COURT FILE NO.: FC-20-110 DATE: 2023/01/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jessica Lee McMillan Barta, Applicant -and- Michael Barta, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Jason Isenberg, for the Applicant Jamie Marie Mookerjea, for the Respondent
HEARD: November 23, 2022 in person
decision on final hearing
Overview
1This is the final hearing on this Motion to Change the parenting and child support provisions of the Final Order of Justice Kershman dated June 26th, 2017, which was made on the consent of both parents.
2This Motion to Change was commenced by the Applicant Mother on June 1st, 2020. The Mother seeks to change the decision-making and parenting terms of the 2017 Final Order. On June 30, 2020, the Respondent Father provided his response to the Motion to Change, in which he seeks an order requiring the Mother to pay child support.
3The parties have one child, B., born [redacted], 2007. The parties separated on May 16th, 2012. After their separation, B. resided with both parents equally until July of 2013. Since July of 2013, B. has primarily resided with the Father, when B. and his father moved to the Belleville, Ontario area, while the Mother remained in Alberta.
4At the time of the 2017 Final Order, the Mother continued to reside in Alberta and the Father resided with B. in Pembroke, Ontario. In November of 2019, the Mother relocated to Campbellford, Ontario, which is approximately a two (2) hour and 45-minute drive from Pembroke. The 2017 Final Order provides that the Mother moving to live in the same jurisdiction as the child shall be a material change in circumstances.
5The child has been resistant to spending parenting time with the Mother. These problems existed at the time of the 2017 Final Order, which provided for the child to attend counseling to address relationship issues between the child and the Mother. The child’s resistance to contact with the Mother escalated in the spring of 2019. The Mother commenced this Motion to Change seeking orders that she have sole decision-making and primary residence of the child, based on allegations that the Father was alienating the child from her. The Father's position, in response, was that the Mother’s parenting time should be in accordance with the child's wishes.
6On child support, the 2017 Final Order provides that no child support or section 7 expenses are payable by the Mother to the Father. The 2017 Final Order also provides that there is no child support or s. 7 expenses payable by the Father to the Mother for the Mother’s two older children from a previous relationship, who, in 2017, were 17 and almost 19 years of age. The 2017 Final Order further provides that “any future claims for child support or s. 7 expenses by either party can be defended or offset by a claim for all child support and s. 7 expenses that the opposite party should have paid for the other children.”
7The parties were able to settle many of the issues within this Motion to Change. On May 25th, 2022, Justice Fraser granted a Partial Final Order, on consent, that confirms that the Father will continue to have sole decision-making responsibility and primary care for B., provided for parenting time during the holidays, required the parties and B. to immediately commence counseling at the Phoenix Centre, provided for other incidental parenting clauses with respect to communications and information sharing, and provided for child support to be payable by the Mother to the Father as of January 1, 2022.
Issues on this Motion to Change
8The issues specifically reserved for future determination in the May 25th, 2022 Partial
9Final Order were retroactive adjustments for child support payable prior to January 1, 2022, if any, and the regular parenting time schedule.
10The orders sought by both parties on this Motion to Change included relief that is not part of this Motion to Change. These are not issues properly before me on this Motion to Change and I will not be dealing with them. This includes issues that were resolved by the May 25, 2022, Partial Final Order, such as information sharing and holiday parenting time. This also includes orders relating to obtaining a divorce. The only unresolved issues that are specified in the May 25, 2022, Partial Final Order of Justice Fraser are the regular parenting schedule and the issue of retroactive adjustment and arrears of child support, prior to 2022.
11Both parties appear to want to obtain a divorce. The original court application, which was started in approximately 2016 in Belleville, may have included a claim for a divorce. I do not have a copy of the pleadings from the original application to confirm if a divorce was sought. From the wording used by the parties relating to this issue, it appears that the parties are also not certain if a divorce was included in the original application. The wording of the 2017 Final Order is unclear as to whether a divorce was sought. A divorce was not granted as part of the 2017 Final Order.
12If the original application included a claim for divorce, that issue is still outstanding, and part of the original court file in Belleville. It is not part of this Motion to Change. Even if the original application did not include a claim for divorce, a divorce is not relief available on a Motion to Change, and it is not included in the pleadings of either party.
13The 2017 Final Order (made on consent) includes a clause that the divorce proceed uncontested with the parties splitting the cost, and that the Applicant Mother commence or continue the divorce. Again, this wording makes it unclear if the original application included a claim for divorce. Even if the parties’ requests related to a divorce, made within this Motion to Change, could be construed as pertaining to enforcement of this clause in the 2017 Final Order, neither party included such claims in their pleadings.
14Further, the May 25, 2022, Partial Final Order of Justice Fraser, made on consent, sets out what issues remain unresolved and does not include a divorce among the outstanding issues.
15For the reasons set out above, I am not dealing with relief related to the divorce issue. The parties will need to go back to the original application to see if a divorce was sought. If it was, they will need to move forward within the original application to obtain a divorce in accordance with the rules. If it was not, they will need to commence a new application to seek a divorce.
