Court File and Parties

Court File No.: FC-14-FS-108 Date: 2023-03-23 Ontario Superior Court of Justice

Between: K.B., Applicant And: A.B., Respondent

Counsel: K.B., Self-Represented Eliza Montour, for the Respondent

Heard: March 14 -17, 2023

Before: The Honourable Justice I.R. Smith

Reasons for Judgment

Introduction

[1] The respondent father brings this motion to change the final order of Nightingale J., dated July 8, 2016. He asks for orders relating to parenting time for the parties’ son TB, now aged 13, for decision-making relating to TB, and for child support and expenses governed by section 7 of the Federal Child Support Guidelines, SOR/97-175, as am. (“section 7 expenses”) for TB, among other orders related to these issues.

[2] In her response to the respondent’s amended motion to change, the applicant did not challenge the respondent’s claims respecting parenting time. She did contest his claims respecting decision-making, child support and section 7 expenses. She now also seeks orders respecting the section 7 expenses of the parties’ older child, HB, who is now a university student.

Material Change

[3] There is no doubt that there have been material changes since the date of Nightingale J.’s 2016 order. This is not a matter of controversy between the parties. Nearly seven years have passed. HB has moved away from home, she has completed a college program, and is now pursuing a university degree. TB now lives primarily with the respondent, after having lived primarily with the applicant. Since moving to the respondent’s home, TB has been diagnosed with a mild intellectual disability and has been the subject of an Individual Education Plan. He has changed schools three times.

[4] Despite these changes and challenges, the evidence before me is that TB is “a great kid” who is well cared for and happy, and whose greatest pleasures are cutting grass and shovelling snow for his grateful neighbours, among whom he is very popular.

Parenting Time

[5] The respondent’s parenting time claim, as I have said, was uncontested in the applicant’s response, and on the first day of trial the applicant confirmed that she was agreed both to TB having his primary residence with the respondent and with the parenting time schedule proposed by the respondent (although after the trial had commenced, she expressed some doubt about the wisdom of this position).

[6] In any case, the proposed arrangement effectively represents the status quo which has been in place since the order of MacLeod J. dated July 18, 2022, which order was made on consent given material changes which had occurred before that date, and which remain operative today.

[7] In a nutshell, and without setting out all the detail in the draft order filed by counsel for the respondent (to which I will return below), the respondent seeks an order that the applicant have parenting time with TB every other weekend, on every other Thursday evening, and on a divided holiday schedule. The draft order allows for TB’s input on weekend parenting time and communication at other times during the week.

[8] I agree that these orders should be made in the form filed by the respondent.

Decision-Making

[9] The respondent also seeks sole decision-making authority for TB. The applicant opposes this request.

[10] The evidence establishes that TB was living with the applicant following the separation of the parties in 2014 until June 21, 2021, when TB and the applicant had a disagreement. TB left the applicant’s home on his bicycle, travelling to the home of his paternal grandparents and telling them and his father that he did not want to live with his mother anymore. TB has lived with the respondent since. For a time, the applicant did not see TB at all. Then, on October 29, 2021, Skarica J. ordered that the applicant could have supervised access to TB. On July 18, 2022, MacLeod J. terminated the supervision requirement and, as I have said, imposed the current parenting time schedule on consent.

[11] The parties have had a high-conflict relationship since they separated and have been engaged in litigation for years. They agree on just one thing: that they cannot agree on anything. They are unable to communicate effectively or with civility. In these circumstances it is clear to me that it is in TB’s best interests that sole decision-making authority must be given to one parent or the other. Joint decision-making is simply not feasible (see McBennett v. Danis, 2021 ONSC 3610, at para. 97).

[12] Although the parties agree that TB loves both of his parents and that they both love him, in the current circumstances, decision-making authority will be awarded to the respondent father. Several factors weigh in favour of the conclusion that this is in TB’s best interests.

[13] TB lives with his father, has had a somewhat strained (although now improving) relationship with his mother, leading to his running away from her home in June 2021, and has been and will be in the respondent’s care for the majority of the parenting time. To his credit, the respondent has encouraged TB to maintain his relationship with the applicant.

