Court File and Parties

COURT FILE NO.: FC-22-263 DATE: 2023/04/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Danika Garby Applicant – and – Jonathan Sicard Respondent

COUNSEL: Karine Jackson for the Moving Party Self-Represented

HEARD: March 30, 2023

REASONS FOR DECISION

Madam Justice K.A. Jensen

1This is a decision in a summary judgment motion, brought by the Applicant, Ms. Danika Garby. For the following reasons, I am granting her motion for summary judgment.

Factual Background

2The Applicant and Respondent were married on December 1, 2008. They separated on July 18, 2021 and have been living separate and apart ever since.

3There are three children of the marriage: Trevor Sicard (11 years old); Alyssa Sicard (9 years old); and Brooke Sicard (6 years old). All three children were born and raised in Ottawa, Ontario.

4The children have resided primarily with the Applicant since the separation.

5The Respondent has court ordered supervised parenting time with the children. He has not exercised his parenting time since July 2022.

6The Respondent is employed by the Ottawa Catholic School Board as a teacher. He has been a teacher for 17 years and throughout the parties' relationship. He stopped working when he took personal leave in September 2022. According to his Financial Statement, sworn November 17, 2021, his income is $76,591.80 per year. He remains a teacher in good standing with the Ontario College of Teachers.

7The Applicant is a naturopath. She earned $53,787.00 in 2022. She is the sole owner of a health clinic named Orleans Naturopath.

8On February 11, 2022, Justice Hackland issued a restraining order against the Respondent, preventing him from having any contact with the Applicant and the three children. Justice Hackland's order was based on a finding that: "Mr. Sicard's behaviours toward Mrs. Sicard have been harassing in nature and there may be mental health issues. Mr. Sicard has access to firearms."

9In addition to the restraining order, Justice Hackland granted the Applicant temporary sole decision-making responsibility for the children and primary residence with the Applicant. He also ordered supervised parenting time for the Respondent.

10The matter returned before Justice Hackland on February 25, 2022, with both parties in attendance. The order was continued on an uncontested basis and Minutes of Settlement were signed.

11On February 25, 2022, the Respondent agreed that: the temporary order of Justice Hackland dated February 11, 2022, and restraining order would continue; he would start therapeutic supervised parenting time to assist in improving his relationship with the children and not expose them to ongoing separation conflict; he would seek a referral for a full mental health assessment to be completed by a psychologist or psychiatrist; he would provide proof that he disposed of his firearms; he would stop insisting to meet/speak/work with the Applicant, and focus on parallel parenting; and finally, he would use Our Family Wizard (“OFW”) for the children's updates only.

12Following the February 11, 2022 Order, the Respondent did not make arrangements to have supervised parenting time with his children.

13On April 19, 2022, the Respondent was arrested and charged for breaching the restraining order and continuing to harass the Applicant. He was released on bail with no contact conditions with her.

14On May 11th, 2022, following criminal charges, the parties attended a Case Conference. There, the Respondent agreed to set up supervised parenting time through Renew Supervision Services ("Renew") for the following three months. He agreed to pay the fee for three months of visits, which was $2,500, with three visits per week. Following the Case Conference, the Respondent did not contact Renew to set up his parenting time.

15At the prompting of the Applicant and her counsel, the Respondent began to exercise his supervised parenting time with the children in June 2022. He had nine supervised visits with them between June 14, 2022 and July 27, 2022. On July 30, he cancelled all future visits.

16On August 30, 2022, the Respondent called the children and told them that he had moved to Massachusetts. Since then, the Respondent has continued to have virtual contact with the children, but he has utilized each occasion to draw them into the litigation and blame the Applicant for the family breakdown.

17On November 2, 2022, the Respondent pleaded guilty to breaching the restraining order and received a two-year conditional sentence, including a two-year no-contact order with the Applicant. As a result of his plea, the harassment charge was dropped.

18On Sunday February 5, 2023, the Respondent contacted the Applicant directly, thereby breaching his probation conditions. The breach was reported to the Ottawa Police Services. The breach has been confirmed and there is currently a warrant for the Respondent's arrest.

19The Respondent owes $5,000 in costs to the Applicant for the February 11, 2022 motion, to be enforced as support by the Family Responsibility Office.

Summary Judgment Motions

20Summary judgment motions are governed by Rule 16 of the Family Law Rules (“FLR”). This Rule allows a party to make a motion for summary judgment for a final order without a trial on all or part of any claim made. Specifically, subsection (4) of Rule 16 provides that, should it be found that there is no genuine issue requiring a trial, then a final order without a trial shall be given.