Applicable Legislation
16The parties are married and are not yet divorced. As addressed above, the issue of the divorce is not part of this Motion to Change.
17Because of the previous application, which may or may not have included a claim for a divorce, the parties have proceeded as if the 2017 Final Order, which deals with child support and parenting, was made under the Divorce Act. I disagree.
18The 2017 Final Order does not specify the applicable legislation under which it was made. I do not agree that the 2017 Final Order was made under the Divorce Act, because a divorce was not issued at the same time, or prior to, the 2017 Final Order being made. In my view, there is no jurisdiction to make a final order under the Divorce Act for corollary relief if a divorce is not granted before, or at the same time, as the final order for corollary relief. This is because the federal government only has jurisdiction over parenting and child support as part of its jurisdiction over divorce. Without a divorce, the Divorce Act does not apply. While it may be arguable that the court has jurisdiction to make a final order for corollary relief under the Divorce Act even if the divorce is granted by a separate order, later, but still within a time period that it can be viewed as being made contemporaneously with the final order for corollary relief, this does not apply here. It is now almost five years later, and the parties still are not divorced.
19For this reason, I have applied the Children’s Law Reform Act (parenting) and Family Law Act (child support) to the issues in this Motion to Change. For the same reasons, the Partial Final Order dated May 25, 2022, is corrected, nunc pro tunc, to refer to being made under the provincial legislation, as I accept that Justice Fraser simply relied on the parties’ representations in the draft order when she signed it as being made under the Divorce Act, without having the source of the applicable legislation before her.
20Even if I am wrong, and the Divorce Act applies, my ruling on parenting and child support would be the same.
Issues
21The issues to be determined on this Motion to Change are:
Parenting: a. Since the 2017 Final Order, has there been a material change in circumstances that affects, or is likely to affect, the best interests of the child? b. If so, how should the parenting time terms under the 2017 Final Order be changed, in light of the material change?
Child Support: a. Since the 2017 Final Order, has there been a change in circumstances within the meaning of the Child Support Guidelines? b. If so, how should child support be changed?
Evidence
22This final hearing on this Motion to Change was determined on affidavit evidence filed by each party. Neither party conducted cross-examinations on the affidavits filed by the other. The Office of the Children’s Lawyer (“OCL”) provided an affidavit from Janet Claridge, a social worker, who met with B. on four occasions with respect to his views and preferences and provided an affidavit sworn May 3, 2022.
23Neither party took issue with the admissibility of the affidavits but made arguments with respect to weight to be placed on various portions.
24The Father referred to offers in his affidavit evidence. This is improper. All references to offers to settle are struck from the record (Father’s affidavit sworn May 6, 2022: all but the first sentence of paragraph 36, and paragraph 63).
Issue #1: Parenting
25To vary a final parenting order, the court must find, on a balance of probabilities, that there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child (Children’s Law Reform Act, s.29(1)).
26The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, [1996] 2 S.C.R. 27. The Ontario Court of Appeal summarized the test in N.L. v. R.R.M., 2016 ONCA 915, at para. 29, as having three components:
a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs;
the change must materially affect the child; and
the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
27The change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order. L.M.L.P. v. L.S., 2011 SCC 64” The court must limit itself to whatever variation is justified by the material change of circumstances.
28I find that there have been the following material changes in circumstances since the 2017 Final Order, that affect, or are likely to affect, the best interests of B.:
- In November of 2019, the Mother relocated from Alberta to Ontario. She now lives a 2 hour and 45-minute drive away from B.
- B. has been very resistant to contact with his mother, particularly since an incident in March of 2019, and also since June of 2022.
- B.’s views and preferences, as admitted through the affidavit of Janet Claridge.
29The 2017 Final Order specifically refers to the Mother residing in Alberta, while B. resided with the Father in Belleville. The parenting terms in the 2017 Final Order were based on the Mother residing in Alberta, which is significantly further away than where she currently resides. The 2017 Final Order also specifically refers to the Father being posted to the same jurisdiction as the Mother, or the Mother moving to live in the same jurisdiction as B., as being a material change.
30I reject the Father’s argument that there has not been a material change because the Mother does not live in the Pembroke area, where B. now resides, which he argues means she does not live in the “same jurisdiction” within the meaning of those words in the 2017 Final Order. While the 2017 Final Order expressly provides that the Mother moving to the same jurisdiction would be a material change, this does not mean that any other move is not a material change. Whether or not the Mother has moved to the “same jurisdiction” meaning of those words in the 2017 Final Order, her move from Alberta to being a 2 hour and 45-minute drive away from B. is material. The Mother’s move, for example, materially changes the distance and transportation barriers to more regular parenting time that clearly underly the 2017 Final Order.
31My finding that the Mother’s move is a material change in circumstances that affects the best interests of B. is consistent with the parties’ agreement to change the parenting holiday schedule, as set out in the May 25, 2022, Partial Final Order, as well as their interim without prejudice agreement signed on March 25, 2022, to change the regular parenting schedule on an interim basis to provide the Mother with alternate weekend parenting time.
32I also find that there have been two other material changes in circumstances – B.’s increased resistance to contact with the Mother and B.’s views and preferences.
