COURT FILE NO.: FC-FO-164/12-01 DATE: 2023/02/15
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Heather Lynn Hooper, also known as Heather Lynn Vince Applicant (Moving Party)
- and -
Robin Donald Jackson Respondent (Responding Party)
COUNSEL: Karen King, for the Applicant (Moving Party) Self-Represented, for the Respondent (Responding Party) P. Allen Skuce – Children’s Lawyer
HEARD: November 14, 15, 16, 2022
T.G. PRICE J.
Overview
[1] This trial was primarily about the extent to which a 13-year-old child gets to decide how much parenting time she has with a parent with whom she does not reside.
[2] It was the result of a Motion to Change brought by the Applicant, Heather Lynn Hooper (formerly Vince) (hereinafter, “Ms. Hooper”) in which she originally sought to change an order which provided for the parenting time of the Respondent, Robin Jackson (hereinafter, “Mr. Jackson”). The changes requested were said to have been based on their daughter’s increasing resistance to spending time with Mr. Jackson, which began to manifest itself when she was between the ages of eight and ten, and his unwillingness to discuss or agree to any changes to the order.
[3] Secondarily, the trial was about whether Mr. Jackson owes retroactive child support to Ms. Hooper based on him having excluded certain types of income - RRSP income, the exclusion of which was specifically permitted by a previous court order, amongst them - when determining his income for child support purposes.
[4] While there was a dispute about whether Mr. Jackson provided Ms. Hooper, annually, with proof of his income, it was agreed that he did, annually, adjust his child support. In doing so, however, he set the amount, informing Ms. Hooper that he had calculated the adjustments with the assistance of his lawyer and that, as a result, the amount he was paying Ms. Hooper each year was correct.
[5] Lastly, Ms. Hooper claimed unpaid s. 7 expenses for the years 2021 and 2022.
Previous Orders
[6] The parties were previously before the court and the issues between them were resolved by three partial final orders. The first, dated May 9, 2014, dealt with child support and s. 7 expenses. The second, dated June 23, 2014, addressed what was then known as custody. The third, dated September 24, 2014, dealt with the Respondent’s parenting time.
Order
[7] For the reasons that follow, I make the following order:
- The child E. J.-V. shall have parenting time with the Respondent, Robin Jackson at her discretion and, to the extent that this order varies the parenting time provisions of the order of Justice O’Dea dated September 24, 2014, this order prevails.
- The Respondent, Robin Jackson, owes arrears of child support for the child E. J.-V. for the period between January 1, 2015 and December 31, 2022, in the amount of $2,218.67.
- The Respondent, Robin Jackson, shall pay the arrears of child support to the Applicant, Heather Lynn Hooper, through the Family Responsibility Office, at the rate of $123.26 per month, commencing April 1, 2023, and continuing on the first day of each month thereafter until paid in full.
- The Respondent, Robin Jackson, owes arrears of s. 7 expenses incurred for the child E. J.-V. for 2021 and 2022, together with his contribution to the cost of the child’s braces for January 2023, in the amount of $3,224.25.
- The Respondent, Robin Jackson, shall pay the said arrears of s. 7 expenses to the Applicant, Heather Lynn Hooper, in the monthly amount of $322.43, through the Family Responsibility Office, on the first day of each month, commencing April 1, 2023, and continuing on the first day of each month thereafter until paid in full.
- Commencing February 15, 2023 and on the 15th day of each succeeding month until and including September 15, 2023, the Respondent Robin Jackson shall also pay the Applicant, Heather Lynn Hooper, through the Family Responsibility Office, the sum of $137.60, which equals 50% of the remaining orthodontic payments for the months of February through September, 2023, inclusive, under the contract signed by Ms. Hooper on September 15, 2021.
- Any further orthodontic expenses for the child E. J.-V., beyond those already specified in the contract between the Applicant, Heather Lynn Hooper, E.’s orthodontist, which provides for payments to and including September 15, 2023, must be agreed upon by the Respondent, Robin Jackson, whose agreement cannot be unreasonably withheld, as provided for by the order of Justice O’Dea dated May 9, 2014.
- The parties may make written submissions about costs. They shall not exceed five typewritten pages in Times New Roman 12-point font at 1.5 line spacing. They shall be accompanied by a Bill of Costs, and Ms. King’s shall include information about the fees and disbursements she has charged to her client. All submissions must be served and filed with the Trial Coordinator by March 3, 2023. If no submissions are received, no costs shall be payable by any party.
Issue #1: Mr. Jackson’s Parenting Time
Ms. Hooper’s Evidence
[8] The parties’ child who is the subject of this proceeding is E., who is now 13 years of age.
[9] Briefly, the parties cohabited between September 2008 and February 2009, at which time they separated. They resumed cohabitation in May 2009, when both knew that Ms. Hooper was pregnant. They finally separated in June 2012, shortly before E. turned three.
[10] E. was five years of age when the order setting Mr. Jackson’s parenting time was made on September 24, 2014. A term of that order provided for E. to have midweek parenting time with Mr. Jackson in the morning, before school, for about 45 minutes. If there was to be no school, the parenting time was to occur between 8:00 a.m. and 2:00 p.m. The order further provided Mr. Jackson with weekend parenting time.
[11] In the early years, E. attended her visits with Mr. Jackson without a problem.
[12] While the start time of Saturday visits became an issue for E. as she aged, a much more problematic issue emerged in or about 2017 or 2018, when E. was eight or nine years old.
E.’s Resistance to Midweek Parenting Time
[13] At that time, E., who was difficult to get out of bed in the morning, became resistant to attending the very brief midweek morning parenting time with Mr. Jackson. Oftentimes, according to Ms. Hooper, E. would be driven to her father’s house for her visit, only to get in his car and then be driven by him to school.
[14] When E.’s resistance to the midweek parenting time first manifested itself, Ms. Hooper would try to bribe her to attend, take away her tablet or threaten other repercussions if she did not go. She would also sometimes appeal to E.’s emotions, asking her to consider how Mr. Jackson might feel about her not attending. This was often the most successful technique that she used to get a recalcitrant E. to attend the midweek morning parenting time with Mr. Jackson.
[15] On several occasions, however, Ms. Hooper was late arriving at Mr. Jackson’s residence in the morning because she had spent time arguing with E. about going there.
[16] Despite this, however, according to Ms. Hooper, E. never ultimately refused to visit Mr. Jackson before she turned ten.
[17] As E. aged, however, she expressed the wish to go to school in the morning with her friends on the school bus. She had also concluded that there was not much utility, from her perspective, in driving to her father’s residence only to be driven to the school by him.
[18] Following the birth of her youngest child, whose father is her current partner, Ms. Hooper raised with Mr. Jackson a possible solution to E.’s resistance to visiting him at home in the morning before school. She suggested that he drive to her house to spend time with E. before then driving her to school. She said he did so only occasionally.
[19] When asked to weigh in on possible solutions to E.’s resistance, about which Ms. Hooper kept Mr. Jackson informed, Mr. Jackson offered none.
[20] Ms. Hooper said that, by the time E. turned ten, she could no longer negotiate with her about her midweek attendance at his residence. Her resistance had become consistent to the point that Ms. Hooper did not look forward to the mornings when E. would have to visit her father.
Commencement of Motion to Change
[21] Finally, on December 4, 2019, Ms. Hooper brought this Motion to Change. According to her, she did so because of Mr. Jackson’s failure to help in addressing or trying to resolve E.’s resistance to visiting him midweek. At that time, E. was still attending her weekend and midweek visits with Mr. Jackson, albeit the latter occurring with much resistance.