21If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. If a genuine issue requiring a trial is found, then a trial itself is needed. The onus is on the moving party to persuade the court that there is no genuine issue requiring a trial.

22Rule 2 of the FLR should be read in conjunction with the principles above to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense, and is appropriate to its importance and complexity. "A summary judgment motion is a tool that can contain and control a child's drift in litigation": A.E.A. v. F.A.H., 2015 ONCJ 339, at para. 16.

23A summary judgment motion cannot be defeated by vague references by the Respondent as to what evidence may be adduced if the matter is allowed to proceed to trial.

24Once the moving party on a summary judgment motion has met its burden of proof, the Responding party must either refute or counter the moving party’s evidence. (see: O’Dacre v. Cross, 2019 ONSC 2265, paras 20-22)

25The responding party may not rest on mere allegations or denials of the party's pleadings but must set out – in affidavit material or other evidence--specific facts establishing a genuine issue requiring a trial.

26In the present case, I find that there is no genuine issue for trial. Mr. Sicard testified during the hearing. He stated that he could bring evidence from family and friends that he was a good father and that he had been very involved in raising his children. However, as I told Mr. Sicard during the hearing, if he wanted to present that evidence, he should have obtained affidavits from these witnesses. He was required to put his best foot forward to defeat the motion for summary judgment. I accept Mr. Sicard's evidence that he was an involved father and that he loves his children very much but that is not enough to defeat the motion for summary judgment. What follows are my decisions with respect to each of the heads of relief requested by the Applicant.

Parenting Time and Primary Care of the Children

27Parenting decisions are determined under ss. 16 and 16.1 of the Divorce Act. Under s. 16.1(1) of the Divorce Act, a court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage on application by either or both spouses.

28The sole consideration for the determination of parenting decisions under the Divorce Act is the best interests of the child pursuant to s. 16(1). Under s. 16(2) and (3), the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being" while considering "all factors related to the circumstances of the child".

29Section 24 of the Children's Law Reform Act (“CLRA”), and s. 16(3) of the Divorce Act outline the factors that relate to the child's best interests, which include, among others: the ability and willingness of each person to communicate and cooperate with one another on matters affecting the child; and, any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

30In determining what is in the best interests of the child, the court may take into consideration the past conduct of any person, if the conduct is relevant to the exercise of the person's decision-making responsibility, parenting time or contact with respect to the child.

31In a case similar on the facts to this motion, DE v SL, 2020 ONCJ 284, the Court ordered sole decision-making responsibility to the moving father and parenting time to the responding mother at the discretion of the father on a summary judgment motion. In that case, the children had been residing with their father since separation and had supervised access with their mother. The mother was abusive towards the father and the children, having abused the father physically and emotionally in their presence. The responding mother had made limited attempts to exercise her parenting time. She continuously addressed the ongoing litigation with the children and put down the father during discussions with the children during her limited contact with them. The court heavily weighed the mother's history of violent criminal behaviour, the lack of steps taken by the mother to address the issues impacting her parenting and the lack of effort she had made to expand her parenting time in a child-focused manner.

32In the present case, I make the following findings that are relevant to parenting time:

(a) Mr. Sicard has had limited, supervised parenting time between July 2021 and August 2022; (b) He has not exercised any in-person parenting time since July 2022; (c) Mr. Sicard has left the country; (d) He has refused to attend any scheduled telephone or video parenting time offered to him on a weekly basis since leaving the country; (e) Mr. Sicard has made no efforts to resolve the issues that are most negatively impacting his ability to parent, namely his anger, impulse control and communication skills; (f) He continues to involve the children in adult issues and this litigation during his limited interactions with them by bombarding them with frequent and highly inappropriate text messages, even when asked by his children to stop; (g) Mr. Sicard has failed to put forth a comprehensive plan of care; (h) He is unwilling to follow court ordered conditions, and; (i) Mr. Sicard's conduct toward the Applicant has risen to the level of criminal harassment.

33Applying the considerations set out in section 24(4) of the CLRA, the children will be best served in their mother's primary and ongoing care. The Applicant has been the children's primary caregiver throughout their lives and has continued to fulfill that role since the date of separation. She remains in the region in which they are habitually resident. Their school, doctor, dentist, and support network are all present here in Ottawa. She has put forth a child-focused plan of care that emphasizes stability for the children. They will be remaining in the school that they attended prior to separation. When they graduate elementary school, they will continue to attend the local public schools in their catchment in Orleans, Ontario so that they can maintain long-lasting friendships amongst their peer group.