33I admit the statements made by B. to Ms. Claridge, as set out in her affidavit sworn May 3, 2022, under the principled exception to the exclusion of hearsay rule, based on their necessity and reliability. Neither party objected to the admissibility of this evidence, although the Mother argued that B.’s views and preferences should be given little weight because of the Father’s influence. Neither party called B. to give evidence in this hearing, and I accept that it would not have been in his best interests to do so. The statements are reliable because Ms. Claridge has extensive training and experience in interviewing children, including in her capacity as a clinician with the OCL.
34Although the 2017 Final Order speaks to issues in the relationship between B. and his mother, these have escalated since that time, and materially changed. After the 2017 Final Order, B. visited his mother in Alberta for a week at Christmas, a week during March break, and one month during the summer. These visits broke down after B.’s visit in March of 2019, when he missed his flight home. Based on B.’s statements to Ms. Claridge, B. was upset by the missed flight in March of 2019. He felt stranded and ignored by his mother. He was aware that there was a dispute between his parents about paying for the cost of the new flight, and that his father was not happy and “it was not a pretty sight” when he got home. B. did not want to see his mother as a result and did not see her for approximately one and a half years afterwards.
35B. resumed contact with his mother in the summer of 2020, and eventually began to spend weekends with her, on a schedule that took into account his wishes. These visits were generally positive, and B. enjoyed spending time with his mother. But B. is adamant, and consistent, that he wants to see his mother when he wants to see her. He does not want a fixed schedule but is prepared to give one week’s notice. B. wants to be able to also spend time with friends (near the Father’s residence) and have the option to engage in activities that may take place on the weekend or get a job. B. also reported that he did not enjoy spending one month with his mother in the summer of 2021, which appears to have been too long a period.
36After Ms. Claridge’s affidavit was sworn on May 3, 2022, there was another set-back with B.’s contact with the Mother in July of 2022. B. was supposed to spend a few weeks with the Mother in July of 2022. A few days after he arrived, on July 8, 2022, B. ended his visit after a dispute with his mother. B. has refused to visit with his mother since.
37The OCL has not interviewed B. since the July 2022 incident. The OCL was not aware of this development until the parties served their most recent affidavits for this final hearing.
38The May 25, 2022, Partial Final Order provides, on consent, for the parties and B. to “immediately” commence counselling with a counsellor and to continue such counselling for as long as the counsellor determines it to be necessary. I accept that this clause was aimed at the continued concern with B.’s relationship with his parents, including navigating his relationship with each parent, and the conflict between them in a way that was healthy for himself. Unfortunately, by the final hearing of this motion, this counselling had not commenced. Although the Father submitted his intake forms for the counselling shortly after the May 25, 2022, consent order, the Mother did not submit her completed intake forms until November 10, 2022.
39I make the following findings with respect to the current situation of B.’s resistance to contact with the Mother:
- Both parents bear responsibility for the current situation. Neither party has acted in a manner that is beyond reproach. Both have, in particular, exposed B. to the conflict between them, which has not been in B.’s best interests.
- B. appears to love both of his parents, but it is apparent from the parties’ affidavits, Ms. Claridge’s affidavit, and the various texts from B. attached to the affidavits, that spending time with either parent exposes him to that parent’s conflict with the other.
- For example, the March 2019 incident when B. missed his return flight was initiated because the Mother missed the flight. But a big part of B.’s distress was his father’s anger at the financial cost and inconvenience of the missed flight. Both parties are responsible for this highly charged dynamic in which B. finds himself, where even small mistakes by one parent inflame a response from the other that is distressing to B.
- Another example is the situation in July of 2022. It is not surprising, in this context, that the situation exploded as it did with B. running away, and the police being called. I find that the Father has some responsibility for this situation – he consented to an order a few weeks previously that said B. would spend four weeks with the Mother in the summer, but then told B. that he could decide to spend less time. The Mother also bears some responsibility – so could have dealt with the situation better.
- More importantly, the parties should have, as they agreed to in the May 25, 2022 Partial Final Order, undertaken counselling to immediately try to take steps to improve the situation for B. They did not, and the responsibility for the delay in doing so falls on the Mother because she did not provide her intake form for the counseling to start until shortly before this final hearing.
- B. wants his voice to be heard and for any schedule to reflect his wishes – not a parent’s “entitlement”. He is annoyed with the legal process, that his voice is not being heard, and that the process is taking too long.
- Prior to the July 2022 incident, when B. had some control over when he sees his mother, he chose to do so with regular consistency. For approximately one and a half years prior to the July 2022 incident, B. was seeing his mother under the interim agreement alternate weekend schedule when he wanted to, which was on most occasions, and these visits were generally positive. The July 2022 incident was precipitated in part by B. being told that he did not have a say in how long he would spend with his mother during the summer of 2022.
40Given the above material changes in circumstances, I find that the changes to the 2017 Final Order set out below are in B.’s best interests. Again, I highlight that the parties have already agreed on several parenting terms in the May 25, 2022 Partial Final Order, which are not subject to variation within this Motion to Change. The changes I make are explained below.