[22] In her Motion to Change, Ms. Hooper only sought to delete the provision of the order of September 24, 2014 which afforded Mr. Jackson midweek, before school, parenting time.
[23] Concurrently, Ms. Hooper attempted to engage with Mr. Jackson in an effort to resolve the dispute and made proposals to him to ensure that, if he were to agree to the change she sought, he would get additional time at other times during the week.
[24] In his Response to Motion to Change, Mr. Jackson disagreed with making any changes to the mid-week morning parenting time, providing his reasons for disagreeing.
[25] While the parties moved forward with their litigation, E.’s struggles with mid-week parenting time continued, as did Ms. Hooper’s efforts to get her to attend.
August 2020 - E.’s Removal from School
[26] With the onset of the pandemic, internet connectivity became a problem in the Hooper household. The family had moved to a rural area. With that, and in-person school attendance on hold, beginning in August 2020, Ms. Hooper began to home-school her and her partner’s children. She sent out emails to Mr. Jackson to inform him of E.’s progress in her home-schooling program. She said that he did not otherwise seek any information.
Onset of E.’s Anxiety
[27] In or about October 2020, Ms. Hooper began to see signs that E. was engaging in self-harming behaviours. The signs included E. pulling out large chunks of her hair. She told Mr. Jackson of her concerns about E.’s behaviours.
[28] Ms. Hooper also contacted Mr. Jackson to obtain his help in getting treatment or care for E. According to her, she received no response. He failed to reply to texts or emails asking him to become involved.
[29] By December 2020, the bald spots on E.’s head were becoming increasingly noticeable and Ms. Hooper concerns about E.’s emotional health were deepening. As a result, she decided that E. needed to see her pediatrician.
[30] Around the time of her December 2020 visits, E.’s resistance to attending parenting time with Mr. Jackson was growing. She would ask if she could go home after school on the bus which would interfere with after-school parenting time.
[31] There were also discussions about E.’s desire to spend less time with her father over Christmas. Justice O’Dea’s order of September 24, 2014 divided parenting time equally between December 24-26 on an alternating yearly basis and included a procedure by which the parties would divide the balance of E.’s Christmas vacation time.
Incident of December 29, 2020
[32] Meanwhile, the situation worsened materially during the Christmas holiday in 2020. As Ms. Hooper tells it, during one of E.’s parenting time visits with Mr. Jackson - seemingly that of December 29, 2020 - something occurred between E. and her father about which, despite her efforts to learn what it was, Ms. Hooper claimed she still did not know the details when she testified at trial.
[33] What she did know was that, during the visit, she received several distraught text messages from E., which caused Ms. Hooper to be concerned about E.’s well-being. She contacted Mr. Jackson, who told her that an issue which had developed between him and E. had been dealt with.
[34] When Ms. Hooper then contacted E. to inform her of her discussion with Mr. Jackson, E. asked that she be picked up immediately.
[35] Despite Mr. Jackson suggesting that actions taken by her over the 2020 Christmas period contributed to his problems with E., Ms. Hooper said she had nothing to do with the events that occurred between Mr. Jackson and E. in December 2020.
[36] While she acknowledged sometimes telling E. that she missed her when E. was with her father, she denied that she had done so on December 29, 2020, as Mr. Jackson alleged. She also pointed out that a cat referred to by Mr. Jackson in his questions was not obtained until May 2021, so his claim that she used the cat to lure E. away from him in December 2020 could not have occurred.
[37] After speaking with E., Ms. Hooper again contacted Mr. Jackson, who told her that his girlfriend was coming over to discuss with E. the issue that had occurred between him and E. No specifics were provided to Ms. Hooper.
January 2021 – E. Refuses Parenting Time
[38] Whatever might have occurred between E. and Mr. Jackson in late December 2020, toward the end of January, 2021, on one of the dates when E. was to visit with Mr. Jackson, she refused to go. Ms. Hooper told Mr. Jackson of E.’s refusal. E. has not visited or directly communicated with her father since then.
[39] When asked by Mr. Jackson why E.’s parenting time had dwindled to nothing, Ms. Hooper said that she did not know why it had stopped. She said that she always encouraged E. to visit with her father.
[40] She also told Mr. Jackson at trial that she believes he is a good father. She said she would never undermine his and E.’s relationship. When pressed on this point, Ms. Hooper responded that E. is a strong-willed girl whose feelings are her own.
Email of January 28, 2021 and Subsequent Communications
[41] On January 28, 2021, Ms. Hooper sent an e-mail to Mr. Jackson. In it, she reported on E.’s attendance with her pediatrician, who suggested that she be placed on anti-anxiety medication and that she begin counselling.
[42] Ms. Hooper told Mr. Jackson of E.’s circumstances at that time, writing, in part:
“… As you are aware, E. has not been herself recently and has been pulling out her hair. E. has approached me and asked me to please help her… she is feeling lost and not even recognizing when she pulls her hair out.
At this time, E. isn’t herself. I know that you and I discussed this during the Christmas break when E. had her break down, and prior to this one E. has broken into crying episodes at your house. I know we discussed how she likes to isolate herself and that happens at both homes…. She is obviously struggling with something and I am hopeful that working together through this will help her.
In the meantime, I hope that you will respect E. and her mental health. She may not always want to leave her room or come to your house (as indicated in these past two mornings)… I know you miss her… I miss her too…
I have asked E. to communicate with you and I as much as she can. Communicating isn’t her strong suit right now.”
[43] Ms. Hooper confirmed that the descriptions of E.’s behaviour as set out in her email were accurate. She also testified that she received no response to this email.
[44] Ms. Hooper told Mr. Skuce that she believes that the events which led her to describe E. as she did in her email to Mr. Jackson dated January 28, 2021 built up over time. She said that, when she wrote her email to Mr. Jackson on January 28, 2021, E. was at a breaking point.
[45] Ms. Hooper cited some unspecified comments by E. as a cause for her to conclude that E.’s relationship with Mr. Jackson was the primary cause for her bleak state, but not its sole cause. Ms. Hooper also attributed Covid isolation to E.’s deteriorated mental health.
[46] On February 2, 2021, Ms. Hooper’s counsel, Ms. King, wrote to Mr. Jackson to report that Ms. Hooper had told her that E. had been refusing to attend for visits in the morning and had generally not been herself. She further told Mr. Jackson that, because it appeared that the parties were unable to agree on what was best for E., the involvement of the Office of the Children’s Lawyer might be best. She asked for his response and indicated that she had been instructed to bring a motion if he did not agree.
[47] In a text to Mr. Jackson sent at 4 PM on February 3, 2021, Ms. Hooper told him E. was refusing to come for her visit. She also informed him that she needed his permission for E. to begin counselling. She asked that he send an email as soon as possible in order that E. could begin her counselling.
[48] In a responding brief text message, Mr. Jackson told Ms. Hooper that she had “an obligation to follow the court order” and that he hoped “to see [E.] soon.” According to Ms. Hooper, this was an example of Mr. Jackson’s use of the terms of Justice O’Dea’s order as a means of demanding her compliance, regardless of the situation or E.’s condition or feelings.
[49] On February 4, 2021, Ms. Hooper again sent a text message to Mr. Jackson informing him that E. was “flat-out refusing to come to your house. She also said not to ask her tomorrow about coming to your house for the weekend because she doesn’t want to. I will try again tomorrow… She’s very shut off to any of my trying to convince her.”