34The Applicant continues to facilitate contact between the children and their grandparents (both maternal and paternal). She has also contacted the Respondent via counsel every week to remind him of his virtual parenting time on Sundays. Despite her efforts to support a continued connection between the Respondent and the children, he has chosen not to participate.

35The Applicant has attended all of the children's appointments and facilitated their continued participation in their extracurricular activities throughout the relationship and after separation.

36The Respondent has shown a clear pattern of behaviour in which he is inattentive to the needs of the children. He spends his time with them putting down the Applicant, discussing the ongoing family litigation and telling them that he will not see them again. He has yet to illustrate that he has the tools to identify and meet the best interests of the children.

37I find that the best interests of the children in this case are best met with the Applicant mother having primary care of the children.

38Given that the Respondent does not live in Canada, it is unknown when he will be able or available to have regular in-person parenting time with the children. However, I will provide an Order granting him supervised video-conference parenting time twice a week. This will enable him to maintain contact with his children.

39If he returns to Canada, the Respondent may have in person supervised parenting time twice a week. Provided the supervised parenting time goes well, the supervision may be decreased and the parenting time increased, subject to the views of the children's therapists and the result of a Voice of the Child Report.

40The Order set out below regarding parenting time is designed to provide the Respondent with a way of re-establishing his relationship with the children and working towards shared parenting time with the Applicant. He clearly loves his children and was a good father to them in the past. If the Respondent gets his life back on track, I think it is likely that he will enjoy a wonderful relationship with his children in the future.

Decision-Making Responsibility

41Similarly, the Respondent's inability to communicate in a reasonable, respectful, and child-focused manner to date does not inure to his benefit with respect to decision-making responsibility.

42To find that shared decision-making responsibility is appropriate, there must be some evidence that parents in a high conflict parenting situation are able to cooperate and communicate sufficiently to act in the best interests of the child (Abaza v. Adam, 2023 ONSC 1776, at paras 37-39, citing Kaplanis v. Kaplanis). While the communication does not have to be perfect or ideal, the parties must at least be able to make decisions and resolve issues for the benefit of the child.

43I do not find that there is the requisite level of cooperation between the parties to enable shared decision-making responsibility to happen.

44Furthermore, the Respondent's history of harassing behaviour which lead to a restraining order being put into place illustrates the safety challenges inherent in a joint decision-making responsibility regime.

45The Applicant has been the de facto decision-maker since July 2021 and has continued to make decisions in the absence of the Respondent's participation. The decisions she has made to date regarding their health, education and general well-being have been child-focused, yielding a positive benefit to the children.

46The Court's Order will enable the Respondent to stay apprised of the children's education and wellbeing through third parties. In the event that the Applicant were to make a decision that the Respondent felt was contrary to the best interests of the children, he will have access to the necessary information to bring a motion on the issue.

Child Support

47Unless otherwise provided by the Federal Child Support Guidelines (“the Guidelines”), the amount of an Order for the support of a child or children under the age of majority is the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought: Federal Child Support Guidelines, s. 3(1).

48Although the Respondent has a job in Ottawa, he has taken a personal leave and is not receiving any income. He has moved to Massachusetts and is currently living in his parents' basement. The Respondent states that he has no ability to earn an income. Although he is licensed to teach in that State, he testified that he would have to return to university and complete a Masters' degree before he would be given a job.

49The Respondent testified that he cannot return to Ottawa to take up his position as a teacher here because he has no money for the move or to rent an apartment. However, that statement is contradicted by evidence provided by the Applicant that he had taken a trip to Arizona and was thinking of moving to Costa Rica. Therefore, I do not accept the Respondent's statement that he cannot return to Ottawa because he lacks the means to do so.

50It is likely that the outstanding warrant for the Respondent's arrest is a factor in his decision about whether to return to Ottawa or not. However, that is not something that I am required to consider in determining child support. As the Applicant pointed out in her factum, the court has frequently refused to reduce a payor's child support obligations where they are underemployed or unemployed as a result of their own criminal conduct (see for example: Luckey v. Luckey and Billingsley v. Billingsley, 2010 ONSC 3381).

51There is a duty on the spouse to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children: Oschisor v. Oschisor, 2018 ONSC 3306 at para 30.

52The Respondent has the educational credentials and 17 years of employment experience to secure a full-time teaching position. He left his position with the Ottawa Catholic School Board in 2021 of his own accord; he elected to take unpaid leave in the absence of any medical reason. He was not fired or laid off. His employment in Ottawa as a full-time teacher remains available to him. His lack of income at this time and throughout this litigation has been entirely voluntary, which triggers section 19 of the Guidelines.