Regular Schedule
41The Mother seeks regular parenting time on alternate weekends, from Friday to Sunday extended to include long weekends in the event of a long weekend.
42The Father is agreeable to an alternate weekend schedule with the exception that he seeks that it be subject to B.’s wishes.
43I find that it is in B.’s best interests for parenting time with his mother to be subject to his wishes, including the alternate weekend regular schedule. This is because:
a. B. is almost 16 years of age. He has consistently expressed his view and preference that he wants his voice to be heard in determining when he sees his mother. While I am concerned that B. is exposed to the conflict between the parties, and in this way, his views and preferences are influenced by this conflict, attempts need to be made to address this issue within the counselling process that the parties agreed should start immediately, as part of the May 25, 2022 Partial Final Order.
b. I agree that the Father bears some responsibility for influencing B.’s views about contact with his mother. B. is obviously aware of his father’s hostility towards his mother. This causes B. distress and I accept that one of the ways for B. to try to manage this distress has been to reduce contact with his mother.
c. But I also accept that the Mother bears some responsibility for the current situation. B. feels pressured by her, let down at times (March 2019 incident) and not heard by her.
d. B. is angry, and unfortunately finds a receptive audience for his anger with his father.
e. I cannot find that the answer to the current situation is to decree that B. must spend alternate weekends with his mother, regardless of his views. To do so would, in my view, only make matters worse and be contrary to his best interests.
f. I do find that the answer to the current situation, to which the parties have already agreed, lies in the counselling process being commenced as soon as possible, on a priority basis, to attempt to address B.’s relationship issues with both parents and try to assist him in navigating his relationship with each of them in a manner that is healthy for him.
Transportation
44The Mother seeks an order that the parties share transportation. The Father opposes this and seeks an order that the Mother be solely responsible for transportation.
45The Father argues that the Mother should be solely responsible for transportation because she was responsible for transportation costs under the 2017 Final Order (when she was not paying child support) and, in some way, it is her fault that she lives 2 hours and 45 minutes away from him and did not move to live closer. I reject this and would in normal circumstances order the parties to share the transportation.
46However, I am not doing so because I am primarily concerned with the impact forcing the Father to share transportation may have on B.’s wishes to spend time with the Mother. The evidence before me supports that B. is aware of his father’s hostility towards his mother, that B. generally chose to see his mother on the alternate weekend schedule when she was doing all of the driving, and that there is a significant risk it will be distressful to B. if choosing to see his mother will place a burden on his father, such as by requiring his father to drive him one way.
47I appreciate this is not a “fair” distribution of the transportation responsibility, but I believe it is the best resolution to provide the least stressful way for B. to spend parenting time with the Mother.
48The Father seeks an order that prohibits the Mother from travelling with B. in her work vehicle. I do not find any basis for such an order being required to protect B.’s best interests.
Transfers
49The Mother seeks an order that she pick B. up from the Father’s home, at 4 pm. She agrees to remain in her car to do so, at the end of the driveway.
50The Father seeks an order that the transfers take place at the local Tim Hortons. His proposal involves a later transfer time (5 pm) to account for transporting B. to the Tim Hortons. The Father submits that the transfer should be at a neutral location.
51Due to the conflict between the parties, neither situation is optimal.
52I find that it is in B.’s best interests for the transfers to take place at the Father’s residence in Petawawa, with the Mother remaining in her car at the end of the Father’s driveway. I find this is most convenient for B., as it allows pick-up and drop-offs to be directly from the Father’s residence, and also minimizes the Father’s involvement, as he will not have to transport B. to the Tim Hortons or arrange for others to do so.
Alcohol and Drugs
53The 2017 Final Order includes a term that the Applicant shall not consume any drugs or alcohol or otherwise be intoxicated while in a caregiving capacity for any of her access visits with B.
54The Mother seeks to remove this clause. Her position is that there is no basis for it, and B. is now almost 16 years of age. The Father opposes its removal.
55I do not find that there is a basis to change the 2017 Final Order to remove this clause. The material changes in circumstances that I have found, listed above, do not justify changing this clause. Neither party provided evidence of the circumstances that lead to this clause at the time of the 2017 Final Order. The Mother argues, instead, that the clause was never warranted in the first place – but that argument, even if found to be the case, does not satisfy the test for variation.
56I comment that the clause will no longer apply once B. turns 18 years of age, and is legally an adult, as the Mother will not be in a caregiving capacity to B. at that age.
Communications
57The Mother seeks an order that B. be provided with a cell phone to communicate with each parent. The Father says that B. has access to a cell phone, but the evidence supports that the Father provides B. with a cell phone when he is with the Mother, but when with the Father, B.’s access is more limited.
58The main issue is the concern that B. does not have a means to communicate freely and without interference with the other parent at any time he wishes. The Father disputes that this is a concern. At the same time, the Father has attached to his affidavit a significant number of texts between B. and the Mother. This raises the question of how the Father acquired these texts. The Father says B. gave them to him. The Mother is concerned that the Father monitors B.’s communications, and that this impact’s B.’s relationship with her, because B. is saying what the Father wants him to say.