[50] She reiterated her request that he send her an email granting permission for E. to begin counselling. At the end of her text message, she wrote: “This isn’t E. We need to get her into talk to someone. Please.”
[51] Instead of communicating with Ms. Hooper about a consent for E. to attend counselling, Mr. Jackson attended the pharmacy which filled the prescription for her anti-anxiety medication to ask about it. This bothered Ms. Hooper and she expressed her concern to Mr. Jackson in an email.
Justice Campbell’s Order of February 25, 2021
[52] When Mr. Jackson continued to avoid addressing the request for his consent for E. to attend counselling, Ms. Hooper brought a motion. She obtained an order from Justice Campbell on February 25, 2021, allowing for E. to be registered in counselling without Mr. Jackson’s consent. Justice Campbell also ordered that the Office of the Children’s Lawyer be requested to provide counsel for E. (Mr. Skuce was eventually appointed.)
[53] At Ms. Hooper’s request, Justice Campbell also made an interim order that Mr. Jackson’s parenting time with E. be at E.’s discretion. The order, however, required that the matter be returned to the court in 60 days to see whether or not the counselling had assisted in re-establishing E.’s contact with Mr. Jackson.
[54] Unfortunately, the matter did not return in 60 days. It did in August 2021, instead. At that time, Justice Campbell extended E.’s discretionary right to decide whether or not Mr. Jackson’s parenting time might occur.
[55] Justice Campbell also ordered that on the next return date, which was to occur within 90 days, E.’s counsellor should provide a report. A further return date did not occur, and the counsellor failed to provide a report.
[56] Ms. Hooper also testified that she continued, after January 2021, to encourage E. to attend for parenting time with Mr. Jackson, so much so that E.’s counsellor told her to stop pressuring E. on the point. Now, she said, if E. is asked if she wishes to see Mr. Jackson, she will respond that she is not interested.
[57] She testified that she believed that, if E. had the discretion to determine when she might spend time with Mr. Jackson, she would likely reach out “within a month” to him to attempt to schedule time together.
E.’s Counselling
[58] According to Ms. Hooper, E. benefitted significantly from her counselling. She said that E.’s hair began to grow back approximately six months after she began her counselling, which she terminated in November 2021 and to which, at the time of trial, she was not planning to return. E. also stopped taking her prescribed anti-anxiety medication after six months.
Other Parenting Issues
[59] By her own admission, Ms. Hooper acknowledged that she did not always keep Mr. Jackson informed about significant events in E.’s life.
[60] She blamed her “occasional” failure to provide information to Mr. Jackson on what she described as extreme communication difficulties between her and Mr. Jackson.
[61] As to that, she agreed with Mr. Skuce that E. has never known a time when there was not conflict between her parents.
[62] For example, Ms. Hooper acknowledged that there were times when she did not tell Mr. Jackson about E. being on medication for ADHD, a condition with which she was first diagnosed in 2015. The rationale for her occasional silence on this point, according to Ms. Hooper, lies in the fact that Mr. Jackson refuses to accept the diagnosis. The disagreement over E.’s condition reached the point that Dr. Jack Albin, a psychologist, recommended describing E. as having “ADHD-like symptoms,” a term he devised to sidestep the potential difficulties posed by Mr. Jackson’s unwillingness to acknowledge E.’s actual diagnosis.
[63] Ms. Hooper also agreed that she sometimes lied to Mr. Jackson about why E. would not go see him. She justified doing so to protect E.
[64] A more recent example of information being withheld from Mr. Jackson occurred in 2022, when E. began to attend a private Christian school in St. Thomas. Ms. Hooper said nothing about this to Mr. Jackson. She testified that she had remained silent at E.’s request, an act which she admitted at trial was “likely an error in judgment.”
[65] According to Ms. Hooper, E. is doing well at her new school.
[66] Ms. Hooper further acknowledged times when she denied giving more parenting time to Mr. Jackson despite the fact that the order of Justice O’Dea allowed for its expansion beyond that specified in his order of September 24, 2014. She also said, however, that Mr. Jackson was “sometimes” given his additional parenting time.
Mr. Jackson’s Evidence
[67] Mr. Jackson claimed that he could not understand why E. refused to see him any longer. He did acknowledge that, while she is getting older, he thought things were working well under the orders of Justice O’Dea.
[68] By the time of the trial, his main concern was wanting to know how to re-establish a relationship with her.
[69] On more than one occasion in his evidence, he described his relationship with E. prior to January 2021 as a “perfect father/daughter relationship.” According to him, E. had a lot of freedom and could do whatever she wanted while with him.
[70] He described what he saw as a slowly diminishing relationship between him and E. beginning with E. changing schools from Pierre Elliott Trudeau French Immersion to Southwold Public School when Ms. Hooper, her partner and the children moved out of St. Thomas into the nearby rural area. He saw the move as a step to separate him from E.
[71] He wondered if E. had been set up, presumably by Ms. Hooper, to struggle in the French immersion program at Pierre Elliott Trudeau Public School in order to force a move from that school.
Parenting with Ms. Hooper
[72] Mr. Jackson testified that he was never asked for input into decisions affecting E. and when any was offered by him, Ms. Hooper generally ignored it.
[73] He confirmed that he only learned of E. attending the private Christian school in St. Thomas at trial because Ms. Hooper had told him nothing about it.
ADHD
[74] Mr. Jackson gave some conflicting evidence about his knowledge of E. having been prescribed medications for ADHD, a condition which he does not believe she has.
[75] While he agreed that he had been present when Dr. Bertoldi examined E., he said that he had no recollection of Dr. Bertoldi either saying that E. had ADHD or prescribing medication for its treatment. However, he also testified that someone had prescribed ADHD medication for E. in 2015 but that he did not know who had done so.
[76] He further testified that Ms. Hooper never told him whether or not E. had taken any of the medications prescribed for her ADHD. Despite this, according to his evidence, he did learn that E. had been taking medication for ADHD when he was called to Pierre Elliott Trudeau Public School to discuss some incident in which she was involved.
[77] According to Mr. Jackson, Dr. Jack Albin saw E. because Mr. Jackson wanted independent confirmation of Dr. Bertoldi’s diagnosis. Mr. Jackson asserted that Dr. Albin determined E. to be “a borderline genius.”
[78] When pressed on his position about whether or not E. has ADHD, Mr. Jackson conceded that she “might have some things” but he also said that other “things”, such as “proteins and her medications” could affect her behaviour. Mr. Jackson seemed to have an interest in nutrition because he repeatedly talked about E. making healthy choices about what she consumed in preference to the taking of medications.
[79] Despite the contradictory evidence about whether or not E. had ADHD, there was no evidence that she was taking medication for it in late 2020 or early 2021, when the key events in the case occurred.
Events of December 2020
[80] When asked about what happened in December 2019, Mr. Jackson’s evidence was difficult to follow.
[81] At one point, he spoke about E., him, and his girlfriend watching a movie during which it seemed to him that E. was communicating with Ms. Hooper who, he felt, was trying to lure E. home. He said that this confused E., who was being made to feel guilty for being with him.
[82] He said that E. asked if she could go home to be with her mother and he told her she could not. This upset E. As a result, Mr. Jackson and his girlfriend spoke to E. in an effort to persuade her to stay with them.
[83] He said the result of the discussion was that E. was satisfied to stay and went to bed without issue.
[84] However, he also testified that his girlfriend continued to speak with E. in her room for a further 30 minutes in an effort to soothe her feelings. She was said to have then emerged from E.’s room, telling him that E. “just wants to be heard.” The implication, as he saw it, was that Ms. Hooper was neither listening to E. nor giving her much freedom.