53Section 19 of the Guidelines stipulates that a party's income may be imputed where the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.

54The Respondent has not taken sick leave from his position. He provided no evidence that his health needs are preventing him from working. Rather, he provided the implausible excuse that he can not afford to return to his job in Ottawa, and that he was required to obtain a Masters' degree before he could work in Massachusetts.

55Since the Respondent has not provided ongoing and fulsome financial disclosure, the Court is left with little choice but to impute an income to him with the information available pursuant to section 19(1)(a) of the Guidelines. The Respondent is qualified to work as a teacher in both Ontario and Massachusetts, where he currently resides. The low-end salary for a teacher in that region is USD $50,000. Previously, while employed as a teacher in Ottawa, Ontario, he earned CAD $76,592. I am therefore, imputing an income of $76,592 to the Respondent.

56Based on the imputation of an income of $76,592, the Respondent owes child support in the amount of $1,520 per month commencing August 2021.

57The Respondent has paid $11,100 in child support to date. This brings the child support arrears to a total of $17,781.00 as of the date of March 30, 2023 ($1,520 x 19 months - $11,100 paid by the Respondent to date).

58Although the Respondent has a warrant for his arrest in Canada, as a result of breaching the restraining order, I find that this is not a reason to reduce his child support obligations. Should he choose to remain in the United States, he has the ability to earn a comparable income there.

Section 7 Expenses

59Section 7(1) of the Guidelines directs the court to set the amount of child support for s. 7 expenses that will cover all or a portion of the expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense. Section 7 expenses include extracurricular activities, camps, dental expenses that are not covered by insurance, extra school expenses, post-secondary education, etc.

60Section 7(2) of the Guidelines states that a parent's share of an extraordinary expense is determined in proportion to the parties' respective incomes.

61In the present case, the children remain engaged in the same activities in which they participated prior to separation. It is reasonable, based on the historic enrolment of the children in activities while the parties were together, that the children continue to enjoy their extra-curricular activities.

62Given the Respondent's history of withholding child support, disobeying court orders and failing to provide his financial disclosure, there is little reason to believe that the Applicant will be able to work cooperatively with him on a go-forward basis to recover contributions for section 7 expenses as they are incurred. It is therefore reasonable for this Court to fix the Respondent's contribution towards the section 7 expenses of the children.

63Based on the parties' incomes, their section 7 contributions should be divided on a 59/41 basis. The children's current and foreseeable section 7 expenses are $17,742 per year. Therefore, the Respondent's obligation is $10,467 for the year, which amounts to $872.34 per month.

64The Applicant indicated that the arrears for s. 7 expenses for 2022 were $5,887.72, based on the Respondent's imputed income of $76,591 per annum.

Equalization

65The Ontario Court of Appeal in Gomez v. McHale, 2016 ONCA 379 as well as Chao v. Chao, 2017 ONCA 701 confirmed that summary judgment can be entered in relation to equalization under s.5(1) of the Family Law Act (“FLA”).

66Where the party moving for summary judgment has marshalled all the evidence that they are able to provide, and it is apparent that the other party will not be providing further financial disclosure, the summary judgment procedure is appropriate. The Respondent has had ample opportunity to put his "best foot forward" and provide fulsome financial disclosure. He has not done so.

67The Applicant has completed a Net Family Property statement using the financial disclosure made by the Respondent in his November 17, 2021, Form 13.1 Financial Statement. Based on this information, there is an equalization payment owing to her in the amount of $22,703.71.

68In the absence of further, or more detailed financial disclosure from the Respondent, this is the best evidence that the Court has for a determination of this issue.

Costs

69The Applicant requests costs on a full indemnity basis in the present case. I am not prepared to order costs on a full indemnity basis. While it is true that a party's limited financial circumstances cannot be used as a shield for liability for costs, I am also required to consider proportionality in assessing costs as well as the impact that a costs award would have on the payor's ability to fulfill his child support obligations: Quinn v. Nicholson, 2013 ONSC 1125, at para 6.

70However, I am prepared to consider costs submissions from the Applicant on a partial indemnity basis. Applicant counsel is to provide a Bill of Costs with brief submissions within 30 days of the date of this decision.

Conclusion and Orders

71The Court grants summary judgment to the Applicant. The following orders are issued:

Primary Residence and Decision-Making

1. The Applicant shall have sole decision-making responsibility for the children of the marriage, Trevor Sicard, born February 10, 2012, Alyssa Sicard, born October 1, 2013, and Brooke Sicard, born November 15, 2016 (collectively "the children"), and the children's primary residence shall be with the Applicant.
2. The Respondent may make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. The parties intend this paragraph to provide the Respondent with access to any information or documentation to which a parent of a child would otherwise have a right of access.