59Even if I accept what the Father says – that B. gave him his texts - this raises significant concerns that B. does not have a means to have free and independent communications with each parent and feels pressured to “take sides” by the conflict between his parents.
60I find that it is in B.’s best interests to have a means to have free and independent communications with each parent.
61At the end of the hearing of this Motion to Change, I invited the parties to attempt to agree on terms to address this concern. They agreed that the Mother would provide B. with a cell phone, at her cost. I have incorporated this agreement into the orders made below but have also provided further terms regarding the use of the phone.
62The Father seeks an order that prohibits the Mother from speaking with B. about parenting time. I decline to make such an order. I do not find that it is contrary to B.’s best interests for the Mother to be able to communicate with him about her wishes to spend time with him. This is logically consistent with the order that B.’s time with his mother shall be subject to his wishes. It is also logically consistent with B. being almost 16 and wanting to “have a say” in his schedule.
63The Father repeatedly refers to B.’s age and maturity to support his position that B. should get to decide when he sees his mother. It is inconsistent for the Father to then argue that B. needs to somehow be sheltered from communications from his mother about her potential parenting time.
Mobility
64The 2017 Final Order includes a clause that the Father being posted to any other location in Canada, aside from the same jurisdiction as the Mother, shall not be a material change in circumstances. The Father is in the military, and so may be posted from time to time.
65The Mother seeks to remove this clause. The Father opposes the removal of this clause. His position is that the 2017 Final Order contemplated his possible posting and stipulated that it would not be a material change, and this should continue.
66I find that the material changes in circumstances that I have found justify removing this clause. The question of whether the Father’s posting, at some later point in time, would be a material change, and if so, what would be in B.’s best interests, is materially different than what it was in 2017, given that the Mother now lives just 2 hours and 45 minutes away, B. is almost 16 years of age, and B. has views and preferences which must be considered.
67Both parties proposed terms respecting what would happen if there was a possible relocation. No specific relocation is contemplated at this point, other than that the Father may be posted at some point, referred to above. I do not find any basis for imposing terms that differ from those already prescribed by the legislation (see Children’s Law Reform Act, sections 39.1 to 39.4).
Travel
68Both parties sought clauses respecting travel. To try to minimize the impact of the parties’ conflict on B., I find that an order, as made below, requiring the parties to consent to B.’s travel, if such consent is required given B.’s age, to be warranted by the material changes in circumstances and in B.’s best interests.
69The Mother seeks an order that would require the Father to provide her with a detailed itinerary if he travelled with B. outside of Ontario. Given B.’s age, and that the current situation surrounding his parenting time with the Mother, I do not find such an order is in B.’s best interests.
70The Father seeks an order restricting where the Mother can take B. during her parenting time without providing notice. I do not find that the clause proposed by the Father is warranted or in B.’s best interests. Again, B. is almost 16, and will have a voice in the time he spends with his mother. I have provided for B. to have a means to communicate with both parents, in a manner intended to be independent from both. I do not find a basis for requiring the Mother to notify the Father, 14 days in advance, if she plans to spend parenting time at another location.
Informing B. About This Decision
71It is in B.’s best interests to be notified about this decision by someone other than either parent, who is not aligned with either of them. I have ordered this to be done by the Children’s Lawyer, as set out below.
Issue #2: Child Support
72The parties have agreed in the May 25, 2022 Partial Final Order that “for 2022”, the Mother shall pay table child support. The parties clarified that this means that the Mother will pay table child support commencing January 1, 2022, and ongoing. There is no dispute about ongoing child support.
73To this extent, the parties have agreed that there has been a change in circumstances within the meaning of the Child Support Guidelines for the purpose of varying child support under the Family Law Act (s.37(2.1)).
74The only dispute on child support is regarding retroactive child support, for the period prior to January 1, 2022, and contribution to s.7 expenses.
Retroactive Child Support
75In determining the issue of when child support should be changed, I have applied the principles set out by the Supreme Court of Canada in its decisions in D.B.S. v. S.R.G., 2006 SCC 37, Michel v. Graydon, 2020 SCC 24, and Colucci v. Colucci, 2021 SCC 24. I have applied, in particular, the helpful summery of the applicable steps set out in paragraphs 113 and 114 of the Colucci decision.
76Neither party paid the other child support after their separation in 2012, and this continued under the 2017 Final Order. The 2017 Final Order provides that “any future claims for child support or s. 7 expenses by either party can be defended or offset by a claim for all child support and s. 7 expenses that the opposite party should have paid for the other children.”
77In response to the Mother’s Motion to Change, the Father made a claim for child support for B. retroactive to August of 2017. The Father signed his Response to the Motion to Change on June 30, 2020.
78The Father’s position is that he made an oral request for child support for B. in 2017, followed by a text request for child support in October of 2019, which would constitute “effective notice” of his claim for child support.