[85] When asked by Mr. Skuce about the events of that evening, Mr. Jackson claimed to not recall being told by Mr. Skuce at the OCL disclosure meeting that E. was significantly affected and upset by the fact that she could not leave Mr. Jackson’s residence to go home to be with her mother.
[86] Mr. Jackson also confirmed that, at some point that evening, he and Ms. Hooper spoke by telephone and that he had told her that there were no issues with E.
[87] His description of their conversation beyond that, however, rambled and somewhat muddled, including reference to a comment made by him to Ms. Hooper about a credit card issue, and Ms. Hooper having attacked him about some event involving one of his former girlfriends. There was also some discussion about E.’s hygiene and her use of his tablet.
Events Following December 2020
Ms. Hooper’s Email of January 28, 2021
[88] Mr. Jackson’s next visit following the events of December, 2020 occurred in late January, 2021. Following what he thought was a good visit, he returned E. to Ms. Hooper on the Saturday morning. He said that he was surprised when he received Ms. Hooper’s email of January 28, 2021.
[89] When cross-examined about some of the matters raised by Ms. Hooper in the e-mail, Mr. Jackson said that he was unable to figure out what might be wrong with E. based on Ms. Hooper’s email because he saw nothing amiss with E. when she came to his house.
[90] When asked about E.’s alleged anxiety, he denied that she was afflicted by it “at all.” More than once, he cited the absence of any issues with E.’s health, or her showing any signs of or anxiety, when she attended his home.
[91] When asked if he had seen the bald spots on E.’s head in December 2020 that Ms. Hooper wrote about in her email as a sign of E.’s anxiety, he said he did not. When it was pointed out by Ms. King that the bald spots were said by Ms. Hooper to be, in some instances, as large as a baseball, Mr. Jackson continued to assert that he did not see them.
[92] Mr. Jackson further asserted that he was never told about E. having anxiety, and that he did not find out that she had received medication for anxiety until he received notice from his insurer that a claim had been put in.
[93] When asked why he did not respond to Ms. Hooper’s email of January 28, 2021, or speak with Dr. Ndur, who had prescribed the anti-anxiety medication, he questioned why he would need to do so. He said that having received the information about the medication from the pharmacy, he saw no need to speak with either Ms. Hooper or Dr. Ndur about E.’s condition or her need for medication.
E.’s Participation in Counselling
[94] When Mr. Jackson was asked why he did not consent to E. going to counselling, he said it was because he was not consulted about the need for it.
[95] He also said that he wondered why E. would go to counselling when she could simply speak with him. He suggested that E. could talk to him just like a counsellor, because no one would know E. like him or her mother. As a result, he was of the opinion that a third-party service provider, such as a counsellor, would be less able to help her.
[96] However, when questioned about his opinion by Mr. Skuce, he did agree with the suggestion that, because parents can have different views of a situation, as they do with respect to E.’s circumstances, neither is ideally suited to give advice on issues in dispute. He also accepted that Mr. Skuce, as a neutral third party, would possibly be better suited to speak on E.’s behalf.
[97] He then disclosed that he had a female friend who was a school lunch monitor at Pierre Elliott Trudeau Public school when E. attended there. He said that this person, of her own accord, had been monitoring the lunches that E. brought to school and reporting about their quality to him.
[98] Mr. Jackson also said this person became somewhat of a confidant to E., sitting outside with E. on a bench during her lunch break. Mr. Jackson said that E. did not know of the connection between this person and him.
E.’s Vacation Visit
[99] This incident seemed particularly to bother Mr. Jackson. He testified that, in 2021, he had a discussion via Snapchat with E. about vacation time. She was said to have told him that she would need to speak with her mother before she could confirm that she would be going.
[100] Mr. Jackson saw this as evidence that E. did not actually have discretion to decide whether or not she would attend her parenting time. He felt that it was evidence that she was under the control of her mother. [1]
Termination of E.’s Communications
[101] Mr. Jackson spoke of his concern that E. had stopped communicating with him and had blocked him from contacting her. He said he did not know why they had lost contact, but he suspected that E. had been coached on what to say to him when they spoke, or manipulated, presumably by Ms. Hooper.
[102] According to him, he and E. had been communicating via Snapchat. He said that when he was communicating with E., he sent her messages every day and night, often telling her how much he loved her. He revealed that before E. blocked him, he “did hear something about repetitiveness.” Sometime thereafter, his messages with E. simply disappeared, and he lost the ability to contact her. He then claimed that he could not even be certain that he was communicating with E. when they communicated via Snapchat.
[103] He acknowledged making no effort thereafter to communicate with E. through Mr. Skuce or by sending her a letter. He admitted not sending her a birthday card. He did, however, write something for her on Facebook.
[104] He commented that, because everything was subject to E.’s wishes (as a result of Justice Campbell’s order), he simply sat back and waited to see if she would contact him when she was given the power to determine whether or not parenting time would occur. She had not done so by the time of trial.
[105] He said that he always told E. that she has a voice and can speak up. He was now finding it hard to accept that she is ignoring him.
E.’s Failed Attempts to Re-Establish Contact
[106] When Mr. Jackson was asked about proposals for trying to resume his relationship with E., he spoke of originally being open to some counselling but, having spoken with E.’s counsellor, he claimed that she never got back to him.
[107] He said that the door was always open for E. to communicate with him and to come see him.
[108] He was asked about E. having offered to spend time with him on August 11, 2021 and his failure to positively respond. Mr. Jackson seemed to offer up two justifications for his failure to spend time with E. on August 11, 2021.
[109] First, he noted that, in the period immediately prior to August 11, 2021, E. was to have been in his care for two weeks of vacation but she had failed to attend.
[110] Second, according to Mr. Jackson, August 11, 2021 fell within a period allotted to Ms. Hooper for vacation time with E and he did not wish to interfere. He seemed to be perplexed by the suggestion that he could have called Ms. Hooper to ask whether she would be willing to give up a day of her vacation to allow E. to spend time with him. He asked why he would do such a thing.
[111] More recently, E. reached out to Mr. Jackson in an effort to try and rekindle their relationship. She communicated through Mr. Skuce. Her proposal was that Mr. Jackson come to the farm where she, Ms. Hooper and other members of her stepfamily were residing, to go for a walk together and just talk. Mr. Jackson did not respond.
[112] He testified that he failed to do so because he was not certain that the message being delivered by Mr. Skuce was authentic. He added that, even if it was, he did not wish to go to Ms. Hooper’s farm because, during a prior attendance to retrieve E., Ms. Hooper had told him to get off the property because he was scaring the other children.
Returning E.’s Personal Effects
[113] When asked about an email that was sent to him about some items that E. wanted to be returned from his residence, Mr. Jackson responded by questioning whether E., a teenager, could “navigate an email.” When asked if he would return the items, he said he would not. They were to remain at his house because, if they left there, E. would have nothing at his house.
Mr. Jackson’s Proposals Regarding Parenting
[114] When asked to detail for the court the resolution he was seeking in respect of the parenting issues, Mr. Jackson made two suggestions. Underlying each was his belief that E. should not have the discretion to decide whether or not parenting time would occur.
[115] Two other terms were common to both suggestions - that he would have sole decision-making responsibility and that the order would include a police enforcement clause.
[116] His first suggestion provided for E. to gradually transition from residing with Ms. Hooper to residing with him and Ms. Hooper would pay child support.
[117] His second, and alternate, suggestion was that he and Ms. Hooper would share parenting time, and neither would pay any child support to the other.