[14] Moreover, the respondent has made the majority of the important decisions for TB since June of 2021, including decisions respecting his medical care, schooling, and extra-curricular activities. I note that TB is a boy with some medical challenges, so these decisions are important and appear to have been well-made by the respondent since TB has been in his primary care. I am not concerned that the respondent is unwilling or will be unable to carry out this responsibility appropriately. He testified before me with knowledge and sensitivity about TB and TB’s needs, in particular relating to TB’s mild autism and relating to a defect in TB’s feet, which may one day require correction by surgery. I am satisfied that the evidence of the respondent’s recent break up with his new partner, and resulting move to a new apartment, does not detract from his suitability as decision-maker for TB.

[15] For these reasons, the respondent will have sole decision-making responsibility for TB (although I note that TB has started to make some of his own decisions, a trend which will no doubt continue as he grows older).

[16] It follows from this that it will be for the respondent to decide which dental office is used to care for TB’s teeth. The applicant asked for an order that she be permitted to give TB dental care at the office where she is employed as a hygienist, and to bill any such services to the respondent’s benefits. The respondent prefers not to use the applicant’s employers for TB’s dental needs as he feels that they stand in a conflict of interest given the toxic relationship between the parties. He feels uncomfortable, for example, when calling the office for records or billing information. I am not prepared to say that this is an unreasonable position. In any case, as I have said, it will be for the respondent to choose which dental office to use for TB. I decline to make the order sought by the applicant, especially in the absence of any evidence that proper care cannot be provided elsewhere, or that the respondent will fail to arrange for such care.

[17] Last under this heading, the applicant asked for an order that the respondent not be permitted to move TB to a residence that is more than 60 km from her home. This issue was not pled and was the subject of minimal evidence and argument. In any case, the issue is speculative and premature as of the date of this trail. Although the applicant gave evidence that he has explored the possibility of sending TB to a high school in another city, and moving to that municipality, the respondent’s plans are uncertain and are far from being fixed. As he put it, there is still plenty of time before a high school has to be chosen for TB. In these circumstances, the applicant’s request for relief is dismissed.

Child Support

[18] The respondent seeks child support from the applicant for TB, and arrears in child support.

[19] At trial, the applicant agreed that she should pay child support and that it should now be calculated (subject to annual review) based on her 2022, line 150 income of $70,842, which would yield a monthly child support payment of $662. However, the applicant takes the position that she should have to pay less than $662 per month (she proposes $600) because she is responsible for the driving when exercising her parenting time. No evidence was called respecting these transportation costs and the applicant has not pled hardship or an inability to pay. I decline to give effect to the submission of the applicant on this point. An order will go that the applicant pay child support of $662 per month.

[20] The applicant disagrees that she should be required to pay any arrears in child support given her interpretation of the order of Skarica J., to which I have already referred, and which required her to pay interim child support pending the trial of this matter. The applicant says that this order governed until trial and that any order I make should be forward looking only.

[21] The respondent says that the applicant should have been paying child support since TB started living with him on June 21, 2022, and that to the extent that the applicant has paid child support, she has paid too little. He asks that these arrears be payable by the applicant.

[22] The applicant paid no child support until ordered to do so by Skarica J. on October 29, 2021, some 4 months after TB left her home. At that time, and starting November 1, 2021, she was ordered to pay child support of $527 per month based on an estimated annual income of $57,000. She has been paying that monthly amount since.

[23] The respondent says that the temporary and without prejudice child support order of Skarica J. was made without full information and that the applicant’s 2021 income was significantly higher than $57,000. Indeed, the evidence at trial shows that the applicant’s line 150 income was $68,751 in 2021, on which the child support payable should have been $641 monthly. Accordingly, the respondent says that top up payments should be made for November and December, 2021, and full payments should be ordered for July, August, September and October, 2021.

[24] The respondent further argues that top up payments should be made for all of 2022 and the first three months of 2023 to reflect the applicant’s 2022 line 150 income.

[25] I agree with the respondent. The applicant should have been paying child support based on her line 150 income since TB started living with the respondent. This is TB’s right. I have reviewed the calculations of arrears prepared by respondent’s counsel, marked as exhibit E at trial, and agree that those calculations are accurate. Arrears to the end of March 2023 total $4,817.