79The Mother acknowledges that she owes the Father child support for B. since his Response to the Motion to Change but argues that if the Father seeks to go back to an earlier date, she claims a reconciliation against the child support she argues is owed to her for earlier periods, as provided for in the 2017 Final Order. The Mother argues that the Father should have paid her child support from the date of separation to October of 2014 for her oldest child, and from the date of separation to August 2017 for the second oldest child. The Mother also claims contribution to s.7 expenses totalling approximately $25,000.
80The Father has refused to provide his income information for periods prior to 2017, despite requests from the Mother.
81Although the Mother provided a financial statement sworn May 12, 2022, she did not provide an updated financial statement for the final hearing. The Father did not provide any financial statement, despite seeking contribution to s.7 expenses, and despite the Mother’s claim to reconcile past child support owed to her. Both parties provided the court with copies of their Canada Revenue Agency (CRA) assessments, and neither disputed that their incomes for support purposes were as set out in the CRA assessments. The Mother provided CRA assessments for the period from 2013 to 2021. The Father only provided CRA assessments for the period from 2017 to 2021. To be clear, updated financial statements are required by both parties under the Rules and should have been provided.
82I find that child support should be changed as of July 1, 2020, the date the Father provided formal notice of his request for child support for B. through his Response to the Motion to Change. I dismiss the Father’s request for retroactive child support for the period prior to his Response to the Motion to Change.
83The presumptive date for child support to be increased is the date of effective notice, up to three years before formal notice. I do not accept that the Father gave the Mother effective notice of his request for child support prior to his Response to the Motion to Change, either in 2017 or 2019. The Mother denies that these requests were made. The Father’s evidence on these requests is vague. He does not say when the requests were made, provide any details for what he requested, or provide any explanation for his delay in pursuing child support after these requests were made.
84I find that it is more likely that the Father, if he did raise the issue of child support in 2017 or 2019, either raised it in conjunction with parenting issues (i.e. what he would do if the Mother pursued parenting issues), and/or did not pursue the issue because he did not want to reconcile any previous amounts that should have been paid for child support, as provided for in the 2017 Final Order.
85Even if I am wrong about effective notice, the court has discretion to depart from the presumptive date if the result would otherwise be unfair. I find that it would be unfair to change child support prior to the Father’s Response to the Motion to Change because the Father has not provided his income information to determine what child support may or may not be owed by him to the Mother for the period since their separation, which the 2017 Final Order provides may be claimed as a credit against any child support the Mother may owe.
86I note that there is an issue about whether the Mother may claim credits for past child support against child support payable by her for the period after the Father’s Response to Motion to Change, but the Mother is not seeking such an order. Her position is that she does not claim a credit for past child support if child support is only changed as of July 1, 2020, and that is what I have found.
87I do not accept the Father’s argument that he could not have owed any previous child support because of a 2013 Agreement in which the parties agreed no child support was payable between them, and the history of the children’s residence after the 2013 Agreement was signed. I cannot determine what may or may not have been owed for past child support without having the Father’s income information, which he has refused to provide.
88I reject the Father’s argument that the 2017 Final Order should be interpreted as a finding that there was no child support owed prior to the date of the order, and that the order was only referring to arguments about future child support. This is not what the 2017 Final Order says. Although the wording of the order refers to future claims for child support, it provides that such claims may be offset by amounts a party “should have paid for the other children”, specifically using the past tense and not limiting the claim to future child support.
89I also do not agree that the 2013 Agreement means that there was no child support payable up to the 2017 Final Order. I reject the Father’s argument that the 2013 Agreement means that neither party was required to pay child support to the other as long as one child resided with each of them – this is not stated in the 2013 Agreement. There are also issues with the 2013 Agreement, and what it means in conjunction with the 2017 Final Order. This includes whether the 2013 Agreement is overridden by the 2017 Final Order, such that the 2017 Final Order may have resurrected any child support claims back to the parties’ separation date in 2012. The 2013 Agreement was also prepared by the parties without legal advice, and it is far from clear to what extent it accords with the Child Support Guidelines and, if it does not, whether it otherwise provides for reasonable arrangements for the support of the children (Family Law Act, s.33(15)).
90The evidence before me supports that there are periods of time when the Father may have had a child support obligation to the Mother for her older child from May of 2012 (separation) to October of 2012 (Father’s evidence) or October 2014 (Mother’s evidence), and for the second oldest child from June 2013 to August 2017 (Mother claims from October 2012). I am unable to calculate the Father’s child support obligation during these periods without his income information. It would be unfair to change child support to a date earlier than July 1, 2020, in the face of the Father’s non-disclosure and the terms of the 2017 Final Order.
91In considering the Father’s potential past child support obligations, I have not considered the Mother’s claim to contribution to approximately $25,000 for s.7 expenses. The evidence does not support that any of these expenses qualify as s.7 expenses. The Mother has not provided any explanation or supporting evidence for why such expenses qualify under s.7 including why they are reasonable and necessary expenses, or extraordinary. The Mother claims school fees, supplies and bus passes of $500 per child per year (Under s.7(d) of the Child Support Guidelines), but these expenses are not normally extraordinary and cannot be found to be extraordinary without significantly more supporting evidence. The Mother claims horse boarding fees of $19,600 (Under s.7(f) of the Child Support Guidelines) but there is no evidence to support why such expenses were reasonable and necessary. The Mother claims a cell phone for one child, but there is no explanation for why such an expense meets the criteria required under s.7 of the Child Support Guidelines.