[118] When asked by Mr. Skuce about the police enforcement order, Mr. Jackson was unable to detail how E. would get to his house if she chose not to go there and the police refused to force her to do so.
[119] Mr. Jackson conceded that he made his proposals knowing that there was evidence of a strong emotional tie between E. and Ms. Hooper. He also acknowledged that his proposal would remove E. from residing with her stepsiblings.
[120] When asked about E.’s request to have some say in events that affect her life, he allowed that she could decide how she would structure her holidays and with whom she would spend them.
E.’s Views and Preferences
[121] The parties had agreed at the outset of trial that E.’s views and preferences could be communicated to the court through Mr. Skuce. He informed me that E. wants Mr. Jackson’s parenting time to continue to occur at her discretion.
Mr. Jackson’s Responses to E.’s Views and Preferences
[122] Despite knowing of E.’s views and preferences, Mr. Jackson repeatedly said during the trial that he did not know what E. really wanted because he had not heard it from her directly.
[123] He did not seem to accept the authenticity of what was being said to him by Mr. Skuce and he found reasons to not believe the evidence of Ms. Hooper. His concern about what Mr. Skuce told him was that he could not be certain that E. was not being influenced by Ms. Hooper in providing her instructions to Mr. Skuce, even though Mr. Skuce had told the court that he was satisfied that E.’s instructions were not formulated as a result of pressure from Ms. Hooper.
[124] Despite his claimed uncertainty about E.’s instructions to Mr. Skuce, Mr. Jackson also agreed that he could not say that E.’s wishes were other than what she was expressing to Mr. Skuce. He also conceded that he had no other evidence to say what E.’s wishes were because he had not seen her for two years.
[125] When asked, Mr. Jackson said that he did not recall being told by Mr. Skuce during an OCL disclosure meeting that E. had asked him to tell her father that she views him as “self-focused, always putting himself first.”
[126] When Mr. Skuce asked him if he could report to E. that her father agreed to modify how he behaved during their interactions because of her comments about not liking his personality, Mr. Jackson equivocated in responding.
[127] Despite Mr. Skuce’s pointed questions, Mr. Jackson continued to claim that it bothered him to not know how E. came to the views that she did. He also found it hard to accept that her relationship with him had changed over time.
Submissions
Ms. King
[128] In her submissions, Ms. King:
a. asserted that Mr. Jackson takes no responsibility for E.’s circumstances or the state of their relationship; b. rejected his claim that he knew nothing of E.’s anxiety, as she also dismissed his claim that he never saw any bald spot on her head; c. called Mr. Jackson “rigid,” claiming that his rigidity could be seen in how he dealt with issues, his relationship with E., his interpretation of the court orders and his responses to issues about E. raised by Ms. Hooper; d. said that Mr. Jackson’s evidence and demeanor laid bare his intense dislike of Ms. Hooper, suggesting that this would have been evident to E.; e. noted his refusal to compromise on issues and his failure to offer reasonable solutions to the difficulties affecting E., citing his refusal to speak with Ms. Hooper about E.’s proposal to see him on August 11, 2021; f. dismissed Mr. Jackson’s assertion that Ms. Hooper was alienating E., saying that, not only was there no evidence to that effect, the evidence adduced established the contrary - that Ms. Hooper actively encouraged E.’s relationship with Mr. Jackson; and g. labelled his proposals for resolution “extreme”, without any suggestion about how E. would transition from living with her mother to living with him.
[129] She asked me to compare Mr. Jackson’s evidence with that of Ms. Hooper, who she described as empathetic, showing sympathy to Mr. Jackson, testifying that he is a good father. She further noted that Ms. Hooper is open to having E.’s parenting time reinstated.
[130] She submitted that the onus is on Mr. Jackson to initiate the steps to show E. that he wants to reconcile with her and that he had done nothing in that regard.
[131] Lastly, she asked that all parenting time be subject to E.’s wishes to protect her from being forced to do something she does not want to do.
Mr. Jackson
[132] Apart from reiterating some of his evidence, Mr. Jackson tied the diminishment of his parenting time to the move out of St. Thomas by Ms. Hooper and her new family.
[133] He also conceded that damage had been done to his relationship with E. but said that he does not know what to do to make right his relationship with her.
Mr. Skuce
[134] On behalf of E., Mr. Skuce asked that I order Mr. Jackson’s parenting time with E. to be at her discretion.
[135] He told me that E. was pessimistic about her father ever changing his approach to her and said that she was not happy about how he interacts with her. As a result, he told me that E. wants no interaction with her father at this point.
[136] He noted that rigidity seemed to be a family trait, suggesting that, like her father, E. could be prone to rigid thoughts.
[137] He asserted that Mr. Jackson had “overplayed his hand,” suggesting that Mr. Jackson did not understand the extent to which any future relationship with E. was at risk.
[138] He urged Mr. Jackson to take the first step in trying to rekindle his relationship with E.
[139] He told me that he was satisfied that E.’s instructions, together with the views and preferences that she expressed to him, were authentic. He rejected Mr. Jackson’s claim that they were dictated or mandated by Ms. Hooper.
[140] Acknowledging that the evidence demonstrated a previously good father/daughter relationship, he asserted that Mr. Jackson needs to adapt to the changing reality of his relationship with E.
Analysis
[141] This case began as a simple request to vary only slightly an order as to when Mr. Jackson would have parenting time with E. By the time the matter came before me for trial, that simple request had blown up into a full-scale case of parent/child estrangement.
[142] That the proceeding had to be brought at all is evidence of parental unwillingness to bend on the issue of “rights”, a refusal to acknowledge a maturing child’s reasonable request for time with friends and a failure to respect the fact that a child’s needs will change as she gets older.
[143] Mr. Jackson has not had any relationship with E. for almost 2 years. That is a tragedy for both, and I find that it is, to a much greater extent, of Mr. Jackson’s making. While Ms. Hooper also bears some responsibility, it is of a lesser extent.
[144] Where there was conflict in the evidence of the parties, I prefer the evidence of Ms. Hooper to that of Mr. Jackson.
[145] For example, I do not accept the evidence of Mr. Jackson that he had absolutely no knowledge of the anxiety being felt by E. in late 2020 and early 2021, especially when Ms. Hooper wrote him about it in January 2021 and included references to earlier discussions about E.’s anxiety.
[146] I also do not accept Mr. Jackson’s evidence that he had no knowledge of E. pulling out her hair in late 2020, particularly when Ms. Hooper graphically described the amount of hair being removed by E., leaving large bald spots.
[147] I also find that Mr. Jackson too often ignored Ms. Hooper’s pleas that he communicate with her about E. to see if they could collectively help her.
[148] It is not difficult, however, to understand why Mr. Jackson felt ignored when it came to making decisions about E.’s life.
[149] For that, Ms. Hooper is subject to criticism. By her own admission, she withheld information from him despite the parties having joint custody of E. She did not always try to involve him in decisions about significant events in E.’s life – such as the decision to home-school E., an act that, by her own estimation, isolated E. and likely contributed to the deterioration of her mental health. She sometimes lied to him, doing so, as she saw it, to protect E. Historically, and despite his requests for more time with E., she sometimes refused to give him parenting time beyond the minimum amount set by Justice O’Dea’s order. She withheld information, such as the fact that E. had begun to attend a private Christian school in St. Thomas.
[150] I find that these actions contributed to the growing divide between E. and Mr. Jackson, as E. likely saw him as a person with a lesser role in her life than her mother.
