coach or be involved in anyway with the coaching of any sporting activity or team of A.C. or R.E., until they reach the age of 18 years.
Schedule “C”
Section 7 Expenses - Current Expenses
- The following expenses shall automatically qualify:
a. All three children: medical and dental expenses not covered by either parent’s benefits will be covered through C.A.’s benefits should she continue to reside there and continue to carry coverage. Then any remaining expenses will be shared proportionately between the parents according to their percentages for that year.
b. A.I.: University expenses:
i. Tuition, rent, books, phone plan, direct University charges (e.g. transponder, fees);
ii. These costs will be paid based on the actual cost.
c. A.C. and R.E.:
i. School expenses over and above the day-to-day school expenses (e.g. expenses over $100.00);
ii. Team Registrations;
iii. Team Fees;
iv. Equipment (reasonable expenses).
Child Support – Annual Review
The parents shall exchange their T1 Income Tax Returns and Notices of Assessment or Reassessment to determine the Table Amount of child support and their respective contributions to the children’s section 7 expenses, by May 1st of each year, starting in 2022.
Based on this information, starting in 2022, the parties shall prospectively adjust the Table Amount of support payable, and their proportions to the children’s section 7 expenses, in accordance with their incomes from the previous year, with any change to come into effect on June 1st.
Both parents shall provide the other with confirmation and supporting documents of their section 7 expenses incurred in the prior year by no later than May 1st of each year. They shall reconcile them by no later than June 1st of each year (i.e.: if one party incurred a greater portion of these expenses in the prior year, the other party shall pay the outstanding balance to the other by June 1st.)
BARRIE COURT FILE NO.: FC-12-1007-01
ONTARIO
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
BETWEEN:
M.M.B.(V), Applicant
– and –
C. M.V., Respondent
DECISION ON FOCUSED TRIAL
Justice P.W. Sutherland
Released: February 7, 2022
[^1]: The Court has utilized initials and has not set out the names of the participants to protect the identity of the children. [^2]: R.S.C. 1985, c. 3 (2nd Supp) [^3]: A consent Final Order was granted by Jain J. on November 19, 2020 concerning A.I.’s residential arrangements and temporary Orders which included a request “that Dr. Polak provide the parties with an update report prior to December 4, 2020 (if possible).” [^4]: 2017 ONSC 3991 [^5]: Section 17 of the Divorce Act; LMP V. LS, 2011 SCC 64, [2011] 3 SCR 775, at paras. 66-67; N.L. v. R.R.M. 2016 ONCA 915, at paras. 26-29; Foley v. Foley 2016 ONSC 4925, at para. 169. [^6]: R.S.C. 1985, C. 3 (2nd Supp.), as amended on 2021-03-01. It should be noted that section 24 of the Children’s Law Reform Act RSO 1990 c. C. 12 has the similar language. [^7]: 1993 CanLII 34 (SCC), [1993] 4 SCR 3. Also see G(D) v. F(A) 2014 ONCA 436, at para. 33. [^8]: Decaen v. Decaen, 2013 ONCA 218, at paras 41-45; Moshero v. Kovalev, 2013 ONSC 5767, at paras. 46-48; M.L.S. v. N.E.D., 2017 SKQB 183 at paras.231-237. [^9]: 2016 ONSC 809 aff’d 2016 ONCA 915. [^10]: Supra note 9 at para. 150. [^11]: G.(D). v. F. (A.), 2015 CarswellOnt 6141 (CA) and Leelaratna v. Leelartna, 2018 ONSC 5983, 2018 CarswellOnt 16633 (SCJ). [^12]: SOR/97-175, as am. It should be noted that Ontario has similar Guidelines, O.Reg.391/97, as am. [^13]: S.(D.B.) v. G (S.R.), 2005 ABCA 2; W. (L.J.) v. R. (T.A.), 2005 ABCA 3,DBS v. SRG, 2006 SCC 37 [^14]: Ibid. [^15]: Lewi v. Lewi 2006 CanLII 15446 (Ont.CA) at paras. 126-130. [^16]: [2005] S.C.J. No.65, 2005 SCC 63. [^17]: Ibid. at paras. 39, 40, 49, 51, 52, 53, 57, 58 and 72. [^18]: 2019 ONSC 5060 [^19]: 2021 ONSC 2728 at paras. 51-56. [^20]: 2015 ONCJ 1at paras. 53-56. [^21]: Supra, note 15, paras. 317-334. [^22]: This is $4,318.73 times 3 which is $12,956.19. [^23]: See Exhibit X of the Applicant’s affidavit dated October 26, 2021. [^24]: Lewi v. Lewi, supra, note 12 and Razavi-Brahimi v. Ershadi 2007 ONCJ 406 at paras. 10-15. [^25]: Titova v. Titov, 2012 ONCA 864 [^26]: Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.) [^27]: This is reflected in the respondent’s factum at paragraph 202.