Section 7 Expenses
92The Father seeks an order requiring the Mother to contribute to swimming and snowboarding expenses.
93The Father paid $259.30 for swimming lessons in August of 2022. I accept that this is an extraordinary activity expense that meets the criteria under s.7, to which the Mother should contribute.
94The Father also paid for snowboarding lessons for B. I accept that the lessons totalling $310 ($155 x 2) are extraordinary activity expenses that meets the criteria under s.7, to which the Mother should contribute.
95The Father has provided another receipt for $256, described as a “4 x Program Life Tickets…+$128 X 2” related to B.’s snowboarding. It is not clear, however, that this relates to lift tickets for B., or for other family members. I have not included it as a s.7 expense for this reason. I have also taken into consideration that the Father’s evidence is that in previous years, he paid for B.’s snowboarding related expenses as part of B.’s Christmas gifts, which would mean that they would not qualify as s.7 expenses.
96The Mother objects to contributing to the s.7 expenses because she was not consulted in advance about them. I agree that going forward, the Mother should be given advance notice of any proposed s.7 expenses to which the Father seeks contribution, but this does not mean that the swimming and snowboarding expenses, which are modest overall, are not reasonable and necessary for the benefit of B. and meet the criteria for s.7 expenses.
97The Father argues that the Mother should pay 50% of the s.7 expenses. I do not agree and find that the presumptive method of sharing the expenses in proportion to income should apply. Based on the parties 2021 incomes, the Father’s share is 58% and the Mother’s share is 42%.
98At the final hearing, I invited the parties to agree on a method for contributing to s.7 expenses that reduces conflict between them and that is proportional to the amounts in issue, such as directions on what type of expenses are s.7 expenses and what are not, terms for communications regarding s.7 expenses, and possible terms that allow the parties to avoid communications on s.7 expenses altogether, such as caps or fixed amounts.
99The parties were unable to agree on terms for sharing s.7 expenses. I have therefore made the order below, which simply provides for the parties to share s.7 expenses in proportion to income, and to provide advance notice, with consent not to be unreasonably denied. I am aware that the order below allows the parties room, if they wish, to continue to have significant conflict over s.7 expenses. Ultimately, they may apply to the court to resolve these issues. But I strongly encourage the parties to work out an alternative, proportional, agreement for dealing with s.7 expenses that minimizes the conflict between them and, ultimately, serves B.’s best interests far better than ongoing conflict over s.7 expenses.
Life Insurance
100In his Response to the Motion to Change, the Father sought an order requiring the Mother to maintain life insurance to secure her child support obligation to B. The Father did not make submissions on this issue, nor include an order for life insurance in his orders sought.
101I have therefore made an order that mirrors the Mother’s proposed order for life insurance. In proposing such an order, the Mother is not objecting to securing her child support obligation to B. through life insurance, and I have so ordered.
102The order made below does not specify the required beneficiary for this life insurance. The Mother proposed that she designate the child as the beneficiary. The Father, again, did not make submissions on the beneficiary designation. In my view, designating the child as the beneficiary is not a satisfactory method of securing child support, given the purpose of the life insurance is to secure child support, but if the child is the beneficiary and under 18 at the time of death, the funds would have to be paid into court. This would mean a rather convoluted process to have the funds made available for the child’s support before the child turns 18.
103Because the parties did not address the beneficiary issue, either in submissions or in evidence, my assumption that the Mother will make adequate arrangements for an appropriate beneficiary, and because of the protections available under the Dependent’s Relief provisions of the Succession Law Reform Act, I have not made an order regarding the beneficiary. It is enough, in my view and in these circumstances, that the Mother be required to maintain life insurance available to her at a reasonable cost to secure her child support obligation, and I have so ordered.
Disposition
104For the above reasons, I make the following Orders:
The Final Order of Justice Kershman dated June 27, 2017, is changed as follows:
Pursuant to the Children’s Law Reform Act:
Paragraphs 5, 6, 8 to 12, 14, and 22 are deleted and replaced with the following:
a. The parenting terms of Justice Fraser’s Partial Final Order dated May 25, 2022, at paragraphs 1 to 14 (added for clarity).
b. The Applicant shall have parenting time with the child, B. [full name redacted], born [redacted], 2007, in accordance with B.’s wishes.
c. Subject to B’s wishes, the regular schedule for the Applicant’s parenting time with B. shall be alternate weekends, from Friday at 4 pm to Sunday at 4 pm.
d. The Applicant shall be responsible for transporting B. to and from her parenting time with him. Pick-ups and drop-offs shall take place at B.’s residence with the Respondent, during which the Applicant shall remain in her vehicle at the end of the Respondent’s driveway, and the Respondent shall remain inside his residence.
e. In the event of a long weekend, either due to a Friday or Monday holiday, if B. wishes to extend the alternate weekend to include the Friday or Monday holiday, this shall occur, with the pick-up or drop-off moved to the Thursday or Monday, as the case may be, at 4 pm.