[151] Some of these acts were violations of Justice O’Dea’s order of June 23, 2014, which provided the parties with joint custody of E. The order further provided that, if the parties could not agree on a decision about E. after there had been a full opportunity for consultation and input from both, the final decision was to be made by Ms. Hooper, without prejudice to Mr. Jackson’s option to refer the issue to a court of competent jurisdiction. Mr. Jackson could not challenge a decision about which he knew nothing.
[152] On the one hand, one can feel some sympathy for Ms. Hooper, given that she was faced with deciding whether to inform Mr. Jackson about or involve him in certain decisions. She was put in the position of having to balance his apparent unwillingness to cooperate with her because of his antipathy towards her, against E.’s requests that she withhold some information from him.
[153] On the other hand, not only was Ms. Hooper bound by the order of Justice O’Dea which placed E. in the joint custody of her and Mr. Jackson, she also made some of her unilateral decisions while she was seeking the change Justice O’Dea’s order, without bothering to amend her Motion to Change to reflect what she saw as the changed circumstances underlying her actions.
[154] E. is an intelligent young woman who has faced challenges in her short life. She has ADHD, whatever her father may think to the contrary. She has suffered from anxiety and engaged in self-harming behaviours, such as pulling out her hair. She undoubtedly has known for too long that her parents cannot and do not get along. She has suffered the consequences.
[155] While Mr. Jackson testified repeatedly that he could not understand how E. came to the view that she did not want to spend time with him, there was plenty of evidence to which she could point if they were communicating. Worse, I find that Mr. Jackson is and has been purposely or willfully blind to the reasons why E. has refused to spend time with him – reasons conveyed to him during the trial and before by Mr. Skuce.
[156] Those reasons have their genesis in Mr. Jackson’s absolute insistence on E. coming to his home for the very brief mid-week, pre-school parenting time afforded to him by an order of Justice O’Dea, despite E.’s resistance to going for reasons related to her desire to spend time with her friends and an offer by Ms. Hooper to substitute other time in exchange. They grew to include his refusals to allow E. to go home following some incident between them in December 2020 and to return some of her personal items to her. They culminated in his refusal, for specious reasons, to respond to E.’s efforts to resume having time with him.
[157] I find, based on the evidence, that Mr. Jackson is either incapable of understanding his own behaviour and the impact it has had on E., or he is aware of it but simply refuses to acknowledge any role that it played in E.’s opinion of him.
[158] I also find that E.’s opinion, put to Mr. Jackson by Mr. Skuce, that her father is self-absorbed and always puts himself first is the foundational reason she decided to stop spending time with her father.
[159] Frankly, his proposals for resolution are strongly suggestive of someone less concerned with his child’s emotional health and well-being than in being declared the winner in a battle of wills.
[160] The situation has been made worse by Mr. Jackson’s antipathy towards Ms. Hooper, antipathy so entrenched that he refused to accept Mr. Skuce’s assurances about the legitimacy of E.’s instructions because Mr. Jackson “knew” that E. was being coached by her mother, despite Mr. Skuce’s assertions to the contrary.
[161] Tragic as the termination of communication between E. and Mr. Jackson has been, it simply defies logic that Mr. Jackson refused to approach Ms. Hooper about giving up a day of her vacation time with E. because to have done so would have interfered in Ms. Hooper’s vacation. His general attitude toward Ms. Hooper, made obvious during the trial, does not suggest such a spirit of generosity where she is concerned. Instead, what his refusal to speak with Ms. Hooper about spending time with E. on August 11, 2021 likely did was to cement in E.’s mind that her father did not want to spend time with her.
[162] Case law is clear that a parent who is faced with a child who refuses to visit with the parent with whom they are not residing must make efforts to ensure that child complies with their obligation, including by attempting to persuade the child to go to the home of the other parent and by removing privileges, if necessary.
[163] I am satisfied on the evidence that Ms. Hooper made those efforts. As a result, I find that, had she been asked, she would have sacrificed some vacation time with E. on August 11, 2021 in order that Mr. Jackson could have spent some time with E., especially since E. requested it.
[164] I also accept Ms. Hooper’s evidence that she was told by E.’s counsellor that she should back off on pressing E. to have a relationship with her father as continuing to press the point was harming E. emotionally.
[165] Similarly, while Mr. Jackson may believe that he had a legitimate reason for refusing to go to Ms. Hooper’s property at E.’s invitation, E. will undoubtedly have seen his rejection of her approach to him as another example of him not wanting to have a relationship with her. In my view, she would be justified in reaching that conclusion.
[166] I find that Mr. Jackson’s negative feelings towards Ms. Hooper have blinded him to opportunities to rekindle a relationship with E. Whether or not he knew it, in failing to respond to E.’s request to visit her for a walk on the farm, he demonstrated a willingness to sacrifice the re-establishment of their relationship because he could not rise above the alleged slight he claims to have felt at having been asked by Ms. Hooper to leave her property on an earlier occasion.
[167] Mr. Jackson revealed the extent to which he lacked any real understanding of his daughter’s situation by the proposals he presented to the court for resolution to the problem presented by E.’s unwillingness to communicate with or spend time with him.
[168] Despite acknowledging the emotional ties between E., her mother, and her stepsiblings, he seemed oblivious to the potentially devastating consequences that would be visited upon E. if she were to be placed in his care following a period when she refused to see him for reasons that she felt were appropriate.
[169] While one might, in some circumstances, draw the conclusion that a person making such a proposal was insensitive toward the child about whom such a proposal was being made, in this instance a more appropriate description for the person making the proposal is that used by E. herself - self-absorbed.
Statutory Considerations
[170] In making an order with respect to Mr. Jackson’s parenting time with E., I am directed by s. 24 of the Children’s Law Reform Act to be guided by her best interests.
[171] In reaching my conclusion, I have had regard to and have considered the following:
a. that my primary consideration is to be to E.’s physical, emotional, and psychological safety, security, and well-being, which I find aligns with remaining in the care of her mother Ms. Hooper; b. that her need for stability, particularly given her fragile emotional state, her diagnosis of ADHD, is best met remaining in the care of her mother; c. that E.’s relationship with Ms. Hooper is strong while she holds a withering view of her father’s personality; d. that her relationship with Mr. Jackson is, at present, fractured and tenuous, most recently as a result of his unwillingness to accommodate her request for changes to his parenting time which would have allowed her to be both with friends instead of visiting him before school and at home to her mother in December 2020 when she asked to go home; e. that neither parent, while expressing the desire to maintain E.’s relationship with the other parent, has made great efforts to that end, although Ms. Hooper at least tried. Additionally, she seems to lack the antipathy toward Mr. Jackson that he bears toward her, making it more likely that she will continue to encourage E. to re-establish a relationship with Mr. Jackson than would be the case if circumstances were different; f. that Ms. Hooper has been the primary caregiver for E. since the parties separated; g. that, having regard to E.’s age and maturity, her views and preferences as expressed by Mr. Skuce are entitled to be given significant weight; h. that, while each parent is able to care for and meet E.’s physical needs, Mr. Jackson is far less capable of meeting her emotional needs; and i. that the evidence establishes that Ms. Hooper is more able and willing to communicate and cooperate with Mr. Jackson on matters affecting E. than he is with Ms. Hooper.
Conclusion
[172] Having regard to E.’s age and the fact that she is fast reaching at an age when she cannot be compelled to visit her father, if she is not already there, and to the statutory factors that I have considered, I conclude that the only reasonable order that can be made in her best interests, based on the evidence in this trial, is that Mr. Jackson’s parenting time with E. will continue to occur at her discretion.