Parenting Time

3. The Respondent’s parenting time with the children shall be supervised at his cost, either in-person or by videoconference, as follows: a. Up to two visits per week of up to three hours each in duration, subject to the supervisor’s availability. After three months of supervised contact. The Respondent’s time with the children may be increased and the supervision may be decreased, if deemed in the best interest if the children, as determined by the Applicant and in consultation with the children’s therapist and taking into account the Voice of the Child report completed as per subclause (b) below. b. After three months of supervised visits, a Voice of the Child Report will be completed by Chantal Carvallo, Julie Guindon or John Butt. The Respondent will have discretion as to who completes the report between the three people named, or the parties may agree on another qualified professional to complete the report. The cost of the report will be shared equally between the parties.

4. The Respondent may seek a court review of his parenting time no less than six months from the date of the Final Order. Prior to the Respondent seeking a review of his parenting time, he will complete the following: a. Anger Management... Especially for Parents program offered by Family Services Ottawa; b. Parenting Through High Conflict Separation and Divorce program offered by Family Services Ottawa; c. A full mental health assessment to be completed by a psychologist or psychiatrist, a copy of which to be provided to the Applicant and the Court.

Child Support and Special Expenses Arrears

1. As of April 1, 2023, the support arrears owed to the Applicant by the Respondent are fixed in the amount of $17,781 for the period covering August 2021 to March 30, 2023.
2. The Respondent shall pay the Applicant the fixed amount of $5,887.72 for the arrears of the children’s section 7 extraordinary expenses incurred in the year 2022.

Ongoing Child Support

3. The Respondent's income for purpose of child support shall be imputed at CAD $76,591.80 per annum, in accordance with his Financial Statement sworn November 17th, 2021.
4. The Respondent shall pay child support to the Applicant for the children, the children of the marriage, Trevor Sicard, born February 10, 2012, Alyssa Sicard, born October 1, 2013, and Brooke Sicard, born November 15, 2016, in the amount of CAD $1,520 per month, in accordance with Tables under the child support guidelines based on the Respondent's annual income of $76,591.80, commencing the first of the month, and continuing on the first day of each month that follows.
5. Child support owing shall be adjusted in accordance with the Tables, under the Guidelines, every July 1 of each year in which child support is payable, in accordance with the Respondent's reported income.

Ongoing Fixed Special Expense Payments

6. The Respondent shall pay CAD $872.34 per month (for a total of CAD $10,468.13 per year) to the Applicant, towards the cost of the children's special or extraordinary expenses pursuant to section 7(1) of the Guidelines.

Enforcement

7. Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
8. Pursuant to section 26(1) of the Divorce Act and section 12 of the Guidelines, the Respondent’s child support arrears and section 7 extraordinary expense arrears shall be secured and payable by way of pension rollover from his pension with the Catholic School Board of Ontario/Ontario Teacher Pension Plan to the Applicant.

Disclosure

9. The Respondent shall, by June 1 of each year in which child support is payable, deliver to the Applicant a copy of his Notice of Assessment, Notice of Reassessment, if any, and Income Tax Return for the previous year, in order to determine ongoing payments for child support in accordance with the Tables under the Guidelines.

Life Insurance

10. The Respondent shall designate the Applicant as irrevocable beneficiary (in trust for the children) of his life insurance policy or policies to secure his child support obligations.
11. The Respondent shall maintain a life insurance policy for a minimum coverage of CAD $174,317.00.
12. The Respondent will send proof of the life insurance policy within 30 days of the order or sign a third-party authorization form allowing the Applicant to contact the service provider directly.

Pursuant to the Children's Law Reform Act, this Court orders that:

13. The children's important documents shall carry the Applicant's address and be kept in the Applicant's home. These documents include, but are not limited to Passport, Birth Certificate, Social Insurance Number, Health Card, and Report Cards. The Respondent shall be provided with a Certified Copy of the children's important documents by the Applicant.
14. The Applicant may apply for the children’s passports without the consent of the Respondent.

Equalization Payment

Pursuant to the Family Law Act, this Court Orders that:

15. The Respondent shall pay the Applicant an equalization payment of CAD $22,703.71.

Other

16. An Order for prejudgment and post-judgment interest rate of __% per year effective from the date of this order, pursuant to sections 128 and 129 of the Courts of Justice Act. A payment in default bears interest only from the date of default.

This Order shall be registered in Massachusetts pursuant to the Interjurisdictional Support Orders Act, 2002.