f. If B. wishes, additional parenting time, in addition to that set out above and under the May 25, 2022 Partial Final Order, may occur and, if so, both parties shall make all reasonable efforts to facilitate this so that B. can spend additional time with the Applicant if he wishes.
g. There shall be no make-up parenting time.
h. Both parties shall, forthwith, comply with the order directing counselling at paragraph 3 of the Partial Final Order dated May 25, 2022.
i. If B.’s views and preferences respecting parenting time materially change, either as a result of the counselling process or otherwise, the parenting terms of the Partial Final Order dated May 25, 2022, and herein shall be reviewed and adjusted in accordance with B.’s best interests. If the parties are unable to agree on such changes, either may apply to a court of competent jurisdiction to determine the issue.
j. If either parent adopts a position with respect to parenting time that is materially different than B’s views and preferences, this may constitute a material change in circumstances with respect to the parenting terms in the May 25, 2022 Partial Final Order and herein.
k. B. shall have a means to communicate with either parent, at any time, freely and independently from the other parent. Such communications shall not be monitored by either parent, through an electronic, digital, or computer application, or otherwise. For this purpose, on consent, the Applicant shall provide B. with a cell phone and be solely responsible for the cost of the cell phone. B. shall have access to this cell phone at all times.
l. If either party plans a vacation with B. outside of Ontario, including outside of Canada, if required to allow B. to travel (given his age), and upon request by the travelling parent, the other parent shall provide the travelling parent with their executed consent to such travel. The travelling parent shall provide the travel consent letter to the other parent for their signature, specifying the location of travel, dates of travel and mode of transportation, at least 14 days before such travel. The non-travelling parent shall execute the consent (notarization is not required) and return the travel consent promptly, such consent not to be unreasonably withheld.
m. With respect to either party changing their residence or relocating, the provisions of the Children’s Law Reform Act apply (see section 39.1 to 39.4).
n. The terms of this Order shall be communicated to B. by the Children’s Lawyer, as soon as possible upon release.
Pursuant to the Family Law Act:
Paragraphs 13 is deleted and replaced with the following:
a. Commencing July 1, 2020, and continuing on the first day of each subsequent month until changed by further court order, the Applicant shall pay child support to the Respondent for the support of B. [full name redacted], born [redacted], 2007, of:
i. For the period from July 1, 2020, to and including December 31, 2020, $425 per month, being the table amount for the Applicant’s 2020 income of $45,819/year;
ii. Commencing January 1, 2021, $620 per month, being the table amount for the Applicant’s 2021 income of $66,514/year.
b. The child support paid by the Applicant to the Respondent since July 1, 2020 shall be credited to the above amounts.
c. In addition, the Applicant shall pay the Respondent:
iii. $108.90 as her contribution to the child’s swimming expenses of $259.30 paid in August 2022;
iv. $130.20 as her contribution to the child’s snowboarding expenses paid in the fall of 2022.
d. As of January 1, 2023, the parties shall share s.7 expenses incurred for the benefit of B. in proportion to their income, being 58% as the Respondent’s share, and 42% as the Applicant’s share. This is based on the Respondent’s 2021 income being $91,673 and the Applicant’s 2021 income being $66,514.
e. Neither party shall incur a s.7 expense for B, for which they seek contribution from the other, without notifying the other party, in advance, of the proposed expense, with the particulars of the expense and why the expense meets the criteria for s.7 expenses under the Child Support Guidelines, and seeking the other’s agreement, such agreement not to be unreasonably withheld.
f. For so long as B. is entitled to child support pursuant to the Family Law Act, the Applicant shall maintain the life insurance available to her through her employment (with current coverage of $250,000) for so long as this policy is available to her at a reasonable cost, and designate no less than 1/3 of this coverage to secure her child support obligation to B. The Applicant may apply, from time to time, to reduce this coverage based on the expected duration of child support and expected quantum of such support.
g. There shall be no child support payable by either party to the other for the period prior to July 1, 2020.
Pursuant to the Family Law Rules:
The Partial Final Order dated May 25, 2022 of Justice Fraser is corrected, nunc pro tunc, to provide that:
a. Paragraphs 1 through 14 (parenting) are made under the Children’s Law Reform Act (not the Divorce Act).
b. Paragraph 15 (child support enforcement) is made under the Family Responsibility and Support Arrears Enforcement Act, 1996 (not the Divorce Act).
c. Paragraph 16 (post-judgment interest) is made under the Courts of Justice Act (not the Divorce Act).
d. Paragraphs 17 and 18 are made under the Family Law Act (not the Divorce Act).
Costs
- If the parties are unable to agree on the costs of this Motion to Change, the Respondent may file cost submissions on or before January 20, 2023. The Applicant may file cost submissions on or before January 27, 2023. The Respondent may file a reply, if needed (proper reply only) on or before January 31, 2023. Cost submissions of both parties shall be no more than three pages in length (except for reply submissions, limited to 2 pages), plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern Released: January 5, 2023