Issue #2: Ms. Hooper’s Claim for Retroactive Child Support
Background
[173] As was noted at the outset, Mr. Jackson annually adjusted the amount of child support that he paid to Ms. Hooper for E.
[174] Justice O’Dea’s consent order of May 9, 2014 set child support for 2013 based on Mr. Jackson’s 2012 income, and for 2014 based on his 2013 income.
[175] Thereafter, Mr. Jackson was to provide proof by January 30 annually about his previous year’s income, based on his final paystub for the previous year, together with employment insurance and disability benefits. Child support was then to be varied “effective January 1st to the Guideline sum indicated by the Respondent’s total income from employment (not including RRSPs cashed out) from the previous year.”
[176] A separate clause also required Mr. Jackson to provide the standard Child Support Guideline income tax disclosure annually by the first of May.
Ms. Hooper’s Evidence
[177] According to Ms. Hooper, before she commenced her Motion to Change, Mr. Jackson did not provide the financial information required to be produced by Justice O’Dea’s order, other than in 2015, when she received one copy of a paystub.
[178] She said that she had requested Mr. Jackson’s income tax information many times over the years after 2014 including via text messages, emails and through counsel. Mr. Jackson would sometimes respond, usually telling her that what she was seeking was none of her business. Other times he did not respond.
[179] While Mr. Jackson did adjust his child support payments annually, he never provided an explanation for the amounts that he was providing. Instead, he told Ms. Hooper that his “lawyer’s office” assisted him to determine how much child support he should be paying.
[180] It also appears that his annual adjustments were made later than January 1 each year. The payments for the years 2015 to 2022 and the dates of the changed support payments are as follows:
Date of Adjustment Support Paid until the next Adjustment Date May 1, 2015 $557.00/month April 1, 2016 $593.00/month May 1, 2017 $607.00/month March 1, 2018 $561.87/month. April 1, 2019 $560.00/month April 1, 2020 $609.28/month April 1, 2021 $613.16/month May 1, 2021 $590.19/month March 1, 2022 $513.96/month
[181] Ms. Hooper claimed that it was not until Mr. Jackson provided his income tax returns following the institution of the Motion to Change that she realized that he had been withdrawing money from his RRSPs.
[182] She professed to not know why Justice O’Dea had excluded RRSP income from Mr. Jackson’s income for determining child support. While she claimed that she could not remember the exclusion being part of the order and blamed her own naïveté for not raising questions about it, she also acknowledged being represented by counsel at the time.
Mr. Jackson’s Evidence
[183] Ms. King reviewed with Mr. Jackson the child support payments made by him over the years in question and considered them in light of his income tax returns for those years.
[184] The review showed that, when calculating child support, Mr. Jackson used only his employment income, excluding all RRSP withdrawals, as allowed by the May 9, 2014 order of Justice O’Dea.
[185] The review also revealed that Mr. Jackson also regularly excluded employment insurance income or T4A income. For example, when asked about a $10,000.00 withdrawal in 2019, he replied that he thought it to be from an RRSP. When it was pointed out that it was not, he claimed that he used the funds (whatever their source) to pay off debts. A review of the tax return for 2019 reveals that the source of those funds was Sun Life and that the income was reported on a T4A slip, which does not relate to RRSP income. [2]
Submissions
Ms. King
[186] Ms. King was candidly uncertain how I might account for the RRSP income not accounted for by Mr. Jackson when determining child support.
[187] She suggested options might be for me to adjust child support back to the time of the original order, or back to the date of the Motion to Change. A third option she suggested might be for me to include only 50% of Mr. Jackson’s RRSP income, regardless of the date to which I reach back to adjust child support.
[188] She suggested that, by not disclosing his income tax returns to Ms. Hooper before she brought her Motion to Change, thereby denying her the information that he had not included RRSP income in setting child support for E., Mr. Jackson had engaged in the “blameworthy conduct” that the Supreme Court had held in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102 and Colucci v. Colucci, 2021 SCC 24, [2021] S.C.J. No. 24 would deny a support payor a defense to a claim for fully retroactive child support adjustments.
Mr. Jackson
[189] He simply disagreed that I could change Justice O’Dea’s order to include RRSP income in his income for the purposes of determining child support.
Analysis
Non-Inclusion of RRSP Income
[190] Whether or not a support payor must include RRSP income when determining child support has presented the courts with some difficulty over the years.
[191] However, in Ludmer v. Ludmer, 2014 ONCA 827, [2014] O.J. No. 5565, the Court of Appeal held that “[t]he inclusion of RRSP proceeds is not mandatory…and the court has the discretion in appropriate circumstances to do otherwise”, with Section 17(1) of the Guidelines providing “flexibility.” In Ludmer, the Court of Appeal upheld the trial judge’s determination that including the RRSP proceeds in the parties' incomes "would not be the fairest determination of [the spouses' incomes]" for support purposes, and that in excluding them, he was arriving at an amount that was "fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount".
[192] I am not sitting in appeal of the consent order made by Justice O’Dea on May 9, 2014. That order is presumed to be correct when made. (Gray v. Rizzi, 2016 ONCA 152 at para. 26 (C.A.))
[193] Whether or not the order should have included the provision excluding RRSP income from income for child support purposes is not for me to say. The parties agreed to the order including that provision. Both were represented by counsel.
[194] The only claim made by Ms. Hooper in her Motion to Change with respect to the financial provisions of Justice O’Dea’s order of May 9, 2014 was for Mr. Jackson to pay child support based on his income for the years 2015 to 2018.
[195] She indicated that he had not been providing her with copies of his annual income tax returns or final pay stubs, as the order required, and asked for production of the tax returns for those years.
[196] When Mr. Jackson produced the returns, Ms. Hooper filed an affidavit in Reply to his Response to Motion to Change. In it, she claimed that he had underpaid child support in some years because he had understated his income. For 2014, she explained how she arrived at what she determined to be the income on which he ought to have paid child support. In doing so, she deducted Mr. Jackson’s RRSP income “as the order requires.”
[197] She never challenged that portion of the order nor sought its change.
[198] The question I need to address is whether there has been a material change in circumstances since Justice O’Dea made his order on May 9, 2014 such that it would be appropriate to now remove from the order the clause permitting the exclusion of Mr. Jackson’s RRSP income from income for child support purposes. I am not even satisfied that Ms. Hooper even made a claim to that effect. Ms. King called no such evidence.
[199] Absent such a claim being made and proven on a balance of probabilities, I have no grounds to vary or change the order of Justice O’Dea in that regard.
[200] Accordingly, I dismiss the request to amend the May 9, 2014 order of Justice O’Dea to require that Mr. Jackson include RRSP withdrawals in income when calculating child support for E.
Non-Inclusion of Other Income
[201] I do, however, agree that, by not providing his income tax returns annually, Mr. Jackson was engaging in blameworthy conduct of the type described in Michel v. Graydon and Colucci v. Colucci.
[202] Such conduct allows me to go back to the point that Ms. Hooper first requested the financial information to which she was entitled and was denied it. According to Ms. Hooper’s evidence, that was as early as 2015.
[203] Having regard to the factors that must be considered by a court considering the allowance of a claim for retroactive child support (D.B.S. v. S.R.G., 2006 SCC 37) – a reasonable excuse for the support payee not earlier making a claim, circumstances of the child, and hardship for the payor, I find that:
a) Ms. Hooper’s reasonable excuse was the failure by Mr. Jackson to comply with Justice O’Dea’s order by annually providing her with income disclosure; and b) I have no evidence about E.’s circumstances as they relate to unpaid child support.