[26] The draft order filed by the respondent provides that the applicant should attend to these arrears by paying $200.00 per month until the arrears are paid in full. I agree that this is reasonable. An order will go to that effect.

Section 7 Expenses for TB

[27] The respondent seeks payment of certain arrears for section 7 expenses relating to the costs of certain extracurricular programs and medical services TB. The respondent also seeks an order that, in future, section 7 expenses for TB be evenly divided between the parties. Based on their current incomes, the respondent calculates that his share of those expenses is 53% and that the applicant’s is 47%. He points out that a 50/50 split is more easily calculated and eliminates the need to recalibrate annually based on minor changes in income. Given the fractious relationship between the parties, ease of calculation is something to be valued.

[28] On this latter point, although the applicant argues that the respondent should pay 60% of TB’s section 7 expenses given that she is funding HB’s expenses, she says that if I reject that argument, given the nearly equal incomes earned by the parties and the ease of calculation of expenses owing if they are divided 50/50, I should order that her share of those expenses should be 50%.

[29] Suffice it to say that I reject the submission that TB’s section 7 expenses should be split 60/40. As will be seen below, there is incomplete and unsatisfactory evidence before me respecting HB’s expenses. Given that this is the sole justification advanced by the applicant in favour of a 60/40 split, there is no basis upon which to accede to that division. In future, the parties will share equally in the cost of TB’s section 7 expenses.

[30] The arrears relating to extra-curricular activities and the services of a podiatrist, which were not challenged by the applicant at trial, have been correctly calculated by the respondent. With respect to the medical assessment, he asks that the applicant’s share be 50% of the costs not covered by the respondent’s benefits. I agree that this is appropriate. In total, the applicant’s arrears in section 7 expenses for TB are $1,382.

[31] As with the arrears in child support, the draft order filed by the respondent provides that the applicant should attend to arrears in section 7 expense by paying that debt down monthly, in this case by paying $100.00 per month until the arrears are paid in full. Again, I agree that this is reasonable, and an order will go to that effect.

Section 7 Expenses for HB

[32] As noted above, the applicant asks for section 7 expenses for HB. There are several reasons for denying this request.

[33] First, this claim for relief was never pled. Second, the issue was dealt with before Skarica J., who dismissed the claim. No appeal was taken of that order nor was any motion to change it brought. Third, there has been no material change since the order of Skarica J. Fourth, the applicant has failed to respond in a timely way (or in some respects at all) to disclosure requests respecting this issue, despite having given undertakings through counsel to do so. Finally, the applicant has not led any satisfactory evidence of HB’s expenses, how much of those expenses has been paid for by the applicant and how much by HB, and of HB’s needs. The record before me on this issue is largely hearsay and is replete with gaps (see Durso v. Mascherin, 2013 ONSC 6522, at paras. 36 – 42).

[34] In all these circumstances, this request for relief respecting HB’s section 7 expenses is dismissed.

Summary

[35] In summary, TB will reside primarily with the respondent, the parenting time schedule proposed by the respondent will be imposed, the applicant will pay child support, section 7 expenses, and arrears of both child support and section 7 expenses, as described above. The applicant’s requests for relief are dismissed.

The Draft Order

[36] The respondent’s counsel has filed a detailed draft order (marked as exhibit A at trial) that reflects the conclusions set out in these reasons. To the extent that these reasons have not specifically addressed provisions found in the draft order, I note here that such provisions are related to, and necessary for, the proper execution of the order and I agree with them. Subject to the following amendments, an order will go in the form filed by the respondent.

[37] The amendments are as follows: Para. 1: the figure $673 will be deleted and replaced with $662.00; the word “imputed” will be deleted; the figure $72,000 will be deleted and replaced with $70,842. Para. 2: the figure $3,086.00 will be deleted and replaced with $4,817.00; the date June 30, 2022, will be deleted and replaced with March 31, 2023.

Costs

[38] If the parties cannot agree on costs, the respondent may serve and file brief written submissions respecting costs within 10 days of the release of this judgment. The applicant may serve and file brief responding costs submissions within 7 days of the receipt of the respondent’s costs submissions. The respondent’s reply, if any, may be served and filed within 3 days of the receipt of the applicant’s submissions.

I.R. Smith J. Released: March 23, 2023