[204] In order to assess whether a retroactive award for underpaid child support from 2015 onward would cause a hardship for Mr. Jackson, I must first determine by what amounts, if any, he underpaid child support in any of those years.
[205] The following chart sets out Mr. Jackson’s income, net of RRSP income, the child support he paid and the amount that he ought to have paid each year, commencing in 2015, under the formula mandated by Justice O’Dea in his May 9, 2014 order (prior year’s income).
| Year | Prior Year Income | Support Payable [3] | Support Paid [4] | Difference |
|---|---|---|---|---|
| 2015 [5] | $71,246.00 | $7,788.00 | $6,652.00 | $1,136.00 |
| 2016 | $61,736.00 | $6,744.00 | $7,008.00 | ($264.00) |
| 2017 | $66,437.00 | $7,284.00 | $7,228.00 | $56.00 |
| 2018 | $60,586.00 | $6,623.00 | $6,832.70 | ($209.70) |
| 2019 | $60,397.00 | $6,720.00 | $6,725.61 | ($5.61) |
| 2020 | $75,419.19 | $8,448.00 | $7,163.52 | $1,284.48 |
| 2021 | $67,403.22 | $7,536.00 | $7,162.52 | $373.48 |
| 2022 | $55,709.74 | $6,168.00 | $6,319.98 | ($151.98) |
| Total: | $2,218.67 |
[206] I find, therefore that over the period between January 1, 2015 and December 31, 2022, Mr. Jackson underpaid child support for E. in the amount of $2,218.67.
[207] I further find that requiring Mr. Jackson to pay this amount, retroactive to January 1, 2015, would not cause him a financial hardship, since it is not large. He is, however, being given time to pay the arrears.
[208] For 2023, Mr. Jackson must pay monthly child support based on his 2022 income, not including RRSP withdrawals, from January 1, 2023. Since that information was not available at the time of trial, it will have to be determined in discussions between Mr. Jackson and Ms. King. Support will be determined as set out by Justice O’Dea’s order of May 9, 2014.
Issue #3: Ms. Hooper’s Claim for Unpaid s. 7 Expenses for 2021 and 2022
[209] Justice O’Dea’s order of May 9, 2014 required that s. 7 Guideline expenses be divided evenly between the parties. It also required Mr. Jackson’s consent to a s. 7 expense, providing also that he could not unreasonably withhold his consent.
[210] Ms. Hooper restricted her claim for s. 7 expenses to what she said was Mr. Jackson’s unpaid share for only the years 2021 and 2022.
[211] Of those, her primary focus was Mr. Jackson’s share of the cost of E.’s braces, with additional claims for the uninsured portion of the cost of E.’s glasses, dental expenses, and counselling costs.
[212] Mr. Jackson’s primary complaint was he was not provided with documentary proof of the expenses. He objected to being told in emails from Ms. Hooper how much he needed to pay, without also being provided with documents verifying the amounts claimed.
[213] Mr. Jackson further complained that Ms. Hooper had failed to produce for him a predetermination for the cost of E.’s braces, which he could have given to his benefits insurer at his former place of employment to ascertain what portion of the cost, if any, of E.’s braces would have been paid by the insurer. Because he no longer works for that employer and does not have paid benefits at his new job, any opportunity for partial or full reimbursement of the cost of E.’s braces has been lost.
[214] While Ms. Hooper disputed Mr. Jackson’s claim that she withheld documents supporting the expenses she had incurred for E., she did produce them at trial. They included the monthly payment contract for E.’s braces and invoices for payments already made thereunder, and receipts for E.’s counselling and singing lessons. She further provided evidence of partial insurance reimbursements for E.’s dental examinations, glasses, and prescription drugs.
[215] Ms. Hooper responded to Mr. Jackson’s complaint about the failure to provide a predetermination form by indicating that he had received a copy of the same contract that she did. She further said that she contacted the dentist to convey Mr. Jackson’s request for a predetermination of the cost of the braces, but the dentist refused, telling her that the contract was sufficient.
[216] I note that the contract for E.’s braces was dated September 15, 2021, with the cost, after a deposit of $275.20, being $6,604.80, to be paid in 24 equal monthly installments of $275.20 commencing October 15, 2021.
[217] Mr. Jackson had testified that he was terminated from his previous employment in September 2021, without cause. Despite the lack of cause, he said that he was not pursuing damages or reinstatement.
[218] I do not know whether Mr. Jackson’s termination came before or after the contract for E.’s braces was signed by Ms. Hooper, nor do I know whether or not the benefits insurer from his previous place of employment would have contributed to any cost of her braces after his date of termination. Regardless, the expenditure was necessary, and Mr. Jackson is obliged to contribute 50% of the uninsured cost which, in this case, is the entire cost.
[219] The total amount that Ms. Hooper is claiming for Mr. Jackson’s contribution to s. 7 expenses amounted to $4,448.55. From my review of the total claimed, it appears that Mr. Jackson was not given credit for a payment of $125.00 that he previously made toward E.’s singing lessons. As a result, I find that the total amount claimed from Mr. Jackson, as adjusted, should be $4,325.05.
[220] In determining the total amount claimed, however, Ms. Hooper included a one-time payment equal to 50% of the full amount owed for the orthodontic work. I disagree with that aspect of her claim. Instead, in my view, Mr. Jackson should pay the full amounts he owes to date for prior amounts paid by Ms. Hooper, and 50% of each future payment for E.’s orthodontic expenses, since Ms. Hooper is not liable to pay those amounts until due.
[221] Accordingly, I find that, as of January 15, 2023, Mr. Jackson owes for past unpaid s. 7 expenses for 2021 and 2022, as well as for January 2023 with respect to E.’s braces, the sum of $3,224.25.
[222] Mr. Jackson will be required to pay that amount in full over a number of months.
[223] Additionally, he will be required, starting February 15, 2023 and on the 15th day of each succeeding month until and including September 15, 2023, to pay Ms. Hooper the sum of $137.60, which equals 50% of the remaining orthodontic payments under the contract signed by Ms. Hooper on September 15, 2021. Any further orthodontic expenses must be agreed upon by Mr. Jackson, whose agreement cannot be unreasonably withheld, as provided for in Justice O’Dea’s order.
Justice T. Price
Released: February 15, 2023
COURT FILE NO.: FC-FO-164/12-01 DATE: 2023/02/15
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Heather Lynn Hooper, also known as Heather Lynn Vince Applicant (Moving Party) - and - Robin Donald Jackson Respondent (Responding Party)
REASONS FOR JUDGMENT T.G. PRICE J.
Released: February 15, 2023
Footnotes:
[1] Ms. Hooper replied that E. never asked her about going to spend time on vacation with Mr. Jackson. She believed that E. was using this as an excuse to avoid telling Mr. Jackson that she did not wish to spend time with him.
[3] On an annual basis. Payments calculated over the period January to December, as provided for in Justice O’Dea’s order.
[4] As set out in Paragraph 180, based on income in two different years.
[5] Mr. Jackson had “Other Income” of $10,046.00 in 2014, on which his 2015 child support obligation was to be based. His employment income in 2014 was $61,200.00, which would have meant a child support payment of $557.00 per month, which is what he paid as of May 1, 2015. [See Paragraph 180] However, he ought to have included the “Other Income”, and his monthly child support payment in 2015 ought to have been $649.00. He had paid $549.00 per month for the first four months of the year, which is the amount that Justice O’Dea had ordered him to pay in 2014 based on his income in 2013.